The US Army Corps of Engineers (Corps) published its final nationwide permit (NWP) rule on January 6, 2017. The rule reissues the 50 existing NWPs that are currently set to expire on March 18, 2017, with some modifications. The rule also includes two new NWPs and one new general condition. The reissuance of the NWPs is vital to a wide range of industries and infrastructure projects, which rely on the general permits to reduce costs and delays. The effective date for the new and reissued NWPs is March 19, 2017. These NWPs are valid for 5 years, and will expire on March 18, 2022.
By way of background, NWPs are issued under Section 404(e) of the Clean Water Act, which authorizes the Corps to issue “general permits” for categories of activities involving discharges of dredged or fill material into waters of the United States, provided that the discharges will cause only minimal adverse environmental effects. The purpose of the NWPs is to provide a streamlined permitting process for categories projects with minimal impacts to waterways. The Corps describes the goal of the program as providing “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.”
The reissuance of the NWPs is vital to a wide range of industries, which rely on the streamlined permitting process to reduce permitting costs and delays. For example, NWP 12 authorizes discharges of dredged or fill material into US waters associated with the construction, maintenance, or repair of “utility lines,” such as pipelines, cable lines, or electric transmission lines. NWP 12 includes the construction or maintenance of 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 such as rail lines.
While the final rule is very detailed, and includes a preamble of over 100 pages, the following are a few highlights regarding the rule:
- The Corps retained the current ½ acre limit for construction activities undertaken pursuant to NWPs 12 and 14 (as well as other NWPs). This is an important issue for developers, given that a lower limit could have narrowed the NWP’s applicability and thus increased the number of projects that will need to undergo the more prolonged individual permit process.
- The Corps clarified the appropriate geographic area for assessing cumulative effects relative to activities occurring under a NWP. The Corps indicated 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 NWPs at the appropriate district, watershed, or ecoregion, and they need not assess cumulative effects on a comprehensive basis. This is a helpful clarification for developers.
- The final language of General Condition (GC) 17, which addresses tribal rights, was amended to state that “no NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.” This potentially broadens GC 17, which previously only referred to treaty rights. Thus, the Corps may now be considering tribal resources more broadly, including resources off tribal lands. This is an issue that was raised by the Standing Rock Tribe in the Dakota Access Pipeline (DAPL) matter. The Corps also recognizes that the applicant cannot fulfill the Corps’ duty to consult directly with Tribes, which is another issue that was raised by Standing Rock in the DAPL litigation. The preamble to the final rule also makes reference to the fact that discussions between the Corps and the Advisory Council on Historic Preservation (ACHP) on the appropriate process for historic/cultural resource consultations are ongoing, so it is possible that further changes to the Corps’ procedures (re historic and cultural resources) will be forthcoming.
There is significant controversy surrounding the Corps’ nationwide permit program, with over 50,000 comments filed on the proposed rule. Now that the final rule has been published, it is possible that at least some aspects of the NWP rule will be challenged in federal court.