July 29, 2016

PLF responds to Corps’ disappointing nationwide permit proposal

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This morning PLF submitted a comment letter to the United States Army Corps of Engineers in response to the Corps’ Proposal to Reissue and Modify Nationwide Permits under the Clean Water Act.

The Act requires a permit for any discharge of dredged or fill materials into waters of the United States. Acquiring an individual permit is extremely expensive and can take years. To streamline the permitting process and reduce its own administrative costs, the Corps issues nationwide permits that automatically authorize activities with minimal environmental impact, e.g., constructing a boat ramp.

Unfortunately, many of the nationwide permits proposed by the Corps include senseless restrictions and conditions that can catch unknowing property owners off-guard. Although several of the permits allow projects with no adverse environmental impacts to proceed without any regulation, some projects are subject to a pre-construction notification requirement, which requires applicants to notify and submit a detailed project plan to the Corps for approval before commencing a project, often based on extremely technical or minor criteria. Of course, the average property owner doesn’t know about these requirements or the criteria that determine whether they’re applicable. Nonetheless federal bureaucrats inflexibly enforce them. In fact, PLF client Andy Johnson was threatened with more than $20 million dollars in fines for building his stock pond solely because EPA thought his dam contained 12 cubic yards of dirt, just over the permit’s notice threshold of 10 cubic yards (though Andy’s expert disputed that calculation). Even though the pond had no adverse environmental benefits, EPA was willing to subject Andy’s family to years of sleepless nights and unconscionable threats simply because it thought he should have provided pre-construction notification.

Even worse, the proposed permits apparently incorporate the new “waters of the United States” (WOTUS) rule, which expands federal regulatory control to just about any wet location in the nation.

The WOTUS rule would greatly reduce the availability and efficiency of nationwide permits, as permit restrictions and requirements depend on the definition of “waters of the United States.” For example, nationwide permits for residential and commercial activities are limited to projects discharging at most one-half of an acre of “waters of the United States.” And any nationwide permit activity that discharges more than one-tenth of an acre of “waters of the United States” triggers a costly mitigation provision that requires the permittee to make up for the loss of “water.”

Under the new WOTUS rule, “water” could be a bone dry streambed or even a private backyard that happens to be near a stream. That counterintuitive conclusion will be the law of the land (or “water”) if the WOTUS rule survives multiple legal challenges, including one brought by PLF.

Congress intended the nationwide permit program to provide property owners with an efficient permitting process so that the Corps could focus its limited resources on reviewing major interstate projects. The proposed permits, especially in light of the new WOTUS rule, too often would do just the opposite.

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