CONCORD, Mass. – The U.S. Army Corps of Engineers (USACE) has reissued its Nationwide Permits (NWPs), authorizing work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The new NWPs took effect March 19, 2012 replacing the existing 2007 NWPs.
The new NWPs were published in the Federal Register on Feb. 21, 2012 and posted to the USACE website at www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx.
While nationally USACE has reissued these NWPs, the Corps New England District has again suspended the NWPs in the six New England states, most recently on March 15, 2012. Instead, New England will continue using the highly effective and successful state-specific general permits, which have been in place for over 20 years. The New England District most recently proposed suspending the NWPs in a public notice dated Feb. 28, 2012. General permits can be viewed at www.nae.usace.army.mil/regulatory and then permits/state general permits.
Multiple goals will be realized as a result of again suspending the NWPs in New England. It provides consistency, simplification and streamlining in the regulatory process. Projects with minimal individual and cumulative effects on the aquatic environment will be approved administratively under the GPs. Projects with the potential for more than minimal effects are not eligible for the GP and will be subjected to individual review. Project eligibility for permitting under a GP will fall into two categories defined using the regional criteria for 1) self-certifying projects; and 2) reporting projects that will be screened.
Self-certifying projects may proceed provided the proponent certifies that the terms and conditions of the GP are met and the Category 1 Notification Form is submitted to the Corps (required in most New England states).
Activities requiring reporting to the Corps will be reviewed by the Corps, and potentially the state wetland permitting agency and the Federal resource agencies (U.S. Fish and Wildlife Service, the U.S. Environmental Protection Agency, and the National Marine Fisheries Service). Through this interagency screening, the Corps will determine if individual and cumulative adverse environmental impacts are more than minimal or whether the project may proceed under the GP.
Projects that do not meet the terms and conditions of the GP or those which, after screening, are determined to have potential for greater than minimal adverse impact will require an Individual Permit. The Individual Permit review procedures are not altered by the GP. Federal exemptions (which are not necessarily the same as the states’ exemptions) are also not altered by the GP. In addition, GP authorizations are not valid until all other required Federal, state, and local permits and/or certifications are obtained.
Also, the GPs continue broad coverage and increased environmental sensitivity. The GPs have broader upper limits and are impact based, thereby allowing the Corps, in concert with the Federal resource agencies, to screen many more projects to determine if project impacts are more appropriately reviewed under Individual Permit procedures. Additionally, the decision of ineligibility under the GP will be much simpler and require less staff time than the discretionary authority procedures.
The suspension of the new NWPs will continue to allow maximum use of the GPs and result in a greatly simplified, flexible and expedited regulatory program in New England. Suspension of the NWPs will also eliminate redundancy since state and Federal programs are administered jointly and the GPs are partly based on in-place state specific programs. State GPs can be individually conditioned, as can NWPs, should it be necessary to restrict activities in order to protect the environment.
The public notice for this can be viewed on the Corps website at http://www.nae.usace.army.mil. Select Regulatory and then public notices or go directly to http://www.nae.usace.army.mil/Regulatory/Public%20Notices/.
Additional information is available from Permit Project Manager Greg Penta at 978-318-8862 or toll free 800-343-4789 or 800-362-4367 (if calling from within Massachusetts) or by email to gregory.r.penta@usace.army.mil.