The United States Army Corps of Engineers (“Corps”) issued a final rule on January 6th to reissue and modify its Clean Water Act Nationwide Permits (“NWPs”).
The Corps had previously issued a proposed rule on June 1, 2016 that would reissue and modify the NWPs. See 81 Fed. Reg. 35816.
The Corps states that in response to comments received on the June 1st proposed rule, it made changes to the text of the NWPs’, general conditions, and definitions so that “they are clearer and can be more easily understood by the regulated public, government personnel, and interested parties.”
The previous sets of NWPs would have expired on March 18, 2017 and could not be administratively extended. The Corps is required to periodically replace and/or renew these permits. They are issued for a five-year term.
Section 404(e) of the Clean Water Act provides the Corps the statutory authority, after notice and opportunity for public hearing, to issue general permits on a nationwide basis (i.e., NWPs) for any category of activities involving discharges of dredged or fill materials into waters of the United States.
An individual Clean Water Act General Permit authorizes specific activities of a case-by-case basis. In contrast, an NWP is a general permit to provide standing permission for all activities that fit within the description of the permit. Such permits provide for preauthorized permission for activities that conform to the standards of the NWP. Certain NWPs do require some type of authorization after notice to the Corps prior to starting work.
NWPs are intended to provide expedited review of projects that have more limited impact on the aquatic environment. Examples include activities such as linear transportation projects, bank stabilization activities, navigation aids, and certain maintenance activities, etc.
Groups such as the construction industry have argued that it is important for the Corps to maintain a streamlined permit program that avoids duplication with other federal and state regulatory agencies. The NWP is cited as providing the kind of flexibility required for construction jobsites that are temporary and often changing.
The Corps’ final rule reissues 50 existing NWPs. Some of these prior NWPs have been the subject of modifications. Further, the Corps is promulgating two new NWPs which are related to:
- Living shorelines
- Removal of low-head dams
The final rule also creates one new general condition.