U.S. Army Corps of Engineers reissues Nationwide Permits, strengthens
commitment to wetlands protection, "no net loss"
The U.S. Army Corps of Engineers (USACE) will issue
nationwide permits (NWPs) in the Jan. 15, 2002, Federal Register.
Nationwide permits ensure appropriate environmental protections when
authorizing discharges of small amounts of dredge and fill material into
waters of the U.S.
"Overall, the permits are undergoing several
small but important changes," said John Studt, Chief of the U.S. Army
Corps of Engineers Regulatory Branch. "The revised permits will do a
better job of protecting aquatic ecosystems while simplifying some
administrative burdens for the regulated public. The changes also
reinforce and clarify the Corps' commitment to the 'no net loss' of
wetlands goal."
USACE sought public comment for proposed changes to
the permits in August 2001. The permits are being reissued with several
changes from the August proposal based on numerous public and federal
agency comments.
The reissued NWPs maintain the protective acreage
thresholds established in 2000, which reduced permissible acreage impacts
under a nationwide permit from 3 acres to ½ acre, to help ensure minimal
impacts to the aquatic environment.
The three significant modifications from the August
proposal to the reissued NWPs are:
1) A greater emphasis on protecting the "no net
loss" of wetlands standard, responding to public concerns. The
reissued nationwide permits require USACE regulatory offices to meet and
measure their success regarding the "no net loss" goal
programmatically. While Corps districts are not required to provide a
one-for-one replacement for impacted acreage for each individual project,
they must meet or exceed that goal for their entire program. This allows
districts to make more flexible decisions to issue timely permits while
ensuring protection of the aquatic ecosystem on a watershed basis. For
Nationwide Permits in calendar year 2000, the Corps authorized impacts to
4,374 acres of waters (which include wetlands and open waters) and
required 4,261 acres of mitigation. Nationally, the latest USACE
statistics show that in fiscal year 2001, 25,000 acres of wetlands were
filled, while 43,000 acres of wetlands were required to be created,
restored or enhanced to compensate for those impacted.
2) Strengthens protections for streams. The August
proposal would have waived a previous prohibition of no more than
300-linear-foot impacts for perennial and intermittent streams. The
reissued permits make a distinction between intermittent and perennial
(more established, permanent) streams, and allow the waiver for
intermittent streams only. To receive a nationwide permit for work that
impacts a perennial stream, the applicant can not fill more than 300
linear feet of that stream. Anything above that would be considered more
than a minimal impact and could not be authorized with a nationwide
permit.
3) Strengthens protections for mining-related permits.
The reissued permits call for re-evaluating NWP 21, which permits activity
associated with surface coal mining, once a regional environmental impact
statement jointly prepared by the Corps, the State of West Virginia, the
U.S. Environmental Protection Agency (EPA), and other federal agencies is
complete. In the meantime, the reissued permits will maintain the
additional environmental protections in the proposal. These protections
enhance the mitigation and case-by-case review requirements for using NWP
21. Corps districts will require full mitigation to offset any impacts of
discharges to waters of the United States, even though this may include
mitigation beyond what is required by a state under the project's coal
mining permit. The Corps will also require case-by-case review of all
projects seeking to use this permit to ensure that any adverse effects of
the permitted activity are no more than minimal, both individually and
cumulatively.
The revised permits are the result of extensive
coordination with the EPA and other federal agencies. The full text of the
nationwide permits will be posted in the Jan. 15, 2002, Federal Register
at http://www.access.gpo.gov/su_docs/aces/aces140.html. To compare the
revised permits to the August 2001 document, look under the August 9 entry
in the Federal Register.
"Nationwide permits are general permits that
authorize categories of activities which the Corps has determined will
have minimal impacts on the aquatic environment, individually and
cumulatively, when conducted in accordance with the permit
conditions," Studt explained. "However, the Corps will continue
to require an individual permit for any project, whether covered by a
general permit or not, which it determines would have more than minimal
environmental impact."
The replacement nationwide permits will take effect
March 16, 2002, 60 days after being published in the Federal Register.
For more information on the U.S. Army Corps of
Engineers Regulatory Program, visit the program's Web page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
Questions and Answers - Nationwide Permits reissue -
January, 2002
Q. Why are you issuing Nationwide Permits now?
A. By law (the Clean Water Act of 1977), the Corps must reissue nationwide
permits every five years.
Q. How many comments did you get on the proposed Nationwide
Permits and what was the nature of those comments?
A. We received approximately 2,100 comments total. Of these, about
1,700 were identical postcards as part of a mail campaign. We received
about 400 letters, of which about 70 were form letters. The three major
concerns centered on support for maintaining the "no net loss"
goal, on the importance of protecting streams, and surface coal mining,
all of which were addressed in the final changes.
Q. What happens between the time when the old permits expire and
the new ones become effective?
A. First, 60 days are needed between the announcement in the Federal
Register and when the permits become effective to give state governments
time to take their final positions on Section 401 water quality
certification and coastal zone management consistency. Since the
nationwide permits from 1996 expire Feb. 11, 2002, 32 nationwide permits
will not be available between Feb. 11 and March 16, 2002. Any impact on
the regulated public will be minimal since permit applicants can still
apply during this time, and Corps districts can still evaluate permit
applications. The Corps cannot make decisions until March 16, 2002, but
the districts can evaluate the applications received.
Q. How do the Nationwide Permits impact mitigation?
A. Some of the nationwide permits, particularly NWP 21, Surface Coal
Mining, will require more stringent mitigation. In addition, the Corps has
directed each district to ensure that it meets the "no net loss"
of wetlands on an acreage basis.
Q. How do the new NWPs protect endangered species?
A. General Condition 11 relates directly to endangered species. The
standard to protect endangered and threatened species applies across the
regulatory program and is unchanged since 1991.
Q. What is the role of vegetated buffers in mitigating for
impacts to the aquatic environment?
A. Like wetlands, vegetated buffers are a critical need for the
overall aquatic environment, and in fact, many vegetated buffers are also
wetlands. The ultimate purpose of creating vegetated buffers (and
wetlands) is to protect the aquatic ecosystem. Sometimes the best
protection is provided by a wetland, sometimes a vegetated buffer, and
sometimes a combination of the two. The Corps' regulatory intent is to
make the best mitigation choice for aquatic environment based on the needs
of the watershed. Finally, it's important to note that Corps districts
must meet the "no net loss" of wetlands goals programmatically.
So, if the best answer in a given situation is to create a vegetated
buffer as mitigation for a wetland, the district must still achieve enough
acreage in wetlands mitigation elsewhere to meet the no net loss goal.
Ultimately, the big winner in such a decision is the aquatic ecosystem.
Q. How do the NWPs relate to the Regulatory Guidance Letter (RGL)?
A. The RGL establishes general guidelines which relate to mitigation for
all permitted actions, whether they are minimal impacts as permitted with
a nationwide or other general permit, or more substantial impacts covered
with an individual permit. General Condition 19 contains more specific
requirements applying to NWPs in particular. The RGL is currently
undergoing interagency review.
Q. How do Nationwide Permits address cumulative effects to the
aquatic environment?
A. The Corps' district engineers have been given the authority to evaluate
cumulative adverse effects under NEPA and the Clean Water Act, Section 404
program. For NWPs, it is also important to note that each NWP
authorization can only impact ½ acre. The Corps districts evaluate
cumulative adverse effects based on a watershed perspective. In some
watersheds, a small incremental increase in impacts will be of concern,
while in others the impacts can be mitigated.
Q. How do the Nationwide Permits improve compliance by clarifying
and streamlining the permit process while still ensuring protections to
the aquatic ecosystem?
A. There are several changes intended to improve compliance by clarifying
and streamlining the process. First, Corps districts may waive the
prohibition that no more than 300-linear-feet of intermittent streams can
be impacted with a nationwide permit, when environmental impacts are
minimal. This will allow some minimal activities that currently would
require an individual permit to use a NWP instead. The Corps is retaining
the prohibition for perennial streams. We believe that in general, impacts
to more than 300 linear feet of a perennial stream will be more than
minimal, so we are requiring an individual permit for such projects. The
Corps also simplified General Condition 26. While requiring all permitees
to meet FEMA-approved state and local floodplain standards, it no longer
requires applicants to document that they have met them with additional
paperwork because the Corps has found this additional documentation
unnecessary to ensure compliance. For NWP 31, the Corps has clarified that
impacts from routine maintenance relating to flood control projects only
need to be mitigated once, at the time the maintenance baseline is
established. Finally, there is also a new General Condition 27, which
allows the Corps to identify the construction period's length, exceeding
the grandfathering provision of current NWPs. This means that projects
that must receive other permits and/or will take a long time to construct
will have an adequate construction period.
Q. How do you measure mitigation?
A. The Corps believes that mitigation should compensate lost functions and
values resulting from permitted activities, and determines mitigation
requirements accordingly. However, the Corps has also directed district
offices to ensure that wetlands impacts are mitigated at least one for
one, on an acreage basis, across the district as a whole. The Corps
inspects and enforces those mitigation requirements on as many projects as
we can. For wetland impacts, we determine whether the permitee has
completed the mitigation required and if not, require additional work by
the permitee to ensure the adverse effects are mitigated. The Corps is
currently upgrading its internal databases to better track impacts and
mitigation in the future.
Q. What changes did you propose in August and leave intact?
A. Please see separate chart.
Q. How does the recent Supreme Court ruling regarding isolated
wetlands affect these proposed changes (SWANCC case)?
A. It does not. The SWANCC decision related to the jurisdiction of the
Clean Water Act over non-navigable, isolated, intrastate waters. Permits
under Section 404 of the Clean Water Act, including Nationwide Permits,
are only required for discharges into jurisdictional waters.
Q. Will the changes impact the workload of USACE regulators?
A. Not significantly. These permits constitute little change in the
permits since March, 2000, and thus should have a negligible impact on
regulators' workload. The only significant increase in work relates to
greater oversight regarding NWP 21 - surface coal mining - but most of
this work occurs in only a few Corps districts. The Corps does not
anticipate that these NWPs will increase turn-around times for permits.
Q. What is the difference between intermittent and perennial
streams and why is it important?
A. Perennial streams flow 365 days a year in a normal year. Intermittent
streams have short or lengthy periods of time when there is no flow in a
normal year. Both are important ecologically, however, because many
intermittent streams have lengthy periods of no flow, impacts to more than
300 linear-feet of an intermittent stream may still be minimal in some
cases.
Q. Has the Corps coordinated these changes with other federal
agencies?
A. Yes. USACE coordinated with the U.S. Environmental Protection Agency,
U.S. Fish and Wildlife Service, National Marine Fisheries Service, Federal
Emergency Management Agency, Office of Management and Budget, the
President's Council on Environmental Quality, and others.
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