News

Clean Water Act Section 404 ‘Nationwide Permits’ Reissued with Minor Changes

The U.S. Army Corps of Engineers (Corps) recently reissued 48 nationwide permits (NWPs) and issued two new ones to authorize a variety of construction operations that have minimal impact on waters and wetlands.  Most of the reissued nationwide permits have no major changes from 2007, the last time they were authorized.  The 2012 NWPs took effect March 19 and are valid for five years.

NWPs are general permits issued by the Corps under Clean Water Act Section 404.  They authorize (on a nationwide basis) discharges of dredged or fill material into waters of the United States, including activities associated with road crossings, utility lines, stormwater management, wetland and stream restoration, coal mining and now renewable energy generation.

The Corps intends for the NWPs to provide “timely authorizations for the regulated public” and to “reduce administrative burdens on the Corps and the regulated public by efficiently authorizing activities that have minimal adverse environmental effects.”  But NWPs are valid only if all the terms and conditions are met. Otherwise, an individual (or in some cases regional) permit is required.  Separate local permits and authorization also may be required.

Some highlights of the 2012 NWPs (see 77 Fed. Reg. 10,184, Feb. 21, 2012) include the following:

Two New NWPs for Renewable Energy Projects. The Corps issued two new NWPs for “Land Based Renewable Energy General Facilities” and “Water Based Renewable Energy Generation Pilot Projects,” NWPs 51 and 52, respectively. NWP 51 (land based renewable energy facilities) – authorizes construction, expansion or modification of land-based renewable energy production facilities. NWP 52 (water based renewable energy projects, including water based wind or hydrokinetic projects) – authorizes construction, expansion, modification, or removal of water-based wind or hydrokinetic renewable energy generation pilot projects.  Under both NWPs 51 and 52, pre-construction notification (PCN) is required for all activities.  In addition, permanent impacts (loss) of waters cannot exceed 0.5 acre or 300 linear feet (the 300 linear foot limit may be waived by the Corps, following coordination with other regulatory agencies).

With respect to NWPs 51 and 52, the Corps also provided important clarifications for related linear features.  Specifically, for linear features connecting to these facilities (such as transmission lines, pipelines or roads), each “separate and distant” crossing of a waterbody constitutes a separate and complete linear project that may be authorized under NWP 12.  Accordingly, NWPs 51 and 52 (and potentially other NWPs) may be used for a renewable energy facility, and NWP 12 may be separately used for each waterbody crossing by linear features serving the facility, provided each crossing is at a “separate and distant” location.

Revoked NWP.  NWP 47 (time sensitive inspections and repairs of pipelines) was not reissued. However, NWP 3 (maintenance) and NWP 12 (utility lines) will still offer coverage for many utility line projects.

Notable NWP Changes.  One of the reissued permits, NWP 21 (surface coal mining activities), for the first time prohibits “valley fills” that typically have been used to dispose of surface mining waste in mountain stream valleys.  The updated permit limits stream impacts to 0.5 acre and 300 linear feet of stream bed, consistent with the other NWPs. These limits cannot be waived for perennial streams (although the Corps' district engineer could grant a waiver for ephemeral and intermittent streams).  Previous versions of NWP 21 did not have any acreage or linear foot limits, and relied solely on the pre-construction notification review process and permit conditions to reduce adverse effects on the aquatic environment to satisfy the minimal adverse environmental effects requirement for general permits. Activities that were authorized by the 2007 NWP 21 may be reauthorized without applying the new limits if the permittee submits a written request for reauthorization by Feb. 1, 2013.

Other notable NWP changes include—

  • NWP 3 (Maintenance) – Added the ability to place new or additional rip-rap to protect an existing, serviceable structure (previously limited to staying within the original structure’s footprint or size).
  • NWP 12 (Utility lines) – Added new interagency coordination requirements for NOAA (in navigable waters) and for DOD (for overhead lines that could affect military activities).
  • NWP 29 (Residential) and NWP 39 (Commercial/Institutional) – The impact limits remain at 0.5 acre and 300 linear feet of stream bed.  However, to receive a waiver to exceed the 300 linear foot limit on permanent impacts (loss) to waters (and still qualify for a NWP), the applicant has to provide written justification of why the waiver should be granted, i.e., why impacts are minimal.
  • NWP 43 (Stormwater Management Facilities) – Clarified that stormwater facilities that that meet the definition of ‘waste treatment systems’ under 33 CFR 328.3(a)(8) are NOT waters of the U.S. and 404 permits are not required for maintenance of these. Added the requirement for low impact development (LID) features. Also: in order to receive a waiver to exceed the 300 linear foot limit on permanent impacts (loss) to waters (and still qualify for a NWP), the applicant has to provide written justification of why the waiver should be granted, i.e., why impacts are minimal.

For most of the NWPs, the Corps retained the acreage thresholds and special conditions, in most cases, and did not increase the stringency of most of the general conditions.

Mitigation.  All NWPs continue to require mitigation for all unavoidable impacts to waters or wetlands.  The final rule clarifies that the Corps may require compensatory mitigation only for those portions of projects that are subject to the Corps’s regulatory jurisdiction.  Compensatory mitigation to offset the loss of aquatic resources must comply with the Corps’s 2008 mitigation rule, which is codified at 33 C.F.R. Part 332.  The final rule requires that District Engineers determine appropriate and practical mitigation to ensure that adverse effects on the environment are minimal, but also provides the District Engineer with some discretion.  The circumstances under which mitigation would or would not be required for NWPs are discussed extensively in General Condition 23.

Transition to 2012 NWPs

If a permittee had a valid NWP and was working (or under contract to start work) on or before March 18, 2012, then the permittee has one year (until March 2013) to complete their work in waters (including finishing any mitigation or restoration that requires work in waters).  These projects are being “grandfathered in” under the 2007 NWPs and associated general and regional conditions.

If a permittee cannot complete all impacts to waters by March 2013, then they will need to REAPPLY under the new 2012 NWPs for the any portion of the work that is not finished by March 2013.

For More Information

For more detail on the NWPs re-issuance, click on the website links below

If you have additional questions, please contact Leah Pilconis at pilconisl@agc.org.