New permits for activities in nontidal wetlands have been proposed by the U.S. Army Corps of Engineers.

The new permits would cover most commercial and residential development and replace the general permit (known as Nationwide Permit 26) that is used in nearly 70% of projects each year. Nationwide Permit 26 authorizes discharges of dredged or fill material into headwaters and isolated waters, provided the discharge does not result in the loss of greater than 3 acres of waters of the United States or 500 linear feet of stream bed.

The proposal also extends Nationwide Permit 26 through December 31, 1999, or until the replacement permits are finalized, whichever comes first.

Currently, the Corps issues two kinds of permits for wetlands development -general and individual. General permits authorize broad classes of activities that are presumed to have little adverse impact on the environment.

Under the new proposal, Nationwide Permit 26 would be replaced by a sliding scale where the amount of wetlands that a development project could affect would vary depending on the total amount of land involved.

The new permits would also establish several new conditions that would have to be met in order to disturb wetlands.

For example, filling certain natural habitats-such as habitats for endangered species and national scenic rivers-would be prohibited. Land owners also wouldn’t be allowed to discharge into waters that are considered “impaired” by pollution. Another new condition is compensatory mitigation in instances when the issuance of the permit will result only in minimal adverse effects on the aquatic environment. For example, the establishment and maintenance of vegetated buffers adjacent to wetlands is an important condition in the new proposals.

Additionally, there are specific ‘regional’ conditions proposed for the new permits, several that would limit areas of disturbance to less than 1 acre – a more restrictive condition than proposed nationwide.

Beyond the implications of the new conditions, it can be anticipated that the new permits will substantially increase the number of individual permit reviews by the Corps. In particular, such will be the case in Maryland, where property owners had benefited from a state-wide general permit, but one of the new general conditions prohibiting use of a general permit for fill within the 100 year floodplain, will limit the efficacy of that general permit.

Property owners in Maryland, that anticipate disturbing wetlands during the coming year, should likely move to make application prior to new permitting scheme.

The proposals were published in the July 21 Federal Register. Written comments should be sent by October 17, 1999 to: Headquarters, U.S. Army Corps of Engineers, Attn: CECW-OR, 20 Massachusetts Ave. N.W., Washington, DC 20314-1000.

You can read, print or download the full text of the proposals from the Federal Register Online via GPO Access: www.wais.access.gpo.gov. Should you have any questions, of course, do not hesitate to give Stuart Kaplow a call.