One of the most used authorizations for work in “waters of the United States” is the Nationwide Permit (NWP) under the U.S. Army Corps of Engineers (Corps) Regulatory Program. Over 60,000 NWPs are authorized each year by the Corps with more than 700 in California alone. These authorizations cover a wide variety of activities associated with navigation, dredging, energy production, utilities, and residential and commercial developments. Many project proponents work hard to design their projects to fit within the limitations and conditions associated with the NWP in order to reduce the more onerous Individual Permit process.
One peculiar aspect of the program is that they are issued for a five-year period and all authorizations expire at the end of the period. The 2012 NWP authorizations are set to expire on March 18, 2017. If you have not started or are under contract for the work authorized under your NWP by then, you will need to reapply for a new authorization under the 2017 NWP program. Luckily, the new program as announced in the Federal Register on January 6, 2017 is essentially the same as the 2012 NWP program and all existing NWP are continued in a very similar form. Two additional NWP authorizations, one for the removal of small dams and another for construction of living shorelines, have been issued.
The Corps received over 54,000 comments on the program as proposed in June 2016. However, most were form letters concerning one NWP related to utility lines that was sparked by the Corps approval of the Dakota Access Pipeline under NWP 12. Of the remaining comments, the Corps responded by making slight changes in the program, most notably to make it neutral to the definition of “waters of the United States” given the ongoing court battle related to the 2015 proposed WOTUS rule. However, there are some clarifications that can be important to future applicants seeking approval under the NWP:
Of the remaining comments, the Corps responded by making slight changes in the program, most notably to make it neutral to the definition of “waters of the United States” given the ongoing court battle related to the 2015 proposed WOTUS rule. However, there are some clarifications that can be important to future applicants seeking approval under the NWP:
- Project proponents must submit a Preconstruction Notification (PCN) for any activity that is within the vicinity of a federally listed species under the Endangered Species Act if the activity “might affect” the species. The District engineer will then determine if the activity meets the threshold of “may affect” and require consultation with the U.S. Fish and Wildlife Service or National Marine Fisheries Service. No action can be taken by the project proponent until the Corps determines that the project will have “no effect” or Section 7 consultation with the Service(s) is completed even if the project is otherwise in compliance with the NWP conditions.
- NWP 29 (Residential) and 39 (Commercial and Industrial) must consider the acreage of stream impacts when meeting the acreage limitations associated with NWP. In other words, the area of stream impact will be added to the area of wetland impact that had not previously been explicit.
- Stream restoration, if required as part of a compensatory mitigation plan, should generally be rehabilitation, enhancement, or preservation as the Corps does not believe that stream establishment and creation has been successful. Riparian and upland buffers around streams can be used as part of a mitigation program; however, mitigation banking credits are still the preferred method of compensatory mitigation.
In one last swipe at the incoming administration, the Corps added a section on climate change to the Federal Register stating that “evidence of the warming of climate system is unequivocal and the emission of greenhouse gases from human activities is the primary driver of these changes”. The Corps stated that its NWPs that authorize renewable energy and transport of gas and electricity will help mitigate the impacts of climate change and provides a useful list of adaptation actions to deal with the effects of climate change.
Be sure to check your NWPs and be sure that they have started work or are under contract by March 18, 2017. If so, you will have one more year to complete the activity under the NWP as issued under the 2012 program. While there are not any substantial changes in the program, you will need to re-apply for authorization under the 2017 NWP if you have facing delays in your project. You can find more information on the Corps’ Nationwide Permits web page.