Wetlands Permitting Alert!

All U.S. Army Corps of Engineers (Corps) nationwide permits (NWP) expired on January 21, 1997. Work already permitted under the NWP's in force prior to January 21, 1997 will be grand- fathered in.

As part of the reissuing process, the Corps curtailed the circumstances in which landowners can fill waters and wetlands, and imposed various new restrictions. The Corps also added two new NWPs, one of which authorizes maintenance of existing flood control facilities.

nwp 26 headwaters and isolated waters discharges

The most important permit used in California and throughout the west coast is NWP 26, which previously authorized the discharge of dredged or filled material that causes the loss of not more than ten acres of waters and adjacent non-tidal wetlands, or isolated waters and wetlands (jurisdictional wetlands). This permit provided for consultation for proposed fills of one to ten acres, after which the Corps would determine the level of mitigation required. If the impacts to wetlands were less than one acre, there was no need to even notify the Corps; otherwise, for impacts between one and ten acres, case-by-case consultation was required.

In response to environmentalists' complaints, NWP 26 has been drastically curtailed effective December 13, 1996, and is slated for complete elimination in two years. Under this change, any work in wetlands affecting more than three acres of jurisdictional waters between now and 1999 will require an individual permit, effectively precluding most dredges because of the extraordinary legal and administrative costs involved in applying for and obtaining a permit. The Corps must be notified 45 days in advance of any activity causing the loss of more than 1/3 acre of waters or wetlands, and mitigation generally will be required for losses exceeding 1/3 acre.

Additionally, use of NWP 26 is precluded if more than 500 linear feet of stream bed could be lost. Note that this 500-foot limit is cumulative for all streambeds on the property. In the arid southwest, for example, where any sizable piece of property will have many narrow, dry arroyos or washes crossing the property, the development of such properties will almost certainly impact more than 500 linear feet of dry, unvegetated stream bed, even though the total area of impact might be well under 1/3 acre. Additionally, effective with these changes, use of NWP 12 and 14 requires advance notification to the Corps for underground utility line trenching, backfilling and stream crossings, and the amount of displaced fill must be counted cumulatively within the 1/3 minimum threshold. Moreover, the Corps has announced that it will consult with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act regarding the procedures for administering the nationwide permit program, which may lead to further changes down the road.

In its proposed regulations changes last fall, the Corps did not specify what changes it was proposing for this NWP, and even said that it could leave the one- and ten-acre limits as they were. The revised permit as published reduced the limits of the NWP to 1/3 and three acres, without advance notice to the regulated community. As with any Corps permit, the NWPs do not become effective unless the state in which the authorized activities take place "certifies" that the activities comply with state water quality standards. California's State Water Resources Board may impose additional conditions (e.g. smaller acreage limits, if that is imaginable), or even deny permits altogether.

nwp 12 utility line discharges

This NWP historically has authorized the installation of utility lines (usually by the trench-and-backfill method) provided that the pre-existing contours are restored upon completion. The Corps has modified this NWP to (1) allow authorization of utility lines within navigable (Section 10) waters and (2) require a pre-construction notification when certain impact thresholds are met. These revisions are an expansion of the use of NWP, but require notification not previously required by the Corps. Notification will be required if (1) the utility line crossing extends more than 500 feet through waters of the US, (2) the utility line is installed parallel to the stream bed instead of across the stream bed, and (3) any mechanized clearing of a forested wetland is required.

The pre-construction notification is anticipated to stop construction until full permitting is considered and potentially adopted.

nwp 14 road crossings

The Corps proposed no changes to this NWP; however, they have modified the rule in response to environmental objections to prohibit use of this NWP permit in conjunction with the use of NWP 26 (see discussion above). Also, keep in mind that this NWP is only available now after a pre-construction notification to the Corps.

Additionally, the Corps has issued Guidance Letters to each district office, instructing each office to develop "regional conditions"; that is, conditions to the NWPs that would be in effect only in specific districts. The Los Angeles district office has already responded to require a full 404 Permit in any waters of the United States within a vernal pool. For the proposes of this condition, the Corps is defining a vernal pool as an area that supports at least two vernal pool indicator species, as specified on a list attached to the public notice.

san diego fairy shrimp added to endangered species list

Earlier this year, the U.S. Fish & Wildlife Service formally declared the San Diego Fairy Shrimp a federally-listed endangered species. This is in addition to the previously listed Riverside Fairy Shrimp and the vernal pool Fairy Shrimp which occur in Southern California. Any construction or farming activity which may affect the listed shrimp is prohibited...regardless of whether or not the activity occurs within Corps jurisdiction. For example, grading within the upland watershed of a vernal pool may be considered a prohibited "take" of the listed shrimp. Virtually any depression that is seasonally filled with water will be considered by USFWS as potential habitat for one of the listed species of Fairy Shrimp unless proven otherwise. The property owner or developer must submit two years of surveys, prepared by approved hydro-biologists during the appropriate seasons, to determine that no Fairy Shrimp inhabit the depressions located on the target property.

These permit changes and expansions of Fairy Shrimp species protections will seriously affect small commercial and development properties, greatly expanding the cost of compliance and remediation. Please write Congressman Doolittle, sitting on the House Water Committee, and Congressman Pombo, who sits on Resources, expressing your concerns and asking that they take all steps necessary to block agency funding until rule making changes protecting property owners are put into place.