Federal Wetlands Law Page 69
erage of NWP 26 was down to three acres, with
PCN requirements reduced from a range of 1 to
10 acres (depending on the wetland being lled) to
1 to 3 acres. Moreover, N WP 26 wa s only issued
for two yea rs as at that ti me the Corps envisioned
phasing it out. e 1996 program also increased
the number and complexity of t he general condi-
tions attached to the N WPs. ese trends contin-
ued in 2000 and 2002, with a resultant 27 general
conditions covering ve Federal Register page s. e
2007 NWP revisions continued the general trend
of reducing the maximum acreage of impacts
authorized by an NWP and requiring notication
prior to use of the NWP. e general conditions
were a lso revised and provide extensive details to
qualif y for nationwide authoriz ation.
NWP 26 expired in 2000 and was not reis-
sued. In its place, the Corps issued modied and
new activ ity-specic permits.17 In 20 00-2002, the
Corps replaced NW P 26 with NW P 39, then t he
most genera l of the NWPs, applicable to residen-
tial, com mercial a nd institutional developments.18
As noted above, in 2007 residential developments
were moved from NWP 39 to NWP 29. As of
2007, bet ween NWP 29 and NWP 39, impacts
for a wide range of construction activities may
be aut horized, so long as they are limited to lls
impacting no more than 1/2 acre of wetlands or
300 linear feet of stream, with numerous addi-
tional conditions including preconstruction noti-
cation for impacts, a wetla nd delineation and
e current NWPs are available on the Corps’
B. General Conditions for Nationwide
While each NW P includes conditions specic to
that permit, there are important general condi-
tions as well. Moreover, the District Engineer may
impose regional and case-by-case conditions.20
As a general rule, t he extent of the general condi-
tions ha s ex panded each time the Corps ha s reis-
sued the permits. e following is a summar y of
the 2007 general conditions, but their nuances are
not addres sed a nd ma ny have exceptions and sig-
17. 65 Fed. Reg. 12818 (Mar. 9, 2000).
18. 67 Fed. Reg. 2020 (Jan. 15, 2002).
19. Http://www.usac e.army.mil/CECW/Pages/nw _permits.aspx
(last visited Aug. 29, 2009).
20. General Condition 23, 72 Fed. Reg. at 11194.
nicant details. Consequently, the practitioner is
advised to review the conditions in more depth.
Under the general conditions, certain ac tivities
cannot be authorized with an N WP. For exa m-
ple, no authorized activity may cause more than
a minimal adverse eect on nav igation,21 sub-
stantial ly disrupt the necessa ry life-cycle move-
ments of indigenous aquatic life,22 or jeopardize
any endangered or threatened species.23 NW Ps
can not aect tribal rights.24 ey may not be
used for activities in Wild and Scenic Rivers,25
in areas of concentrated shellsh populations,26
near public water supply i ntakes,2 7 or in critical
resource waters.28 Critical resource waters include
“NOAA-designated marine sanctuaries, National
Estuarine Research Reserves, state natural heritage
sites, and outstanding national resource waters or
other waters ocia lly designated by a state as hav-
ing par ticular environmental or ecologica l signi-
cance and identied by the District Eng ineer after
notice and opportunity for public comment.”29
Activities aecting historic properties require
notication and determinations by the District
Engineer.30 Activ ities within 100-year ood-
plains must comply with FEMA-approved state
or local oodplain requirements.31 To the maxi-
mum extent practicable, authorized act ivities must
avoid migrator y bird breeding areas32 and spawn-
ing areas during spaw ning sea son,33 maintain pre-
construction downstrea m ow,34 and minimiz e
impacts of water impoundment.35
e general conditions also provide construc-
tion a nd post-constr uction requirements. During
construction, appropriate soil erosion and sedi-
ment controls are required and soil disturbance
must be minimized.36 Following construction, all
exposed lls a s well as any work below the ordi-
nary high watermark must be permanently stabi-
21. General Condition 1, 72 Fed. Reg. at 11191.
22. General Condition 2, 72 Fed. Reg. at 11191.
23. General Condition 17, 72 Fed. Reg. 11192.
24. General Condition 16, 72 Fed. Reg. 11192.
25. General Condition 15, 72 Fed. Reg. 11192.
26. General Condition 5, 72 Fed. Reg. 11191.
27. General Condition 7, 72 Fed. Reg. 11191.
28. General Condition 19, 72 Fed. Reg. 11193. Certain NWPs
can be used in critical resource waters after notication to the
Corps if the District Engineer determines that the impacts will
29. General Condition 19, 72 Fed. Reg. 11193.
30. General Condition 18, 72 Fed. Reg. 11192.
31. General Condition 10, 72 Fed. Reg. 11192.
32. General Condition 4, 72 Fed. Reg. 11191.
33. General Condition 3, 72 Fed. Reg. 11191.
34. General Condition 9, 72 Fed. Reg. 11192.
35. General Condition 8, 72 Fed. Reg. 11192.
36. General Condition 12, 72 Fed. Reg. 11192.