AGC Comments on Corps of Engineers’ Proposal to Reissue, Revise Nationwide Permits
AGC recently provided written comments on a proposal by the U.S. Army Corps of Engineers (Corps) to reissue and modify its nationwide permits (NWPs), general conditions, and definitions, with some modifications, as published in the Federal Register on September 26, 2006 (71 FR 56258). NWPs are a form of general permit authorized by the Clean Water Act and intended to streamline permitting for certain low-impact construction activities in waters and wetlands.
The ability to obtain Clean Water Act Section 404 permits is critical to the completion of the private and public infrastructure that forms the foundation of our nation’s economy. AGC believes that any changes to the Corps’ Section 404 general permitting program should maintain an efficient and streamlined process for authorizing activities that propose minimal impacts.
Most notable, the NWP proposal would amend the definition of “loss of waters of the United States” to include filling or excavating of ephemeral stream beds, when determining whether proposed activities exceed the threshold limits of the NWPs. The proposal also would extend the 300 linear-foot limit on fills to include impacts to ephemeral waters.
AGC commented that this presumption of jurisdictional over all ephemeral and intermittent streams and wetlands is unlawful in light of recent U.S. Supreme Court cases that limit federal CWA jurisdiction. See Rapanos v. United States, 547 U.S. ___, 126 S.Ct. 2208 (2006); Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001). AGC urged the Corps to move forward with a separate rulemaking to clarify the scope of CWA jurisdiction.
In addition, AGC offered comments on the following NWPs:
NWP 12 – Utility Activities. The NWP proposal would remove the provisions from NWP 12 that authorize the construction of access roads, stating that permanent or temporary access roads may be authorized under NWPs 14 or 33. In addition, the proposal would eliminate the PCN requirements for the construction, maintenance, or repair of utility lines for activities resulting in the permanent or temporary loss of less than 1/10 acre of waters of the United States.
AGC’s letter urges the Corps not to require a PCN for the temporary construction of access roads covered under NWP 33, unless the discharge causes a loss of greater than 1/10 acre of water. AGC also requests that NWP coverage for the construction of temporary roads for utility line activities remain under NWP 12. In addition, AGC points out that the proposed requirement under NWP 12 to provide advance notification for temporary loss of waters is not consistent with the definition of “loss of waters of the United States” in the Corps’ proposal.
NWP 14 – Linear Transportation Projects. AGC asked the Corps to clarify which activities may be included as “activities required for construction, expansion, modification or improvement” of linear transportation projects under NWP 14.
NWP 21 – Surface Coal Mining Operations. The Corps requested comment on whether to add an acreage limit to NWP 21. AGC believes that NWP 21 already has numerous safeguards in place to ensure impacts do not cause more than minimal individual or cumulative effects.
NWP 29 – Residential Developments. The proposal would add authorization of multiple unit residential developments to this NWP, but it would retain the same one-half (1/2) acre limit. The proposal would not allow discharges of dredged or fill material into non-tidal wetlands adjacent to tidal waters. It would require a PCN for all activities authorized under the NWP.
AGC opposes eliminating the use of NWP 29 in non-tidal wetlands adjacent to tidal waters. In addition, AGC believes the Corps should not expand the activities for which PCNs are required.
NWP 44 – Mining Activities. AGC supports reissuance of NWP 44 for authorizing non-coal mining related discharges.
New NWP B – Ditches and Canals. The proposal would add a new permit that would authorize discharges of dredge and fill material into ditches and canals that (1) are constructed in uplands; (2) receive water from another water of the United States; and (3) divert water to another water of the United States. The Corps has proposed a one acre limit for this permit.
AGC opposes the creation of this new permit. Congress intended ditches and storm sewers to be regulated as “point sources,” not as “navigable waters,” and the proposed NWP B should be deleted.
New NWP E – Coal Remining Activities. AGC supports the Corps’ proposal to authorize coal remining activities under a new general permit, but AGC’s letter states that the Corps should reconsider the proposed limitations placed on this permit.
General Condition 10 – Fills within 100-Year Floodplains. The Corps’ proposal would lift the prohibition on the use of certain NWPs in the 100-year floodplain. AGC supports this change to streamline the permit program and avoid duplication with other federal and state regulatory agencies.
General Condition 27 – Construction Period. The NWP proposal would drop the use of General Condition 27 (GC 27), which grants the District Engineer (DE) with the authority to place any completion date on an NWP verification.
AGC opposes this change. Recognizing that there are numerous unforeseen circumstances that may slow or delay construction activities, AGC believes that a DE should have the discretion to extend construction periods for a reasonable amount of time past the expiration of the underlying general permit to allow for completion of work already begun or under construction to begin.
To read AGC’s complete comment letter, click here. For more information, contact Leah Pilconis, Senior Environmental Advisor to AGC, at email@example.com.
return to top ]