Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Final Nationwide Rule Published in the Federal Register – Up Next is §401 Certification, Coastal Consistency Review and Corps District Regional Conditions

cwlogoBy Jeanne Christie, Executive Director, ASWM

An important and timely milestone was achieved on Friday, January 6 with publication of the final rule on Issuance and Reissuance of §404 Nationwide Permits in the Federal Register.  For those that prefer a regular document format over the Federal Register format can review the rule as a PDF document here.  Please note that this document is @600 pages long.

A Summary of the 2017 Nationwide Permits can be found on the U.S. Army Corps of Engineers  website.  This document provides a quick synopsis of any changes to the 50 existing nationwide permits that are reissued through the new rule overview usace1as well as the two new nationwide permits: NWP 53 – Removal of Low-head dams and NWP 54 – Living Shorelines.

NWP 53 authorizes the removal of low-head dams for stream restoration and public safety. A “low-head dam” is defined as a dam built to pass upstream flows over the entire width of the dam crest on a continual and uncontrolled basis. As a general rule, compensatory mitigation is not required for these activities because they result in net increases in stream ecological functions and services. The NWP does not authorize regulated activities for restoration of streams in the vicinity of the former impoundment (these activities may be authorized by NWP 27), or bank stabilization activities (these activities may be authorized by NWP 13).

NWP 54 authorizes construction and maintenance of living shorelines for shore erosion control. Living shorelines consist of natural and man-made materials and may include stone or reef structures to protect the shoreline from low to moderate energy waves. Living shorelines must have a substantial biological component, either tidal or lacustrine fringe wetlands or oyster or mussel reef structures. NWP 54 does not authorize beach nourishment or land reclamation activities. Discharges of dredged or fill material into waters of the United States, including the construction of fill structures such as sills or breakwaters, must be the minimum necessary for the establishment and maintenance of the living shoreline.  Use of NWP 54 is limited to 30 feet channelward of the mean low water mark in tidal waters or the mean high water mark in the Great Lakes.  Under NWP 55 the living shoreline is limited to 500 feet along the water’s edge.  These limitations can be waived by the District Engineer.

fedregistry22Other documents pertaining to the current and past nationwide permits can be found here.

The reissued and new nationwide permits are scheduled to go into effect on March 18, 2017, the date when the current nationwide permits expire. Between now and then, Corps Districts will be busy developing and publishing regional conditions for the nationwide permits. States and some tribes will be conducting §401 Certification review under the Clean Water Act and coastal consistency review under the Coastal Zone Management Act.

It is anticipated that in many areas of the country, this review process will be the continuation of collaborative efforts between Corps Districts and State agencies to tailor the nationwide permits to local conditions. This is important because activities authorized through the Nationwide’s, by law, should have no more than minimal individual and cumulative adverse environmental impacts.  The adoption of regional conditions, §401 certification and coastal consistency review are carried out to ensure this occurs.

Regional conditions are likely to be particularly important for the two new nationwide permits.  For example specific living shoreline practices appropriate to moderating high energy wave impacts along the ocean, may not be appropriate along the quieter Great Lakes shoreline and vice versa.  Considerations for removal of lowhead dams are also likely to be different between high relief (mountainous) terrain and a low relief (relatively flat) coastal plain.

nationpermit3Links to additional information about these various review processes can be found in a previous blog post on this topic here.  That blog also raised concerns regarding the need for the final rule to be published two to three months prior to the expiration of the current nationwide permits.  The Association of State Wetland Managers (ASWM) is very pleased that the U.S. Army Corps of Engineers, Office of Management and Budget and other federal agencies engaged in the interagency review process completed and published the rule at the beginning of January.  In the coming months ASWM will be hosting webinars to provide more information about the new nationwide permits.  These will be part of ASWM’s ‘Hot Topic’ webinar series which can be found here.

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