The Swamp Stomp
Volume 16, Issue 21
On Friday, May 20, 2016 the US Army Corps of Engineers released the pre-publication of the proposed 2017 Nationwide Permits. The purpose of this release is to start the public comment process. This process officially starts when the 2017 nationwide permits are published in the Federal Register. The public comment period ends 60 days from publication in the Federal Register.
There have been a number of significant changes to the existing permits along with the creation of two new permits. The Corps of Engineers lists 52 nationwide permits along with NWP A and NWP B. NWP A is for the removal of low head dams. Low head dams are dams constructed to pass up stream flows over the entire width of the dam crest on an uncontrolled basis. These types of dams are often associated with stream and river restoration projects. NWP B is for the construction of living shorelines. These types of projects are often associated with title areas that include the use of vegetation for shore erosion control. Oftentimes fill is required to create a suitable planting substrate.
There are a number of changes to the existing permits. These are just a highlights of the some of the permit condition changes. These are explained in more detail in the pre-publication document.
Nationwide Permit number 3 (maintenance) has in the past been used for some stream restoration projects. The new nationwide permit does not authorize maintenance dredging for the primary purpose of navigation; beach restoration; or new stream channelization or stream relocation projects. It would seem that the intention is to move these activities to the new NWP A.
Nationwide Permit 12 (utility line activities) has had some changes. The Corps will allow the use of temporary mats for construction activities. They also added a note referencing the definition of a single and complete linear project. The nationwide permit does authorize inadvertent returns of drilling muds through subsoil fractures better known as frac-outs that might occur during directional drilling operations to install utility lines.
The waters of the US definition debate lingers on in this publication. Currently, the most recent published 2015 version of the waters the US definition remains on hold. However, one of the topics that arose from the definition debate was the increase in wetland disturbance authorized by the new nationwide permits. The Army Corps of Engineers has more or less held the same acreage limits for the new permits. However, in the pre-publication discussion related to acreage limits the Corps appears open to expanding these limits. They specifically request public comment to this end. Some of the comments that were published in the waters the US definition discussion seem to indicate that while the EPA and Army Corps were expanding what would be defined as a waters of the US at the same time they were also indicating that they would allow more impacts through the nationwide permit process.
There are also a set of classes that apply to certain types of waters. A number of the nationwide permits are applicable only to certain types of waters. These include:
- navigable waters of the US
- all waters of the US
- nontidal waters of the US
- nontidal wetlands
- coral reefs
- special aquatic sites
Finally, the current 2012 nationwide permits included renewable energy projects. These were either land-based or water-based. A significant amount of change has been proposed for these permits.
We at the Swamp School are in the process of preparing an easy to follow guide to the new nationwide permits. If you would like to download a free copy of this guide please click the button below and will be happy to send you one as soon as it’s ready. In addition please keep an eye on the Federal Register to find out when the public comment period opens. We will be posting this information to our Facebook page as soon as it’s available.
