Wetland Wednesday
August 12, 2020
On August 3, 2020 the US Army Corps of Engineers announced its intention to renew and revise 52 nationwide permits for work in wetlands and other waters that are regulated by Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The Corps proposal includes five new nationwide permits related to seaweed mariculture activities, finfish mariculture activities, electric utility line and telecommunications activities, utility line activities for water and other substances, and water reclamation and reuse facilities.
The nationwide permits are designed to authorize activities that cause minimal adverse environmental impacts to aquatic resources separately or on a cumulative basis. Activities range from work associated with aids to navigation and utility lines to residential developments and maintenance activities.
The mariculture permits are brand new and represent an emerging market. The biggest change is associated with the Nationwide 12 permit. This permit in the past had been for utility line crossings. The new proposal for Nationwide 12 retains the oil and gas activities and cleaves the other types of utilities into two new permits. One permit is for electric and telecommunications. The other is for water and sewer projects.
Another major permit change is reflected in the compensatory mitigation requirements. In a previous regulatory guidance letter, the Corps had indicated that it had intended to move away from linear stream measurements and toward an acreage calculation. That change is reflected in these permits.
In addition, the district engineers discretionary call on ephemeral stream impacts has been eliminated. This is owning to the recent Navigable Waters Protection Rule that has deemed ephemeral streams to be non-jurisdictional. The permit changes clarify this fact.
Keep an eye out for the published version of the new permits in the Federal Register in the coming weeks. We can expect these new permits to be effective before the end of the year.