The
U.S. Army Corps of Engineers is seeking comments on its proposal to renew and
revise 50 “nationwide permits” for work in wetlands and other waters subject to
the Corps’ regulation under Section 404 of the Clean Water Act and/or Section
10 of the Rivers and Harbors Act of 1899.
Nationwide permits (commonly
acronymed as “NWPs”) are issued by the Corps to provide blanket authorization
for activities that are thought to be unlikely to have much environmental
impact.
1.
The announcement is 56 pages long – yes, 56 pages, three columns
per page, about 10-point serif font. Lots of reading, pretty circumloquacious, and
pretty turgid bureaucratic prose – though honestly, I’m finding it a bit more
accessible than a lot of such notices. Maybe I’m getting soft-headed, though,
and it would be easy to be misled.
3.
The announcement proposes to extend the
terms of fifty (50) existing NWPs, but it never lists them all or tells us what
the terms are of each. It does describe the changes it proposes in (by my
count) 17 of the NWPs, but to really understand the proposed changes – or to
consider what other changes might be appropriate – one would have to find each
existing NWP, review it, and then figure out how the proposed change, as
described, relates to its language. Pretty tedious, and I suspect that few will
go to the trouble. I know I can’t, as a purely volunteer effort.
4.
The announcement also covers the
issuance of two new NWPs – one for the removal of low-head hydro dams, the
other for “living shorelines.” At first blush these appear pretty benign, but
the announcement does not provide the details wherein the devil may lurk.
5.
The announcement also discusses standard
conditions that apply to each NWP. Historic preservation and “cultural resource”
people will be particularly interested in “Standard Condition 20,” discussed
below, but there are many others worth a look, if one has the time and
patience.
6.
On
page 35189 of the announcement, we’re also told that the Corps has prepared an
environmental assessment (EA) on each NWP it proposes to extend or issue anew.
The Corps seeks our comments on these EAs, too, but to review them you’ve got
to go to a different site-- www.regulations.gov (docket ID number COE–2015–0017), where ostensibly you’ll find them as “supporting
Documents.”
7.
Rather
buried in the announcement’s verbiage – on page 37187, we find that a key tool
to be used in assessing the environmental effects of an action proposed under
an NWP will be a “standard form” that the Corps is developing. The announcement
promises a separate Federal Register notice seeking comment on this new form.
Stay tuned for that one, folks.
8.
And
to add one more twist, you’ll recall that the whole basis for the Corps to
regulate activities affecting “waters of the United States” is that – well,
they affect such waters, and the U.S. government is responsible for taking care
of such waters (under the Constitution’s Commerce Clause). But what are “waters
of the United States?” Well, on page 35190 the announcement reminds us that
back in the June 29, 2015 edition of the Federal Register (80 FR 37054), the
U.S. Environmental Protection Agency (EPA) amended the definition, triggering a
host of objections and a court-ordered stay on the amendment’s application. So
the Corps, reasonably enough, is seeking comments on how the amended definition
might affect implementation of the NWPs. In this context, the Corps is “also seeking comments on changes to the NWPs, general conditions, and
definitions that would help ensure that activities that result in no more than
minimal individual and cumulative adverse environmental effects can continue to
be authorized by the NWPs.” To provide a sensible comment, presumably the
reader will need to brush up on the 2015 redefinition, and on the relevant case
law.
So to comment really
knowledgeably on the actions proposed in this announcement – by August 1st, remember! –
one needs not only to read and understand what it says in all its complexity,
but also to look at (a) the separate definitions of NWPs, (b) the EAs on the
NWPs, (c) the EPA’s proposed definition, and (d) the case law and comments on
the definition. And one has to sort of hold one’s breath awaiting issuance of
the “standard form.”
Suspecting that most readers of this blog won’t –
indeed can’t – go to so much trouble, let’s take a look at Condition 20, which
is likely to be of most interest to historic preservation/cultural resource
people. Condition 20 is described on page 35209 of the announcement as follows:
(a) In cases where the district
engineer determines that the activity may affect properties listed, or eligible
for listing, in the National Register
of Historic Places,
the activity is not authorized, until the requirements of Section 106 of the National
Historic Preservation Act (NHPA) have been satisfied.
(b) Federal permittees
should follow their own procedures for complying with the requirements of section 106 of the National
Historic Preservation Act. If pre-construction notification is required for the proposed NWP activity, Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional
consultation under section 106 may be necessary. The respective
federal agency is responsible for fulfilling
its obligation to comply with section 106.
OK, that seems
fairly consistent with the language of Section 106, and not wildly inconsistent with its regulations, but of course, the 10-ton elephant in the room is the
question of how the district engineer is going to “determine” that such effects
will occur. Another is the question of who’s going to satisfy the requirements
of Section 106. The responsibility to do so rests with the Corps of Engineers,
absent some more direct federal involvement, but the announcement’s use of
passive voice leaves one to wonder who the Corps thinks will do the satisfying.
I can’t find
anything in the announcement that tells us how Section 106 is to be complied
with, but am left to assume that the promised “standard form” (See paragraph 7
above) will be the key tool the district engineer uses, at least in making the
threshold “may affect properties” determination. Since the “standard form” is
at present only a gleam in the Corps’ eye, this leaves us rather in the dark. I
suggest that commenters give the Corps some advice about what the famous form
should say.
