The Nickel Report

On December 27, 2021, the US Army Corps of Engineers (Corps) issued a final nationwide permit (NWP) rule  renewing a critical permitting tool for both the government and the regulated community. To comply with the Clean Water Act (CWA or the Act), projects with minimal adverse environmental effects can obtain authorization for the discharge of dredged or fill material into “waters of the United States” (WOTUS) through the Corps’ streamlined NWP process.  With this rule, the Corps reissued 40 existing NWPs and one new NWP.  These 41 NWPs will combine with 16 NWPs issued on January 13, 2021 to authorize use of the full suite of NWPs through March 14, 2026.

Projects that discharge dredged or fill material into wetlands, rivers, streams and other aquatic features deemed WOTUS must generally obtain permission for those discharges from the Corps in the form of a CWA Section 404 permit.  Congress created a streamlined permitting process, including the NWP program, for activities that meet specified requirements designed to ensure that impacts to WOTUS are minimal, such as activities that fall within a specified maximum acreage of impacts to WOTUS.  Authorization of a project via a NWP can result in significant time and costs savings compared to authorization via an individual section 404 permit.  The Corps reports that in fiscal year 2018, the average time to process a standard individual permit application was 264 days, while the average time to process an NWP authorization was 45 days.  By tailoring projects to limit impacts to WOTUS and thereby qualify for a NWP, project developers can substantially reduce federal permitting costs and delays.

For example, NWP 51 authorizes discharges of dredged or fill material into non-tidal waters of the United States associated with the construction, expansion, or modification of land-based renewable energy production facilities, including infrastructure to collect solar, wind, biomass, or geothermal energy, provided the discharge of dredged or fill material does not cause the loss of greater than ½-acre of non-tidal waters of the United States.  Other projects, such as residential developments, roads, mining activities, recreational facilities, and commercial and institutional developments can also qualify for an accelerated permit if impacts are below ½-acre, and the project satisfies other conditions of the applicable NWP.

In a proposed rule published on September 15, 2020, the Corps proposed to reissue 52 existing NWPs (previously issued on January 6, 2017), and issue five new NWPs.  In a final rule published January 13, 2021, the Corps reissued 12 of the 52 existing NWPs and four of the proposed new NWPs, as well as NWP general conditions and definitions. On December 27, 2021, the Corps reissued the remaining 40 existing NWPs, and issued the remaining new NWP (NWP 59 for water reclamation and reuse facilities).  The NWP general conditions and definitions published on January 13, 2021, apply to the 41 NWPs reissued or issued in the December 27, 2021 final rule.  The 40 existing NWPs replaced by the final rule will expire on February 24, 2022, and the 41 NWPs will take effect on February 25, 2022, and will expire on March 14, 2026 (the same date that the 16 NWPs issued in January 2021 expire).

Key aspects of the 2021 NWPs:

• Grandfathering. Activities previously authorized under the 40 reissued NWPs may continue to be authorized after the February 24, 2022 expiration date in two scenarios. First, activities which commenced (i.e., are under construction) or are under contract to commence in reliance upon an NWP generally remain authorized provided the activity is completed within twelve months of the NWP’s expiration.  33 C.F.R. § 330.6(b).  Second, even if an activity has not yet commenced and is not under contract to commence, a verification letter stating that an activity is covered by an NWP will remain valid until the expiration date stated in the verification letter if the NWP is reissued without modification or the activity complies with any modification of the NWP.  33 C.F.R. § 330.6(a)(3)(ii).
• Trifurcation of NWP 12. The January 13, 2021 final rule trifurcated the previous NWP 12, which authorized utility line activities, into a new NWP 12 limited to oil and natural gas pipeline activities, NWP 57 for electric utility line and telecommunications activities, and NWP 58 for utility lines that convey other substances, such as water, sewage, brine, etc.  The Corps explained that the trifurcation of NWP 12 into three NWPs is intended to recognize differences in how various types of utility line projects are constructed, the substances they convey, and the different standards and best management practices that help ensure those NWPs authorize only those activities that have no more than minimal adverse environmental effects.
• New NWPs in 2021. In addition to the two new utility line NWPs, discussed above, the Corps promulgated three new NWPs: NWP 55 (Seaweed Mariculture Activities), NWP 56 (Finfish Mariculture Activities), and NWP 59 (Water Reclamation and Reuse Facilities).
• Mitigation General Condition. The final rule modified the threshold for stream compensatory mitigation from 1/10 acre to 3/100 acre.  General condition 23, which addresses mitigation, now includes a requirement for compensatory mitigation for stream bed losses exceeding 3/100-acre. According to the Corps, general condition 23 retains flexibility for district engineers to determine the appropriate mitigation for a particular NWP activity to ensure that the activity causes no more than minimal adverse environmental effects.
• NWP 14 (Linear Transportation Projects). The Corps added driveways to examples of activities covered by NWP 14. This applies broadly to include features that are used by vehicles to move to and from buildings and other facilities, and is not limited to driveways associated with single unit or multiple unit residences. Driveways are subject to the same acreage limits as other linear transportation projects authorized by NWP 14, including larger scale linear transportation projects (e.g., ½-acre of losses of WOTUS).
• NWP 41 (Reshaping Existing Drainage and Irrigation Ditches). The Corps added irrigation ditches to types of ditches covered by NWP 41.  The purpose of this NWP is to authorize discharges of dredged or fill material into WOTUS to reshape existing drainage and irrigation ditches to improve water quality by regrading the drainage or irrigation ditch with gentler side slopes that can reduce erosion, increase growth of vegetation within the ditch, and increase vegetation uptake of nutrients.
• WOTUS Definition. The preamble to the December 27, 2021 final rule referenced the ongoing rulemaking to amend the definition of WOTUS, and stated that NWPs “are not intended to make or imply a conclusion or determination regarding what water bodies are or are not subject to CWA jurisdiction.”  Instead, a NWP indicates that discharges of dredged or fill material into a waterbody in compliance with the NWP will comply with the CWA because those discharges either “(1) are legally authorized under the CWA (to the extent that the waterbody is subject to CWA jurisdiction) or (2) are otherwise consistent with the CWA to the extent that the waterbody is not jurisdictional under the CWA.”  The Corps notes that it is not required to make a formal determination whether a particular wetland or water is subject to CWA jurisdiction before issuing a NWP verification, and that many project proponents prefer the time savings of receiving a NWP verification without expending the time and resources for a formal, definitive jurisdictional determination.
• Endangered Species Act Compliance. The NWP regulations at 33 C.F.R. § 330.4(f) and NWP general condition 18 require nonfederal permittees to submit pre-construction notifications for any activity that “might” affect listed species or designated critical habitat.  An activity that triggers a pre-construction notification under general condition 18 is not authorized by an NWP until either the Corps makes a determination that the project will have “no effect” on listed species or designated critical habitat or completes ESA Section 7 consultation.