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AGC Responds to Proposed Changes in the Nationwide Permits

December 4, 2020

On November 13, 2020, AGC submitted comments generally supportive of recently proposed revisions to the Nationwide Permits (NWP).  The U.S. Army Corps of Engineers proposal included revisions to several NWPs, including modifications to the thresholds for streambed loss for certain permits, establishment of a new mitigation requirement, and clarifications to the pre-construction notification process.  The Corps also intends to reissue the entire suite of NWPs for a new five-year cycle on an earlier timeframe (they are currently set to expire in 2022).

AGC raised the following three points for the Corps to consider.  In preparation of our response, AGC prepared a summary of the proposal to facilitate member feedback, which provides additional information about the proposed changes.

  • AGC supported the use of an acreage threshold instead of a linear foot limit for streambed losses for some NWPs.
  • AGC supported the consistency of an acreage approach for mitigation yet cautioned against a new mitigation threshold for streambed losses given the reported lack of available stream credits nationwide.
  • AGC supported changes to the preconstruction notification process that would add clarity, but urged the Corps avoid adding requirements and to reconcile the wording related to “streams” with the new Navigable Waters Protection Rule (NWPR).

The Navigable Waters Protection Rule defined the scope of federal jurisdiction over waters and, as such, plays an important role in the NWP program.  Not only did AGC urge for greater consistency in wording, the Waters Advocacy Coalition (of which AGC is a member) also highlighted areas where the Corps could introduce greater clarity when referring to jurisdictional waters.

Nationwide Permits provide a streamlined process for the Corps to authorize discharges of “dredged or fill material” under Section 404 of the Clean Water Act and Section 10 of the River and Harbors Act.  NWPs cover construction (and other activities) that, after adherence to identified conditions and mitigation measures, have been determined to result in minimal adverse environmental impacts to federally jurisdictional waters and wetlands (i.e., waters of the United States).

For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.

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