Corps Begins Update to Nationwide Permits
All Nationwide Permits, a form of federal approval under Section 404 of the Federal Clean Water Act and Section 10 of the Rivers and Harbors Act that can authorize the discharge of dredged and fill material into “waters of the United States” including wetlands for specified categories of activities, are set to expire on March 18, 2012 unless they are reissued.
The Corps has begun its internal process to consider which Permits will be reissued unchanged, which will be modified or deleted, and which new categories of activities may be added for coverage. Changes to general conditions affecting every permit are also being considered. Applicants must generally apply to the local Corps office to seek coverage under a Nationwide Permit prior to any work and, in many cases, must demonstrate compliance with the Endangered Species Act. Nationwide Permits were last issued in 2007.
Now is the time for those who have received coverage under one of the 2007 Nationwide Permits to give serious consideration to entering contracts to complete all authorized work. Under existing rules, activities that have been authorized under one of these previous permits must be commenced or under contract by March 18, 2012 in order to remain valid and authorized work must be completed no later than March 18, 2013. Activities not meeting these terms will need to be reauthorized by the Corps under one of the new or reissued Nationwide Permits and will be required to comply with any revised conditions.
Early information from Corps headquarters suggests new Nationwide Permits are being considered for alternative energy generation projects such as wind, solar, geothermal and tidal facilities. Private boat docks, hoists and sheds are also being considered for their own category of Nationwide Permit, although in the Puget Sound area, regional general permits have facilitated federal approval of such uses. Because Nationwide Permits can authorize certain activities with less public involvement and fewer onerous standards, they are favored by industry and viewed with skepticism by the environmental community. Both sides are already lining up to influence the final 2012 Nationwide Permits.
Formal notice of the proposed changes to the Nationwide Permit program should be published in the Federal Register by the summer of 2011. This will also set in motion the process for the Corps’ Seattle District and Washington’s Department of Ecology to propose local limitations on the use of Nationwide Permits. The Seattle District is authorized to impose specific regional limitations and conditions while Ecology may condition or deny any Nationwide Permits through its water quality certification authority under Section 401 of the Clean Water Act and its authority to make coastal zone consistency determinations for activities occurring in Counties bordering salt water. The Puyallup and Chehalis Tribes have similar Section 401 certification authority on tribal lands, as does EPA on other tribal lands. Ultimately, the most restrictive of the national, regional and state (or tribal) limitations on Nationwide Permits will apply.