Environmental Review Toolkit
Water, Wetlands, and Wildlife

Summary of changes to Nationwide Permits (NWP) and General Conditions that could apply to highway projects, as published January 15, 2002 (67 FR 2036)

Effective Dates and Grandfathering

The reissued permits do not become effective until March 18, 2002 when the current permits expire. However some States may provide Section 401 water quality certification to all the new nationwide permits. DOTs should check with the local Corps jurisdiction or State Water Quality agency. Certain activities authorized under the current permits but not yet begun are "grandfathered," but certain conditions apply. Please refer to the provisions for activities authorized under the expiring permits on page 2020 of the Notice for the details on all activities affected by grandfathering. Concerning NWP 14 specifically, all activities authorized under the expiring permit that are commenced or under contract to begin by March 18, 2002 can proceed, but must be completed by March 18, 2003.

Permits

NWP 14, Linear Transportation Facilities. Acreage limitations for this NWP are unchanged at one-half acre for non-tidal wetlands and one-third acre for tidal wetlands. However, the 200 linear foot fill limitation has been removed. The Preconstruction Notification (PCN) threshold remains at one-tenth acre. That is, a PCN is required for all fill exceeding 1/10 of an acre. A PCN is still required for projects with fill in special aquatic sites, regardless of acreage. These PCNs must include a compensatory mitigation plan, as well as, delineation of all special aquatic sites, which include wetlands, riffle/pool complexes, sandflats, mudflats, vegetated shallows, and sanctuaries and refuges, as defined by the 404(b)(1) guidelines (40 CFR 230.40 SUBPART E). Features such as storm water management facilities and wetlands mitigation projects integrally related to the project can be constructed under this permit, so long as they meet any applicable general and local condition requirements.

NWP 27. Wetland and Riparian Restoration and Creation Activities. The Corps made only minor changes to this permit. The categories of lands addressed are simplified from four to three. Under paragraph (a), subparagraph (3) now includes any other public, private, and tribal lands which is not covered under subparagraphs (1) and (2).

General Conditions

General Condition 9, Water Quality. This General Condition has been changed to require that, for NWP 14, where the State or Tribal §401 certification does not require or approve water quality management measures, the permittee shall provide water quality management measures, including storm water management, that will ensure that the authorized work does not result in more than minimal degradation of water quality, or the Corps determines that compliance with State or local standards, where applicable, will ensure no more than minimal adverse effect on water quality.

General Condition 13, Notification. This General Condition has been reworded, but remains substantively the same as far as required actions. Concerning impacts to wetlands, the condition requires submission of a compensatory mitigation plan consistent with the requirements of Condition 19, Mitigation.

General Condition 19, Mitigation. This general condition retains and reiterates the minimum ratio for compensatory mitigation on projects requiring a PCN at 1:1 unless the District Engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project specific waiver of this requirement.

General Condition 26, Fills within Floodplains. The language in this General Condition specifically applying to NWP 14 has been removed. The requirement to include verification of compliance with FEMA or FEMA-approved local floodplain construction requirements in a PCN (General Condition 13) has also been deleted. The revised condition now simply states that an applicant has to comply with any applicable FEMA-approved State or local floodplain management requirements.

Questions and feedback should be directed to Mike Ruth (Mike.Ruth@dot.gov, 202-366-9509).

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