Corps' Proposed Nationwide Permit Revisions of Little Help of the Regulated Community
 
October 19, 2001
 
Lawrence R. "Larry" Liebesman- Washington
Rafe Petersen - Washington

On August 9, 2001, the Corps released proposed revisions to the nationwide permit (NWP) program under section 404(e) of the Federal Clean Water Act. That program covers activities that are similar in nature and have only minimal individual and cumulative effects on waters and wetlands. These revisions build upon the wholesale changes made to the NWP program that occurred with the issuance of the March 2000, permits to replace NWP 26. That permit had been in use for over 20 years and covered discharges into isolated and headwaters areas. It was phased out by the Corps in June 2000.

The latest proposal does not reach the serious and widespread concerns of the regulated community that the NWP program has strayed "far a field" from its original congressional intent in 1977 of creating a "stream-lined" permitting program for certain activities. Indeed, the regulated community has filed suit over the replacement permits, asserting that the new "activity specific" NWPs and general permit conditions have rendered the NWP program essentially useless. Unfortunately, the essentially cosmetic proposed changes to the replacement NWPs will not reverse the tide that has essentially transformed the NWP into a program that is not very different from the individual section 404 permit program and one that does not provide any greater environmental protection.

The proposed changes to the NWP program are necessary due to the fact that the NWPs made effective in 1997, with the exception of NWP 26 (which was replaced in March 2000), are due to expire in February 2002. In order to reduce the confusion over the expiration of the various NWPs, the Corps decided to reissue all NWPs and general conditions, including those not scheduled to expire in February 2002, such as the six new replacement permits for NWP 26. However, the proposal would modify several general conditions that were put in place pursuant to the March 2000 Replacement permits by providing more flexibility for the Corps to address vegetated buffer and floodplain requirements and restrictions. While these changes would provide some relief from the onerous conditions of the replacement permits, they do not remedy the fundamental flaws of the replacement NWPs in several key areas.

Vegetated Buffers

The August proposed rule adopts the same rationale stated in March 2000, when, for the first time, the Corps allowed district engineers to require buffers adjacent to open waters as mitigation in order to meet the "minimal effects" test for the NWP program. Proposed General Condition 19 restates the Corps’ policy of sequencing mitigation but would allow district engineers to waive the one-for-one, in-kind mitigation for unavoidable impacts by requiring the establishment, maintenance and legal protection (e.g. easements, deed restrictions) of a 25- to 50- foot vegetative buffer adjacent to open waters as the sole form of mitigation.

Most would agree that buffers provide environmental benefits such as reducing the concentration of nutrients and pollutants in subsurface waters. Permitting buffers to be the sole source of mitigation could be a welcome change to the NWP program if it were applied to usable NWPs and if the Corps’ mandate to impose this requirement was clear. In many cases, buffers would reduce the cost of wetland creation and provide for significant environmental benefits. Unfortunately, however, the "clear statement" principle enunciated by the Supreme Court recently in Solid Waste Agency of Northern Cook County v. Corps casts doubt on the legality of the Corps’ attempt to require vegetated buffers. The Corps’ authority under section 404 only extends to the regulation of "discharges" into "navigable waters." While the Corps looks to the broad statutory language of section 101 of the Clean Water Act (CWA) as its source of authority for this condition — which provides that the goal of the CWA is "to restore and maintain the chemical physical and biological integrity of the nation’s waters" — this mandate is not so broad as to expand the Corps’ jurisdiction to require permittees to preserve upland areas that are next to regulated "navigable waters," but that are not "waters" themselves. In contrast, a number of state wetlands statutes, such as in Maryland and New Jersey, have express buffer requirements.

As a practical matter, given the one-half-acre-impact limit under all NWPs, this flexible buffer provision is not likely to be used. For example, the operation of many aggregate quarries requires large tracts of land and it would very difficult to keep impacts below the one-half-acre limit to allow for mitigation by buffer only. Rather, most projects will be "kicked into" the individual permit program where the Corps has not issued any upland buffer general conditions but appears to do so on an ad hoc basis.

Floodplain Restrictions

General Condition 26 of the March 2000, replacement permits provides that discharges that result in "permanent, above-grade fills within the 100-year floodplain at or below the point on a stream where the average annual flow is five cubic feet per second (i.e. below headwaters)" or discharges "resulting in permanent, above-grade fills within the floodway of the 100-year floodplain of headwaters are not authorized by NWPs . . . 43, and 44." For the purposes of determining the location of the floodplain, the applicant is required to rely on the FEMA Flood Insurance Rate Program (FIRP) maps or FEMA-approved local maps.

The proposed revisions do not cure major problems with the use of FEMA-approved maps. The Corps is well aware that the FIRP and local floodplain maps are known to be of questionable accuracy and utilize a map scale that is too large for planning purposes. The Corps does propose, however, to remove the requirement that applicants document that the project complies with FEMA requirements. This addresses the concern of the regulated community that the Corps was engrafting the powers of other federal, state and local agencies into the section 404 process without the express authorization from Congress. Nonetheless, the Corps is still reliant on the often out-of-date and inaccurate floodplain maps.

Interestingly, the Corps concedes that some activities authorized by the NWPs provide additional flood storage capacity and that some discretion should be used in the floodplain below headwaters. The Corps is soliciting comments on allowing projects to proceed below headwaters where the project would provide additional flood storage capacity. In the past, the Corps has recognized that activities such as aggregate mining in lower perennial streams "will increase the capacity of the stream, thereby decreasing flooding." Nonetheless, the blanket prohibition on authorization above the headwaters and of permanent, above-grade fills in floodplains remains in place.

Conclusion

The latest proposed changes to the NWP program fail to address the significant problems with the replacement permits that were put in place in March 2000. While the Corps offers certain relief, it fails to come even close to the wholesale changes that must be made in order to restore the NWP program to its full effectiveness.

For more information, contact Lawrence Liebesman or Rafe Petersen at 1-888-688-8500 or via e-mail at lliebesm@hklaw.com or rapeters@hklaw.com respectively.