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The Corps Proposes Changes to Nationwide Permits Programs

September 1, 2020

The U.S. Army Corps of Engineers (Corps) is proposing to reissue and modify its Nationwide Permits that provide a streamlined process for the Corps to authorize discharges of “dredged or fill material” under Section 404 of the Clean Water Act and Section 10 of the River and Harbors Act.  Nationwide (general) Permits (NWP) cover. construction (and other activities) that, after adherence to identified conditions and mitigation measures, have been determined to result in minimal adverse environmental impacts to federally jurisdictional waters and wetlands (i.e., waters of the United States). The Corps is proposing modifications across the program in addition to creating new NWPs and dividing the current NWP 12 into three separate NWPs.  This article highlights the potential top impacts of these developments on the construction industry and invites member feedback to better inform the association’s response to the proposed changes.

Notable Changes for AGC Member Feedback

Below, AGC points to several notable changes in the proposed NWP package and seeks member input to better inform the association’s response to the proposal.  What, if any, of the changes do you support?  Do you have recommendations to how the nationwide permits can be improved?  Please send feedback to AGC’s Melinda Tomaino at melinda.tomaino@agc.org by September 30, 2020.  Click here for a more detailed summary of the proposal prepared by AGC.

  1. Loss of Stream Bed: The Corps is proposing to switch to using stream bed acreage, specifically a 1/2 -acre limit instead of a 300-linear-foot limit, along with proposed changes to the pre-construction notification requirements to determine losses of stream bed for NWPs 21, 29, 39, 40, 42, 43, 43, 44, 50, 51, and 52 and to ensure that activities authorized by these NWPs result in no more than “minimal adverse environmental impacts.” 
  2. Compensatory Mitigation: The Corps is also proposing to require a minimum one-for-one ratio for all losses of stream bed that exceed 1/10 -acre and require pre-construction notification, unless the district engineer provides an activity-specific waiver of this requirement. 
  3. Pre-Construction Notification: The Corps is proposing to modify elements of a complete pre-construction notification (PCN) and clarify that the PCN must identify non-PCN NWPs in use on any part of the proposed project or related activity.  Another proposed change would require delineation of “streams” in the PCN to calculate stream bed losses.
  4. NWP 12  (Utility Line Activities): The Corps is proposing to split NWP 12 into three separate permits, essentially adding two new utility line permits.  NWP 12 would continue to cover oil and natural gas pipeline activities.  The Corps is also proposing to simplify the PCN requirements for NWP 12 to remove five thresholds that have become redundant.  Electric utility line and telecommunications activities would be covered under proposed permit “C.” A proposed permit “D” would cover other utility lines not covered by NWPs 12 and C (such as potable water, sewage, wastewater, etc.).  How easy is it to distinguish between NWP 12 and the newly proposed NWPs C and D?  Would many of your projects require coverage under NWP 12 and NWP C or NWP D, under the proposal, when previously NWP 12 would have sufficed? 
  5. Historic Properties:  The proposal would require the Corps to notify a non-federal applicant if National Historic Preservation Act consultation (under Section 106) is necessary within 45 days of the determination of a complete application. 
  6. The Corps is proposing to retain coverage for currently authorized activities (under the 2017 NWPs) until March 18, 2022 (unless a verification letter references a different expiration date). However, the Corps requests comment on changing the expiration date of the 2017 NWPs to the day before the 2020 NWPs go into effect in order to avoid having two sets of NWPs in effect at the same time.

The public comment period opened on September 15 with publication of the proposal in the Federal Register.  Comments are due on or before November 16.  The public can submit feedback on www.regulations.gov (docket number COE-2020-0002).

For more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.

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