The United States Army Corps of Engineers (the "Corps") has significantly altered the Nationwide Permits ("NWPs") for dredging or filling wetlands, effective June 7, 2000. The changes include replacing the most commonly used permit, NWP 26, which previously had authorized filling up to three acres of wetlands for commercial or residential construction. A new "general purpose" NWP, number 39, and several other "activity specific" NWPs replace NWP 26. Most of these NWPs can only be used to fill 1/2 an acre or less of wetlands. An important consequence of these changes is to make property with as little as 1/10 an acre of wetlands subject to regulation under federal and state law.
The following is a list of commonly asked questions and answers regarding application of NWP 39, the new nationwide permit which specifically allows the filling of up to 1/2 an acre for residential, commercial or public institution development.
What is a Wetland?
The new NWPs do not alter the definition of what constitutes a wetland, but it is critical to understand that many acres of wetland are forested, rather than land traditionally associated with cattails or "swamps." Even though the definition has not changed, the Corps is now regulating impacts to ephemeral streams (discussed below) and drainage ditches, because these waterways are defined for the first time as part of the new NWPs. As a result, applicants must now include impacts to ephemeral streams and drainage ditches in calculating the previously existing conditions and the linear footage of impacts. This has effectively increased the Corps' jurisdiction without a change in the definitions of "wetland" or "stream."
What Size of Wetland Fill Requires Regulatory Action Under New NWP 39?
A wetland fill of 1/2 acre or less is permitted under NWP 39 for construction of homes, shopping centers and public institutions. NWP 39 also requires preconstruction notification to the Corps for impacts to a mere 1/10 of an acre.
To help visualize these relatively small areas, one-half of a football field, excluding the end zone, is slightly less than 1/2 an acre. The end zone alone, which is 30' deep and 160' wide, is 500 square feet larger than a 1/10 an acre.
What is a Vegetated Buffer, Which Now May Be Required Under NWP 39?
A vegetated buffer is " a vegetated upland or wetlands next to . . . open waters which separate the open waters from developed areas . . . " Under NWP 39, vegetated buffers are required around perennial and intermittent streams and other open waters, but not around ephemeral streams. These buffers will "normally" be 25' to 50' wide on both sides of a stream "but the District Engineer can require a wider vegetated buffer to address documented water quality concerns." Vegetated buffers must be preserved in perpetuity by conservation easements or deed restrictions. Mowed lawns are not vegetated buffers. A buffer needs trees, shrubs and herbaceous plants.
What is an Ephemeral Stream, and How Will I Know it When I See it?
The regulations provide that: "An ephemeral stream has flowing water only during, and for a short time after, precipitation events in a typical year... Groundwater is not a source of water for the stream..." However, a stream subject to Corps jurisdiction must have an Ordinary High Water Mark ("OHWM"). The Corps has jurisdiction over filling ephemeral streams with an OHWM. Unfortunately, the regulations provide no criteria for locating the OHWM for an ephemeral stream. Instead, the District Engineer will make this determination on a case-by-case basis. Since there is no definitive way to tell what is and is not an ephemeral stream, you may not know it when you see it.
What "Regional Conditions" Attach to NWP 39?
Under the new NWP 39, the Army Corps is authorized to attach "regional conditions" to the national general conditions in the NWP, though the distinction between regional and general conditions is unclear. The Corps has attempted to harmonize the regional conditions on a state- by-state basis. For example, in Ohio, the current regional conditions for NWP 39 include a requirement to notify the Corps for impacts to ephemeral streams greater than 300 linear feet and notification for all impacts to Section 10 waters (coastal waters or water navigable in commerce).
Has The Process Changed For Getting An Individual Dredge And Fill Permit Getting an Individual Dredge and Fill Permit From the Army Corps if a NWP is Unavailable?
No. The process for obtaining an individual dredge and fill permit from the Corps, which is needed if a NWP is not available, remains the same. An applicant makes an application to the Army Corps of Engineers under Section 404 of the Clean Water Act. In Ohio, the Corps immediately forwards that application to Ohio EPA to certify that any impacts under the permit will meet state water quality standards under Section 401 of the Clean Water Act.
While the process is unchanged in general terms, the reduced acreage allowed under the NWPs vastly increases the universe of projects requiring individual permits, thereby increasing the administrative workload and likely lengthening the response time for individual permits.
How are Ohio EPA's Regulations Involved with The Federal NWPs?
Under Section 401 of the Clean Water Act, Ohio must certify that activities under any wetlands will meet Ohio's water quality standards. Ohio has certified the NWPs, including NWP 39, with specific limitations applicable in Ohio. For example, no NWP may be used to fill what Ohio law determines is a "Category 3" wetland, possessing high values and functions.
Will The Corps "Grandfather" any Pending Applications Under NWP 26?
The rollout for the application of new NWPs requires that the new permits apply to any application received after the publication date of the new permits, i.e. March 9, 2000. If an application to use a NWP was filed before March 9, 2000, those projects will be able to go forward under the former regulations.
Conclusion
The foregoing summary highlights important issues related to the new NWP and is not intended as a complete analysis. The permits are complicated. Fine points of the new program are still being worked out and other changes may result. In fact, some industry trade groups have challenged the new rules in court seeking certain changes. Regardless of the outcome of such litigation, however, the overall effect of these changes to the NWPs is that the regulation of wetlands and streams has become much more intensive, expansive and expensive.