Corps Facing Challenges in Wetlands Permitting Program

January 16, 2007
by JONATHAN RINDE
Client Alert Newsletter Forecast 2007

In 2007, federal wetland jurisdictional issues will likely be decided on a piecemeal basis. Because the U.S. Supreme Court's July 2006 plurality opinion in two wetlands cases posed more questions than it answered, the Army Corps of Engineers ("Corps") and U.S. Environmental Protection Agency ("EPA") have struggled to develop new joint guidance clarifying federal wetlands jurisdiction. The agencies missed several self-announced deadlines for issuing such guidance, which will probably not resolve all issues raised by the Court's decision. More positively, the Corps is now developing regional wetland delineation manuals using region-specific information.

The Corps also missed the deadline to timely reissue nationwide permits ("NWPs"), which presently will expire on March 18. Soon thereafter, the Corps should be in a position to reissue the NWPs, but there may be a time gap during which previously issued NWPs would not be effective. In this region, expiration of NWPs will most directly affect projects in traditionally navigable waters in New Jersey (which has been delegated the Corps' program) and Pennsylvania (which has a special state general permit, discussed below), but most importantly in Delaware where the Corps has no other means of issuing permits for simple activities other than the NWP program. Clients previously issued a NWP are advised to look at the grandfathering provisions to ensure that any previously issued permit remains in effect during a period where the NWP has expired.

In 2006, the Corps reissued the Pennsylvania State Programmatic General Permit ("PASPGP-3") that provides a general permit, similar to a NWP, for Pennsylvania projects affecting less than one acre of waters and wetlands. PASPGP-3 includes a significant new provision, effective this July 1, allowing the Corps to assume that a residential, commercial or institutional development project will ultimately impact on-site wetlands not currently slated for development, potentially triggering the need for an individual wetland permit rather than PASPGP-3. Developers may remedy this situation by agreeing to subject the undisturbed wetlands to a permanent conservation easement.