Nationwide Permit Program Revised by Army Corps of Engineers

On March 9, 2000, the Corps of Engineers issued a final notice in the Federal Register announcing five new Nationwide Permits (NWPs) and modifications to six existing NWPs. 65 Fed. Reg. 12818 et seq. This notice was the last step in the process initiated in December, 1996 to impose activity-specific requirements in lieu of NWP 26, which applied to discharges of dredged or fill material into headwaters and isolated waters of the United States. The Corps has regulatory jurisdiction over wetlands under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The fundamental Corps regulations pertaining to wetlands are in 33 CFR Part 330.

The new Corps permit program, which has already been challenged in court by the National Association of Home Builders ("NAHB"), is likely to affect numerous development projects. The applicability threshold has been dropped from one-third to one-tenth of an acre, and the old NWP 26 ceilings of three acres/500 linear feet of stream bed have been reduced to one-half acre/300 linear feet.

Corps permit processing time will almost surely increase as a result of the new NWPs. Those projects subject to the new NWPs, face a permit review period of 45 days on top of the 30 days allowed to determine if the application is complete. The NAHB predicts that, by reducing to one-half acre the ceiling for NWPs, an additional 5,600 individual permits will have to be processed. Some increase in time required for individual permitting appears inevitable; the Corps reports that the average evaluation time for individual permits was 100 days in FY 1999.

Two of the new NWPs explicitly address golf courses. NWP 39, generally applicable to residential, commercial, and institutional developments, covers golf courses that are an integral part of residential developments. NWP 42 applies to recreational facilities and small support facilities, such as maintenance and storage buildings, and covers construction and expansion of golf courses that do not substantially deviate from natural landscape contours and are designed to minimize adverse effects to waters and riparian areas through the use of such practices as integrated pest management, adequate stormwater management facilities, vegetated buffers, and reduced fertilizer use.

Both NWP 39 and 42 require pre-construction notification for all projects causing the loss of more than one-tenth acre of non-tidal waters. NWP 39 also requires notice of the loss of any open waters below the ordinary high-water mark. Compensatory mitigation is required at a 1:1 ratio in the form of restoration, creation, enhancement, or preservation of wetlands to compensate for the unavoidable adverse impacts remaining after appropriate and practicable avoidance and minimization has been achieved. Mitigation is required under NWP 39 for all projects, even those below the pre-construction notification levels. NWP 39 and 42 yield to individual permits if more than one-half acre of wetlands or more than 300 linear feet of stream bed are affected.

Other NWP changes that may affect golf course activities appear in NWP 13, utility line activities; 14, linear transportation crossings; 27, stream and wetland replacement activities; 41, reshaping existing drainage ditches; and 43, stormwater management facilities. Other NWPs not affected by the March notice may also cover certain golf course activities. Course owners/operators will have to review all provisions carefully to avoid violations and potentially serious penalties.

Activities that did not require pre-construction notification under NWP 26 are authorized until the effective date of the new permits, June 7, 2000. Projects falling within this range have 12 months to complete work if construction begins or is under contract by June 7.