Perspective

Changes to Construction Permits for Projects near Bodies of Water

January 23, 2017

If you have construction projects taking place near or in any bodies of water in 2017, you urgently need to evaluate your project plan. On January 6, 2017, the U.S. Army Corps of Engineers announced reauthorization of the Nationwide Permits (NWP).

NWPs were created to simplify the permitting process for development activities having minimal impacts on aquatic environments. They are designed for projects that meet specific conditions, such as a boat ramp of a certain size or a project that produces less than a certain amount of cubic yards of dredged materials. In March 2012, 50 categories of NWPs were announced, all of which have been in effect ever since. Permit categories are typically reissued every five years.

The changes announced on January 6 by the Corps are only slight modifications to the 50 categories. The announcement also included the addition of two new categories related to living shorelines and removal of low-head dams. Although the changes are slight, this change in permit policy could impact your current construction projects.  

Projects Already Approved Under a Nationwide Permit

Approved projects covered by a NWP that are currently underway will not be impacted and should proceed as planned.

Approved projects where construction has not started could be impacted. The best course of action is to
start construction before March 18, 2017. If work gets underway by that deadline, the project can proceed as planned.

Approved projects that cannot be started by March 18, 2017, need to apply for a 1-year extension under existing authorizations.

If work is not started by March 18 and the extension is not requested, the project would need to request authorization under the new permits. While it is quite feasible to apply for new permits, the risk relates to timing. The new permits might not go into effect for weeks or months after March 19, 2017. Even though the changes are slated to take effect March 19, it is unlikely that they will actually take effect on that day. The Corps needs to work through processes related to Clean Water Act Section 401 Certifications (a 60-day process) and Coastal Zone Management Act consistency determinations (a 90-day process). Therefore, there could be a small gap where there are no NWPs available for construction use and this gap could severely impact this year’s construction season. 

If your project must start the NWP process again, it will require not only the time to get the NWP approved, but additional time to re-do the permit processes at the state or local level, even if the permit processing was already previously completed.

Projects that Have Not yet Applied for a Nationwide Permit

If your project has not yet applied for an NWP, you cannot apply for one at this time. You will need to wait until the new permits go into effect. Although the effective date is scheduled for March 19, 2017, it is unlikely the NWPs will actually take effect that day. It could be days, weeks, or months before the proper certifications and determinations are completed.

In this situation, your priority needs to be on adjusting your contracting schedule with your vendors. If contracts are not already signed, make changes to reflect this new uncertainty around the permit dates. This might impact current RFP efforts. The goal is to avoid paying penalties or other fees to vendors while you wait for NWPs to become available.
If you already finalized contracts, it’s time to look into the elements of the contract related to delayed starts.

Another option is to apply for a Clean Water Act permit that is not an NWP. These type of permits are typically more expensive and time consuming, but they might still be the best option if you have an emergency need. The sooner the process is started, the better. This process involves preparing the documentation including drawings. Likely, the Corps will need to visit as part of the evaluation.

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