Corps of Engineers re-issue NWPs!

Per Kate Whitby of Spencer Fane Britt & Browne LLP:

On March 12, 2007 the Corps of Engineers reissued the nationwide general permits (NWPs) used for dredge and fill activities with "minimal individual and cumulative effects on the aquatic environment" -- in other words, activities that may impact water or wetlands.   Because the old NWPs expired on March 18, 2007, the Corps issued the new permits as immediately effective (March 19, 2007), relying on the "good cause" exception to the normal APA requirement for a 30 day Federal Register notice period prior to final regulations becoming effective.  The new permits expire March 19, 2011.

The new NWPs still are subject to 60 day water quality certification (WQC) and coastal zone management act (CMZA) consistency determinations by U.S. EPA, the states and Indian tribes.  Because the old NWPs expired on March 18, during the 60 day consistency period (ending May 11, 2007), "the use of an NWP to authorize a discharge into waters of the United States is contingent upon obtaining individual water quality certification or a case-specific WQC waiver. . . . We are taking this approach to reduce the hardships on the regulated public that would be caused by a substantial gap in NWP coverage if we were to wait 60 days before these NWPs would become effective."  47 Fed. Reg. 11091, 11092 (Mar. 12, 2007).

Several of the nationwide permits involve or potentially involve construction activities, including NWP 39 (commercial and institutional developments), NWP 29 (residential developments), NWP 33 (temporary construction, access and dewatering), NWP 12 (utility line activities), NWP 13 (stream bank stabilization), NWP 41 (reshaping existing drainage ditches), and NWP 43 (stormwater management facilities).

NOTE:  the NWP program is not applicable in the New England states (Connecticut, New Hampshire, Maine, Massachusetts, Rhode Island and Vermont).  The New England Corps district uses state-specific permits instead.

If you began construction activities under the old NWPs prior to March 18, 2007, you still have a one year "grandfather" window (until March 18, 2008) to complete that work under the old NWPs.  If you want a copy of the Federal Register notice containing the full regulations, let me know.

Kate

Kathleen M. Whitby

Spencer Fane Britt & Browne LLP

1 North Brentwood, Suite 1000

St. Louis, MO  63105

314-333-3929 (direct dial)

314-863-7733 (switchboard)

314-862-4656 (fax)

kwhitby@spencerfane.com