Corps Refrains from Adding More Restrictions, Limits on Use of General Permits
Last week, the U.S. Army Corps of Engineers (Corps) published its final nationwide permit (NWP) rule, with some modifications, that reissues the 50 existing Clean Water Act (CWA) permits that expire on March 18, 2017, and adds two new permits and one new general condition. Construction projects in and nearby “Waters of the United States” (WOTUS) must be covered by a new 2017 NWP(s) (or an individual CWA Section 404 permit), as of March 19, 2017. The timely reissuance of an efficient and streamlined general permit process was informed by extensive feedback from AGC and other key stakeholders. Next, AGC Chapters and members may wish to engage in the regional conditioning process that is currently underway at the Corps district level.
AGC’s effective advocacy work – including a 14-page comment letter and a meeting with the regulator leading the permit reissuance effort – had a positive impact on the final 2017 NWP package. Early on, AGC was concerned when the Corps’ proposal considered changes in the impact limits and notification requirements for certain NWPs. The Corps also sought comment on the relationship between the NWP program and the 2015 revisions to the definition of WOTUS (which dictates the scope of the federal control and CWA permitting responsibility). Also, high on AGC’s radar, were possible changes in how compensatory mitigation is conducted and changes in the Corps’ use of waiver provisions. Each of these permit provisions can impact the overall application and utility of the NWP program, as explained below.
Acreage Limits and Pre-Construction Notification Requirements
NWPs are meant to streamline the permitting process for various activities involving discharges of dredged or fill material into WOTUS, provided the discharges will cause only minimal adverse environmental effects. Many of the NWPs are vital to construction to lessen the cost and delay in securing CWA Section 404 permit coverage. For example, NWP 12 authorizes discharges of dredged or fill material into WOTUS associated with the construction, maintenance, or repair of “utility lines,” including foundations for overhead utility line towers, poles, and anchors. The final rule also includes the reissuance of NWP 14, which applies to linear transportation projects.
Notably, the Corps retained the current half-acre limit for construction activities undertaken pursuant to NWPs 12 and 14, as well as other NWPs. The preamble to the final rules states: “We are retaining the current acreage limits for those NWPs that have acreage limits” (i.e., the limit on the permanent adverse effects to jurisdictional waters/wetlands caused by a project). AGC strongly advocated against decreasing the acreage threshold, arguing that a lower limit would narrow the NWP’s applicability and thus increase the number of projects that would need to pursue individual CWA Section 404 permits, which involve a more rigorous, site-specific review of potential adverse effects, give EPA a stronger oversight role and often become the target of environmentalist litigation.
The Corps also retained the 300 linear-foot limit for losses of stream bed in those NWPs that have that limit.
In addition, AGC’s comment letter expressed concern that, over time, the Corps has revised the NWP program to include more stringent “conditions” as prerequisites to authorization of general permits. Closely tracking AGC’s recommendations, the Corps also streamlined the process of obtaining CWA Section 404 coverage under several important construction-related permits. For example, the 2017 version of NWP 33 will now only require pre-construction notice (PCN) for temporary construction, access and dewatering activities in navigable waters subject to Section 10 of the Rivers and Harbors Act of 1899; the current version requires PCN for any discharges of dredged or fill material from such activities into any WOTUS. Likewise, under the 2017 version of NWP 41, the Corps eliminated entirely the requirement to submit a PCN when reshaping an existing, currently serviceable drainage ditch (but see General Conditions 18 and 20); the current version requires PCN if the project proponent plans to reshape more than 500 linear feet of ditch.
AGC’s comment letter discussed the important interplay between the 2015 WOTUS rule and the reissuance of the 2017 NWPs. Specifically, how the 2015 WOTUS rule’s revised definitions of key regulatory terms such as “adjacent” and “tributary” would “categorically” extend CWA jurisdiction to myriad waters and features that historically have been evaluated on a case-by-case basis. As AGC recommended, the Corps’ final NWP rule appropriately recognizes the 6th U.S. Circuit Court of Appeals has stayed the WOTUS rule, as legal challenges to that regulation make their way through the courts. AGC members can declare victory that none of the NWPs refer to the 2015 revised definition of WOTUS. Unless the stay on the 2015 WOTUS rule is lifted, the Corps district offices will rely on the 1986 WOTUS rule and clarifying guidance from 2008 to decide whether projects can proceed. “Our districts will not implement the 2015 final rule defining ‘waters of the United States’ unless the stay is lifted and that rule goes back into effect,” the Corps wrote in the Federal Register. See related AGC Fact Sheet titled “Where Are We With WOTUS” – click here.
Waiver of Certain NWP Limits
The 2017 NWP rule will continue the practice of allowing district engineers (DEs) to waive certain NWP limits when they find that proposed activities will result in no more than minimal adverse environmental effects. AGC strongly urged the Corps to retain this important tool to accommodate for varying climates and conditions across the country. Per the 2017 rule, the Corps has not added any additional “caps” on waivers. The DEs will continue to make case-by-case determinations on whether compensatory mitigation is necessary to offset losses authorized by waivers of certain NWP limits.
Of interest to AGC members, the Corps announced that it will display quarterly reports on its website summarizing statistics on the use of each NWP, aggregated per Corps district. These “stats” may include the number of verifications, acres of WOTUS lost, as well as information on the use of waivers during the previous quarter.
Mitigation – General Condition 23
The final rule clarifies under General Condition 23 that compensatory mitigation is only required for NWP activities that impact jurisdictional waters and wetlands. In general, compensatory mitigation is not required for restoration activities. AGC’s comments stressed the importance of maintaining flexibility in compensatory mitigation requirements to account for regional variations. The Corps explains in the preamble that the use of mitigation bank and in-lieu fee program credits is “preferred, not required.” This preference is based on the compensatory mitigation regulations at 33 C.F.R. 332.3(b). The preamble also explains that this preference “does not preclude the use of permittee-responsible mitigation, if such compensatory mitigation is approved by the district engineer” after considering the applicable regulations. The preamble also states: “Off-site compensatory mitigation is an appropriate option for providing compensatory mitigation for NWP activities, as long as the off-site compensatory mitigation project is approved by the district engineer.” These are helpful clarifications for the construction industry.
The rule preamble also makes note that the Corps tracks authorized impacts and permittee-responsible mitigation its regulatory program’s automated information system, ORM; but that information is not yet publicly available. The Corps tracks credits produced by approved mitigation banks and in-lieu fee programs in the Regulatory In-Lieu Fee and Banking Information System (RIBITS), which is available online – click here (scroll down to bulleted list).
Impact on Ongoing Construction Work
NWPs are valid for five years; however, if your project is currently under construction, or is under contract to commence prior to March 18, 2017, you can obtain a one-year extension to complete the project under the existing NWP authorization. If that is not the case, you will need to request authorization under a new permit (i.e., renew the NWP permit during construction or secure individual permit coverage).
Publication of the NWPs in the Federal Register started the 60-day regional condition by Corps district offices and the “water quality certification” process, which is another type of regional conditioning performed by states/tribes pursuant to CWA Section 401 – plus the 90-day Coastal Zone Management Act (CZMA) consistency approval process, for areas located in a coastal zone.
Army Corps Division and DEs may issue regional conditions and/or modify, suspend or revoke NWPs within a region (or on a site-specific basis), to address localized concerns for the aquatic environment. AGC Chapters and members may wish to weigh in during the public review and consultation process in the districts where they do work. To find your Corps of Engineers district office, click here.
A summary of the NWPs is available on the Corps’ website along with the “Final Decision Documents.” Additional information about the Corps’ regulatory program can be found here. For a plain language explanation of how construction activity in WOTUS is regulated (at both the federal and state levels), visit the AGC-supported Construction Industry Compliance Assistance Center – click here.