2017 Re-Issuance of the Corps Nationwide Permits

The Nationwide Permits are a type of general permit created by the U.S. Army Corps of Engineers to expedite regulatory review under Section 404 of the Clean Water Act for projects that have minimal impacts to the aquatic environment. The Corps re-authorizes the Nationwide Permits every five years, with re-authorization set to occur in March 2017. To utilize a Nationwide Permit for a project that requires work or fill within a Water of the U.S., the applicant must comply with general and permit-specific conditions enacted by the Corps throughout the United States, regional conditions that may be developed by each Corps District, and each State’s 401 Water Quality Certifications for the Nationwides.

Although many of the Nationwide Permits commonly utilized by commercial and residential developers, energy companies, and public entities that manage infrastructure projects have not changed, many new requirements are proposed at the regional and state levels that may result in increased costs and lengthened permit review times. A summary of these changes and how they may affect your project in Ohio are provided below:

Ohio – Cultural Resources Review

The Nationwide Permit regional conditions for Ohio published by the Buffalo, Huntington, and Pittsburgh Corps Districts include new requirements for providing “justified conclusions” related to a project’s potential impacts to historic or cultural resources that are protected under the National Historic Preservation Act of 1966. The Corps Districts in Ohio recommend an applicant provide a much more comprehensive and thorough review of available source information than previously needed, and even suggest that an applicant consider initiating coordination with the State Historic Preservation Office in advance of submitting a pre-construction notification to the Corps.

Within the past six months, Davey has experienced much greater Corps scrutiny of Nationwide Permit applications relative to potential impacts to cultural resources. Many small development projects have been required to conduct Phase 1 archaeological surveys, where in prior years these studies would not have been requested. Archaeological surveys can add considerable cost ($1,000s to $10,000s depending on scale) and extensive delays for project permitting and ultimate construction.

Ohio – 401 Certifications to the Nationwide Permits

Ohio EPA’s 401 Certifications to the Nationwide Permits include a myriad of new regulatory requirements. As reported in Davey's newsletter in the Fall of 2016, Ohio EPA is moving forward with a new “Stream Eligibility Determination Process” for projects proposing to impact stream channels using a Nationwide Permit. Streams located in watersheds that Ohio EPA has identified as high-quality must now obtain a project-specific individual 401 Water Quality Certification or Director’s Authorization; both of which have the potential to add $1,000s worth of application fees and mitigation costs to a project, while causing setbacks for construction schedules. Ohio EPA has also identified other watersheds where stream impact eligibility under a Nationwide Permit must be evaluated through water quality and stream habitat sampling. For high-quality streams where flow regime, pH, or habitat quality thresholds are exceeded, impacts to those streams may only be authorized with a 401 Water Quality Certification or Director’s authorization, with similar deleterious effects on a project’s schedule and cost. To see if your project falls within the boundary of a high-quality watershed, review Ohio EPA’s online stream impact eligibility map.

Contact a Davey Resource Group project manager today to determine how these new regulatory changes may impact your project.

 

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