Lay of the Land
As we reported in September 2020, the U.S. Army Corps of Engineers announced a proposal to reissue existing and issue new nationwide permits (NWPs) for categories of activities involving minimal amounts of discharges of dredged or fill material into wetlands or other waters of the United States. This form of streamlined approval to fill waters of the United States is critically important to developers and others in the regulated community because it enables applicants with qualifying projects to save significant amounts of permitting time and costs. Following through on that announcement, the Corps issued its final rule on January 13, 2021, reissuing and modifying certain NWPs.
Reissued Nationwide Permits
In a somewhat unusual move, the Corps did not reissue the entire set of NWPs issued in 2017. Instead, the Corps is reissuing and modifying only 12 of the existing 52 NWPs. Those NWPs include: NWP 12 (oil or natural gas pipeline activities); NWP 21 (surface coal mining activities); NWP 29 (residential development); NWP 39 (commercial and institutional developments); NWP 40 (agricultural activities); NWP 42 (recreational facilities); NWP 43 (stormwater management facilities); NWP 44 (mining activities); NWP 48 (commercial shellfish mariculture activities); NWP 50 (underground coal mining activities); NWP 51 (land-based renewable energy generation facilities); and NWP 52 (water-based renewable energy generation pilot projects).
An important modification to ten of these reissued NWPs (NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52) is the removal of the 300 linear foot limit for losses of streambed. The Corps will retain the 1/2-acre limit for losses of non-tidal jurisdictional waters for these NWPs. Another important modification is one that affects NWP 12. NWP 12 used to apply more broadly to “utility line activities.” As reissued, NWP 12 only pertains to oil or natural gas pipeline activities. Separate NWPs have been established for electric utility line and telecommunications activities, and utility lines for water and other substances. This change is largely due to recent litigation involving the Corps’ use of NWP 12 to permit a controversial oil pipeline. (Click here for our alert regarding this litigation.). These new NWPs are discussed below.
The expiration date for the existing versions of these NWPs is March 15, 2021, at which time the new versions of these NWPs go into effect. The expiration date for the new versions of these NWPs is five years after the date those NWPs go into effect, i.e., March 15, 2026. The Corps’ final rule is somewhat ambiguous, but presumably activities authorized by the existing versions of these NWPs will continue to be authorized by the applicable NWP until March 18, 2022.
New Nationwide Permits
The Corps also issued four new NWPs, including NWP 55 (seaweed mariculture activities); NWP 56 (finfish mariculture activities); NWP 57 (electric utility line and telecommunications activities); and NWP 58 (utility line activities for water and other substances).
NWPs 57 and 58 were the result of the Corps’ proposal to carve out from NWP 12 work not related to oil or natural gas pipeline activities. NWP 57 covers electrical utility line and telecommunications activities, such as electric utility lines and telecommunications lines and substations, foundations, and access roads related to electrical and telecommunication lines. NWP 58 covers utility line activities for water and other substances, including utility lines and utility line substations, foundations, and access roads related to utility lines.
NWP 57 will be important for the renewable energy industry because it will streamline the Corps’ permitting process for electric transmission lines and other facilities that convey electricity. To use NWP 57, the electric utility line and telecommunication activity must not result in the loss of more than 1/2-acre of waters of the United States for each single and complete project. A pre-construction notification is required to use this NWP if a Section 10 Rivers and Harbors Act permit is required, or if the discharge will result in the loss of more than 1/10-acre of waters of the United States. NWP 57 will be a good complement to existing NWP 51, which covers land-based renewable energy generation facilities.
The Corps established NWP 55 and NWP 56 to authorize certain categories of mariculture activities (i.e., seaweed and finfish mariculture) that are not currently authorized by NWP 48. NWPs 55 and 56 were the result of Executive Order 13921 issued on May 7, 2020, which directed the Corps to “remov[e] barriers to aquaculture permitting.” These new NWPs authorize structures and work in navigable waters of the United States under Section 10 of the Rivers and Harbors Act of 1899 related to seaweed and finfish mariculture activities.
These four new NWPs expire five years after the date these NWPs go into effect, i.e., March 15, 2026.
Other Nationwide Permits Remain in Effect
The remainder of the NWPs continue to be in effect under the January 6, 2017, final rule, and the existing general conditions and definitions in the 2017 final rule continue to apply to those permits. Activities authorized by these NWPs remain authorized until March 18, 2022, unless a district engineer modifies, suspends, or revokes a specific NWP authorization.
* * *
As with other Trump-era regulations, there is some possibility the Biden administration may direct the Corps to reconsider these changes or make other adjustments to the NWP program, particularly given the recent litigation brought against the Corps for using certain NWPs. Many in the environmental community strongly oppose some – if not all – elements of the Corps’ NWP program, viewing it as a “free pass” for developers. The reality is that many projects with little to no impact on the environment can get caught up in unnecessary regulatory red tape, and the Corps’ NWP program is one way to help advance relatively small projects, while at the same time maintaining some regulatory sideboards for environmental protection.