U.S. Army Corps of Engineers Adds Two Nationwide Permits in Proposal
On June 1, 2016, the U.S. Army Corps of Engineers (Corps) published its proposal to reissue existing nationwide permits (NWPs), general conditions, and definitions, with some modifications, in the Federal Register. The proposal introduced two new NWPs and one new general condition that would apply to all NWPs. In addition, the proposal featured modifications to the pre-construction notification (PCN) general condition that will likely have the greatest overall impact in the NWP process because authorization of many of the NWPs are dependent on the proposed PCN general condition modifications.
The new NWPs authorize categories of activities relating to: (A) the removal of low-head dams and (B) the construction and maintenance of living shorelines. The new general condition requires 33 U.S.C. 408 permission, if applicable, before NWP verification will be granted. The new NWPs and general condition, as well as the modification of the PCN general condition are highlighted below:
(A) The Removal of Low-Head Dams
The first newly proposed NWP authorizes structures and work in navigable waters of the United States, as well as associated discharges of dredged or fill material into waters of the United States, for removal of low-head dams. For the purposes of this NWP, a low-head dam is defined as a dam that is built across a stream to pass flows from upstream over the entire width of the dam crest on an uncontrolled basis. The Corps has chosen to designate a separate NWP for the removal of low-head dams because dam removal contributes to river and stream restoration by removing barriers that adversely affect ecological processes. Additionally, the Corps notes that many of the low-head dams in existence today present safety hazards to the public because they are old and poorly maintained.
In order to remove a low-head dam in compliance with the NWP, project proponents would be required to submit a complete pre-construction notification (PCN) that allows district engineers to evaluate whether the dam removal will create a sediment release that implicates a regulated discharge and whether there is a need to test sediment that might be stored in the impoundment for contaminants. Furthermore, in response to the PCN, the district engineer may impose activity-specific conditions on NWP verification or require an individual permit for the proposed activity.
(B) The Construction and Maintenance of Living Shorelines
The second newly proposed NWP authorizes the construction and maintenance of living shorelines. The Corps has chosen to designate a separate NWP in recognition of the erosion control and habitat preservation functions that living shorelines provide.
In order to construct or maintain a living shoreline in compliance with the NWP, project proponents must submit a complete pre-construction notification (PCN) for any proposed construction. The PCN will be evaluated by district engineers to determine if intertidal or subtidal habitats utilized by endangered or threatened species will be altered in a manner that implicates the Endangered Species Act. Alternatively, maintenance and repair activities related to a living shoreline would not require a PCN unless it is deemed necessary based on the NWP general conditions or regional conditions imposed by district engineers. Additionally, the Corps is proposing to place a limit on the placement of structures and fills to within 30 feet of the mean high water line.
Proposed General Condition: 33 U.S.C. 408 Permission
The Corps also proposed a new general condition which clarifies that a project proponent cannot go forward with activity potentially authorized by an NWP until the proponent has received section 408 permission. 33 U.S.C. 408 requires a project proponent to obtain permission from the Corps before engaging in activity that may alter or occupy structures or works built by the United States. Activities that might require section 408 permission may include building upon, altering, defacing, destroying, moving, injuring or obstructing by fastening to any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of such work under the control of the United States.
Any NWP activity that would necessitate section 408 permission would also require a PCN submission and will not be authorized until a district engineer issues a written NWP verification. The district engineer will not issue a written NWP verification until after the section 408 permission has been granted, or the Corps determines that section 408 permission is not required for the particularly activity.
Modifications to Pre-Construction Notification (PCN) General Condition
The Corps has proposed to make multiple modifications to the pre-construction notification (PCN) general condition. The most wide-reaching modification proposed is to require all project proponents submitting a PCN to identify the specific NWP the project proponent wants to use to authorize the activity. Some activities may be authorized under multiple NWPs, thus project proponents can choose to seek authorization under the NWP or NWPs that most readily authorize that activity.
Another modification that will affect many project proponents is the change to require a description in the PCN of mitigation measures the applicant intends to use to reduce adverse environmental effects caused by the proposed activity. This change is proposed because the Corps believes that this will further expedite the permit approval process.
The third modification that will impact many project proponents is the proposed modification to allow applicants to submit PCN’s and supporting information as electronic files. Corps districts will make it clear on their Regulatory homepages how prospective users of the NWPs can submit electronic files of PCN’s and supporting information.
Next Steps in NWP Process
The newly published proposal is in the first stage of the reissuance process which requires a publication in the Federal Register and a 60-day comment period. After the comment period has elapsed, comments are reviewed and the Corps will complete the final draft to be published 90 days before the new rule takes effect. The process will culminate with the official NWP(s), for the next five-year period, taking effect on March 19, 2017.
The above summary represents the highlights of the proposed rule. However, for a robust explanation of the process for reissuing the NWP’s, as well as the text of the proposed additions and modifications to the rule, visit Proposal to Reissue and Modify Nationwide Permits.