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2017 NATIONWIDE PERMITS (NWP) : MODIFICATION OF REGIONAL CONDITION 3 (ACREAGE LIMITATION)

Posted: 7/26/2018

Expiration date: 8/27/2018


The 2017 Nationwide Permit (NWP) Regional Conditions for the Honolulu District (the District) were approved by the Pacific Ocean Division Commander on March 10, 2017 and went into effect on March 19, 2017. The District is proposing a change to regional condition 3 – Acreage Limitation as described below.

1) Regional Condition 3 – Acreage Limitation

Approved regional condition 3 currently states:

“The maximum acreage of permanent loss to wetlands, other special aquatic sites and other waters for a single project may not exceed 0.10-acre resulting from any discharge of dredged or fill material.”

The District is proposing to revise regional condition 3 to read as follows:

“The maximum acreage of permanent loss to wetlands and other special aquatic sites for a single project may not exceed 0.10-acre resulting from any discharge of dredged or fill material.”

Rationale: Regional condition 3 as currently written is having the unintended consequence of increasing the number of projects reviewed under our highest level of review, the Individual Permit (IP), without a demonstrated benefit to the environment or the public interest. Projects that propose to impact “other waters” and result in no more than minimal environmental impacts, individually and cumulatively, are required to be reviewed under IPs rather than NWPs. This more rigorous review process has resulted in longer permit decision timelines (delays) and an additional burden on the regulated public in terms of information needed to process an IP. Removing the wording “and other waters” would provide clarity and allow for a more expedient permit review
process, while maintaining the focus on protection of wetlands and other special aquatic sites.

The effect of the change is that some permanent losses of up to 0.5-acre of jurisdictional aquatic resources (i.e. streams and open water) would be authorized by NWP as long as the proposed activities otherwise satisfy the terms and conditions of those NWPs. However, under such circumstances, the District would retain its ability to require compensatory mitigation for unavoidable impacts to “other waters” when appropriate and practicable. The District Engineer would also retain the discretionary authority to review any activity authorized by NWP to determine whether the activity complies with the NWP or whether the prospective permittee should apply for an IP. We believe that in the vast majority of cases, with the terms and conditions currently in effect, proposed actions that would result in the permanent loss of 0.5-acre or less of “other waters” (i.e., streams and/or open waters) would have no more than minimal individual and cumulative adverse effects on the aquatic environment. While ephemeral, intermittent and perennial streams in the District’s area of responsibility provide functions and services that contribute to the biological, chemical and physical integrity of traditional navigable waters, these aquatic resources generally do not have the same sensitivity as wetlands and other special aquatic sites, like coral reefs, riffle and pool complexes, and submerged aquatic vegetation. Verification of activities under a NWP would not preclude the need for applicants to avoid and minimize impacts nor limit the District’s discretion to include special conditions, such as best management practices or restricting the timing of work to occur only during the “dry” season and/or under low tide conditions.

COMMENT AND REVIEW PERIOD: The District is seeking written comments on the proposed revision to the approved regional condition 3 as described above. Conventional mail or e-mail comments on this public notice received during the comment period will be made part of the record and will be considered in determining whether to revise the District’s regional condition 3. In order to be accepted, e-mail comments must originate from the author’s e-mail account and must include on the subject line of the e-mail message “RC 3”.

All e-mail comments should be sent to: tunis.w.mcelwain@usace.army.mil

Conventional mail comments should be sent to:

U.S. Army Corps of Engineers

Honolulu District, Regulatory Branch

Building 230 (Attn: CEPOH-RB)

Fort Shafter, Hawaii 96858-5440

Comments must reach this office no later than the expiration date of this public notice to become part of the record and be considered in the decision.

This public notice is issued by the Chief, Regulatory Office.