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Association of State Wetland Managers

The Compleat Wetlander: States Begin Reviewing Section 404 Nationwide Permits

Every five years the U.S. Army Corps of Engineers (Corps) reissues the nationwide permits as required by the Clean Water Act.  This week the U.S. Army Corps of Engineers (USACE)  posted the revised and renewed nationwide permits that will be in effect for the next five years.   The Corps is reissuing 48 permits and adding two new ones.  The existing nationwide permits, which expire on March 18, 2012 will be replace by the new nationwide permits, to take effect March 19, 2012. These new nationwide permits will be published in the Federal Register on or about February 21, 2012.  They have been posted to the USACE website along with other background materials at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/
NationwidePermits.aspx

The nationwide permits are issued for proposed activities that the U.S. Army Corps of Engineers has determined to be minor in scope with minimal projected impacts.  Nationwide permits (NWPs) authorize specific types of activity, including construction activities. Permit applications may not be required for activities authorized by a general permit (the rules vary from permit to permit). General permits are valid only if the conditions applicable to the permits are met. If the conditions cannot be met, an individual permit is required. General permits reduce the amount of paperwork and time required to start a project.  They represent the great majority of actions authorized under Section 404 of the Clean Water Act.  There are three categories of general permits:  nationwide permits, programmatic general permits and regional general permits.  Altogether they represent 93% of the permits issued in 2011.

For many states (those without separate general permit agreements such as a programmatic or regional permit), the publication of the nationwide permits initiates 401 certification.

Section 401 of the Clean Water Act prohibits a federal agency from issuing a permit or license for an activity which may result in a discharge into waters of the U.S. until the state or tribe has certified that the activity will not result in a violation of state/tribal water quality standards.  After reviewing the proposed activity, the state or tribe may grant certification, grant with conditions necessary to ensure compliance with water quality standards, deny, or waive certification. http://water.epa.gov/lawsregs/guidance/wetlands/sec401.cfm This is a very broad authority that is constrained by the states statutes and regulations.  Section 401 certification can be applied to any federal permit or license including Section 404 of the Clean Water Act.

The ability to grant, condition, deny or waive certification applies to both individual and nationwide Section 404 permits.  However the result of the action to grant, condition, deny or waive certification is different when applied to the nationwide permits than to individual permits.  Certification of an individual permit affects only that permit.  By contrast, the application of 401 certification to the nationwide permits every five years can affect hundreds of authorizations annually in a single state.

With the publication of the new nationwide permits, states and tribes will immediately initiate their own review process.  This review may include consideration of the potential impact of these activities on waters of the state that are not Waters of the U.S. such as groundwater.  It may evaluate the potential for the discharge of pollutants.  For example a number of states condition nationwide permits with best management practices such as installing erosion control measures and storing toxic chemicals associated with the project away from water resources.

Based on past experience, the evaluation and certification process generally takes approximately 60 days to complete.  Many states are prohibited from completing this process until they conduct their own public review so that the public has an opportunity to comment on the states’ proposal to certify, condition or deny each of the nationwide permits.

The states are not starting from scratch.  The new nationwide permits are very similar to the existing nationwides.  Also proposed revisions to the nationwide permits were issued in February 2011 so much of the information in this final rule will be very similar to what was published last year.  States and Corps Districts will work together in the coming months to identify which state concerns that can be addressed through the District’s regional conditions and which will require formal action through conditioning or denial of individual nationwide permits by the state.  It is an important process because the decisions made now will be reflected in thousands of general permits issued over the next five years.

For more information about 401 certification including 401 certification of nationwide permits visit ASWM’s webpage at: http://www.aswm.org/wetland-programs/401-certification

This entry was posted in Clean Water Act, dredge and fill, law, permitting, wetland regulations and tagged , , , , , , . Bookmark the permalink.

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