By Sylvie Dale
Online Editor
Jan. 21, 2002 -- Concerned about what it called inaccuracies in news reports regarding nationwide permits, the U.S. Army Corps of Engineers has released more information to clarify its stance on wetlands and construction permits.
The new rules which came out in the Federal Register Jan. 15 cover permits for developers who build on wetlands, and the Army Corps said it will protect the nation's goal of "no net loss" of wetlands. But some environmental groups criticize the regulations as too lax, the National Academies said.
The Corps did not mention a specific news report that contained inaccuracies, but provided additional information that seemed to respond point-by-point to an Associated Press report released Jan. 15.
According to the Associated Press, the revised rules will allow homebuilders to put up single-family dwellings in flood plains and reroute miles of narrow streams.
The news service also quoted a vice president for The National Association of Home Builders who said the changes represented the first time in 25 years that the Corps was not adding further limitations or more paperwork.
"Actually, every time we've issued nationwide permits, they have become more environmentally protective, including this time," said John Studt, Chief of the U.S. Army Corps of Engineers Regulatory Branch. "And each time we've proposed changes to the program, they have been open to public review and comment."
The Interior Department said a mix-up prevented them from reading and processing the objections of the U.S. Fish and Wildlife Service, and thus the comments were not passed along to the Corps in time for consideration for the rule changes.
The U.S. Army Corps of Engineers (USACE) on Jan. 15 began issuing nationwide permits (NWPs). Records of those permits are available in the Federal Register. Nationwide permits ensure appropriate environmental protections when authorizing discharges of small amounts of dredge and fill material into waters of the U.S.
"Overall, the permits are undergoing several small but important changes," said John Studt, Chief of the U.S. Army Corps of Engineers Regulatory Branch. "The revised permits will do a better job of protecting aquatic ecosystems while simplifying some administrative burdens for the regulated public. The changes also reinforce and clarify the Corps' commitment to the 'no net loss' of wetlands goal."
The reissued NWPs maintain the protective acreage thresholds established in 2000, which reduced permissible acreage impacts under a nationwide permit from 3 acres to 1/2 acre, to help ensure minimal impacts to the aquatic environment.
• "No net loss"/ acre-for-acre wetlands replacement. Developers (and others who use the permits) are still required to offset damage or impacts, and the standard this year is more restrictive than ever, the Corps said. The Corps acknowledged that in the past there has been less than a one-for-one acreage mitigation. Now they must not only ensure that functions are replaced, but also that the "no net loss" goal is met on an acreage basis within the geographic boundary of the district.
• Current permits revoke previous requirements. The only change in environmental review pertains to intermittent streams, which are often no more than stormwater run-off. Allowing Corps regulators to address impacts to these streams with nationwide permits frees them up to focus on more significant environmental issues, like redesigning major projects for fewer impacts or enforcing required mitigation.
• Floodplain restrictions. Every protection in place for floodplains in 2000 remains in place today.
• Automatic approval. Nationwide permits pertain only to situations with minimal impacts (such as less than 1/2 acre), and each of these permits will still receive individual attention from Corps regulators (most of whom are biologists). Nationwide permits do not take as much time as individual permits, but that is as it should be, because projects requiring individual permits have greater than minimal impacts and therefore deserve more scrutiny.
• Different standards for commercial versus residential developers. The same standard of minimal impact -- 1/2 acre -- is applied for those who build shopping centers (commercial) as those who build neighborhoods (residential).
The revised permits are the result of coordination with the EPA and other federal agencies. USACE sought public comment for proposed changes to the permits in August 2001. The permits are being reissued with several changes from the August proposal based on numerous public and federal agency comments.
The full text of the nationwide permits was posted in the Jan. 15, 2002, Federal Register at http://www.access.gpo.gov/su_docs/aces/aces140.html. To compare the revised permits to the August 2001 document, look under the August 9 entry in the Federal Register.
The replacement nationwide permits will take effect March 16, 2002, 60 days after being published in the Federal Register.
For more information on the U.S. Army Corps of Engineers Regulatory Program, visit the program's web page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
The National Academies has released a report entitled, "Compensating for Wetland Losses Under the Clean Water Act" ( http://www4.nationalacademies.org/onpi/webextra.nsf/web/wetlands?OpenDocument)(2001) which examines federal efforts to achieve no net loss by requiring developers to restore wetlands or create new ones nearby in exchange for permission to fill natural wetlands.
The 1995 National Academies' report Wetlands: Characteristics and Boundaries ( http://www.nap.edu/catalog/4766.html also discusses how federal agencies can improve wetlands oversight.
For more information about the National Academies, please visit http://www.nationalacademies.org.
