AGC provided comments to the U.S. Army Corps of Engineers (Corps) on its proposal to reissue and modify its nationwide permits (NWPs), general conditions and definitions. Obtaining these federal “general” permits, which are required for construction activities in “Waters of the United States” (WOTUS), is critical to the completion of the private and public infrastructure that forms the literal foundation of the nation’s economy. AGC’s comments stressed that any changes to the nationwide permit program should maintain an efficient and streamlined process for authorizing activities that propose minimal impacts on WOTUS.
Last month, AGC met with the point-person at Corps Headquarters responsible for reissuance of the existing NWPs. AGC presented the input and recommendations that its membership had offered to date, learned about the Corps’ long-term plans/goals, and engaged in a productive discussion on how to make the NWP program more understandable and workable for the construction industry. On August 1, AGC followed up with 14 pages of written comments, which build on its prior meeting with the Corps and focusing on several key areas:
- Acreage Limits and Pre-Construction Notification Thresholds: AGC’s letter urges the Corps to consider increasing the permissible numeric limit, the PCN threshold, and refrain from imposing a linear-foot cap for NWPs that support public health and welfare and/or environmental protection. AGC also made a strong case for why erosion of the general permit program will result in project delays, higher costs and increased uncertainty for all activities that require Clean Water Act Section 404 approvals.
- Waiver of Certain NWP Limits: AGC urges the Corps to retain this important tool.
- Regional Conditioning: AGC expressed concern that there is wide variation in interpretation of the nationwide permit program between (and sometimes within) certain District offices. AGC’s letter offers recommendations in the interest of making regional conditioning more positive to the construction industry, including standard operating procedures and a conflict resolution process.
- WOTUS Rule: The Corps asked for comment on how the 2015 WOTUS rule might affect the applicability and efficiency of the proposed NWPs. AGC’s letter explains how the scope of the definition of WOTUS and, therefore, the status of the WOTUS rule, has implications for the nationwide permit program and recommends: (1) the Corps should clarify that the 2015 WOTUS rule definitions will not apply to the final NWPs when they are issued; and (2) if the WOTUS rule is implemented or amended, the Corps should address those issues through revised NWPs.
As an active member of the Washington, DC-based Waters Advocacy Coalition (WAC), AGC signed on to WAC’s detailed comments on the interplay between the 2015 WOTUS rule and the reissuance of the 2017 NWPs. (AGC’s individual comment letter incorporated by reference the points raised in WAC’s letter, while further expressing issues and concerns specific to the commercial construction industry.)
In addition, AGC provided specific comments on several NWP conditions and provisions: General Condition (GC) 16 – Wild and Scenic Rivers; GC 18 – Endangered Species; GC 23 – Mitigation; NEW GC 31 – Activities Affecting Structures Build by the United States; and GC 32 – Pre-construction Notification.
The comments also pointed to the AGC-supported Construction Industry Compliance Assistance Center (www.cicacenter.org) as a way for industry and government to work collaboratively to make the permit program more “understandable, consistent, effective and accessible” to the regulated community – which is in keeping with the current goals outlined in a November 2015 joint EPA-Corps memorandum. This could include information on the many state and local water/wetland regulatory programs throughout the nation that cover many of the same activities controlled by the federal NWPs.
NWPs are a type of general permit issued by the Corps and are designed to regulate with little, if any, delay or paperwork certain activities in jurisdictional waters and wetlands (i.e., WOTUS) that have no more than minimal adverse environmental impacts. As previously reported by AGC, the current set of NWPs expires March 18, 2017. The proposed NWPs will replace the expiring set.
For more information, please contact AGC’s Leah Pilconis at pilconisl@agc.org.