By Geremy Holm and Steve Anderson
On September 15, 2020, the U.S. Army Corps of Engineers (Corps) published a notice of proposed rulemaking (Proposed Rulemaking) in which it expresses the desire to reissue existing federal Clean Water Act (CWA) Nationwide Permits (NWPs), conditions, and definitions, with modifications, prior to their original March 2022 expiration. The Proposed Rulemaking includes the elimination of a 300 linear foot limit for streambed losses under certain NWPs, and includes new NWPs related to certain mariculture activities, utility line activities currently authorized under an existing NWP; and water reclamation and reuse facilities. The Corps is also considering reissuing unchanged NWPs so that all NWPs expire at the same time. Interested parties have until November 16, 2020, to submit comments. [85 Fed. Reg. 57298 (Sept. 15, 2020).]
Background
The Corps issues NWPs to authorize specific activities under § 404 of the federal Clean Water Act (Section 404) and § 10 of the Rivers and Harbors Act of 1899 (Section 10). The CWA authorizes the Secretary of the Army (Secretary) to issue NWPs for any category of activities involving discharges of dredged or fill material into “waters of the United States” (WOTUS).
The categories of activities covered by NWPs must be similar in nature, cause only minimal adverse effects when performed separately, and have only minimal cumulative adverse effect on the environment. Once issued, NWPs are valid for up to five years and may be reissued, revoked, or modified. At present, there are 52 NWPs, which were issued in 2017 and are set to expire on March 18, 2022. Compliance with the terms and conditions of an NWP generally streamlines the authorization process for covered activities, reducing the burden on permittees associated with obtaining individual permits under the CWA.
The Secretary has delegated authority to the Chief of Engineers (and his or her designated representatives) to issue NWPs. There are eight Corps division offices and 38 district offices. Division engineers may modify, suspend, or revoke NWP authorizations on a regional or statewide basis for a specific geographic area, class of activity, or class of waters within their respective divisions. Proposed regional conditions are issued by the district offices.
In order for an activity to be covered by an NWP, both the activity and the permittee must satisfy all of the NWP’s terms and conditions, including any regional conditions. Authorization under an NWP may be subject to certain requirements and limits, including pre-construction notification (PCN) requirements. PCNs are reviewed by District Engineers and allow for evaluation of certain proposed activities on a case-by-case basis. Some existing NWPs are also subject to a 300 linear foot limit for losses of stream bed, which excludes NWP coverage for otherwise covered activities that cause a loss of more than 300 linear feet of stream bed, unless this requirement is waived pursuant to NWP general conditions. Additionally, NWPs may be subject to a half-acre limit on the loss of waters of the United States, which excludes from NWP coverage those activities that result in a loss of more than a half-acre of stream bed and other non-tidal waters. The half-acre limit cannot be waived.
The Corps’ Proposed Rulemaking
Several important changes appear in the Corps’ proposal, particularly with respect to NWP limits related to streambed loss, new NWPs associated with utility lines and water reclamation and reuse facilities, and certain mariculture activities.
Removal of Linear Foot Limit Rule in Favor of Other Tools to Minimize Streambed Loss
The Corps proposes removing the 300 linear foot limit for the loss of streambed in favor of other tools present in existing NWPs, including regional conditions and the half-acre limit for loss of non-tidal waters of the United States. In the view of the Proposed Rulemaking, eliminating the 300 feet limitation would effectuate the primary purpose of having pre-authorized activities.
The proposed modifications would affect ten existing NWPs, including the following: NWP 29 (residential developments), 39 (commercial and institutional developments), 40 (agricultural activities), 42 (recreational activities), 43 (stormwater management facilities), 51 (land-based renewable energy generation facilities), and 52 (water-based renewable energy generation pilot projects).
Currently, these NWPs are subject to the half-acre limit. According to the Corps, the half-acre limit most accurately represents the amount of stream bed lost as a result of filling or excavation and the subsequent functions expected to be lost. Except for NWP 51 (land-based renewal energy generation projects), the NWPs listed above are also subject to a PCN requirement for all activities. NWP 51, on the other hand, requires PCN for losses of greater than one tenth-acre of waters of the United States (tenth-acre threshold).
Modifying ‘Mitigation’ General Condition
Additionally, the Corps is proposing to modify the “Mitigation” general condition (GC) applicable to NWPs to require compensatory mitigation for losses greater than one-tenth of an acre of stream bed that require PCN. However, the Proposed Rulemaking gives District Engineers discretion to waive the requirement upon written determination that another form of mitigation is more environmentally appropriate. According to the Corps, this additional requirement will have a similar effect of encouraging minimization of stream bed impacts authorized by NWPs. The Corps is also considering an alternative hybrid approach that would continue to quantify the above NWPs in linear feet when the activities authorized would result only in the loss of stream bed, as opposed to losses of stream bed plus other non-tidal waters.
Modifying Nationwide Permit 12—Utility Line Activities
The Corps has also proposed modifying NWP 12 (utility line activities) to authorize only oil or natural gas pipeline activities, separating out other activities currently authorized under NWP 12 into two new proposed NWPs: one authorizing electric utility lines and telecommunication activities (NWP C) and another authorizing utility line activities for water and other substances that are not petrochemicals (NWP D). Proposed new NWPs C and D would be subject to the half-acre limit and require PCN when a Section 10 permit is required or the tenth-acre threshold is triggered.
New Nationwide Permit Authorizing Discharges of Dredge or Fill Material Associated with Water Reclamation
The Corps is also proposing to add a new NWP authorizing discharges of dredged or fill material associated with water reclamation and reuse facilities (NWP E). This would include authorization for ecological infrastructure such as vegetated areas enhanced to improve water infiltration and constructed wetlands to improve water quality. The NWP would authorize temporary fills, including the use of temporary mats, necessary to construct a water reuse project and attendant features. The NWP would not authorize discharges into non-tidal wetlands adjacent to tidal wetlands. Proposed new NWP E would be subject to the half-acre limit and PCN would be required for all activities prior to commencing activity. According to the Corps, certain activities associated with water reclamation and reuse facilities can be authorized, subject to the half-acre limit, by existing NWPs, including NWPs 29 (residential developments), 39 (commercial and industrial developments), 40 (agricultural activities), and 42 (recreational facilities). However, the Corps notes that this may not be obvious to the public or may be confusing and is therefore seeking comments on whether to add new proposed NWP E or make it clear in existing NWPs that water reclamation and reuse facilities may be attendant features under the applicable existing NWPs.
Seaweed and Finfish Mariculture
The Corps’ remaining proposals for new NWPs would authorize seaweed mariculture activities (NWP A) and finfish mariculture activities (NWP B) not currently authorized by existing NWPs. These NWPs would authorize such activities in the navigable waters of the United States and permit seaweed and finfish mariculture structures attached to the seabed on the outer continental shelf. The proposals include provisions on “multi-trophic species mariculture” activities as an alternative to creating a separate NWP authorizing those activities. This would allow flexibility in proposed new NWPs A and B, the Corps contends, allowing operators to propagate additional species, such as mussels, on the permitted structures. These new NWPs would not, however, authorize “land-based” seaweed farming or finfish mariculture activities such as the construction of ponds to produce catfish or tilapia. Proposed new NWPs A and B would be subject to PCN requirements for all activities and certain geographically based restrictions.
Other Proposed Modifications
In addition to these and other modifications, the Corps proposes modifying several NWP GCs, including GCs 13 (removal of temporary fills), 17 (tribal rights), 18 (endangered species), 20 (historic properties), 25 (water quality), and 32 (pre-construction notification). A link to the Corps’ Proposed Rulemaking in the federal register and a chart summarizing the proposed modifications to the NWPs and addition of the new NWPs is available on the Corps Headquarters’ website.
Conclusion and Implications
Nationwide Permits streamline the authorization for categories of activities that have minimal adverse effects on WOTUS and the environment, and reduce permitting hurdles for projects that would otherwise require individual permits for covered project activities. The Corps’ Proposed Rulemaking to modify and reissue existing permits prior to their original expiration has the potential to clarify and further streamline authorized activities for projects currently in the works. The Corps’ ultimate determinations and decisions with regard to these proposals may affect the overall planning and feasibility of projects, especially projects with activities for which NWP authorization was formerly unavailable. Interested parties may submit comments to the Corps by the November 16, 2020 comment deadline and check with district offices about proposed regional conditions and comment deadlines. For more information, see:https://www.federalregister.gov/documents/2020/09/15/2020-17116/proposal-to-reissue-and-modify-nationwide-permits
