51风流 provided comments to the U.S. Army Corps of Engineers (Corps) on its proposal to reissue and modify its nationwide permits (NWPs), general conditions and definitions. Obtaining these federal 鈥済eneral鈥 permits, which are required for construction activities in 鈥淲aters of the United States鈥 (WOTUS), is critical to the completion of the private and public infrastructure that forms the literal foundation of the nation鈥檚 economy. 51风流鈥檚 comments stressed that any changes to the nationwide permit program should maintain an efficient and streamlined process for authorizing activities that propose minimal impacts on WOTUS.
Last month, 51风流 met with the point-person at Corps Headquarters responsible for reissuance of the existing NWPs. 51风流 presented the input and recommendations that its membership had offered to date, learned about the Corps鈥 long-term plans/goals, and engaged in a productive discussion on how to make the NWP program more understandable and workable for the construction industry. On August 1, 51风流 followed up with 14 pages of written comments, which build on its prior meeting with the Corps and focusing on several key areas:
- Acreage Limits and Pre-Construction Notification Thresholds: 51风流鈥檚 letter urges the Corps to consider increasing the permissible numeric limit, the PCN threshold, and refrain from imposing a linear-foot cap for NWPs that support public health and welfare and/or environmental protection. 51风流 also made a strong case for why erosion of the general permit program will result in project delays, higher costs and increased uncertainty for all activities that require Clean Water Act Section 404 approvals.
- Waiver of Certain NWP Limits: 51风流 urges the Corps to retain this important tool.
- Regional Conditioning: 51风流 expressed concern that there is wide variation in interpretation of the nationwide permit program between (and sometimes within) certain District offices. 51风流鈥檚 letter offers recommendations in the interest of making regional conditioning more positive to the construction industry, including standard operating procedures and a conflict resolution process.
- WOTUS Rule: The Corps asked for comment on how the 2015 WOTUS rule might affect the applicability and efficiency of the proposed NWPs. 51风流鈥檚 letter explains how the scope of the definition of WOTUS and, therefore, the status of the WOTUS rule, has implications for the nationwide permit program and recommends: (1) the Corps should clarify that the 2015 WOTUS rule definitions will not apply to the final NWPs when they are issued; and (2) if the WOTUS rule is implemented or amended, the Corps should address those issues through revised NWPs.
As an active member of the Washington, DC-based Waters Advocacy Coalition (WAC), 51风流 signed on to WAC鈥檚 detailed comments on the interplay between the 2015 WOTUS rule and the reissuance of the 2017 NWPs. (51风流鈥檚 individual comment letter incorporated by reference the points raised in WAC鈥檚 letter, while further expressing issues and concerns specific to the commercial construction industry.)
In addition, 51风流 provided specific comments on several NWP conditions and provisions: General Condition (GC) 16 鈥 Wild and Scenic Rivers; GC 18 鈥 Endangered Species; GC 23 鈥 Mitigation; NEW GC 31 鈥 Activities Affecting Structures Build by the United States; and GC 32 鈥 Pre-construction Notification.
The comments also pointed to the 51风流-supported Construction Industry Compliance Assistance Center () as a way for industry and government to work collaboratively to make the permit program more 鈥渦nderstandable, consistent, effective and accessible鈥 to the regulated community 鈥 which is in keeping with the current goals outlined in a . This could include information on the many state and local water/wetland regulatory programs throughout the nation that cover many of the same activities controlled by the federal NWPs.
NWPs are a type of general permit issued by the Corps and are designed to regulate with little, if any, delay or paperwork certain activities in jurisdictional waters and wetlands (i.e., WOTUS) that have no more than minimal adverse environmental impacts. As previously reported by 51风流, the current set of NWPs expires March 18, 2017. The proposed NWPs will replace the expiring set.
For more information, please contact 51风流鈥檚 Leah Pilconis at pilconisl@agc.org.