Environmental Law

Industry Prevails in Its High-Stakes Fight Against Regional Wetlands Permitting

January 2015

By Ari B. Pollack*
for Granite State Builder Magazine

After years of drafts, publications and stakeholder comment periods, the U.S. Army Corps of Engineers (ACE) “decided to discontinue” its regional approach to federal wetlands permitting. Instead, the ACE will return its focus to its existing model of state-by-state general permits, according to a public notice filed in October.

The so-called “New England General Permit” or NEGP would have
replaced six individual state permits currently in place in New Hampshire, Massachusetts, Connecticut, Rhode Island, Maine and Vermont. A “one-size-fits-all” approach, the NEGP was originally conceived by federal regulators as a means of achieving regulatory efficiencies and uniform practices. In application, however, industry actors feared that consolidation of the individual state permits would cause numerous inconsistencies with state regulations and practices, introduce new regulatory hurdles in certain states, and create a complicated web of new application notification procedures.

Through the official “comment period” process, the New Hampshire Homebuilders Association and the National Association of Homebuilders prepared comprehensive comments objecting to the proposed NEGP. NHHBA and NAHB also gathered support for its arguments from New Hampshire Congressional Delegation.

NHHBA’s and NAHB’s official comments included:

  • challenges to the jurisdiction of ACE under the federal Clean Water Act relative to so-called “vernal pools”, which by definition are isolated depressions not connected to other water bodies or waterways;
  • criticisms of the scientific basis for extensive protective radii around vernal pools, which could have amounted to substantial “no build” zones;
  • questions regarding the influence that certain special interest groups, such as Native American tribal associations, would have on permitting decision when notified of applications relating to non-coastal projects; and
  • objections to the inconsistencies with state laws and regulations that would have complicated state-level environmental permitting.

Other trade groups, including the New Hampshire chapter of the Associated General Contractors, the NH Timberland Owners Association, and the American Council of Engineering Companies of New Hampshire echoed similar concerns.

ACE’s reasons for the shift in direction have not been detailed. Instead, ACE simply announced that it is “now working to expedite the issuance of new general permits in Massachusetts prior to the expiration of the existing Massachusetts General Permits on January 20, 2015.” Other New England states will surely follow in order of their respective renewal dates. While many industry officials are left to wonder whether the same regional concepts will reappear in the context of the state-by-state permits, industry groups, including NHHBA and NAHB, are organized and assembled to respond to such agendas.


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

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Regional Wetlands Permitting