Wetland Wednesday
September 9, 2020
On 3 August 2020, the US Army Corps of Engineers (USACE) announced its intention to issue updated Nationwide permits to replace the 2017 permits. These permits are renewed every five years, so this action is two years early. This unusual move is largely motivated by the problematic Nationwide Permit #12, that is used for utility line crossings. This permit had been temporarily rescinded this past summer over several controversial pipeline projects.
Nationwide Permits are used to allow the filling of wetlands and other jurisdictional waterbodies in situations where the impact to these systems will have minimal adverse environmental impact. These permits allow certain categorical activities to take place so long as the activity does not exceed impact thresholds. The alternative to a Nationwide permit is an Individual permit that either does not fit the activity category or it exceeds the impact threshold. Nationwide Permits require the least amount of oversight and review, whereas the Individual permits require the most.
The 2017 permits will expire before their 5 years are up.
The draft 2020 (or 2021) permits are due to be published in the Federal Register any day now. It seems to take about a month or so for publication after the pre-publication announcement. Once this happens the public will have 60-days to comment on the new permits. As of the writing of this post, the new permits had not been published in the Federal register. However, if we assume that they are published before September 15, 2020 then the comment period will close by November 15, 2020.
The USACE will need to review the public comments and respond. This would also be published in the Federal Register along with the Final Permit Rules. It would be a safe bet that this would take between 30-60 days which would bring us to January 15, 2021. Implementation can be as soon as immediate, or at most 60 days. Therefore, the earliest these rules would take effect would be January 2021.
There is a provision to allow projects that are already permitted under the 2017 program to proceed. However, the permitted work must be finalized within one year of the start date. Otherwise the applicant will need to reapply under the new program. This means that is entirely possible that the 2017 permits would run out before their scheduled sunset in 2022.
The Nationwide Permit #12 is being split up.
The Nationwide Permit #12 is used for utility line crossings. These include oil, gas, water, electrical, internet, etc. Oil and gas comprise their own set of unique problems. As a result, the USACE has decided to cleave the non-oil and gas activities into their own set of permits. Proposed Nationwide “C” is for Electric Utility Line and Telecommunication Activities and Proposed Nationwide “D” is for Utility Line Activities for Water and Other Substances. Both would have been covered by the old Nationwide Permit #12.
The new Nationwide Permit #12 is designed to expedite energy infrastructure projects. It has reduced some of the circumstances where a Prior Construction Notification (PCN) is required. In addition, it seeks to simplify some of the PCN requirements that were required in the previous version.
There is a unified method to measure aquatic resource impacts.
In the previous versions of the Nationwide Permits there was a separation between wetland impacts and stream impacts. Wetlands were measured in acres and streams were measured in linear feet of crossing. The problem developed when a stream was only measured based upon the length of the crossing and not the total area of impact. For example, a 30-foot-wide road crossing a 10-foot-wide stream would have the same measured impact as a 100-foot-wide stream. Both would impact 30 feet of stream. However, the are of impact of the 10-foot-wide stream would be 300 square feet, whereas the 100-foot-wide stream would impact 3,000 feet of stream area which is 10 times greater.
To solve this disparity between measurements, the USCAE is going to an all-area measurement system. This was brought up in a recent Regulatory Guidance Letter (RGL) 18-1. This was focused on mitigation for dam removals, but it did attempt to replace acres instead feet as units of measurement of functional loss or gain. This concept also substitutes wetlands for stream loss and vice versa and solves the issue of how to replace a 100-foot-wide river crossing with an in-kind stream. Have you ever tired to build a 100-foot-wide river?
There is much more to cover on this topic, and we hope you will join us for our webinar on October 1, 2020.