Environmental Law

Arguments Against the New England General Permit as Written

September 30, 2014

By Ari B. Pollack*

The New England General Permit (NE GP) is a regional general permit that would replace the six state general permits issued by the U.S. Army Corps of Engineers.

The New England General Permit - Working Draft closed for comments on September 15, 2014. It would authorize certain activities that require Department of the Army permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act of 1899, and/or Section 103 of the Marine Protection, Research and Sanctuaries Act. The NE GP would authorize activities in waters of the U.S. within the boundaries of and/or off the coasts of the six New England States, including activities occurring within the boundaries of Indian tribal lands that have no more than minimal adverse effects on the aquatic environment.

What follows is a newsletter written by Jim Gove of Gove Environmental Services Inc. Jim assisted with my response to the request for comments representing the New Hampshire Homebuilders Association and the National Association of Home Builders. The information below nicely summarizes the issue and the arguments against the NE GP as it is currently written.

Take it away Jim...



The Last Comment Period?

By Jim Gove

So September 15th has come and gone. Nothing earth shattering. Perhaps you had a birthday or anniversary to celebrate? Perhaps there was some other occasion that gave you pause. For some of us, it was the close of the comment period for the last draft of the New England General Permit. Quite a few organizations, private-sector, public-sector, asked for an extension of the comment period. One of the reasons cited was that summer into fall is busy with field work and construction and folks could not respond as completely as they might wish to. Well, that did not stop the Army Corps from closing the comment period.

Before the close of the comment period, a number of groups submitted letters requesting that the implementation of the New England General Permit be deferred to the January 2015 date to better address the concerns. Some pooled their comments in letters, such as the joint letter of concern sent in by the Associated General Contractors of New Hampshire, NH Timberland Owners Association, and the American Council of Engineering Companies of New Hampshire. The joint letter brought out the concepts that there seemed to be no benefit of combining the individual states since for the last twenty years things have been going smoothly, that previous detailed comments were virtually ignored by the Corps, and that with a new definition of “Waters of the US” currently under review, therefore any General Permit based upon the current view of “Waters of the US” was premature. The Homebuilders choose a somewhat more detailed response.

Ari Pollack of Gallagher, Callahan & Gartrell, working as spokesperson for the New Hampshire Homebuilders Association and the National Association of Home Builders, crafted a detailed and excellent response to the request for comments. I was able to assist with this response that was submitted to the Army Corps on September 12th. Some of the arguments against the current New England General Permit, as it is currently written, are as follows:

1. The Corps lacks the jurisdiction to regulate vernal pools. Ari summarized the judgments of the US Supreme Court in the three major cases that found the Corps had exceeded its authority and interpretation of what constituted "Waters of the US".

2. Why vernal pools cannot come within the Corp's jurisdiction. Specifically in the Rapanos decision by the Supreme Court, Ari pointed out that no significant nexus could be shown connecting vernal pools to “Waters of the US”. Further, the Clean Water Act does not allow the Corps to regulate a water body for the purpose of saving habitat for certain species. If you recall, the only value of the venal pool is that it provides a breeding location for certain reptiles and amphibians. The vernal pool does not have other significant functions of wetlands, such as flood storage, nutrient attenuation or water quality renovation. The vernal pool is being strictly protected only because of its value as a breeding habitat.

3. The scientific data relied upon by the Corps is flawed. Under a study that was commissioned by the US Environmental Protection Agency, a group of scientists complied the existing scientific literature on connects of wetlands to “Waters of the US”. The result was that while vernal pools in the western states are connected, the vernal pools of the glaciated Northeast could not be documented as being connected to “Waters of the US”. The study concluded, that without further study, the northern vernal pools appear to be truly geographically isolated.

4. New Hampshire is being treated differently than other states. While the New England General Permit recognizes other states’ vernal pool rules or laws, it does not recognize New Hampshire’s vernal pool rules and imposes the Corps’ own definition and rules.

5. The species that often use vernal pools in New Hampshire are not listed as federally endangered. Most of the species of amphibians or reptiles found in vernal pools are not on the federal endangered species list for New England. With the exception of the Blanding’s turtle, the other species are considered common.

6. Compliance with the vernal pool provision is unduly burdensome. If the full habitat protection area located in the New England General Permit is applied to a vernal pool, over 40 acres of upland will be restricted from potential development of any kind.

7. Improper control of Upland Areas. The Corps is seeking to restrict development around the “envelop” and “critical terrestrial habitat” of a vernal pool. As Ari ably points out, the Clean Water Act, Section 404, did not give authority to plan the development and use of land and water resources. It has no authority to regulate actions on areas that are not “Waters of the US”.

The above is just a fraction of the comments that Ari Pollack submitted to the Corps. Will they go unheeded and ignored?

Every three years, a new colonel is tasked with heading the US Army Corps of Engineers in New England. Col. Christopher Barron started his new assignment New England in July of this year. Perhaps this new colonel will take a hard look at the comments on the New England General Permit and take a step back for further review. One can only hope.



*Ari B. Pollack is admitted in New Hampshire and Massachusetts.

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