HIGHLIGHTS:

  • The U.S. Army Corps of Engineers has published a final rule reissuing its Clean Water Act Nationwide Permits (NWPs) with some modifications. The NWP program is designed to provide streamlined permitting for certain activities in jurisdictional waters and wetlands that have no more than minimal adverse environmental impacts.
  • With the new rule, the NWP program now includes the 50 existing NWPs, two new NWPs and one new general condition.
  • The effective date for the new and reissued NWPs is March 19, 2017. They are valid for five years and will expire on March 18, 2022.

The U.S. Army Corps of Engineers (Corps) on Jan. 6, 2017, published a final rule reissuing its Clean Water Act Nationwide Permits (NWPs) with some modifications (88 Fed. Reg. 1860).

The NWP program authorizes streamlined permits for certain categories of activities that require Department of the Army authorization under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. With the new rule, the NWP program now includes the 50 existing NWPs, two new NWPs (authorizing the removal of low-head dams as well as the construction and maintenance of living shorelines) and one new general condition (requiring verification related to structures or works built by the United States).

The effective date for the new and reissued NWPs is March 19, 2017. These NWPs are valid for five years and will expire on March 18, 2022.

Background of NWP Rule

The NWP program is designed to regulate with little, if any, delay or paperwork certain activities in jurisdictional waters and wetlands that have no more than minimal adverse environmental impacts. The program has been critical in streamlining the permitting of a variety of activities, such as commercial and residential development, utility line crossings, maintenance work, road crossings, mining, stream and wetland restoration activities, and agricultural activities that meet the program's requirements. As noted by the Corps, one of the main benefits of the NWP program is that it encourages project proponents to design their projects within the scope of the NWPs and thereby minimize impacts to waters of the United States. However, the program has been under fire from environmental groups for being overbroad and failing to adequately consider cumulative effects.

In issuing the rule, the Corps defended the NWP program and its environmental analysis, explaining that there are three layers of analysis: the national scale cumulative impact assessment in accordance with the National Environmental Policy Act (NEPA) conducted by Corps headquarters for each NWP, supplemental decision documents by each region and individual project review through the preconstruction notices, where required. Following this rule, division engineers will conduct supplemental review and add regional conditions to these NWPs to ensure that, on a regional basis, these NWPs authorize only activities that have no more than minimal individual and cumulative adverse environmental effects. Additionally, states will conduct their Clean Water Act Section 401 water quality certification and Coastal Zone Management Act consistency determinations within 60 and 90 days, respectively, from the final rule.

The NWP program has been critical to a variety of industries and activities, and the proposed rule (81 Fed. Reg. 35816) received more than 50,000 comments, with most comments focused on NWP 12 (Utility Line Activities) in the wake of the Dakota Access Pipeline project. Although the proposed rule asked commenters to consider more wide-ranging changes such as reductions to acreage limits, elimination of waivers and issuance of public notices for preconstruction notices, ultimately none of those changes were pursued and only a few substantive changes were made to the NWP program.

Final Rule Highlights

Intersection with 2015 Revisions to the Definition of "Waters of the United States" (WOTUS Rule): Due to the current litigation and uncertainty surrounding the WOTUS Rule, the Corps made some nonsubstantive revisions to eliminate specific statutory references but generally determined that if the litigation on the WOTUS Rule required revisions in the future, the Corps would amend the NWPs at that time.

Acreage Limits, Pre-Construction Notice Requirements, Waivers: The Corps ultimately opted to retain the existing acreage limits, including the current half-acre, 300 linear feet of streambed limits for construction activities generally, including under NWP 12 (Utility Line Activities) and NWP 14 (Linear Transportation Projects). It also clarified that this limit applies to NWP 44 (Mining Activities). The Corps determined that no changes were necessary to the Pre-Construction Notices and that they did not need to be publicly noticed, as such a process would undermine the streamlining nature of the program. With respect to waivers, the Corps determined to allow the regions to retain discretion to continue issuing waivers but requires that information on waivers issued be compiled, tracked and publicly reported.

NWP 12: As noted, the bulk of the public comments revolved around NWP 12 for utility line activities, largely in response to oil and gas pipeline projects, such as the Dakota Access Pipeline. The Corps vigorously defended this NWP, finding that keeping this permit in place was also critical in fighting climate change, as it provides permitting for clean energy projects (as well as oil and gas). In addition, the Corps specifically confirmed its existing practice of considering all related aspects of a utility project (including roads, towers and substations) under this NWP and allowed for remedial activities (e.g., inadvertent release of drilling fluids) to be included. Finally, the Corps confirmed its practice of considering each separate segment independently, clarifying that "for utility line activities crossing a single waterbody more than one time as separate and distant locations, or multiple waterbodies at separate and distant locations, each crossing is considered a single and complete project for purposes of NWP authorization."

General Conditions: The Corps spent many pages explaining and defending the protections provided by General Condition 18 (Endangered Species) and General Condition 20 (Historic Properties). Because those conditions ask whether each proposed project "might" impact listed species or historic resources, respectively, the standard is stricter than the "may effect" threshold in each of the respective statutes, the Endangered Species Act and the National Historic Preservation Act. Therefore, the Corps did not propose or support any changes to those conditions. However, in the wake of the Dakota Access Pipeline project, the Corps did revise General Condition 17 (Tribal Rights) to cover all tribal rights, including protected tribal resources and tribal lands – explicitly including treaty rights.