After years of debate and review, the U.S. Army Corps of Engineers has announced new, more stringent regulations to protect wetlands.
The Corps is replacing its controversial Nationwide Permit 26, which had often allowed up to three acres of wetlands to be destroyed with minimal review, with a new permit program that will cover actions affecting more than a half-acre of wetlands.
Nationwide Permit 26 had long been criticized by environmentalists as a loophole allowing too many wetlands to be lost too easily. Unlike individual permits, which require site-by-site review, NWP 26 was a “general permit” allowing projects to be quickly approved with minimal oversight.
NWP 26 dated to 1984, when it allowed the destruction of headwaters and isolated wetlands of 10 acres or less. That was reduced to 3 acres in 1996. In 1998, the Corps announced that it would replace NWP 26, but the details of the plan proved controversial.
The new program unveiled March 6 replaces NWP 26 with a suite of new and modified general permits aimed at specific activities, such as residential and commercial construction, the reshaping of existing drainage ditches, stormwater management construction, mining and passive recreational facilities such as camping and hiking trails.
Projects eligible for these permits would still have to meet certain requirements. If they did, they would get minimal review and speedy approval by the Corps. The new rules become effective June 6.
The new regulations require a permit for activities affecting more than half an acre of wetlands, and more tightly regulate development in 100-year floodplains. The new rules also require the Corps to be notified of any activity that affects more than one-tenth of an acre so it can better track activities taking place in wetlands. Previously, the Corps only had to be notified if an activity affected one-third of an acre.
The action should have little impact in Maryland and Pennsylvania, which already have wetland programs covering activities previously allowed under NWP 26. But the changes will tighten wetland protection in Virginia until its new regulatory program begins Oct. 1, 2001.
Daniel Rosenberg, an attorney at the Natural Resources Defense Council, which filed a lawsuit that spurred the new regulations, said the new rules “should take away the biggest weapon of mass wetlands destruction.”
Builders were less enthused. “As a result of this ill-advised decision by the Corps, builders can expect delays of months or even a year if they cannot avoid the small, depressional areas of essentially dry land on their sites that qualify as wetlands,” said Robert Mitchell, president of the National Association of Home Builders, and a home builder from Rockville, MD.
The homebuilders association quickly filed a suit to block the new regulations.
The Corps estimates that the stricter general permit rules will result in its handling 20 percent more individual permits. It estimates the rules would cost developers an additional $20 million a year, but would improve wetland protection.
“These changes to the national permit program reflect the administration’s, including the Army’s, commitment to protecting the nation’s wetlands and reducing damages to communities from flooding,” said Michael Davis, Deputy Assistant Secretary of the Army for Civil Works.