U.S. ARMY CORPS OF ENGINEERS ALERT
The U.S. Army Corps of Engineers (COE) has recently made several rule and policy changes which adversely affect development project costs and timing.  They are discussed briefly below.

Nationwide Permit Changes

Some of you may be aware that on March 6, 2000 the COE adopted new regulations regarding the use of Nationwide Permits (NWP’s).  These are the types of permits which allow wetland impacts which are thought to be of minimal disturbance to the environment.  Their main goal was the elimination of NWP 26, which was one of the more commonly used permit types (previously allowing up to 3 acres of wetland impact).  If a project qualifies for a NWP, then the review time, level of COE scrutiny and outside agency co-review is generally reduced, as compared to Individual Permits (IP’s).  The new NWP 39 is the closest new permit to replace the NWP 26.  However, the allowable activities under this new permit are more restrictive than the old NWP 26.  Indeed, the entire NWP changes are much less user and project friendly than previous rules.

One-half of an Acre Threshold
Projects with wetland impact in excess of ½ acre of impact will now be required to obtain IP’s.  The previous threshold was 3 acres.

100 Year Floodplain Impacts
The new rules require IP’s for projects containing any level of wetland impact within FEMA 100 year floodplains below the point where the flowway has an average annual flow of 5 cubic feet per second.

NWP’s Not Allowed in any Coastal Wetland
Not even the smallest amount of impact to tidal or saltwater wetlands can any longer be undertaken by using NWP’s.|

Notification Requirements Much Stricter
Any project containing wetland impacts in excess of 0.1 acre will be required to notify the COE and obtain approval in advance of performing the activity.  The previous predischarge notification threshold was 0.33 acres.

Mitigation Much More Likely
The new rules state in a much more definitive way that mitigation is generally assumed to be needed for impacts over 0.1 acres.  This will result in much more frequent “postage-stamp” sized wetland creation areas and the associated longterm and expensive monitoring and maintenance programs.

Upland Buffers Required
The COE can now require upland buffers adjacent to wetlands which could be argued to contain “open water” (such as lakes, streams, etc.)  The rule says the buffers will normally be 25’ – 50’ wide but that the COE has the discretion to require more if needed for water quality concerns.  This is somewhat of a nebulous requirement and the criteria as to when it is needed, and to what extent, will be open to wide interpretation.  It is a troublesome jump to upland regulation previously unheard of at the COE.  Conservation easements or other legal mechanisms of protection are required.

Water Quality Concerns
Most NWP’s will now require detailed water quality designs, previously not required.

IP’s to be Commonplace (Timing Concerns, etc.)
The much expanded increase in the use of Individual Permits will have several direct effects on many of our clients.

1. The time needed for a COE review of an IP can easily be 2 – 5 months longer than a NWP (or more).  The COE staff is saying they are not sure how they will handle the much increased permit load.

2. The COE copies numerous other Federal and State agencies, adjacent owners and special interest groups on IP public notices to allow for other agency and public comments.  This could result in additional scrutiny being directed to a project.

3. The burden of proof to obtain IP’s is much greater on owners.  For example, you can be asked to provide detailed information on why you didn’t buy an alternative site which could have had less wetland impact than yours.  Wetland impact justification can also be more difficult.

Wetland Delineations

On a separate issue, many of you may be aware that the COE still refuses to perform wetland delineation field visits prior to their receipt of dredge and fill applications.  This will continue to be a major problem for land buyers and developers, possibly being more of a problem in our area than even the new NWP’s.  It is interesting that the NWP rules require submittal of COE delineations; however, they will not visit sites, even when requested in writing.  They recently told us they will not even look at permit packages until the field delineation is done, surveyed and resubmitted.  This can lead to an additional 3+ months of review time to the permitting.  Even routine NWP’s can now take over 8 months!!

Wetland Functional Assessments

WRAP (wetland rapid assessment procedure) analyses are now required for any wetlands proposed for impact and for the associated mitigation areas.  This is a very tedious and time consuming process to allow the COE to have numerical data to assess wetland impacts and compensation.  This will drive up permitting costs and has the potential to generate numbers which can result in wetland mitigation ratios far higher than those previously accepted by the COE.

Compliance/Enforcement Initiative

The COE has added new compliance/enforcement staff and has consciously stepped-up their enforcement presence in Florida.  I expect that they will start to review permit conditions much more closely than they have in the past for items such as mitigation construction, monitoring reports, constructed impact limits, etc.

You should familiarize yourselves with these policies and programs so you can include the time lags and cost in your project pro forma.  We may be able to help you make use of various grandfathering provisions or to make acceptable project changes to possibly avoid these new COE requirements.  We would be happy to discuss these issues with you if you have any questions.

John A. Goolsby, C.E.P.
Vice President
Director of Environmental Services
Heidt and Associates, Inc.