Wetlands Ruling Could Impact Multifamily Housing.On March 9, the Army Corps of Engineers issued its Wetlands Replacement Permit Rule mandating the use of new activity-based permits and other conditions in lieu of Instead of; in place of; in substitution of. It does not mean in addition to. former Nationwide Permit 26 (NWP NWP Numerical Weather Prediction NWP National Writing Project NWP Nationwide Permit NWP Northwest Passage NWP Netherlands Water Partnership NWP National Women's Party NWP New Wafd Party (Egypt) NWP Neighborhood Watch Program 26). NWP 26 was a general permit that authorized au·thor·ize tr.v. au·thor·ized, au·thor·iz·ing, au·thor·iz·es 1. To grant authority or power to. 2. To give permission for; sanction: development of up to three acres of jurisdictional wetlands without the need to obtain an individual permit. Under the Replacement Permit Rule, fewer activities, such as reshaping of existing drainage drainage, in agriculture drainage, in agriculture, the removal of excess water from the soil, either by a system of surface ditches, or by underground conduits if required by soil conditions and land contour. ditches, expansion of building pads, or construction of stormwater detention The act of keeping back, restraining, or withholding, either accidentally or by design, a person or thing. Detention occurs whenever a police officer accosts an individual and restrains his or her freedom to walk away, or approaches and questions an individual, or stops an ponds, will qualify for a nationwide permit. More projects will now be required to obtain individual permits from their local Army Corps office. The Replacement Permit Rule went into effect on June 5. The Replacement: Permit Rule establishes five new NWPs, six modified NWPs, two new NWP general conditions, and nine modified NWP general conditions. The Replacement Permit Rule reduces the amount of acreage that can be disturbed using a nationwide permit. Under the Replacement Permit Rule, the discharge of dredge or fill material must affect one-half acre or less of wetlands, or 300 linear feet along a stream bed. The new general conditions also serve as a gauge to most construction activities in floodplains and critical resource areas. The Replacement Permit Rule will also require pre-construction notification (PCN 1. PCN - Program Composition Notation. 2. (communications) PCN - Personal Communication Network. ) to the district engineer in many instances, which could also increase the time and cost to complete a project. The National Association of Home Builders The National Association of Home Builders (NAHB) is one of the largest trade associations in the United States. Headquartered in Washington, DC, the association organizes one of the largest conventions in North America, The International Builders' Show, which draws more than (NAHB NAHB National Association of Home Builders NAHB National Academy of Health and Business (Canada) ) and the National Stone Association (NSA NSA abbr. National Security Agency Noun 1. NSA - the United States cryptologic organization that coordinates and directs highly specialized activities to protect United States information systems and to produce foreign ) are challenging the final Replacement Permit Rule by filing lawsuits. Those lawsuits are in their preliminary stages before Judge Thomas Penfield Jackson Thomas Penfield Jackson (born January 10, 1937) was a United States District Court Judge for the District of Columbia. He was appointed in 1982 after serving as president of the District of Columbia Bar Association. He is currently an attorney with the Jackson and Campbell, P.C. . No decisions are expected for several months. If you intend to engage in certain types of maintenance, construction or development projects, including expansion of structures, reshaping drainage ditches or creating certain recreational facilities Noun 1. recreational facility - a public facility for recreation recreation facility facility, installation - a building or place that provides a particular service or is used for a particular industry; "the assembly plant is an enormous facility" , in jurisdictional wetlands, be aware of these new requirements and the impact on your construction schedule and cost. Potential Impact on Property Owners Property owners whose activities impact wetlands and other aquatic environments need to aware of the new permits and conditions. Among the affected activities are those involving the maintenance of existing facilities or drainage ditches, or construction in support of the main facility, including parking lots and playgrounds. Applicants who don't meet the requirements of the new NWPs will have to seek coverage of their activities under individual site-specific permits. Several trade associations predict a 40 to 60 percent increase in the time needed to process an individual permit. The requirement that all activities affecting more than 1/10 of an acre of wetlands be brought to the attention of the district engineer will also add time to a project. The project cannot begin until the engineer has reviewed the PCN and determined that it is complete. This process could take up to 75 days. If the applicant is not satisfied with the permit decision, the applicant has the right to appeal. If you have already received authorization The right or permission to use a system resource; the process of granting access. See access control. under a NWP 26 permit for a project, but that authorization does not list February 11, 2002, as the expiration date Expiration Date The day on which an options or futures contract is no longer valid and, therefore, ceases to exist. Notes: The expiration date for all listed stock options in the U.S. , the NWP 26 authorization expired on June 5. If, however, construction or the contract for the construction commenced prior to June 5, the project has either 12 months or until June 5, 2001, to be completed. If the project will affect less than one-half an acre of wetlands, the activity remains authorized under NWP 26, and the permit holder must have commenced work or have been under contract for construction by June 5. All activities must be completed by June 5, 2001. If the activity does not fall within one of the identified NWPs, property owners must apply for an individual permit. Additionally, the property owner must provide the District Engineer of the Army Corps with pre-construction notification for all activities that may disturb more than one-tenth of an acre of wetlands. The District Engineer's Office has the authority to determine whether an activity complies with the terms and conditions of the nationwide permit. In addition, the District Engineer's Office has been given authority to apply even more rigorous limitations on a regional basis. The New NWPs The following activity-based nationwide permits apply if you engage in certain pes of maintenance or construction projects:
NWP Description/ Waters
Examples
39 (*)Residential, Commercial and Non-tidal waters,
Institutional Development excluding non-tidal
(*)Governs discharge of dredge or wetlands adjacent
fill material associated with the tidal waters.
construction and expansion of
foundations, building pads and
attendant features necessary for use.
(*)Examples include parking lots and
playgrounds.
(*)Must establish and maintain buffers
adjacent to open water/streams.
41 (*)Reshaping Existing Drainage Non-tidal waters,
Ditches excluding non-tidal
(*)Applies to discharges of dredge or wetlands adjacen
fill incurred during the tidal waters.
modification of the cross-section
of the existing drainage ditch.
(*)Applies when modifying drainage.
(*)Can have NO increase in drainage
flow or capacity, and no relocation
or expansion.
42 (*)Recreational Facilities Non-tidal waters,
(*)Applies to facilities that do not excluding non-tidal
need grading or filling, wetlands adjacen
(*)Includes nature trails, tidal wetlands.
does not include basketball/tennis courl
Descriptions/ Acreage/Linear
Examples Limits
(*)Residential, Commercial and _acre or 300 linear
feet of stream bed.
Institutional Development
(*)Governs discharge of dredge or
fill material associated with the
construction and expansion of
foundations, building pads and
attendant features necessary for use.
(*)Examples include parking lots and
playgrounds.
(*)Must establish and maintain buffers
adjacent to open water/streams.
(*)Reshaping Existing Drainage Minimum necessary
Ditches
(*)Applies to discharges of dredge or
fill incurred during the
modification of the cross-section
of the existing drainage ditch.
(*)Applies when modifying drainage.
(*)Can have NO increase in drainage
flow or capacity, and no relocation
or expansion.
(*)Recreational Facilities _acre and 300 linear
(*)Applies to facilities that do not fee of stream bed
need grading or filling,
(*)Includes nature trails,
does not include basketball/tennis court
Descriptions/ PCN Threshold
Examples
(*)Residential, Commercial and 1/10 acre of wetland
when impact on
Institutional Development open water.
(*)Governs discharge of dredge or
fill material associated with the
construction and expansion of
foundations, building pads and
attendant features necessary for use.
(*)Examples include parking lots and
playgrounds.
(*)Must establish and maintain buffers
adjacent to open water/streams.
(*)Reshaping Existing Drainage 1/10 of an acre
Ditches
(*)Applies to discharges of dredge or
fill incurred during the
modification of the cross-section
of the existing drainage ditch.
(*)Applies when modifying drainage.
(*)Can have NO increase in drainage
flow or capacity, and no relocation
or expansion.
(*)Recreational Facilities 1/10 of an acre
(*)Applies to facilities that do not
need grading or filling,
(*)Includes nature trails,
does not include basketball/tennis court
(Permit numers 43, Storm Water Management Facilities, and number 44, Mining Activities, are also included in the replacement permits.) The Modified NWPs In addition to the new permits, the Replacement Permit Rule includes modifications to six existing NWPs. The following includes the modified NWPs that may affect construction or maintenance projects:
NWP Description/ Waters
Examples
3 *Maintenance All water
*Must be within
scope of the
original permit.
7 *Outfall Structures All waters
and Maintenance
12 *Utility Line Activities For substations and
*Governs the construction access roads: non-tidal
and maintenance of utility waters, excluding those
line substations, found- adjacent to tidal
ations, towers, poles waters. For other
and anchors. activities: all waters.
Description/ Acreage/ PCN
Examples Linear Threshold
Limits
*Maintenance 200 linear Always necessary
*Must be within feet from the except for repair,
scope of the structure or 50 replacement, or
original permit, cubic yards, rehabilitation of
fills or structures.
*Outfall Structures Can only maintain All Activities
and Maintenance within scope of design.
original
*Utility Line Substations: All impervious roads.
Activities
*Governs the cons- Foundations: 500 linear feet of
truction and main- minimum above-grade access
tenance of utility necessary, road; and 1/10 acre.
line substations, Access Roads:
foundations, towers,
poles and anchors,
(Permit numbers 14, Linear Transportation Crossings, 27, Stream and Wetland Restoration Activities, and 40, Agricultural Activities were also modified, however; they are less likely to be applicable to apartment owners and managers). The New General Conditions The Replacement Permit Rule contains two new general conditions. General condition No. 25, Designated Critical Resource Waters, disallows the use of certain permits, such as NWP 39, when the affected waters include critical resource waters or other specifically designated aquatic environments. Examples include critical habitat for federally listed threatened or endangered species endangered species, any plant or animal species whose ability to survive and reproduce has been jeopardized by human activities. In 1999 the U.S. government, in accordance with the U.S. and National Estuarine Research Reserves The National Estuarine Research Reserve program of the United States government under the auspices of the National Marine Protected Areas Initiative. The program establishes federal-state partnerships under the Coastal Zone Management Act to create a system of estuarine research . All other activities not falling within the designated permits, still require preconstruction notification. The second general condition, No. 26, Fills Within the 100-year Floodplain floodplain, level land along the course of a river formed by the deposition of sediment during periodic floods. Floodplains contain such features as levees, backswamps, delta plains, and oxbow lakes. , prohibits the use of certain permits, including NWP 39 and NWP 42, in authorizing permanent, above-grade fills in floodplains located at or below the point on the stream where the flow is five cubic feet per second A cubic foot per second (also cfs, cusec and ft³/s) is an Imperial unit / U.S. customary unit volumetric flow rate, which is equivalent to a volume of 1 cubic foot flowing every second. (CFS CFS abbr. chronic fatigue syndrome CFS, n.pr See syndrome, chronic fatigue. CFS Chronic fatigue syndrome, see there ). If, however, the construction is only in the flood fringe Fringe (optics) One of the light or dark bands produced by interference or diffraction of light. Distances between fringes are usually very small, because of the short wavelength of light. and there is proof of compliance with FEMA FEMA, n.pr See Federal Emergency Management Agency. regulations, permanent above-grade fills may be allowed. Overall, the general conditions serve as a gauge to most construction activities in floodplain and critical resource areas. In most cases, NWPs can not be used to authorize To empower another with the legal right to perform an action. The Constitution authorizes Congress to regulate interstate commerce. authorize v. to officially empower someone to act. (See: authority) development in the floodplain of a river.
General Description/
Condition Examples
13 *Notification
*Clarifies the new PCN requirements
15 *Use of Multiple Nationwide
Permits
19 *Mitigation
*Requires certain permits mitigate
the impact to the wetland area. (i.e. 39)
21 *Management of Water Flows
General Important Factors
Condition
13 *The notification must be in writing
*There are different rules for differing permits
15 *It is permissible to use more than one NWP if the
total impact is less than the highest specified
acreage ceiling for the applicable NWPs.
19 *The mandatory compensatory mitigation demands a
minimum ratio basis of 1:1 on an acreage basis and
will include vegetated buffers.
21 *Applicant must design the project in such a way that
pre-construction downstream flow is maintained and
the impacts of flooding and draining are kept to an
absolute minimum.
Modified General Conditions The numerous newly modified general conditions include: four Aquatic Life Movements, nine Water Quality, 11 Endangered Species, 17 Shellfish shellfish, popular name for certain edible mollusks (see Mollusca), e.g., oysters, clams, and scallops, and for certain edible crustaceans, e.g., crabs, lobsters, and shrimps. All are aquatic invertebrates with shells; they are not fish. Beds, 18 Suitable Materials, 13 Notification, 15 Use of Multiple Nationwide Permits, 19 Mitigation MITIGATION. To make less rigorous or penal. 2. Crimes are frequently committed under circumstances which are not justifiable nor excusable, yet they show that the offender has been greatly tempted; as, for example, when a starving man steals bread to satisfy and 21 Management of Water Flows. The last four are of primary importance for property owners who are contemplating making improvements or engaging in construction activities that could impact an aquatic environment. Pending Litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. At least two lawsuits have been filed challenging the legality le·gal·i·ty n. pl. le·gal·i·ties 1. The state or quality of being legal; lawfulness. 2. Adherence to or observance of the law. 3. A requirement enjoined by law. Often used in the plural. of the final Replacement Permit Rule. NAHB filed a lawsuit lawsuit: see procedure; tort. shortly after the Army Corps released the final rule. NAHB alleges that the Army Corps' actions have been arbitrary and capricious capricious adv., adj. unpredictable and subject to whim, often used to refer to judges and judicial decisions which do not follow the law, logic or proper trial procedure. A semi-polite way of saying a judge is inconsistent or erratic. , particularly its decision to require vegetated buffer strips adjacent to water bodies and its decision to limit the use of NWPs to activities affecting no more than one-half acre of wetlands, rather than the prior limit of three acres. NAHB has requested a declaratory DECLARATORY. Something which explains, or ascertains what before was uncertain or doubtful; as a declaratory statute, which is one passed to put an end to a doubt as to what the law is, and which declares what it is, and what it has been. 1 Bl. Com. 86. judgement that the rule is illegal and invalid Null; void; without force or effect; lacking in authority. For example, a will that has not been properly witnessed is invalid and unenforceable. INVALID. In a physical sense, it is that which is wanting force; in a figurative sense, it signifies that which has no effect. , as well as injunctive relief injunctive relief n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. . NSA has also filed a cause of action. This suit alleges that issuance of the final rule was procedurally and substantively flawed flaw 1 n. 1. An imperfection, often concealed, that impairs soundness: a flaw in the crystal that caused it to shatter. See Synonyms at blemish. 2. and inconsistent with the Army Corps' authority. NSA is seeking invalidation in·val·i·date tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates To make invalid; nullify. in·val of the Replacement Permit Rule as well as an injunction. A final decision is not likely to be issued for several months. Amy L. Edwards, Esq. Ms. Edwards is an attorney with Holland & Knight, Washington, D.C. |
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