Real Estate and Land Use

By Susan K. Hori

Nationwide Permits Reauthorized; Already-Issued Permits to Expire March 2017

Under Section 404 of the federal Clean Water Act (33 U.S.C. § 1344), a permit from the U.S. Army Corps of Engineers (Corps) is required for activities involving the discharge of dredged or fill material into waters of the United States. Section 404 also permits the Corps to authorize "Nationwide Permits" that cover various categories of dredge and fill activities resulting in no more than minimal individual and cumulative adverse effects on waters of the U.S.

The current nationwide permits will expire on March 18, 2017. On January 6, 2017, the Corps published its proposal to reissue and modify certain Nationwide Permits. The new nationwide permits will go into effect on March 19, 2017, after the completion of the federal rulemaking process, and will expire on March 18, 2022.

If you have a Nationwide Permit that was issued between 2012 and 2017, but you have not commenced work, the permit will expire on March 18, 2017, unless you have commenced or are under contract to commence work authorized by that permit by March 18, 2017 and complete the work by March 18, 2018.

Perhaps the most frequently-used permit by the development community is Nationwide Permit 29. Nationwide Permit 29 provides authorization for residential projects that do not result in the loss of more than one-half acre of non-tidal waters, including the loss of no more than 300 linear feet of intermittent and ephemeral stream beds. Nationwide 39 provides similar authorization for impacts resulting from commercial development. Another common permit is Nationwide Permit 43 which permits impacts of up to one-half acre or 300 linear feet of a stream bed and applies to non-tidal waters of the United States. The scope of facilities covered by this permit include stormwater management facilities, low impact development integrated features, and pollutant reduction green infrastructure features. No changes were made to these nationwide permits under the Corps' 2017 proposal.

As a result of the recession, many projects may have received Nationwide Permits from a few years ago, but have not undertaken the development to actually begin the grading activities (i.e., dredge and fill work) that were authorized by the permit. There are projects that may have just received authorization under the Nationwide Permit program in 2016 for projects, but have not had time to obtain financing to commence construction. Permittees are advised to check their Section 404 permits to determine if they are subject to expiration next month, and to take steps to either commence the authorized work or extend the life of the permit for a year by entering into a contract.



pursuant to New York DR 2-101(f)

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