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

The Compleat Wetlander: Reissuance of Clean Water Act Section 404 Nationwide Permits in 2017: The Clock is Ticking

By Jeanne Christie

The Nationwide Permit Program for Clean Water Act Section §404 permits and Rivers and Harbors Act of 1899 §10 permits was established by the Army Corps of Engineers in 1977. It allows the Corps to grant general permits for similar categories of activities that will have only minimal adverse environmental effects. Under the Clean Water Act, nationwide permits must be reauthorized every five years cw021916and this is accomplished through formal rulemaking. The current nationwide permits went into effect on March 19, 2012 and will expire on March 18, 2017.

There are currently 50 nationwide permits. Nationwide permits are part of ‘general permits’ which are issued on a nationwide, statewide, or regional basis for a category or categories of activities that are similar in nature and do not cause more than minimal individual and cumulative adverse environmental effects. The great majority of activities authorized under the §404 program are approved through general permits. For example in 2013 there were @ 60,000 general permits authorized and @4,000 individual permits.  Most general permit activities impact less than a tenth of an acre of wetlands or other aquatic resources.

cwfig2011916The proposed rule for reissuance of the nationwide permits is currently undergoing interagency federal review at with the Office of Management and Budget and is expected to be published in the Federal Register sometime in March (2016) for an anticipated 60 day comment period.

The timeline for completing the rulemaking process will be tight. Following publication of a proposed rule, the Corps will review comments and forward a final rule to the Office of Management and Budget for final interagency review prior to publication in the federal register.  Ideally the final rule should be published in December 2016 in order to allow the states to have the 90 days for coastal consistency review required under the Coastal Zone Management Act and the 60 days for Section 401 certification review required under the Clean Water Act. Section 401 of the Clean Water Act (CWA) requires that an applicant for a federal license or permit provide a certification that any discharges (including fill) will comply with the act, including state-established water quality standard requirements.  The nationwide permits are in effect for five years.  When the final rule is available, the states will begin a process to approve, approve with conditions, deny or waive certification of each of the reissued nationwide permits for the period they are in effect.  If the final rule is published close to the time the new nationwide permits go into effect, states will not have time to complete their review prior to reissuance. They will need to review each individual activity authorized under the Nationwides as though it was an individual permit at the same time that they are reviewing the new Nationwides to complete the Nationwide 401 Certification process.  Here is a rough timeline for the process to be completed so that states have sufficient time.fig3cw021916

However, this is an election year and there is generally a hold or at least a significant slowdown on rule making during the transition between administrations.  The U.S. Army Corps of Engineers and the Office of Management and Budget are aware of the need to get the rule finalized well ahead of the date it goes into effect so that the states can conduct their own review.  But it is still likely to be challenging and states should be following the rulemaking and the timing for release of the rule carefully. If the rulemaking process is delayed, this is the likely outcome.

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It is worth also noting that if the final nationwide rule is not published prior to March 18, all activities under Section 404 will require an individual permit and also that the spring is when many permits are applied for so that building can occur during the warm months of the year in much of the country.

It is likely to be a challenging year to complete the Nationwide rulemaking process and it will be important for states, the Corps, other federal agencies and potential permit applicants to follow the process.

Following publication, ASWM will be hosting a webinar with the U.S. Army Corps of Engineers about changes proposed. In addition ASWM is also planning to coordinate with the Corps on additional webinars that will address successful approaches that states and Corps Districts have pursued to complete Section 401 certification of the Nationwides.

Information about the existing Nationwide permits can be found at the U.S. Army Corps of Engineers website here.

Information about the number and type of general and individual permits issued is included in a recent report by the Institute for Water Resources: “The Mitigation Rule Retrospective: A Review of the 2008 Regulations Governing Compensatory Mitigation for Losses of Aquatic Resources

Information about Section 401 of the Clean Water Act and State Programs can be found here.

For more information about consistency review under the Coastal Zone Management Act, go here.

To track the status of the nationwide permit reissuance rulemaking, go here.

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