The Swamp Stomp

Volume 16, Issue 24

The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize waters of the US and wetlands activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.  The idea of a nationwide permit is that the activity will result in no more than minimal individual and cumulative adverse environmental effects. There are currently 50 NWPs. These NWPs were published in the February 21, 2012, issue of the Federal Register (77 FR 10184) and expire on March 18, 2017. On June 1, 2016 the Corps published in the Federal Register a notice, that they are beginning the process for reissuing the NWPs so that the reissued NWPs will be in effect immediately after the current NWPs expire.

The U.S. Army Corps of Engineers (Corps) is soliciting comments for the reissuance of the existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also proposing to issue two new NWPs and one new general condition. The Corps is requesting comment on all aspects of these proposed nationwide permits. The reissuance process has started with this publication of the proposed NWPs in the Federal Register for a 60-day comment period. The comment period ends on August 1, 2016.  The purpose of the Federal Register notice is to solicit comments from the regulated public on the proposed new and modified NWPs, as well as the NWP general conditions and definitions. In addition to the nationwide public notice, each Corps district will publish a separate public notice to solicit comments on its proposed regional conditions for these NWPs.

There are several significant changes to the existing permits suggested in the notice that include the consideration of expanding the acreage limit allowed under some NWPs to increase up to 2 acres.  It has also been suggested by the Corps that the acreage limits be waived in some circumstances. The notice discusses how the President’s Climate Action Plan and EPA’s proposed Clean Power Plan may be reasons to increase the acreage limits and PCN thresholds of a number of NWPs including the permits related to natural gas and renewable energy production and transmission.

Two new permits specifically used for ecological restoration projects are being considered for 2017.  The removal of low-head dams is one new proposed permit.  This is often associated with stream restoration projects. The construction and maintenance of living shorelines is the other new proposed permit.  This is associated with the use of vegetation as shoreline erosion and control.

In the past some low-head dam removals may have been authorized by NWP 27, if those dams were small dams located in headwater streams. However, most low-dam removal requires individual permit authorization because it is not covered by an NWP or regional general permit. The proposed NWP will facilitate the removal of low-head dams that are no longer being used for their intended purposes or are too costly to repair. The removal of low-head dams restores ecological processes in rivers and streams and enhances public safety.

The construction and maintenance of living shorelines is a new NWP. Many living shorelines projects require individual permit authorization, and some Corps districts have issued regional general permits to authorize different types of living shorelines. These types of projects are often undertaken by waterfront property owners in areas like the Chesapeake Bay as a way to stabilize the shoreline.  It is often an alternative to using traditional stabilization methods like bulk heading rip-rap placement.  Most of the living shoreline construction methods require significant amounts of fill material to restore the shore bank.  The proposed NWP will provide general permit authorization for the construction and maintenance of living shorelines, which will give landowners a choice in how they can protect their property under erosion mitigation measures authorized by NWP. Bank stabilization activities are authorized by NWP 13 and if the proposed new NWP is issued, it will provide a similar streamlined authorization process as NWP 13. Both of these NWPs will result in decreased processing times and permit application costs associated with obtaining authorization under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.

Public comments are due on August 1, 2016.  There are already some comments posed supporting the expansion of the acreage limits.  We highly encourage you to send in your comments to the Corps.  The direct link to the public comments and the Corps notice is: HERE