Corps Proposes New Nationwide Permits to Replace Nationwide Permit 26
September 1, 1999
On July 21, 1999, the Corps published a notice of proposed rulemaking that
would establish five new Nationwide Permits (NWPs) and modify six existing NWPs
to replace NWP 26.
NWPs are a type of general permit issued by the Corps for nationwide use to
authorize with little or no delay or paperwork, projects that have minimal
adverse effects on the aquatic environment. NWP 26, one of approximately 40 NWPs,
currently authorizes discharges of dredged or fill material into headwaters and
isolated waters, provided the discharge does not result in the loss of greater
than three acres of "waters of the United States," or 500 feet of
stream bed.
Unlike other NWPs that authorize specific types of activities or projects,
NWP 26 broadly authorizes projects and activities based on the type of water
resource impacted. NWP 26 has been the subject of controversy and debate about
whether it is consistent with Section 404(e) of the Clean Water Act. Section
404(e) states that nationwide permits may be issued "for any category of
activities" if the activities in such category are similar in nature."
The proposed rulemaking would allow NWP 26 to expire and would replace it with
new and modified activity-based NWPs. The new activity-based NWPs are expected
to authorize most of the activities that have historically been authorized under
NWP 26.
The proposed replacement of NWP 26 and modification of other NWPs are complex
rulemakings and have far-reaching ramifications for projects involving dredge
and fill activity in isolated wetlands and certain other water resource areas.
Along with the new or modified activity-specific authorizations, the proposed
rulemaking contains several new "general conditions" that would
restrict or eliminate the use of NWPs in certain areas such as "critical
resource" and "impaired" waters and wetlands. Additionally, the
proposal would also eliminate use of NWPs in the 100-year flood plain. Under the
proposed rules, these resource areas are broadly defined. The proposed
rulemaking also places greater emphasis on regional conditioning of permits, so
that the NWP program will account for regional differences in aquatic resource
functions and values.
The Corps acknowledges that the rulemaking will increase the complexity of
the NWP program, and, as a result, increase the processing time and workload for
applicants and the Corps. Accordingly, in addition to limiting authorizations to
types of activities and imposing new restrictions on activities in certain
areas, the rulemaking may also make it more difficult for applicants to submit
proper notice and receive authorizations in a timely and cost-effective manner.
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