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Builders to Continue to Slog Through Wetlands Process
The U.S. Army Corps of Engineers published changes for the next five-year Nationwide Permit (NWP) cycle last week, almost two months past its deadline, assuring that builders will experience delays in obtaining wetlands permits.
Meanwhile, there does not seem to be adequate justification for the changes the Corps has proposed, nor incentives that would encourage builders to apply for nationwide permits rather than individual permits, said NAHB Director of Water and Wetlands Marolyn Parson.
“Once again, the Corps has lowered the threshold requirements and broadened jurisdiction to include ephemeral waters, requiring permits for a wider variety of projects,” Parson said. “That doesn’t do much to streamline the process, even though that was the intention of these permits.”
The federal Clean Water Act requires the Corps to reauthorize the NWPs every five years, and the current permits expire on March 19. The final NWP regulation must be published at least 60 days before its effective date so that Corps district offices have time to finalize so-called Regional Conditions, and states and tribes have time to issue local Water Quality Certifications and Conditions.
This delay, in addition to stalling new projects, also may affect ongoing building and development projects if the Corps does not come up with interim guidance to cover the period between March 12, when the Corps issued its permit, and May 9. NAHB continues to monitor the Federal Register and will notify members if it appears, she said.
While threshold requirements have been lowered, the Corps' proposed replacement permits contain few significant changes from the existing NWP program, Parson said. Regulators still have not issued guidance on the "significant nexus" issue raised in the Rapanos and Carabel U.S. Supreme Court decisions last June, in which justices urged the federal Environmental Protection Agency and the Corps to come up with clearer rules on when wetlands are considered jurisdictional and permits are necessary under the Clean Water Act.
In the meantime, developers can still take action:
- If you already have an NWP. You must either commence the "activity" — grading or filling — or be under contract to commence the activity before March 19 or the permit will expire and you must reapply. You have until March 18, 2008 to complete the project. Remember to document the fact that your project is underway — perhaps with a letter along with the evidence that you have started. Send the letter to the Corps by March 19.
- If you are close to submitting a preconstruction notification for an NWP. File your notification as soon as possible and process it before March 19.
- If you are still planning your project. Make sure your project meets the new requirements. Another option is to seek coverage under another type of general permit, such as a regional or programmatic permit, or under an Individual Permit.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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