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Aug. 3 — The U.S. Army Corps of Engineers shouldn't incorporate or cite the Clean Water Rule in proposed revisions to nationwide permits because the regulation has been stayed by a federal appeals court, an industry group said in comments.
The Waters Advocacy Coalition was commenting on a package of 50 draft nationwide permits (NWPs) issued by the corps June 1 to authorize dredge-and-fill activities in wetlands and streams with minimal adverse impacts for a variety of projects, including mining, home building, agriculture, manufacturing and road construction. The coalition's members include farm, mining and construction groups that would be affected by the new permits.
The corps also should maintain the half-acre disturbance limits allowed in most of the nationwide permits, several commenters said. Comment was sought on whether to change these acreage limits in light of the Clean Water Rule.
In October, the U.S. Court of Appeals for the Sixth Circuit stayed the Clean Water Rule (RIN:2040-AF30), also known as the waters of the U.S. (WOTUS) rule, while it considers the merits of the regulation.
“The WOTUS Rule litigation is ongoing, the nationwide stay ordered by the Sixth Circuit is in effect, and, given the briefing schedule set by the Sixth Circuit, it is very unlikely that a final decision on the WOTUS Rule challenges will be issued before the Corps promulgates the final NWPs (sometime before March 19, 2017),” Deidre Duncan, an attorney with Hunton & Williams LLP, said in the coalition's comments dated Aug. 1.
Until then, Duncan said, the corps can't incorporate the WOTUS rule's new jurisdictional definitions into the reissued nationwide permits or cite to the stayed regulations.
The package of draft permits, once made final, would replace the 50 existing permits that were issued in 2012 and expire March 18, 2017.
Duncan said the corps hasn't clarified whether the water rule would apply to the revised nationwide permits, but at the same time the draft permits revised definitions of “waterbody,” “non-tidal wetlands,” an “ordinary high water mark,” or an indication of dirt and debris that the corps uses to delineate the level of water in a stream.
As an example, Duncan cited the Nationwide Permit 12 that authorizes discharges of dredged material associated with the construction, maintenance, repair and removal of utility lines provided the discharge “does not cause the loss of greater than ½-acre of non-tidal waters of the United States.”
Duncan also cited the use of the term “adjacency” in the proposed permits that has a much broader definition in the stayed rule than in existing regulations.
She recommended that the corps follow the November 2015 memorandum that it wrote jointly with the Environmental Protection Agency in response to the Sixth Circuit's stay.
The memo directed both agencies to comply with the stay, resume use of the agencies’ prior regulatory definition of “waters of the United States” and follow the 2008 guidance on jurisdictional determinations issued in response to the U.S. Supreme Court's ruling in Rapanos v. United States (547 U.S. 715, 62 ERC 1481 (U.S. 2006)).
If the Clean Water Rule is implemented, Duncan said the corps also will need to address the new definition’s significant implications on the nationwide permit program. Specifically, she said the corps would need to revise the limits on acres that can be disturbed, while maintaining a streamlined permitting process with minimal environmental impacts, as Congress intended.
For now, Duncan urged the corps to retain the half-acre limitation contained in most nationwide permits. The American Public Power Association as well as the National Mining Association concurred with Duncan on retaining the existing acreage limits.
In separate comments, Carolyn Slaughter, environmental policy director for the American Public Power Association, said the current half-acre limitation in the NWP 12 for construction and repair of electric utility distribution and transmission lines and in NWP 51 and 52 for land-based and water-based renewable energy projects were “appropriately protective.”
Slaughter also urged the corps to retain the half-acre limit in non-tidal waters and one-third acre limit in tidal waters in NWP 14 for linear transportation projects, such as pipelines and roads.
“If the WOTUS rule is affirmed by the court, the Corps should consider increasing these thresholds caps to avoid an overwhelming influx of individual permits and additional burden for applicants,” Slaughter wrote.
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