Julia Horrocks

March 17, 2007

The Army Corps of Engineers reissued and added new Nationwide Permits (NWPs) for dredge and fill materials, effective March 19, 2007, that strip away important protections against water pollution, flooding, and other environmental harms. The Corps previously placed restrictions on many of these permits to help alleviate potential damage by destructive activities. Without those restrictions, the Corps allows leeway for a wide range of possible harms.

The Corps published a summary of the changes and the reasons for them. Some of the reissued permits will allow previously restricted above-grade fill material for projects in the 100-year floodplain of some streams. As some commentators mentioned, this increases the potential impact of floods by destroying floodplain storage capacity.

District engineers are now able to waive the 300 linear foot limitation on impacts to ephemeral streams from residential construction, commercial and institutional construction, recreational facilities, and stormwater management. Though the proposed waiver received much opposition from commentators, the Corps said that the waivers are necessary to "provide flexibility in the administration of the NWP program."

To replace structures or fills damaged by storms, floods, fires, and other discrete events, there is now no limit to the impact on streams or wetlands. The Corps eliminated the NWP requirement for corrective actions pursuant to emergency events, stating:

"this NWP is not intended to serve as an emergency permit…a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action is not undertaken within a time period that does not allow the Corps to process the application under standard procedures."

The Corps de facto authorization of all emergency corrective actions undermines prior requirements to mitigate stream damage even during emergencies. What is of most concern is how the Corps will define and use this emergency exception. Potentially the Corps will exercise complete discretion to destroy potentially an unlimited amount of riparian property to assist development and construction.

Of most concern of the reissued NWPs are the sections that allow complete destruction of streams, wetlands, and other non-tidal waters if that destruction is associated with mining activities. Now these mining operations, including underground coal mining, can dispose waste into streams and wetlands without mitigation. The Corps rationalized this by stating that increased energy costs associated with coal production fees were negatively affecting the industry.

Additionally, commercial shellfishing activities in sensitive tidal waters can now impact up to 100 acres of marine habitat without mitigation or notice of the possible impact. Finally, the Corps eliminated a prior rule that NWPs cannot permit the destruction of individually small sections of water bodies that aggregate to large water bodies.

The theme throughout the Corps' summary is that the Corps should refrain from limiting development, deferring even the most minimal protection of our water quality up to the local governments.

Sources:

Reissuance of Nationwide Permits, Final Notice, Army Corps of Engineers, 72 Fed. Reg. 11092 (Mar. 12, 2007), available at http://www.usace.army.mil/cw/cecwo/reg/nwp/nwp_2007_final.pdf.

"Final Documents for 2007 Nationwide Permits," Army Corps of Engineers, http://www.usace.army.mil/cw/cecwo/reg/nwp/nwp_final.htm (last visited Mar. 17, 2007).

"Nationwide Permit Information," Army Corps of Engineers, http://www.usace.army.mil/cw/cecwo/reg/nationwide_permits.htm (last visited Mar. 1, 2007).

Memorandum from James Murphy, Water Resources Counsel, National Wildlife Federation (Mar. 13, 2007) (on file with author).

John Heilprin (AP), New Corps of Engineers rules irk environmentalists, builders, Houston Chron., available at http://www.chron.com/disp/story.mpl/headline/biz/4618659.html.

For a counter-opinion, see Nat'l Ctr. for Pol'y Analysis, Letter to the Editor, New Army Corps Rule Fails to Give Relief to Property Owners, PR-inside.com, Mar. 15, 2007, http://www.pr-inside.com/new-army-corps-rule-fails-to-r66994.htm.