Army Corp Revises and Renews Nationwide Permits

April 2012Articles In the Zone

On February 12, 2012, the U.S. Army Corps of Engineers provided notice in the Federal Register of revised and renewed nationwide permits necessary for work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The permits are necessary to replace existing permits, which expire on March 18, 2012. The new nationwide permits will take effect March 19, 2012.

The Clean Water Act of 1977 requires the Army Corps to reissue nationwide permits (NWPs) every five years.

NWPs are a type of general permit designed to authorize certain activities that have minimal individual and cumulative adverse effects on the aquatic environment and generally comply with the related laws cited in 33 CFR 320.3. Activities that result in more than minimal individual and cumulative adverse effects on the aquatic environment cannot be authorized by NWPs.

NWP 29 governs residential development, specifically discharges of dredged or fill material into non-tidal waters of the United States for the construction or expansion of a single residence, a multiple unit residential development or a residential subdivision. NWP 29 authorizes the construction of building foundations and building pads and attendant features that are necessary for the use of the residence or residential development. (View NWP 29’s final decision document )

Per NWP 29, the discharge must not cause the loss of greater than .5 acres of non-tidal waters of the United States, including the loss of no more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds. For residential subdivisions, the aggregate total loss of waters of United States authorized by this NWP cannot exceed .5 acres. This includes any loss of waters of the United States associated with development of individual subdivision lots. The permittee must submit a preconstruction notification to the district engineer prior to commencing the activity.

The Army Corps modified NWP 29 by changing the waiver provision for activities resulting in the loss of greater than 300 linear feet of intermittent and ephemeral stream bed, to clarify that the district engineer will only issue the waiver after making a projectspecific written determination that the activity will result in minimal adverse effects.