Tuesday, August 16, 2016
Joan Darling, Lincoln Environmental
Many of Olsson’s clients have projects that affect wetlands or streams. Whether it’s a new commercial development, a bridge replacement on a county road, a new flood control reservoir, or a myriad of other types of projects, these impacts to waters of the U.S. require a Clean Water Act Section 404 permit from the U.S. Army Corps of Engineers (USACE).
The easiest and fastest way to obtain a 404 permit is to qualify for General Permits, which are permits that have already been issued. If you meet the criteria for these permits, Olsson can help you obtain authorization from the USACE to go ahead with the impacts in a matter of weeks. (In contrast, it can take at least a year or more to obtain an Individual Permit if your project does not meet the criteria.)
There are two types of General Permits: Nationwide Permits (NWPs), which are issued by USACE headquarters, and Regional General Permits or Letters of Permission, which are issued by a specific USACE district, such as the USACE Omaha District. The NWPs are issued to cover a number of specific types of projects. For example, an NWP 12 is for utility lines, an NWP 14 is for linear transportation projects, and an NWP 29 is for residential developments. All of these have limits on impacts to waters of the U.S. Typical limits include no more than 0.5 acre of permanent impacts to wetlands, or no more than 300 linear feet of stream channel.
The NWPs were last issued in March 2012, and they expire in March 2017. If you already have an NWP permit, it will be important to have your project under construction before the permit’s expiration date. You will then have another year to complete your impacts.
You might wonder, “What happens to the NWPs after March 2017?” Drafts of new NWPs that would replace the existing ones have been published. Although there could be changes when the final ones are issued, first glance reveals only a few minor changes from the current NWPs. Impact limits are the same, although there are some slight clarifications. For example, mats used for heavy equipment are a temporary — not permanent — impact, and stream bed impacts are included in the 0.5-acre limit. Some of the changes will benefit project proponents. If your project only affects waters and wetlands temporarily, you might not need to notify the USACE at all. The current NWP for temporary impacts not only requires notification, but it also requires a restoration plan. Two NWPs are newly proposed for removal of low-head dams and for “living shorelines.”