Last Friday, the U.S. Army Corps of Engineers (COE) unveiled their proposal to reissue the Nationwide Permits (NWPs), including general conditions, definitions and modifications. The NWPs authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that will result in no more than minimal individual and cumulative adverse environmental effects. Essentially it’s a way to expedite obtaining COE approval for projects that will result in minor disturbances to regulated waters in order to balance the needs for economic development and the needs for environmental protection.
The updated NWP proposal will be published in the Federal Register within a few days. The public will have 60 days to provide comments to the Corps. However, this is only the first step in reissuance of the Nationwides before the current ones expire in March, 2017. Perhaps more important to states and tribes will be the subsequent issuance of a Public Notice by each Corps district proposing regional conditions. States and tribes will need to consider both the national and regional conditions proposed in determining how to respond to the Corps’ request for §401 Water Quality Certification and Coastal Zone Program consistency determinations. Given that the final NWPs will control decisions regarding thousands of proposed actions over the next five year period, the states’ attention to this issue is extremely important. ASWM will be providing additional information to the states and tribes to help them navigate this complex but very important process.
The new proposal to reissue the existing 50 NWPs includes some modifications, including revisions that are intended to clarify requirements to make the regulations more easily understood by the regulated public, government personnel and other interested parties. It is hoped that by increasing clarity, the new NWPs will increase compliance and therefore, improve environmental protection. Regional conditions (added at the District level) can also add another layer of review and greater protections for the aquatic environment.
Currently, there are 50 NWPs that were published in 2012 and expire on March 18, 2017. The COE is proposing two new NWPs for 2017: one for the removal of low-head dams and one for living shorelines. Twenty-one of the NWPs, including the two proposed new NWPs, require pre-construction notification (PCN) – the purpose of which is to give the district engineer an opportunity to review a proposed activity to ensure that it is authorized by the NWP. For the 2017 NWPs, the COE has developed a standard form for PCNs.
Among other things, the Corps is seeking comments on changes in the terms and conditions of the NWPs and the views of NWP users on how the 2015 Clean Water Rule might affect the applicability and efficiency of the proposed NWPs. The COE is also seeking comment on acreage limits of certain NWPs and on whether to require compensatory mitigation for all losses of intermittent or ephemeral stream beds authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 through a district engineer’s written waiver of the 300 linear foot limit. Any comments received will be considered when preparing the final decision documents for the NWPs. After the NWPs are issued or reissued, division engineers will issue supplemental decision documents to evaluate environmental effects on a regional basis (e.g., state or Corps district). Instructions for submitting comments are included in the Corps notice of the proposed NWPs.
The new NWP for living shorelines is of particular interest to the Association of State Wetland Managers, as this addition indicates a significant shift in federal policy to better accommodate green infrastructure and nature-based solutions to address problems such as coastal flooding and shoreline erosion. The COE summary sheet for the new proposed NWPs includes this description: “Authorize construction and maintenance of living shorelines for shore erosion control. Living shorelines consist of natural and man-made materials to establish and maintain marsh fringes or other living elements to reduce erosion while retaining or enhancing ecological processes. May include stone or reef structures to protect the shoreline from low to moderate waves. Does not authorize beach nourishment or land reclamation activities.”
While traditional gray infrastructure certainly has its place, studies have shown that bulkheads and shoreline hardening can have significant detrimental effects to adjacent and nearby properties as well on aquatic habitat. This new provision for the use of what some folks are calling “hybrid infrastructure” will hopefully pave the way for future considerations of the effectiveness and benefits of ecological restoration in inland aquatic environments – particularly inland floodplains. However, the extent of construction allowed under the proposed Living Shoreline NWP may be more appropriate for marine environments than for the Great Lakes or smaller inland lakes. State and tribal managers are encouraged to review the provisions for the new NWP, and to work with their Corps Districts to develop any regional conditions or limitations that may be needed in a specific geographic area. It is expected that national general permit criteria will be modified as needed by specific regional conditions in order to be most effective and appropriate for a state or tribe.
Currently it can be very challenging to navigate and complete all the permit conditions to implement wetland and/or floodplain restoration because historically the NWPs were designed to expedite traditional gray infrastructure solutions. It will be exciting to see how this new effort progresses, and what lessons it can teach us in our efforts to incorporate nature-based solutions to our nation’s water quality and quantity challenges. ASWM will let you know when the proposed rule to reissue the NWPs is published in the Federal Register. ASWM is also planning to offer information sessions to assist states and tribes in completing 401 Certification of the reissued NWPs in the coming months. So for Peat’s Sake, we hope you’ll participate in the public comment period for the federal regulations. Even more importantly we hope states and tribes will make the most of this opportunity to tailor the Nationwides to their specific state or tribal needs by working with their Corps district(s) as the process unfolds.