Corps of Engineers Revises and Renews Nationwide Permits for Regulating Work in Wetlands

By Justin D. Gericke

On March 19, 2007, the U.S. Army Corps of Engineers (the "Corps") issued new and revised Nationwide Permits ("NWP") under section 404 of the Clean Water Act. Several of these new NWPs may be of particular interest to the development community.

NWPs authorize activities that require a permit but are deemed, in advance, to cause only minimal adverse environmental impacts, either individually or cumulatively. The Corps revised and reissued all of the previously existing 43 NWPs and issued six new NWPs. The new set of 49 NWPs is scheduled to remain in place until March 18, 2012. The activities authorized by the six new NWPs include repairs to uplands damaged by discrete events, repairs to ditches and canals to control erosion, time-sensitive pipeline safety program inspections and repairs, existing commercial shellfish aquaculture activities, and coal mining activities.

Significant changes made to NWP 29 and NWP 39 are of particular importance to real estate developers. NWP 29, previously titled "Single-Family Housing," was renamed "Residential Developments," and now applies to all single-family and multiple-family residential developments, including residential subdivisions. As the prior title implied, NWP 29 previously applied only to single-family residences. The acreage limits of NWP 29 were expanded to prohibit the discharge of material causing the loss of greater than 1/2 acre of non-tidal waters of the United States, rather than the more restrictive 1/4 acre previously found in NWP 29. Also, NWP 29 no longer authorizes residential projects in wetlands adjacent to tidal waters; the Corps determined that such projects should not be authorized through an NWP. Lastly, pre-construction notification is now required for all activities authorized by NWP 29.

NWP 39, which previously applied to multiple-family residential developments as well as commercial and institutional developments, now applies only to the construction or expansion of commercial and institutional developments. As with NWP 29, pre-construction notification is now required for all activities authorized by NWP 39.

As the name implies, NWPs have nationwide applicability. The Corps' jurisdiction is split into separate divisions and individual division engineers may add regional conditions to account for and protect local and regional aquatic ecosystems after public review and consultation requirements are met.

It is important to note that both Oregon and Washington retain and regularly assert jurisdiction over and require permits for removal and fill occurring in waters of the state. The requirements imposed under the Oregon and Washington state programs are independent of federal jurisdiction determinations and permitting requirements. Thus, any person seeking authorization to conduct removal and fill activities within a jurisdictional wetland of the state or United States must obtain authorization from both the state and federal authorities.

For more information on the new and revised NWPs and to view the March 12, 2007 Federal Register notice, please visit the Corp's website at www.usace.army.mil.

Published March 2007

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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