Nationwide Permit Overhaul Needs More Work
While it’s a step in the right direction, a U.S. Army Corps of Engineers proposal to revise the Nationwide Permits (NWP) program still needs work, according to official comments on the plan from NAHB.
The NWP program is of critical importance to NAHB members: for example, 88% of all Clean Water Act (CWA) development-related permit decisions in 2003 were made through a general, not individual permit, and NWPs accounted for half of those.
“Because NWPs provide administrative relief to permittees while protecting the environment, they are vital to the home building industry,” NAHB said in its comments. “We laud the Corps’ efforts in today’s proposal to simplify and provide additional flexibility and certainty to the NWP program and prevent further backsliding on this important streamlined permitting process.”
In its letter, however, NAHB delineated 47 pages worth of concerns and needed program changes. Among them:
- Scheduled to lapse in March, the Corps needs to keep the NWP program going while its proposal wends its way through the approval process. “Contrary to the Corps’ stance that NWPs are optional permits, in reality they are not. For many applicants, the process and delay associated with individual (rather than general) permits would render a project infeasible.”
- The Corps needs to get a grip on the extent of its jurisdiction, the letter said. “By misrepresenting the scope of its authority, the Corps has failed to conduct an appropriate analysis of minimal effects for the proposed NWPs. Further, by proposing to provide greater protection for ephemeral streams and regulating ditches, and by expanding its definition of impacts to waters of the U.S., the agency has expanded its authority beyond that which was granted.”
- The Corps needs to provide a better explanation of why a general permit can’t be used for a project affecting only half of an acre and why it must be notified of any residential building activity. The acreage limit for using a general permit has shrunk with successive reissues of the NWPs, the letter notes. “One searches in vain for a single instance in the history of these rules where the Corps even attempted to explain why, first one-third acre, then one-fourth acre and finally one-tenth acre pre-construction notification triggers did or did not meet the ‘minimal effects’ test.”
NWPs are designed to enable the Corps to process small discharges promptly, give more individualized attention to projects affecting important aquatic resources and provide administrative relief to permit applicants. As Supreme Court Justice Antonin Scalia pointed out in his opinions in the Rapanos and Carabell wetlands cases, “The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 — not counting costs of mitigation or design changes.”
The incentive provided by a streamlined process is enough to encourage developers to work harder to minimize their environmental impact and qualify for an NWP, the letter added. Making the NWP process less attractive takes that incentive away.
“The broad definition of ‘waters of the United States’ often makes it impossible for builders to avoid all areas regulated under the Clean Water Act. As a result, our members often are required to obtain CWA Section 404 permits. The vast majority of home building activities that require Section 404 permits result in only minimal impacts, thus, often are authorized by Nationwide Permits,” NAHB said.
“NAHB firmly supports the Corps’ NWP program, has long been an advocate of the NWP program and has supported the Corps’ earlier attempts to expand and improve the program,” the letter said. “We remain concerned, however, about a permit process that, unlike the program envisioned by Congress, continues to place significant restrictions and burdens upon permittees and regulates areas that are beyond the Corps’ CWA jurisdiction. As our detailed comments indicate, modifications must be made to the proposal to ensure the availability of streamlined permits for all activities resulting in minimal impacts and to ensure an efficient and effective program for protecting the nation's resources.”
For more information, e-mail Calli Schmidt, or call her at 800-368-5242 x8132.