Nationwide Permit Program Expires

We want to make all of our clients and associates aware of the upcoming expiration of the USACE Nationwide Permit Program. By March 18, 2007, existing Nationwide Permits are scheduled to be modified, reissued, or revoked.   Ward Edwards is working closely with the USACE and will be assisting our clients through this process.   Below is an overview of the Nationwide Permit Program and its requirements.   If you have any questions, please contact Berry Edwards at bedwards@wardedwards.com .

 

 

Overview

 

What are Nationwide Permits (NWP)?

Nationwide Permits (NWP) are activity specific permits that are issued by the United States Army Corps of Engineers (USACE) that are designed to streamline the process of wetland impacts during designated activities that are common.   Such activities may include but not limited to, impacts to construct utility corridors, roads (crossings), commercial development, and limited residential development. Agencies, including, but not limited to SCDHEC Water Quality, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, South Carolina Department of Natural Resources, and the South Carolina State Historic Preservation Office generally accept the Nationwide permit guidelines and do not formally comment.

 

 

Important Notes:

• OCRM must issue a letter stating that the activity is consistent with the Coastal Zone Management Plan and requires that every permit be put on public notice in a local and statewide paper. The USACE permit is not valid until the consistency letter is obtained.
• NWPs also set acreage thresholds for these impacts and in some cases are not placed on public notice by the USACE. NWPs automatically expire and become null and void if they are not modified or reissued within five years of their effective date. They must be re-authorized by Congress every five years.
• If the impacts are over the threshold, or do not meet other requirements defined for each type of NWP, then a NWP is not applicable and an individual permit must be submitted. If an individual permit is required it is placed on public notice and other agencies, such as the ones listed above, have 30 days to comment (pro or con) on the project. This often complicates the permit process as each negative comment received must be addressed.

 

Requirements:  

Since Nationwide permits do have specific acreage thresholds, and since the USACE does not currently have jurisdiction over isolated wetlands, the USACE requires a wetland delineation and verification to accurately define the proposed impacts. As a result of the Supreme Court decision commonly referred to as the Rapanos case, the USACE is not currently issuing wetland verifications until formal guidance is issued to conform to the courts decision. Therefore, you cannot submit for a NWP if you do not have a current USACE wetland letter of verification. In addition, when new guidance is issued from Washington , DC it is anticipated that changes may be required in the proposed NWP modifications.   

 

 

Current Status

 

The USACE issues, re-issues and/or modifies Nationwide permits under Section 404(e) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). The current NWPs were accepted on January 15, 2002, were implemented on March 18, 2002, They will expire on March 18, 2007. Normally, the USACE attempts to put each new NWP in place before the old NWP expires so service will not be interrupted. However, as a result of the Rapanos case and the new NWPs will not be in place when the current ones expire.

 

Therefore, the following factors are in play :

• NWPs that are in the process of USACE approval must be out of their office before the current NWPs expire on March 18, 2007 as the new NWP will not be in place and technically, there will not be a NWP program.
• USACE verifications are still not being issued and many NWP submittals contain a concurrent USACE wetland verification request. Any NWP submittals that are not complete by March 18, 2007 will not be issued.
• There will not be a Nationwide Permit program in place until the new proposed modifications are accepted and implemented. Therefore, all issued NWPs will become null and void, if the holder of the permit has not completed the work or initiated work on the project.

 

USACE Comments

 

It is possible that some of the NWP permits obtained will not be physically implemented by March 18, 2007. Ward Edwards contacted the USACE in Charleston to obtain more specific information that would help our clients. It was determined that proof that work has begun on issued NWPs must be in hand by March 18, 2007.

Proof includes, but is not limited to the following :

• Physical construction work onsite (i.e. moving dirt)
• Purchase of mitigation credits as specified and if required in the issued NWP
• An expenditure of money by the client that is applied directly to the permitted work. This may be as follows:
  • Engineering work concerning the proposed impacts
  • A payment to the person that will be doing the construction work.
  • Signed authorization and payment for services to a third party to find and contract someone to provide the actual construction services