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On April 1, 2022, the U.S. Army Corps of Engineers-Chicago District’s (Corps) Regional Permit Program (RPP) expired and the new federal Nationwide Permits (NWPs) took effect. A summary chart of the NWPs can be viewed at https://www.lrc.usace.army.mil/Portals/36/docs/regulatory/pdf/NWP/IL/2021-NWP-summary-chart-IL.pdf.
Some NWPs authorize specific activities that impact waters of the U.S. (WOTUS) when the impact is below a given acreage threshold and meets the general and special conditions imposed for that NWP. In such cases, a Pre-Construction Notification (PCN) to the Corps is not required. In some cases, these “automatic” NWP authorizations have generated questions among the development community and their consultants about submittal requirements for SMC’s permit review process under the Lake County Watershed Development Ordinance (WDO). Below are FAQs to provide guidance on the WDO permit application requirements for proposed developments under SMC ‘s permitting authority:
Q1: Can I just assume any/all wetlands-waters on my development site are WOTUS and covered under a NWP if my impacts are less than the NWP threshold?
A1: There are many cases where jurisdiction and NWP authorization cannot just be assumed. That is why WDO §1001 requires a valid, written jurisdictional determination (JD from Corps, or PJD from SMC) to definitively determine if the wetlands-waters on a development site are WOTUS or Isolated Waters of Lake County (IWLC). Note that SMC may waive the JD-PJD requirement when a development site contains only areas with a very high probability of being WOTUS under the current federal definition in 33 CFR Part 328.3, such as major rivers, tributaries and wetlands directly adjacent/abutting such waters. The applicant-consultant should contact SMC to discuss a possible waiver of the JD-PJD requirement before submitting a permit application.
Q2: Do I have to do a wetland delineation if a NWP doesn’t require one?
A2: Yes, WDO §1000 requires that a wetland delineation be performed by, or under the supervision of, a Lake County Certified Wetland Specialist (CWS) on all proposed developments with wetlands/waters located wholly or partially within the development site. Note that SMC may accept an abbreviated delineation report for smaller-scale developments or an addendum report for recently expired reports (>3 years old). When in doubt, the applicant-CWS should contact SMC to confirm the wetland delineation requirements for a specific development site before submitting a permit application.
Q3: Do wetland-water body buffers still apply if not required by a NWP?
A3: Yes, the buffer requirements in WDO §505 apply, regardless of whether wetlands-waters are WOTUS or IWLC.
Questions concerning SMC’s wetland review-permitting process may be directed to our principal wetland specialists: Glenn Westman [email protected] or Juli Crane [email protected].