Van Ness Feldman has prepared an examination and review of the recent 2017 Nationwide Permits (NWPs) issued by the U.S. Army Corps of Engineers (Corps) for work in streams and wetlands under Section 404 of the federal Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899. The article below can be navigated by clicking on any of the sections separately or can be viewed in its entirety in the attached PDF.
Introduction
On January 6, 2017, the U.S. Army Corps of Engineers (Corps) issued its 2017 Nationwide Permits (NWPs) for work in streams and wetlands under Section 404 of the federal Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899. 82 Fed. Reg. 1860. The 2017 NWPs are effective March 19, 2017 for a period of five years, replacing the 2012 NWPs that expire on March 18, 2017. NWPs are a type of general permit issued by the Corps that are designed to regulate certain activities in jurisdictional waters and wetlands that have no more than minimal adverse environmental impacts—with the ultimate goal of establishing standard terms and conditions for protections of jurisdictional waters and wetlands while allowing the activities to proceed with minimal delay and paperwork.
The Corps reissued all fifty-two existing NWPs and added two new NWPs: NWP 53, authorizing removal of low head dams, and NWP 54, authorizing construction and maintenance of Living Shoreline in coastal waters. Importantly, despite comments urging the Corps to impose tighter limits on the use of certain NWPs, the reissued NWPs maintain all of the acreage and linear limitations and key streamlining provisions in the 2012 NWPs, including the definition of a single and complete linear project, which allows large linear utility or transportation projects to obtain coverage under multiple NWPs, one for each separate and distant water body crossing.
While most of the 2012 NWPs are reissued without significant modification, substantive changes and clarifications have been made to several NWPs, which are highlighted below. In addition, revisions to General Conditions (GCs) address consideration of tribal treaty rights and resources, mitigation, requirements for a complete pre-construction notification (PCN), and the default provisions under which a PCN applicant can proceed if the Corps fails to respond within 45-days. The Corps also issued a Summary Table which identifies for each NWP the applicable limitations, the major changes, and the requirement for when to file a PCN.
Each Corps District may now issue Regional Conditions that could prohibit or further condition the use of the 2017 NWPs by applicants within each District. Under Section 401 of the CWA, the Corps’ issuance of the 2017 NWPs starts a 60-day period for states (or in Indian Country for the Environmental Protection Agency (EPA) or Tribes delegated CWA section 401 authority water quality certifications) to condition or deny use of any of the 2017 NWPs. The 2017 NWP issuance also starts a 90-day period for coastal states to make a consistency determination under the Coastal Zone Management Act (CZMA).
Permittees with coverage under an existing 2012 NWP will be considered “grandfathered” by the Corps if they have entered into a contract by March 18, 2017 to perform the work authorized by the 2012 NWPs, or if they have commenced construction by that date. In such case, work must be completed by March 18, 2018. Otherwise, coverage under the 2017 NWP must be sought.
Background
Section 404(e) of the CWA authorizes the Secretary of the Army to “issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material.” 33 U.S.C. §1344(e)(1). Activities that qualify for a general permit must be similar in nature, cause only minimal adverse environmental effects when performed separately, and have only minimal cumulative environmental effects.
The most common general permits are NWPs, which provide streamlined review and authorization for categories of activities that the Corps has determined have minimal impacts on the aquatic environment. NWPs automatically expire, unless renewed, every five years.
The Corps has issued Decision Documents for each of the fifty-four 2017 NWPs. In each, the Corps has issued a Finding of No Significant Impact (FONSI) under the National Environmental Policy Act (NEPA). No further NEPA compliance is required for the Corps to authorize work by any project under an applicable 2017 NWP. The Decision Documents also confirm that the issuance of the 2017 NWPS will have “no effect” under the Endangered Species Act (ESA). The Corps reached its “no effects” determination based on General Condition 18, which requires every applicant that “might affect” an ESA-listed species or its designed critical habitat to submit a PCN, so that the Corps can determine if the action requires ESA consultation.