Action Alert

TU Urges All Conservationists to Help Stop the Army Corps of Engineers from Allowing New Permits to Damage our Watersheds

Deadline: August 31, 1998

Licensed to Fill

The U.S. Army Corps of Engineers ("the Corps") has recently published a collection of proposed nationwide permits that would make it much easier to fill wetlands, including those adjacent to trout streams, and to do damaging work in streams. These proposals, as a whole, would make it significantly easier to build along rivers and streams and to engage in damaging work that alters aquatic ecosystems. TU needs your help both to oppose these proposals nationally and to prevent their use in high quality trout streams.

Background

The New Permits

Regional Conditioning

Here's What You Can Do!

Background

Under section 404 of the Clean Water Act the Corps is charged with reviewing and issuing permits for activities that result in the deposit of materials in "waters of the United States." The most prominent and publicized activity covered by 404 is the filling of any wetland, but the statute also applies to the deposit of any material below the high water mark of a stream. Examples of activities regulated by the Corps under section 404 include development along a stream that results in the destruction of streamside wetlands, building structures in streams such as bridges and dams, gravel mining in streams, and the placement of "bank armoring," such as riprap, along streambanks. Much of the post-flood destruction of streams that has received attention from TU members in recent years was potentially governed by section 404.

Under the statute, such activities are prohibited without a permit from the Corps. The usual permitting process involves notice to the public, consultation with state and federal resource agencies, and the opportunity for interested parties to comment. The Corps, however, allows numerous activities under nationwide general permits ("NWPs"), which cover entire classes of activities that, according to the statute, must be similar in nature and cause only minimal impacts. An activity covered by an NWP gets expedited approval with little or no review from the Corps, and no opportunity for public comment.

One of the most damaging of these "quick permits" was NWP 26, which allowed the destruction of up to 3 acres of wetlands without a permit in "isolated" and "headwater" areas (any point where stream flow was 5 cfs or less). In 1996, the Corps acknowledged the "potential level of adverse effects resulting from NWP 26," and recognized that rescission of NWP 26 was necessary "to ensure that in the future no more than minimal adverse effects occur to the waters of the U.S., both individually and cumulatively." The Corps immediately scaled-back NWP 26 and promised a phase-out by the end of 1998.

The New Permits

On July 1, 1998 the Corps published its proposed replacement NWPs in the Federal Register. Despite the Corps' commitment to scale-back NWP 26, these newly proposed quick permits open up this expedited permitting system to many more thousands of acres of wetlands and streams than the original NWP 26. Previously, NWP 26 applied only to headwater and isolated wetlands and headwater streams. The new permits apply to all non-tidal waters. Although "isolated and headwater" areas are not necessarily less valuable systems, they are a much smaller subset of "waters the U.S" than are all "non-tidal waters." The potential for cumulative impacts is much greater when adjacent wetlands are included.

The proposals include 6 brand new NWPs and expansion of several existing NWPs. Although some of the proposals meet the statutory requirements of similar activities, most do not. For example, proposed NWP A (the new NWPs have been designated with letters A-F) would allow a variety of residential and commercial development activities that destroyed up to three acres of wetlands. NWP B would allow "master plan developments" that destroyed up to 10 acres. NWP E would allow gravel and hard rock mining that destroyed up to three acres of waters (including streams) without public review or an individual permit. To provide some idea of the scale, imagine a gravel mine of a size slightly greater than two football fields (3 acres) dug out along a small stream.

Under the new permits, major portions of the shoreline of a river system or lake could be developed, one parcel at a time, with no individual review or notice to the public. The chances of this happening if the full individual permitting process is applied, because the public and resource agencies (such as the U.S. Fish and Wildlife Service and the state fish and game authority) receive notice of the application, would be small.

The projects authorized by these new NWPs could have severe consequences for the quality of water and habitat in many trout streams. Wetlands play a critical role in filtering run off, making it both cleaner and cooler. Certain wetlands can play a role as breading or nursery habitat for many insects or even fish on which trout feed. In addition, the new NWPs authorize in-stream activities (perhaps most significantly, gravel mining) with potentially destructive effects.

Regional Conditioning

The Corps is making the claim that the new NWPs will have less environmental impacts than the old NWP 26 because of an increased emphasis on regional conditioning. Corps districts have always had the option of placing additional restrictions on the use of any nationwide permits. To date there has been no requirement that they exercise this option, and few districts have chosen to impose regional conditions that actually limit the effect of any NWP. As part of the new package of NWPs, however, the Corps is mandating that its districts impose regional conditions tailored to the aquatic resources of each state.

Every state has a designated lead Corps district. Each lead district has issued a public notice soliciting suggestions for regional conditions by mid-August. In late September they will propose regional conditions, and the public will have 30 days to comment on those conditions. Next spring, the districts will issue final regional conditions for each state.

Here's What You Can Do!

There are two things you can do to help stop the damaging new NWPs, or at least limit their effects on trout streams. First, you can send a letter to Corps headquarters in Washington complaining about the new "quick permits" and asking that the entire package be scrapped. A sample letter is included in this action alert, but you should feel free to alter the letter to specifically comment on the resources in your state. Be sure and send President Clinton and your congressional delegation copies of your letter. The deadline for comments is August 31.

Address your letter to:

Army Corps of Engineers
HQUSACE, CECW-OR
Washington, D.C. 20314-1000

Copy your letter to:

The Honorable (full name)
U.S. House of Representatives
Washington, D.C. 20515

The Honorable (full name)
U.S. Senate
Washington, D.C. 20510

President William Jefferson Clinton
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Second, you can participate in the regional conditioning process. If you are interested in protecting trout streams in your state from this potentially damaging permits, contact Leon Szeptycki at the TU national office as soon as possible. He can be reached at 703-284-9411 or at lszeptycki@tu.org. Suggested conditions are due by mid-August, so we will have to work quickly. If you miss that deadline in your state, there will be another opportunity to comment on proposed regional conditions later in the fall. The deadline for comments, depending on the district, will fall between August 9 and September 3.

A summary, full text version, and PDF version of the Federal Register Notice with the official version of the NWP 26 proposal are available through an online database.
(Webmaster's note: this precludes setting up a simple hyperlink, so I suggest opening a new browser window and following these directions.)

To access them, go to:

http://www.access.gpo.gov/su_docs/aces/aces140.html

When in the browse mode, type in the search word, "wetlands" and type in the search date as "7/1/98." You can then view or download the version of the 38 page Federal Register Notice you desire. It is in the Federal Register/Vol. 63, No. 126/ Wednesday, July 1, 1998, pages 36040 through 36078, Proposal to Issue and Modify Nationwide Permits.

Thank you very much for your help.

This page is maintained by Bill Britton; send email or use the Guestbook. Last updated: 12/2/98.