The Army Corps of Engineers (the “Corps”) is seeking comments on a new proposed nationwide permit (“NWP”) for offshore wind and hydrokinetic pilot projects. In its February 16, 2011 Proposal to Reissue and Modify Nationwide Permits, the Corps described a new NWP for “Water-Based Renewable Energy Pilot Projects” that could give developers a reprieve from obtaining permits under § 10 of the Rivers and Harbors Act and § 404 of the Clean Water Act for the “construction, expansion, or modification of water-based wind or hydrokinetic pilot projects and their attendant features.”

Under the new NWP, "attendant features" may include transmission lines, roads, land-based distribution facilities, parking lots, and stormwater management facilities.

The new NWP would authorize wind and hydrokinetic pilot projects with no more than 10 individual generation units (e.g., turbines, buoys) that do not cause the loss of greater than 1/2 acre of waters of the United States, including the loss of no more than 300 linear feet of stream bed. However, the NWP would not authorize activities on coral reefs and no structure could be placed in (1) established danger zones or restricted areas, (2) shipping safety fairways or traffic separation schemes established by the U.S. Coast Guard, or (3) open water dredged material disposal areas designated by the Corps or the Environmental Protection Agency. Permitees under the new NWP would be required to notify the Corps’ district engineer as early as possible prior to construction.

It is important to note that the general conditions for all nationwide permits would apply to the new NWP, including Condition 25. Because the new NWP has not previously received a state coastal zone management consistency concurrence, Condition 25 would require that one be obtained or a presumption of concurrence must occur. The requirement for a consistency determination under Section 307(c)(1) of the Coastal Zone Management Act permits coastal states to propose additional conditions on the new NWP that would apply to development in that state. Although all of the western coastal states and Maine have signed memoranda of understanding with the Federal Energy Regulatory Commission to advance hydrokinetic energy projects, and many east coast states like New Jersey have taken steps to incentivize the development of offshore wind, the states will have an opportunity to change how the new NWP is implemented once adopted.

Comments on the new NWP are due no later than April 18, 2011.