New Nationwide Permits Take Effect March 19th! Are you ready?

February 21, 2017
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2017 NATIONWIDE PERMIT UPDATE

On January 6, 2017, the U.S. Army Corps of Engineers (Corps) issued the 2017 Nationwide Permits.  These permits are designed to protect waters of the U.S., including wetlands, streams, ponds, lakes, tidal areas, and coastal areas while providing a more rapid, streamlined permit for activities with minimal environmental effects.  The Corps is required to reissue the Nationwide Permits every five years.  The new Nationwide Permits go into effect in two weeks on March 19, 2017 and will be in effect until March 18, 2022.

What are Nationwide Permits?

Nationwide Permits are one type of permit authorized under Section 404 of the Clean Water Act.  The Corps uses Nationwide Permits, commonly called NWPs, to regulate projects with small environmental impacts under a more rapid permitting process.  Projects with more than minimal environmental impacts are regulated using Individual Permits, which require much more time, effort, and expense.

Each NWP can have a different limit on the amount of fill allowed in Waters of the U.S.  Common limits are 1/2 acre of fill in nontidal waters, 300 linear feet of stream, and 1/3 acre of fill in tidal waters.

What has the Corps changed in the 2017 NWPs?

The Corps reissued 50 existing NWPs, issued two new NWPs, and one new general condition.  Many of the changes include the addition of clarifying language, definitions, and general conditions.

Which NWPs stayed the same?

Twenty-three NWPs were reissued with no changes: NWPs 1, 2, 4, 5, 6, 7, 8, 10, 11, 15, 16, 17, 18, 24, 25, 28, 30, 34, 36, 37, 38, 46, and 49.

Which NWPs were changed?

Twenty-eight NWPs were modified in 2017: NWPs 3, 9, 12, 13, 14, 19, 20, 21, 22, 23, 27, 29, 31, 32, 33, 35, 30, 39, 40, 41, 42, 43, 44, 45, 48, 50, 51, and 52.  Some permit changes were minor wording revisions, while some changes were more substantial.  Common NWPs used by our clients include NWPs 3, 12, 13, 14, 20, 27, 29, and 39.  Changes to each are summarized below:

NWP 3 (Maintenance) was changed in three areas:

  • Clarified that NWP 3 authorizes the removal of previously authorized structures and fills.
  • Removed the provision authorizing placement of new or additional riprap around structures.
  • Clarified that the NWP includes the use of temporary mats if authorized by the district.

NWP 12 (Utility Lines) had several revisions:

  • Authorized the use of temporary mats through wetlands as a non-impact.
  • Added reference to definition of “single and complete project,” stating that in most circumstances, each waterbody crossing should be considered a single and complete project for purposes of the NWP.
  • Added reference to required minimum clearance of power lines over navigable waters.
  • Added internet as a form of communication.
  • Authorized activities to respond and remediate inadvertent release of drilling fluids (commonly known as “frac-outs”.

NWP 13 (Bank Stabilization) had several revisions, most of which were clarifications:

  • Clarified that NWP 13 authorizes many types of bank stabilization, not just bulkheads and revetments.
  • Clarified how cubic yardage limits are measured.
  • Added provision requiring maintenance and authorizing those future maintenance efforts.
  • Requires native plants to be used for bioengineering instead of nonnative invasive plants.

NWP 14 (Linear Transportation Projects) had some minor changes:

  • Authorized the use of temporary mats through wetlands as a non-impact.
  • Added a note referencing the definition of “single and complete linear project,” stating that in most circumstances, each waterbody crossing should be considered a single and complete project for purposes of the NWP.

NWP 20 (Response Operations for Oil or Hazardous Substances) had one minor change, substituting “or” for “and” in its title.

NWP 27 (Aquatic Habitat Restoration, Enhancement, and Establishment Activities) has numerous changes.  It added the requirement to use an ecological reference to plan, design, and implement the NWP.  It also added several items to the list of examples of improved activities, including the removal of stream barriers such as undersized culverts, fords, and grade control structures.

NWP 29 (Residential Development) and NWP 39 (Commercial and Institutional Development) both clarified that the loss of stream acreage counts towards the total ½ acre limit of fill in non-tidal waters.

What are the new NWPs?low-head dam removal NWP 53

NWP 53 authorizes the removal of low-head dams.  Low-head dams are designed for water to flow continuously over them at a moderate depth.  Most low-head dams serve no purpose today.  They are safety hazards to swimmers and boaters, and they block sediment transport and fish passage, which changes the community structure of the river.  Preconstruction notification is required.

Pictured right: EnviroScience, Inc. and Riverworks completed the design-build removal of two historic low-head dams on the Cuyahoga River in Cuyahoga Falls, Ohio. The project involved the removal of the two 100-year old dams while stabilizing the adjacent remnant powerhouse structures. Read more.

NWP 54 authorizes the construction of living shorelines, in which vegetation and other elementLiving shorelines are used alone or in combination with harder shoreline structures such as rock sills to stabilize eroding shore areas.  Living shorelines are designed to stabilize the area while providing habitat and improving ecosystem processes.  Preconstruction notification is required.

Pictured right: EnviroScience installed over 22,000 native plants during the stabilization construction of 1,500 feet of the Buffalo River and newly created storm water treatment wetlands.  Plants were installed within large soil-choked rip-rap along the river, and invasive species were managed post-construction.

What General Condition was Added?

A general condition was added specifying that if project activities will alter or temporarily occupy or remove a USACE Civils Works project, a preconstruction notification and Section 408 Permit will be required.

What is changing in the 401 Water Quality Certification of the NWPs?

In Ohio, Ohio EPA certifies NWPs provided certain criteria are being met.  The proposed 401 WQC conditions for NWPs have been published here for public comment, due March 10, 2017. The proposed changes in the 401 WQC certification requirements for NWPs could have a significant impact on the speed and ease of obtaining NWPs in the state.  Specifically, impacts to streams in certain watersheds would not be eligible for the blanket certification, and would have to go through the longer and more complicated Individual 401 WQC process.  Four wetland photographs would be required for all wetlands proposed for impacts, and those photos would have seasonal restrictions.  Application for a Director’s authorization (formerly known as the D4 waiver) would have an associated fee of $2,000.  We will talk about these in more detail in a later newsletter.

 

Have Questions? We are Here to Help!

EnviroScience has wetland scientists who are experts in the permitting process and can guide your project through the process with minimal delays.  If you have any questions, please call us at 330-688-0111 or email us at MLiptak@EnviroScienceInc.com.

Read the official documents here.


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