New and Reissued Nationwide Permits for
Project Streamlining on the Horizon
Typically every five years, the U.S. Army Corps of Engineers issues or reissues a set of nationwide permits for categories of activities involving minimal amounts of discharges of dredged or fill material into wetlands or other waters of the United States. There are currently 52 nationwide permits, and they authorize discharges for a wide range of activities, including, for example, linear transportation projects (e.g., roads), minor discharges, maintenance of flood control facilities, and minimal amounts of fill associated with residential and commercial/institutional developments.
The importance of the Corps’ nationwide permit program is hard to overstate. For projects that qualify, a landowner, developer or public agency can save a significant amount of time and cost using a nationwide permit to streamline the approval needed to fill waters of the United States. The Corps’ most recent set of nationwide permits were issued in 2017. These nationwide permits expire on March 18, 2022. Last week, the Corps announced a proposal to issue new and revised nationwide permits and general conditions that pertain to those permits.
Many of the permits remain the same, but project developers should be aware that the Corps issued a handful of new permits and made a few modifications to some old permits, some of which will provide considerable benefits to the development community.
New Nationwide Permits
The Corps is proposing to issue five new nationwide permits:
NWP A: Seaweed Mariculture Activities, authorizing structures or work in marine waters, including structures anchored to the seabed in waters overlying the outer continental shelf, for seaweed mariculture activities.
NWP B: Finfish Mariculture Activities, authorizing structures or work in marine and estuarine waters, including structures anchored to the seabed in waters overlying the outer continental shelf, for finfish mariculture activities.
NWP C: Electric Utility Line and Telecommunication Activities, authorizing activities required for the construction, maintenance, repair, and removal of electric utility lines, telecommunication lines, and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States for each single and complete project. This nationwide permit would apply to projects such as electric utility lines and telecommunication lines, electric utility line and telecommunications substations, foundations for overhead electric utility line or telecommunication line towers, poles, and anchors, and access roads.
NWP D: Utility Line Activities for Water and Other Substances, authorizing activities required for the construction, maintenance, repair, and removal of utility lines for water and other substances, excluding oil, natural gas, and electricity, provided the activity does not result in the loss of greater than 1/2 -acre of waters of the United States for each single and complete project. This nationwide permit would apply to projects such as utility lines, utility line substations, and foundations for above-ground utility lines.
NWP E: Water Reclamation and Reuse Facilities, authorizing the construction, expansion, and maintenance of water reclamation and reuse facilities, including vegetated areas enhanced to improve water infiltration and construction wetlands to improve water quality, provided the discharge does not cause the loss of greater than 1/2 -acre of waters of the United States and does not involve discharges into non-tidal wetlands adjacent to tidal waters.
The Corps will require a pre-construction notification for NWPs A, B, and E. As to NWPs C and D, a pre-construction notification is required only if (i) a permit is required under Section 10 of the Rivers and Harbors Act of 1899; or (ii) the discharge will result in the loss of greater than 1/10-acre of waters of the United States. The Corps’ General Conditions will also apply.
Modifications to Existing Nationwide Permits
In addition to proposing new nationwide permits, the Corps is also proposing to make certain modifications to some of the existing nationwide permits.
Residential, commercial and industrial developers, as well as renewable energy companies and public agencies, will benefit from the Corps’ proposal to remove the 300 linear foot limit for losses of stream bed from those nationwide permits that currently incorporate this limitation. These include NWP 29: Residential Development; NWP 39: Commercial and Institutional Developments; NWP 43: Stormwater Management Facilities; NWP 51: Land-Based Renewable Energy Generation Facilities, and NWP 52: Water-Based Renewable Energy Generation Facilities. Instead, the Corps would rely on the 1/2-acre limit and pre-construction requirements to ensure that activities authorized by these nationwide permits result in no more than minimal adverse environmental effects. This should greatly increase the number of private and public development projects that can use nationwide permits.
Also, in response to recent litigation regarding the Corps’ use of Nationwide Permit 12 (click here) for our prior posting on this litigation, the Corps is proposing to modify Nationwide Permit 12, which has authorized various types of utility lines since 1977, to limit that nationwide permit to oil and natural gas pipeline activities. As modified, NWP 12: Oil or Natural Gas Pipeline Activities would only cover activities required for the construction, maintenance, repair, and removal of oil and natural gas pipelines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States for each single and complete project.
The Corps is proposing other, more minor, modifications to some of the nationwide permits, such as adding “driveways” to the list of examples of the types of linear transportation projects authorized by NWP 14: Linear Transportation Projects.
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Given that the Corps’ most recent reissuance of the nationwide permits was finalized in 2017, the timing of the Corps’ proposed reissuance of the nationwide permits is interesting. Because of the typical five-year cycle, the 2017 nationwide permits do not expire until 2022. The Corps appears to be either accelerating the expiration date or giving the agency an unusually long lead time before finalizing this set of proposed changes to the nationwide permits. Comments on the Corps’ proposal must be submitted on or before November 16, 2020, which should give the Corps enough time to issue the final set of nationwide permits by the end of 2021. Notably, the proposal issued by the Corps last week signals that the Corps may consider changing the 2022 expiration date of the 2017 nationwide permits.
The rationale for accelerating this schedule isn’t entirely clear. The upcoming presidential election may be a motivator. It’s equally plausible that the litigation against NWP 12: Oil or Natural Gas Pipeline Activities has prompted the Corps to act more quickly to reissue (and to re-justify) the nationwide permits. That litigation no doubt played a role in the Corps’ modification of that particular nationwide permit.
Whatever the rationale, expect to see changes in the Corps’ nationwide permit program soon.