by Diane G. Kindermann and Robert T. Yamachika
On January 15, 2002, the United States Army Corps of Engineers (“Corps”) announced the re-issuance of all existing Nationwide Permits (“NWPs”), General Conditions, and definitions with some modifications, and one new General Condition. All of the NWPs became effective on March 18, 2002 and expire on March 19, 2007.
Significant changes include the modification of NWP 14 (Linear Transportation Crossings) to authorize private (in addition to public) transportation projects in non-tidal waters having a maximum acreage of one-half (1/2) acre instead of the current one-third (1/3) acre, and all (public and private) linear transportation projects in tidal waters to be limited to one-third (1/3) acre. The provision limiting the length of the fill for crossings to 200 linear feet is also removed.
Another notable change is the adoption of a case by case waiver to the 300 linear feet limitation for work under NWPs 39 (Residential, Commercial, and Institutional Development); 40 (Agricultural Activities); 42 (Recreational Facilities); and 43 (Stormwater Management Facilities), provided that the applicant obtains a written determination from the Corps that any adverse environmental impacts would be minimal. The case by case waiver for intermittent stream impacts applies only to NWPs 39, 40, 42 and 43. Perennial stream impacts over 300 linear feet are excluded from the case by case waiver. Finally, the new NWPs eliminate some restrictions on development in floodplains.
In addition, the Corps made minor modifications to NWPs 21 (Surface Coal Mining Activities); 27 (Stream and Wetland Restoration Activities); 30 (Moist Soil Management for Wildlife); 31 (Maintenance to Existing Flood Control Facilities); 32 (Completed Enforcement Actions); 37 (Emergency Watershed Protection and Rehabilitation).
The new NWPs maintain the less than one-half (1/2) acre average threshold for use of NWPs, as previously modified in March of 2000, when the Corps reduced the acreage threshold from 3 acres to one-half (1/2) acre. Therefore, any project that impacts more than one-half (1/2) acre of wetlands will continue to require an individual permit. Note that some NWPs such as NWP 14 mentioned above, requires an individual permit if a project impacts as little as one-third (1/3) acre.
Also modified are General Conditions 3 (Soil Erosion and Sediment Controls); 4 (Aquatic Life Movements); 9 (Water Quality); 11 (Endangered Species); 13 (Notification); 19 (Mitigation); and 21 (Management of Water Flows). The Corps added a new General Condition, General Condition 27 (Construction Period).
Section 404 Tolling Agreements
The Corps is now enforcing a provision of its administrative appeal process for the regulatory program established on March 28, 2000 (33 C.F.R. §§ 320, 326 and 331). As part of the administrative appeal and enforcement processes, the regulations require that no appeal of an approved jurisdictional determination associated with an unauthorized activity or after-the-fact permit application will be accepted unless and until the applicant has furnished a signed statute of limitations tolling agreement to the district engineer (33 C.F.R. §§ 326.3(v)). The tolling agreement temporarily stops the running of the statute of limitations for legal enforcement of the alleged violation by the Corps. The agreement also restricts the transfer of property without notice to the Corps and provides an opportunity for the Corps’ objection. An applicant may choose to participate in the preparation of a tolling agreement to ensure that its interests are protected.
Revised Minimum Standards for Wetlands Delineations
The Sacramento District of the Corps issued new wetland delineation standards on November 30, 2001 to assist wetland consultants in producing uniform and consistent delineations. Included in the minimum standards is the requirement that every wetland must be surveyed and staked by a surveyor with GPS technology to less than one meter accuracy. Data must be provided in GIS format (the graphic interface to GPS). If the boundaries are not staked to the minimum standards, the Corps will not conduct a site visit to verify the delineation until staking is accomplished. The Corps will accept non-GPS data if sufficient explanation can be provided as to its technical unworkability.
Some wetlands biologists have suggested that the additional data points and extremely precise mapping requirements are not necessary to gain a clear understanding of a wetlands boundaries. Nevertheless, the Sacramento District desires consistency as do other districts.
Diane Kindermann is a partner and Rob Yamachika is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.