Wetland Rules Change

After years of criticism by the conservation community, the Corps of Engineers has finally decided to eliminate Nationwide Permit #26. For the uninitiated, NP #26 allows up to one acre of wetlands, above headwaters, to be filled without notification to the Corps or anyone else. In other words, it's a giveaway. Over the 20 plus years the Corps regulatory program has existed, the environmental community has insisted that NP #26 has caused the loss of thousands of acres of wetlands. After 20 years of complaints, the Corps finally admitted what was obvious and agreed to phase out NP #26, replacing it with new Nationwide Permits.

There's only one problem, the new Nationwide Permits are nearly as bad, and in some respects, worse. For example, the old NP #26 applied only to headwaters. The new Nationwide Permits (NP "A", "B", "C", "D", and "E") applies both above and below headwaters.

Nationwide Permit "A" (NP "A") allows up to one acre of wetlands to be filled for just about any reason.

NP "B" allowed up to 10 acres of fill for Master Planned Developments (whatever those are). In response to public outcry, the Corps revoked this NP.

NP "C" allows storm water detention basins to be constructed in wetlands.

NP "D" allows up to 1 acre of wetlands to be filled for passive recreation facilities. This includes golf courses, ski areas, and the rental, maintenance, offices and support buildings associated with such operations.

NP "E" allows aggregate mining (sand and gravel mining) to destroy up to 2 acres of wetlands.

NP "F" allows drainage ditches to be reshaped.

The Corps also plans to modify 6 other Nationwide Permits. Two of the planned modifications are especially bad.

NP "14" allows up to 2 acres of wetlands to be filled for public linear transportation projects (read this as Penn DOT).

NP "40" will allow farmers (read that developers) to fill up to 3 acres of wetlands if they own 500 acres (why would you need to fill three acres if you owned that much land???).

Recognizing that these new Nationwide Permits were essentially bad, the Corps, at the National level, agreed to allow the local Corps Districts to modify, or condition, the new NPs to make them less objectionable. In that way, Corps Districts that actually believed in the Clean Water Act's mandate, which is to protect and restore the chemical, physical and biological integrity of the Nation's waters, could modify the new NPs to make them environmentally friendly. Unfortunately, there are some Corps Districts that do not care about stream and wetland protection and will eagerly embrace the National guidance as the last word.

So far, RPF has reviewed Public Notices from the 3 Corps Districts in Pennsylvania. The Baltimore District has added substantial conditions to the new NPs that render them relatively harmless. The Pittsburgh District has also modified the new NPs, but has not made them as environmentally friendly as the Baltimore District. The Philadelphia District has forgotten that it covers a part of Pennsylvania, and it's Public Notice only talks of New Jersey and Delaware, no mention of Pennsylvania.

In an attempt to keep this short, we have 4 major problems with the new Nationwide Permits:

1) Each Corps District seems to be going their own way. The Baltimore District (the most environmentally friendly of the three reviewed) intends to notify the federal agencies for all fills over 5000 square feet so that they can review and comment on the project. The Pittsburgh District won't notify anybody unless over an acre of wetlands are filled.

The Baltimore District has conditioned NP "D" so that it applies only to linear recreation facilities, such as horse paths, bike paths, hiking trails, and other minor works -- not golf courses and ski resorts. The Pittsburgh District will allow this NP to apply to everything and will not notify the federal resource agencies unless applicants plan to fill over an acre of wetlands. This includes fills for golf courses, ski resorts, and associated structures.

The Baltimore District has placed conditions on NP 40 so as to render it fairly harmless; the agencies will be notified for any fill over 5000 square feet. The Pittsburgh District will not notify anyone unless over one acre of wetland is filled.

It appears to us that the Baltimore District has made substantial improvements in the new NPs while the Pittsburgh District has not. As we said, we haven't a clue what the Philadelphia District is doing. The Corps ought to be able to agree on how to treat, at least their adoring Pennsylvania public, so that it doesn't look like one District is playing "Let's Make A Deal" with wetlands, while a second District is trying to hold the line on wetland losses. But then who knows what the third District is doing. If the Pittsburgh District doesn't want to be as environmentally protective as the Baltimore District, and the Philadelphia District is among the missing, maybe it's time for Pennsylvania to be under one unified District. Given what the Pittsburgh District is proposing concerning wetlands protection programs, an overhaul of their system is in order.

2) Another concern is the plan of the Baltimore District not to notify the federal agencies unless the fill is over 5000 square feet (Pittsburgh proposes 1 acre, which is unacceptable). Where did this 5000 square feet come from ??? Given Pennsylvania DEPs lust for taking regulations down to the minimum federal level, we can see Dave Hess now, saying the Corps doesn't care about fills under 5000 square feet (an acre in Pittsburgh!!), so DEP will now automatically issue permits for wetland fills less than 5000 square feet. We think the Environmental Protection Agency and the Fish & Wildlife Service should be notified of all proposed wetland fills, regardless of size, and let them decide if they want to look at it or not. It is not acceptable for the Corps to be the decision maker as to who gets to review and comment on a wetland fill.

3) Which brings us to our next point. It appears that the Corps is trying to cut the EPA and the F&WS out of the regulatory program, because they will not be notified of a wetland fill unless it exceeds a certain size. We have been able to count on these two agencies to protect wetlands in the past and do not want to see them cut out of the process now.

4) The final issue is endangered species. Some of these nationwide permits may very well impact everything from bog turtles to bald eagles. There needs to be ironclad guarantees that the Corps will follow the mandate of the Endangered Species Act and ensure that their action (the issuance of the new nationwide permits) does not adversely affect threatened and endangered species.

November 30 is the close of the comment period to the Corps. Ask the Corps to extend the comment period and hold a public hearing at a number of locations in Pennsylvania so that the public can be heard.

Send your comments to:

US Army Corps of Engineers
Baltimore District
Attn: Ms. Deborah Nizer
PO Box 1715
Baltimore MD 21203-1715

US Army Corps of Engineers
Pittsburgh District
Attn: Albert Rogalla
William S. Moorhead Federal Building
1000 Liberty Ave.
Pittsburgh PA 15222-4186

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