In a shift away from efforts to streamline the wetlands permitting process, the Army Corps of Engineers recently announced that a particular type of wetlands permit, i.e., one which involves the dredging or disposal of fill material that has an impact on up to 10 acres of wetlands, will be scaled back and eventually eliminated. This permit, known as Nationwide Permit 26, currently allows property owners to bypass the normal review process and obtain the necessary permits to drain and fill wetlands faster than the individual permit process.
The most significant revision, which is part of a package of new and revised permits effective February 11, 1997, lowers the threshold for coverage of projects under Nationwide Permit 26 from 10 acres to three acres or less. Further, Nationwide Permit 26 will be phased out entirely within the next two years and replaced with a series of activity-based permits. The activity-based permits will have an expedited review procedure akin to that provided by Nationwide Permit 26, but will be narrower in scope.
The revisions to Nationwide Permit 26 likely will not affect those who seek permits to disturb wetlands in New Jersey. NJDEP assumed administration of the freshwater wetlands program in 1993, and the state equivalent of Nationwide Permit 26 is only available for projects which impact one acre or less. Also, Nationwide Permit 26 applies to non-tidal isolated and headwaters wetlands and therefore, by definition, is inapplicable to coastal wetlands.
While the Army Corps of Engineers appears to be making this change in an effort to afford greater environmental protection for wetlands, the likely effect of this revision is unclear. This is because many of the projects currently covered under Nationwide Permit 26 already affect three acres of wetlands or less. Although its full effect may not be felt until the phase-out of Nationwide Permit 26 is complete, the revision suggests that the pendulum has reversed on the recent trend to streamline the permitting process.
