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Corps’ New England District proposes to suspend nationwide permits, retain general permits in New England

Published Feb. 14, 2017

CONCORD, Mass. – The U.S. Army Corps of Engineers (USACE) is reissuing Nationwide Permits (NWPs), authorizing work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The new NWPs take effect March 19, 2017 replacing the existing 2012 NWPs.


The new NWPs were published in the Federal Register on Jan. 6, 2017 and posted to the USACE website at www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx.


While nationally USACE is reissuing these NWPs, the Corps’ New England District proposes to again suspend the NWPs in the six New England states and continue using regional general permits in each New England state. The New England District most recently suspended all NWPs in the six New England states on March 19, 2012. In their place, New England District has used the highly effective regional GPs for over 20 years. Regional general permits can be viewed at http://www.nae.usace.army.mil/Missions/Regulatory/State-General-Permits/.


The currently proposed suspension would remain in effecet for five years unless rescinded by the Corps’ North Atlantic Division Engineer.


Multiple goals will be realized as a result of again suspending the NWPs in New England. It provides consistency, simplification and streamlining in the regulatory process. Projects with minimal individual and cumulative effects on the aquatic environment will be approved administratively under the GPs.


Project eligibility for permitting under a GP will fall into two categories defined using the regional criteria for 1) self-verification projects; and 2) pre-construction notification (reporting) projects that will be reviewed by the Corps. Self-verified projects may proceed provided the proponent verifies that the terms and conditions of the GPs are met and the Self-Verification Notification Form is submitted to the Corps when applicable.


Activities requiring pre-constructuin notification to the Corps will be reviewed by the Corps, and Federal resource agencies (U.S. Fish and Wildlife Service, the U.S. Environmental Protection Agency, and the National Marine Fisheries Service), other Federal agencies, and state agencies such as wetland and waterway permitting agencies, when applicable.


Through this coordination, the Corps will determine if individual and cumulative adverse environmental impacts are more than minimal or whether the project may proceed under the GPs.


Projects that do not meet the terms and conditions of the GPs or those which are determined to have potential for greater than minimal adverse impact will require an Individual Permit. The Individual Permit review procedures are not altered by the GPs. Federal exemptions (which are not necessarily the same as the states’ exemptions) also are not altered by the GPs. In addition, GP authorizations are not valid until all other required Federal, state, and local permits and/or certifications are obtained.


Also, the GPs continue broad coverage and increased environmental sensitivity. The GPs have broader upper limits, but allow the Corps, in coordination with the states and Federal resource agencies, to review projects to determine if project impacts are more appropriately reviewed under Individual Permit procedures.


In some cases, lower limits than the NWPs provide the Corps with the opportunity to review certain activities that could have greater environmental impacts, e.g. those occuring in environmentlally sensitive areas. Additinoally, the decision of ineligibility under the GPs will be much simpler and require less staff time than the discretionary authority procedures.


However, the Corps retains the right to implement discretionary authority for any project when it determines it is necessary and in the public interest to do so.


The suspension of the new NWPs will continue to allow maximum use of the GPs and result in a greatly simplified, flexible and expedited regulatory program in New England. Suspension also will increase efficiency and eliminate redundancy when certain aspects of the GPs are synchronized with in-place state regulatory programs.


State GPs can be individually conditioned, as can NWPs, should it be necessary to restrict activities in order to protect the environment.


The public notice, with additional information, can be viewed at: www.nae.usace.army.mil/Missions/Regulatory/PublicNotices.aspx.


Additional information is available from Regulatory Permit Project Manager Greg Penta at 978-318-8862 or toll free 800-343-4789 or 800-362-4367 (if calling from within Massachusetts) or by email to gregory.r.penta@usace.army.mil. Public comments should be forwarded no later than March 1, 2017 to the U.S. Army Corps of Engineers, New England District, Regulatory Division (ATTN: Greg Penta), 696 Virginia Road, Concord, MA  01742-2751 or emailed to: gregory.r.penta@usace.army.mil.

Tim Dugan

Release no. 17-006