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With Wetlands Permits Expiring, Delays Expected
Builders can expect more wetlands permit delays because the U.S. Army Corps of Engineers has missed a deadline to publish proposed changes for the next five-year Nationwide Permit (NWP) cycle.
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.
Because the Corps did not meet that Jan. 19 deadline, there will be a gap in permit coverage. Because the 60-day clock does not start until the Corps submits its proposal, no new NWPs can be issued after March 19, when they expire, until 60 days after the Corps does issue its proposal.
In addition to stalling new projects, the delay also may affect ongoing building and development projects if the Corps does not come up with interim guidance to cover the gap period. The expectation is that it will issue something, said NAHB staff vice president Susan Asmus.
The Corps proposed replacement permits in September 2006 that contained few significant changes from the existing NWP program, but the content may still change, Asmus 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.
For example, the proposed permit limits impacts to no more than 300 linear feet of ephemeral streams, while the existing permit limits apply to only perennial streams. “More importantly, it is uncertain how — or even if — the Corps will grandfather ongoing projects that already have permits,” she said.
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 once they are issued. Another option is to seek coverage under another type of general permit, such as a regional or programmatic permit, or under an Individual Permit.
NAHB staff is closely monitoring the Corps’ actions, and will detail the new NWPs as soon as they are released, Asmus said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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