COMPLIANCE SECTION

Nationwide Permit 26 Is Replaced With
Five New Permits and Six Modified Permits

In December 1999, the U.S. Army Corps of Engineers established new regulations controlling discharges into wetlands, floodplains, ditches and other waters of the United States. The new regulations replace NWP 26, the most frequently used nationwide permit for small wetland modification projects.

BACKGROUND
Even before the Rivers and Harbors Act of 1899 (33 U.S.C. 403 § 10), the U.S. Army Corps of Engineers (Corps) has been regulating activities in the nation's waters. Until the 1960’s, the primary purpose of the Corps regulatory program was to protect navigation. With the passage of the Clean Water Act (33 U.S.C. 1344 § 404) and the Marine Protection, Research and Sanctu-aries Act (33 U.S.C. 1413 § 103), the Corps focus has been broadened so that it now considers the full public interest for both the protection and utilization of the nation’s water resources. The purpose of the Nationwide Permit program is to allow certain activities to occur with little, if any, delay or paperwork (33 CFR Part 320.1(a)(3). Nationwide Permit 26 (NWP 26) authorized discharges of dredged or fill material into headwaters and isolated waters (including wetlands), provided the discharge did not result in the filling of greater than three acres or 500 linear feet of stream bed (33 CFR Part 330). In December 1996, the Corps reissued NWP 26 for a period of two years. At that time the Corps also announced its intention to replace NWP 26 with activity-specific NWPs (61 FR 65874-65922). In July 1998, the Corps published its proposal to replace NWP 26 (63 FR 36040-36078).

NEW REGULATIONS
After much discussion and delay, in July 1999, the Corps published its new regulations for NWPs (64 FR 39252-39371). NWP 26 finally expired on February 14, 2000 and has already been replaced with five (5) new NWPs…

• NWP 39–Residential, Commercial and Institutional Developments
• NWP 41–Reshaping Existing Drainage Ditches
  
• NWP 43–Storm Water Management Facilities
  
• NWP 44–Mining Activities
  
• NWP 42–Recreational Activities
  

and by modifications to six (6) existing NWPs…

• NWP 3–Maintenance
• NWP 7–Outfall Structures and Maintenance
  
• NWP 12–Utility Line Activities
  
• NWP 14–Linear Transportation Crossings
• NWP 27–Stream and Wetland Restoration Activities
• NWP 40–Agricultural Activities

Most of these NWPs require submission of a pre-construction notification (PCN) for losses greater than _ acre of waters of the U.S. The previous notification threshold was _ acre. Some NWPs prohibit the loss of more than one (1) acre of wetlands and other waters of the U.S. Some of these NWPs contain requirements for compensatory mitigation for certain activities, especially for activities that require a PCN. The establishment and maintenance of vegetated buffers adjacent to open and flowing waters are also mandated by the new and modified NWPs. The Corps has placed a greater emphasis on regional conditions to ensure that the NWPs authorize only activities with minimal adverse effects on the aquatic environment. To that end, some States now require notification of the loss of 200 linear feet of ephemeral streambed. Previously the threshold was 500 linear feet. Each State and Corps District has the option to place additional conditions on these NWPs. The new, modified and reissued NWPs became effective December 21, 1999.

SUMMARY
If your project will affect a wetland or stream, it will likely qualify for one of the new or modified NWPs. Be aware that all of these NWPs have greater restrictions and more conditions than NWP 26. If you require assistance with stream permitting, wetland identification, delineation, permitting or would like to obtain further information on the Nationwide Permit program and regional conditions, please contact Robert Repasky or Mark Berkich at (513) 489-2255 or toll free at (800) 229-1443 or via
e-mail at rdr@paynefirm.com and meb@paynefirm.com.