On September 26, 2006, the U.S. Army Corps of Engineers published a notice of its proposal to reissue and modify the existing Nationwide Permits, general conditions, and definitions, and to issue six new Nationwide Permits and one new general condition. The Corps proposes to retain the current acreage limits, but thirty-two of the existing Nationwide Permits and most of the general conditions would be modified in other ways. Some modifications are minor, intended to make the existing text clearer and more concise. Other changes are substantive. Some of the more important proposals are:
- Extension of protections to ephemeral streams: Several of the current Nationwide Permits apply linear foot limits for impacts to perennial and intermittent streams. Under the reissued Nationwide Permits, these limits would also apply to impacts to ephemeral streams.
- Modification of limitations on activities within floodplains: Current general conditions prohibit the use of several Nationwide Permits within mapped 100-year floodplains or floodways above headwaters. The Corps proposes to modify the general conditions to require compliance with applicable state or local floodplain management requirements that have been approved by FEMA. The Corps states that potential impacts to flood hazards and floodplain values will be assessed on a case-by-case basis during the pre-construction notice process and individual permits will be requires if these impacts are determined to be more than minimal.
- Consolidation of the authorization for residential development: Residential development activities are currently authorized under two Nationwide Permits: 29 (single-family housing) and 39 (residential, commercial, and institutional development). In effect, the Corps proposes to eliminate the current Nationwide Permit 29 and replace it with a new Nationwide Permit 29 containing those provisions of current Nationwide Permit 39 that authorize single and multiple unit residential development. The reissued Nationwide Permit 39 would be limited to commercial and institutional development.
The six proposed new Nationwide Permits cover activities for emergency repairs, discharges into ditches and canals, pipeline safety inspection and repairs, commercial shellfish aquaculture, coal remining, and underground coal mining.
The deadline for submitting comments on the proposal is November 27, 2006. The Corps will review comments and then draft the final Nationwide Permits, which the Corps anticipates publishing in the Federal Register by January 2007 and which would become effective 60 days after publication. The current Nationwide Permits, which were issued in January of 2002, are scheduled to expire on March 19, 2007. The proposal notes that, in accordance with a recent court decision, Corps district offices will consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service on the effects of the Nationwide Permits on the species that occur in the districts, but does not describe the timing of such consultations. Corps districts, including Los Angeles, Sacramento, and San Francisco, are also supposed to publish notices of proposed regional conditions or proposals to suspend or revoke some or all of the proposed reissued and new Nationwide Permits.
Please contact Robert Uram or Keith Garner if you have questions about the proposed reissuance of the Nationwide Permits. Robert J. Uram is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office. Keith Garner, AICP, is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.