On June 1, 2016, the US Army Corps of Engineers (Corps) issued a Federal Register notice proposing to reissue and modify Clean Water Act Nationwide Permits (NWPs) that are currently set to expire on March 18, 2017. 81 Fed. Reg. 35186. The Corps’ proposal includes the reissuance of all 50 NWPs, including those that are applicable to construction activities associated with major infrastructure projects, including railroads, pipelines, and transmission lines.

One of the key issues that the Corps is seeking comments on is whether to retain the ½ acre limit for construction activities undertaken pursuant to certain NWPs, or whether that limit should be increased or decreased to ensure that NWPs continue to meet their intended purpose of providing a streamlined authorization process for activities resulting in no more than minimal individual and cumulative adverse environmental effects. This is an important issue for the construction of major projects, given that a lower limit could narrow the applicability of NWPs, thereby exposing such projects to the more prolonged individual permit process (including NEPA review).

The Corps is also seeking comments on the proposed NWPs in light of its June 29, 2015 rule (80 Fed. Reg. 37054) that defines “waters of the United States.” Specifically, the Corps is seeking views on how that waters of the US rule might affect: (i) the applicability of the NWPs; (ii) the efficiency of the proposed NWPs; (iii) general conditions contained in the NWPs; and (iv) definitions that would help ensure that activities result in minimal adverse effects. The Corps’ rule may thus cause construction activities that previously required no CWA approval to now require the use of a NWP, or cause activities that previously qualified for NWPs to no longer qualify if the acreage limits are now exceeded.

The Corps is also proposing to modify language under the NWPs to clarify the appropriate geographic area for assessing cumulative effects relative to activities occurring under a NWP. The Corps indicates that the broader cumulative effects analysis is satisfied by the Corps at the time that it promulgates the NWP. Accordingly, district engineers need only assess the cumulative adverse environmental effects of the NWP or NWPs at the appropriate district, watershed, or ecoregion, and they need not assess cumulative effects on a comprehensive basis. This proposed revision to the NWPs is intended to address arguments raised by Sierra Club and other environmental non-governmental organizations concerning the need for the Corps to take a broader look at cumulative effects occurring from multiple uses of NWPs for linear projects, such as crude oil pipelines.

Other issues are being raised with respect to specific NWPs.

Comments must be submitted within 60 days of publication or by August 1, 2016.