Testing Decisions
September 26, 2006
IntelliSites
Testing Court Decisions CMS install
On September 26, 2006, the U. S. Army Corps of Engineers (the "Corps") gave public notice of the proposed reissuance of the existing Nationwide Permits ("NWPs"), currently set to expire on March 18, 2007. The proposal reissues the existing NWPs with modifications, some extensive, some minor, and proposes six new NWPs. The text of the definitions and general conditions is also proposed to be modified.
At this time, the Corps districts may also notice revisions to the respective Regional Conditions. As of this writing, neither the New York District nor the Buffalo District have issued notices of proposed changes in the Regional Conditions that would affect New York State.
The following is a summary of the changes and additions that may be of interest to our Oil & Gas and solid waste disposal clients.
Existing Permits
NWP 6: Survey Activities
Exploratory trenching is being added to the list of examples of activities authorized by this NWP. Drilling and the discharge of excavated materials from oil & gas exploration test wells is not currently authorized by this NWP, nor is it in the proposal. Seismic exploratory operations continue to be covered activities.
NWP 8: Oil and Gas Structures on the Outer Continental Shelf
The Corps is proposing to change the title of this NWP from "Oil and Gas Structures" to more clearly articulate the activities authorized. Further, pre-construction notification (PCN) is proposed to be required for all activities under this permit.
NWP 12: Utility Line Activities
The Corps is proposing to remove the provision for the construction of access roads (paragraph iv of the current NWP). The construction of access roads for the construction and maintenance of utility lines would be authorized under NWP 14 or 33. In addition, the Pre-Construction Notification (PCN) requirements would be changed to require notification for only those activities that requires a section 10 permit or that involve discharges of dredged or fill material resulting in the temporary or permanent loss of more than 1/10 acres of waters of the United States.
NWP 33: Temporary Construction, Access and Dewatering
This NWP authorizes temporary structures, work and discharges necessary for construction activities. The proposed modification to this NWP will clarify that temporary structures associated with activities that do not require permits from the Corp or the U.S. Coast Guard, as well as those that do require such permits, are authorized by the NWP.
NWP 43: Stormwater Management Facilities
This NWP currently authorizes the discharge of dredge or fill materials for the construction and maintenance of stormwater management facilities, including stormwater ponds, detention basins, water control structures and outfalls. PCNs are not currently required. The modification would require PCNs for construction or expansion of covered facilities, but not for maintenance activities. The 300 foot linear limit for loss of stream bed would be modified to include ephemeral streams, with a provision that the 300 linear foot limit could be waived by the district engineer.
Proposed New Permits
Proposed NWP A: Emergency Repair Activities
This NWP would authorize emergency repair activities within 12 months of the date of damage. PCNs must be submitted for all activities under this NWP. The work must be completed within two years of submitting the PCN. The current NWP 3 (Maintenance) will be modified to remove paragraph iii regarding emergency repair. Bank stabilization to protect restored uplands would also be authorized under this NWP, provided that such stabilization activity does not extend beyond the ordinary high water mark that existed before the damage occurred. The current 50 cubic yard limit for minor dredging to remove obstructions from an adjacent waterbody would be replaced with a condition limiting minor dredging to the minimum necessary to restore bottom contours to the pre-event state. In response to a PCN under this proposed permit, the regional engineer could require an individual permit if the proposed activity will result in more than minimal adverse effects on the aquatic environment.
Proposed NWP B: Discharges into Ditches and Canals
This NWP would authorize discharges of dredged of fill material into certain ditches and canals that are determined to be waters of the United States. These ditches and canals must be constructed in uplands, receive water from another water of the United States, and divert water to another water of the United States. The Corps believes that these criteria, along with the proposed one-acre limit, will limit the use of this NWP to ditches and canals that generally provide few aquatic resource functions. A PCN will be required for this permit if the dredged or fill material will be discharged into more than 500 linear feet of ditch or canal.
Proposed NWP C: Pipeline Safety Program Designated Time Sensitive Inspections and Repairs
This proposed NWP would authorize the inspection, repair, rehabilitation, or replacement of any currently serviceable structure of fill for pipelines. This would apply only in instances that are "time-sensitive" in accordance with the Pipeline and Hazardous Materials Safety Program Administration s Pipeline Safety Program (PSP) (49 CFR parts 192 and 195). An inspection or repair meeting these criteria can proceed without submitting a PCN. Further, this NWP is not subject to the imposition of regional conditions. To qualify under this NWP, project proponents must participate in the PSP early notification program, utilize the Pipeline Repair and Environmental Guidance System (PREGS), follow the Recommended Best Management Practices (RBMPs) , and submit post-construction reports within 7 days of completing the work, using the PREGS. PREGS and the RBMPs were developed under the Pipeline Safety Improvement Act of 2002. This NWP is being proposed to help satisfy the requirements of this Act.
Revisions to General Conditions
GC 9 (former GC 21) Management of Water Flows
The Corps is proposing to simplify this general condition to require permittees to maintain the pre-construction course, condition, capacity, and location of open waters to the maximum extent practicable. Exceptions to this General Condition may be made if the primary purpose of the activity is to impound water, or if the activity results in a net benefit to the aquatic environment.
GC 27 (former CG 13) Preconstruction Notification (PCN)
This GC will be simplified by deleting text that is duplicative of terms in specific NWPs. If there is information that needs to be submitted with a PCN that is applicable only to one NWP, that information will be incorporated into the "Notification" paragraph of the NWP.
The full text of the proposal can be found in the September 26, 2006 Federal Register (www.gpoaccess.gov).
Article Derived From: www.gpoaccess.gov
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