Will Likely Require Pre-Construction Notification for Use of NWP 12 (Utility Lines), 13 (Bank Stabilization), 14 (Linear Transportation) & 36 (Boat Ramps)
The Army Corps of Engineers (Corps) will change how it implements several Nationwide Permits in 19 coastal districts that contain endangered marine species. This action is in response to a recent Biological Opinion (BiOp) released by the National Marine Fisheries Service (NMFS) that evaluated the impact of Nationwide Permits on endangered marine species.
Nationwide Permits (NWPs) issued by the Corps are general permits issued on a nationwide basis that authorize specific types of activities that result in the discharge of dredged or fill material into waters of the United States. NWPs are meant to streamline the authorization of activities that the Corps determines will have minimal adverse effects on the aquatic environment. Information about existing NWPs can be found here.
In 2011, the Corps proposed to reauthorize 46 NWPs, modify two NWPs, and create two NWPs. The NMFS released a BiOp stating that the Corps’ proposed action would jeopardize endangered marine species. In March of 2012, the Corps finalized its proposed changes despite the NMFS’s concerns. Since then, the Corps and the NMFS have discussed what actions the Corps can take to alleviate the NMFS’s concerns. This lengthy process produced the NMFS’s recent BiOp, which concludes that the NWP program will have only minimal effect on the aquatic environment as long as the Corps implements various protective measures to further protect marine life. The Corps has agreed to implement the proposed protective measures, which include:
- Promulgating new rules requiring individuals seeking authorization for construction activities via NWP 12 (utility lines), 13 (bank stabilization), 14 (linear transportation projects) and 36 (boat ramps) provide the Corps pre-construction notification if the proposed activity will create impervious surface cover in a watershed inhabited by endangered marine species or designated as critical habitat for those endangered species.
- Coordinate with NMFS to generate additional regional conditions that will be placed on NWPs in individual coastal districts to protect endangered marine species.
- Require compensatory mitigation for wetland loss of less than 1/10th of an acre if the endangered species consultation for the permitted activity finds that mitigation is reasonable and prudent.
- Develop guidance for Corps’ districts to conduct analysis on the cumulative effects that activities authorized by NWPs are having on endangered marine species.
- Create annual reports for NMFS detailing the projects authorized by NWPs, the impacts of those projects, and mitigation performed.
The immediate effect of this BiOp is limited. However, once the Corps begins to implement the protective measures outlined above in the coming months, the NMFS acknowledges that “it will likely take longer to make decisions on nationwide permit pre-construction notifications and permit applications.” Projects in coastal areas that could be affected by this BiOp include construction and expansion of railroads and roads, pipeline projects, and installation of municipal water, sewage and internet networks. This new BiOp will not affect projects authorized by NWPs that have already been completed or are in the process of being completed.
This article was authored by Aaron Heishman, Jackson Kelly PLLC. For more information on the author, click here.
 The 19 Corps districts affected are: New York, Philadelphia, Baltimore, Norfolk, Wilmington, Charleston, Savannah, Jacksonville, Mobile, New Orleans, Galveston, Los Angeles, Sacramento, San Francisco, Walla Walla, Portland, Seattle, Alaska and Hawaii.