The Corps of Engineers Wants Your Comments -- QUICK!

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.

The Corps’ announcement can be found at https://www.federalregister.gov/articles/2016/06/01/2016-12083/proposal-to-reissue-and-modify-nationwide-permits. I urge people concerned about environmental protection, historic preservation, and cultural heritage to review and comment, but the task of doing so will not be an easy one for several reasons.

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.

2.      The announcement was published in the June 1, 2016, issue of the Federal Register, and the Corps will accept written comments only for a 60-day period that ends on August 1, 2016. 

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 1^st, 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.

You can comment – remember, do so by August 1 – via e-mail to:  NWP2017@usace.army.mil. You can also use Federal eRulemaking portal at docket number COE-2015-0017. Again, the announcement is at https://www.federalregister.gov/articles/2016/06/01/2016-12083/proposal-to-reissue-and-modify-nationwide-permits