Stayed Water Rule Nowhere in Sight in New Corps Permits

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By Amena H. Saiyid

The final package of Clean Water Act permits issued Jan. 6 authorizing activities in wetlands and waterways omits references to a rule, on hold by the courts, that could have expanded the types of areas subject to those permits.

The U.S. Corps of Engineers’ decision to exclude references to the Clean Water Rule responds to concerns raised in June 2015 by the Waters Advocacy Coalition that the final package of nationwide permits would incorporate the revised definitions contained in the water rule (RIN:2040-AF30), whose merits the U.S. Court of Appeals for the Sixth Circuit is reviewing.

The coalition includes farm, mining, public and private electricity generation and construction groups that will be affected by the new permits.

The corps, however, said it would pursue rulemaking if it determines that the nationwide permits need to be modified to address changes in the geographic scope of Clean Water Act jurisdiction or other regulatory changes.

“The Association is supportive of the nationwide permits and appreciates the Corps using current regulations and guidance for identifying ‘waters of the United States’” rather than relying on the stayed rule as it had proposed a year ago, Carolyn Slaughter, American Public Power Association environmental policy director, wrote in an e-mail to Bloomberg BNA. The public power association belongs to the coalition that opposes the water rule.

The latest package includes 50 reissued and two new nationwide permits (RIN:0710–AA73), which take effect March 19 and expire March 18, 2022. The nationwide permits are general permits that 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 (82 Fed. Reg. 1,860).

Acreage Limits Retained

The corps also retained the half-acre disturbance limits found in most nationwide permits although it had sought comment on changing those limits in light of the water rule.

For instance, the corps retained the half-acre disturbance limit for NWP 21, which authorizes dredging and filling of streams during surface mining for coal. The permit authorizes the agency’s district engineer to waive the 300-linear feet limit for dredging and filling in ephemeral and intermittent streams, but bans valley fills created by waste excavated from mountains.

The National Mining Association told Bloomberg BNA that it was unable to comment on the revised NWP 21 or the remainder of the package.

Two New Permits

The suite of permits includes the new NWP 53 that authorizes the removal of low-head dams that pose a threat to boaters. The release of this permit was accompanied by an Environmental Protection Agency document that responds to frequently asked questions about the removal of obsolete dams.

The corps also for the first time issued NWP 54 authorizing the construction and maintenance of living shorelines in estuarine and marine waters as well as the Great Lakes. Such shorelines control erosion by using vegetation or other “soft” material in combination with some sort of harder shoreline structure, such as oyster or mussel reefs for added protection and stability.

Jan Goldman-Carter, wetlands and water resources director for the National Wildlife Federation, said the 2017 package of permits is largely similar to its predecessor except that it acknowledges the value of nonstructural solutions that are authorized through the two new permits.

Goldman-Carter said the current process doesn’t allow public comment on projects that could adversely affect drinking water supplies. “The fact remains that several of the 2017 NWPs still violate the Clean Water Act by expediting permits for pipelines, bulkheads, and other projects that cause significant cumulative harm to the nation’s waters,” she said.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

A summary of the reissued nationwide permits is available at http://ow.ly/M57Y307LazmArmy Corps of Engineers final rule is available at http://ow.ly/zOty307LCC5

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