Those looking for a silver lining in the cloud hanging over the Army Corps of Engineers' Nationwide Permits (NWPs) found it last week, when it was disclosed that the Fish and Wildlife Service (FWS) had agreed to revisit its determination that the NWPs don't adequately protect endangered species. At issue is whether the NWPs will be truly useful for those seeking to fill wetlands in areas where endangered species may be found. Unfortunately, despite the silver lining, it will likely be some time before this cloud completely dissipates.
The NWPs are the Corps' expedited permitting mechanism, allowing small impacts to wetlands under limited terms and conditions. The Corps' full permitting process takes a significant amount of time, a period of public notice and comment and inter-agency coordination, as EPA has a role in the process. Individual permits also involve the added complexity of a layer of NEPA review, which itself is lengthy, expensive, and requires public notice and comment. For these and other reasons, the NWPs, updated every five years by the Corps, are critical to industries seeking to undertake projects with small wetland impacts.
Of course, construction projects need to avoid adverse effects to endangered species as well as wetlands. Until the most recent iteration of the NWPs, approved by the Corps in February of this year, the FWS, which regulates endangered species, had determined that the NWPs don't jeopardize the recovery of any species. Thus, anyone obtaining an NWP received the added benefit of Endangered Species Act (ESA) protection - in short, there was no need for someone operating under a valid NWP to be concerned with violating the ESA.
That changed in February, when FWS released a letter following the issuance of the new NWPs stating that the NWPs no longer guarantee the adequate protection of endangered species. With FWS' finding, anyone wanting to take advantage of an NWP now has to independently confirm compliance with the ESA. Not surprisingly, that independent confirmation can be time-consuming and resource-intensive, thus removing much of the benefit from the availability of the expedited NWPs.
Soon after issuance of FWS' letter, the Corps made changes to the NWP program and requested that FWS revisit its jeopardy finding. At the end of July, the FWS agreed, reinitiating the process required to determine if the NWPs provide adequate protection. That's good news for entities hoping to expedite their NWP and ESA compliance.
Unfortunately, that good news lines a very large cloud. Until FWS completes its reevaluation, permittees will have to either obtain independent confirmation of their ESA compliance or run the risk of violating the ESA, which carries significant criminal penalties. FWS' reevaluation process will not be quick, and could easily extend for months, if not longer. Until then, the development process will continue to be a slow and treacherous one, even for those impacting even small amounts of wetlands.