Wetland Permits on the Brink

Army Corp Nationwide Permits set to expire; Ephemeral streams face tighter regulation

By:  Gerald L. Pouncey, Jr., Partner, Morris, Manning & Martin, LLP
Butch Register, Principal Consultant, Register Nelson, Inc.

The current Corp of Engineers Nationwide Permit’s are set to expire on March 18th, 2007 and changes are anticipated that may drastically affect land development.  There are 43 types of Nationwide permits which are re-authorized on a five year cycle including Nationwide 39, most commonly used by the development industry and known as a “Wetlands Permit”.

The new Nationwide Permit 39 will probably contain significant changes.  Perhaps most important to the development industry is the question of whether an ephemeral stream would likely result in the requirement of an Individual Permit.  Ephemeral streams are defined by the Corps as follows: “An ephemeral stream has flowing water only during and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow”.

These Ephemeral Streams baffle all of us at times because it’s hard to grasp how  Georgia “gullies” that are dry except during and after a rainfall  event warrant the same protection as streams that maintain a base flow in between these events.  In Georgia, they typically run several hundred feet or so before the stream channel cuts deep enough and/or have large enough watersheds to encounter seasonal to permanent water table input to maintain a stream baseflow in between rainfall events. When this baseflow is only maintained part of the year before drying up, this is an Intermittent Stream; when the baseflow is always maintained regardless of annual rainfall variation, these streams are considered Perennial Streams.

We would generally think of these Ephemeral Streams as ditches, gullies, ravines, scour channels, erosion scars, draws etc. which are a normal part of the landscape.  In Georgia, one probably can’t walk more than 2,000 feet in any direction without finding one or more.  The practical application of the existing regulation regarding ephemerals up until now has been a relatively non-issue, and rarely if ever, risen to the level of an Individual Permit.

Historically, the ephemeral stream was calculated on an acreage basis. As long as the acreage of the ephemeral stream and any other wetlands being filled did not exceed ½ acre the applicant could proceed under a Nationwide Permit.  This was fairly easy in most circumstances. At 2 feet wide and several hundred feet long, these short channel segments never rose to the number to make a difference in the thresholds.

It is expected that, under the new regulations, if stream impacts exceed the 300 linear feet currently available under the Nationwide Permit, the applicant must file for an Individual Permit.  This dramatically increases the circumstances under which an Individual Permit will be required and given the nature of the topography and frequency of ditches and gully’s in this Region, will severely burden development economics. The new rules will obviously eat into the previously available limit that was used for practicably unavoidable intermittent and perennial stream impact from such things as road crossings, utility lines and occasionally short pipe segments on the lower quality stream systems.  There may still be some discretion allowed to the Corp and mitigation should continue to be an option, however even the simplest of projects may now have to go through the process and absorb the costs.

Many thought there would be a favorable change in direction as a result of, the U. S. Supreme Court ruling on a Clean Water Act case in Michigan, in June of 2006 (Rapanos/Carabel). The Court ruled that the Corps did not have the ability to assert jurisdiction over small streams and adjacent wetlands without demonstrating a significant nexus to the navigable rivers and tidal waters that are specifically listed as jurisdictional in the 1972 Clean Water Act legislation.  The Corps and EPA’s assertion, since 1986, that small streams were indeed regulated by the Clean Water Act was a result of a previous Supreme Court ruling in the 1980’s that the Corps had to expand its original interpretation of jurisdiction to include the smaller streams as tributaries to the navigable rivers.

The 2006 Supreme Court ruling, now twenty years later, states that they may have gone too far in that correction.  The Supreme Court’s majority held that there must be a physical, biological and chemical significant nexus between the questionable smaller stream systems and the bigger unquestionable rivers/marshes before the Corps could regulate these waters.  To that end, the Supreme Court closed the case by directing the Corps to develop a method and rule before they could legally regulate small streams and their adjacent wetlands.  This confusing ruling by the Supreme Court is added to the 2001 case in Cook County, near Chicago, Illinois, where the court held Section 404 of the Clean Water Act did not include jurisdiction to allow the Corps to regulate isolated wetlands, such as abandoned quarries, hydrologically isolated ponds, etc.

To date — some 7 months later the Corps/EPA headquarters have recently suggested they have completed draft “Guidance,” as required by the Court’s ruling to assist their district offices around the country with determinations of “significant nexus.”   This is welcome relief for everyone since the Corps has not been allowed to “verify jurisdiction” since June 21, 2006, when the Courts made their ruling.  Even if nothing changed at all, the country needs to be able to legally and efficiently keep moving.

In order to take advantage under the current Nationwide Permits, and avoid the pending implementation of the new proposals, the “Wetlands Permit” must be issued by March 18th, and the applicant must have a contract in place to do the work, such as filling the wetland.  The work must be completed no later than March 18th 2008.  Some Corp offices stopped processing permit evaluations on March 2nd since the pre-construction time process of 45 days cannot be met.

Confusion still exists among experts, as well as the Corp, as to when the clock starts on a permit submitted before March 18th.  The question is whether the applicant must merely have filed the permit by the deadline, or whether you must have filed it at sometime in advance of that date so that all other applicable periods have expired.  Various Corps offices are taking differing views on when they will stop accepting Nationwide Permit applications under the old regulations. For example, some offices stopped processing permit evaluations on March 2nd since the pre-construction time process of 45 days cannot be met. No clear direction is evident at this time.

The notice of the proposed change was only published in the Federal Register last fall. The final regulations have not yet been published. Once they are final, there will be a 60 day notice requirement before the regulations become effective.  Therefore, the earliest they could become effective would be May, 2007.  Additionally, it is unclear whether the old Nationwide Permits will be extended until the new Nationwide Permits become effective.  In prior instances that has occurred at the last minute.  The Corp has given no indication at present as to an extension.

Council’s Note:
The Council will continue to follow this issue and provide updates and reports on further changes.  Please urge our federal elected officials to ask the Corps of Engineers to provide further opportunity for review and comment on these proposals and to extend the current Nationwide Permits until such time as a full assessment can be made.

The U.S. Army Corps of Engineers, Mobile District, will hold four public scoping meetings during the month of September as part of its review and update of the Water Control Manual (WCM) for the Alabama-Coosa-Tallapoosa (ACT) River Basin.

The public is invited to attend the scoping meetings which will provide information on the WCM update process and afford the opportunity to receive input from the public about their issues and concerns regarding that process.

All four public meetings will be held using an open house format, allowing time for participants to review specific information and to provide comments to the resource staff attending the meeting.

The meeting will be held on September 15th, 5:00-8:00 PM at:

Ben Robertson Community Center
Banquet Room
2753 Watts Drive
Kennesaw, GA 30144

Additional information on the ACT River Basin Water Control Manual Update process will be posted on the Mobile District webpage as it becomes available.