The Nickel Report

In January, the US Army Corps of Engineers published the final 2017 nationwide permits (NWPs), 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 through the Corps’ streamlined NWP process. The Corps reissued all 50 of the 2012 NWPs, issued two new NWPs, one new General Condition and made a number of notable revisions.

Proposed infrastructure projects that will discharge dredged or fill material into wetlands, rivers, streams and other aquatic features deemed “waters of the United States” must generally obtain permission from the federal government in the form of a CWA Section 404 permit. The US Supreme Court has noted the average applicant can spend over two years and hundreds of thousands of dollars completing the individual permit process. See U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016). For certain activities that meet specified requirements (such as acreage and/or linear foot limits) designed to ensure that impacts to waters of the United States are minimal, Congress created a streamlined permitting process. By taking into consideration potential impacts to waters of the United States, project developers can thus design a site plan that reduces federal permitting costs and delays.

For example, NWP 12, which applies to utility line activities, authorizes impacts to waters of the United States associated with the construction, maintenance, repair and removal of utility lines provided the impacts of each use do not cause the loss of greater than ½-acre of federal waters. Other projects, such as residential developments, highways, mining activities, recreational facilities, land-based renewable energy generation facilities, and commercial and institutional developments can also qualify for an accelerated permit if impacts are below ½-acre. The Corps generally maintained the 2012 NWP acreage limits in the 2017 NWPs.

Status of Ongoing Activities. The current, 2012 NWPs will expire on March 18, 2017, and the new NWPs are scheduled to go into effect the next day, March 19, 2017. Activities authorized by the 2012 NWPs that have commenced or are under contract to commence before the expiration date will remain authorized as long as the activity is completed within 12 months (i.e., before March 18, 2018). Authorized activities that do not begin construction (or are not under contract to begin construction) by March 18, 2017, will require reauthorization under the 2017 NWPs. Activities completed under the authorization of an NWP that was in effect at the time the activity was completed continue to be authorized by that permit. Presumably, unauthorized activities that have applied for an NWP but have not received verification will be reviewed pursuant to the 2017 NWPs.

Removes Citations to “Waters of the US” Rulemaking. Due to the nationwide stay of EPA and the Corps’ controversial “Waters of the US” rule, public comments urged the Corps to remove any citations to the stayed regulations and adhere to a joint memorandum responding to the nationwide stay, which directs both EPA and Corps staff to apply the regulations defining waters of the United States codified in 1986. The Corps agreed and removed citations to provisions of the stayed rule indicating that Corps districts will process applications in accordance with currently effective regulations. Therefore, if the nationwide stay is still in effect at the time an application is under review, the Corps will apply the 1986 regulations.

Modifies General Condition 17 (Tribal Rights). Through government-to-government consultation with tribes for the 2017 NWPs, the Corps received a number of comments regarding GC 17. The Corps revised GC 17 in the final rule to adopt terminology used in a 1998 Department of Defense policy. GC 17 now explicitly covers all tribal rights, including protected tribal resources and tribal lands, and defines each of those terms. The Corps states that the revised GC will not change the number of activities that qualify for NWP authorization, however, additional emphasis on tribal rights could impact NWP authorization and delay the verification process.

Adds Two New Permits and One New General Condition.

• NWP 53 (Removal of Low-Head Dams). Proposed NWP A has been finalized and is now NWP 53. This new permit authorizes the removal of smaller barriers within a stream, defined as “a dam built across a stream to pass flows from upstream over the entire width of the dam crest on an uncontrolled basis.”

• NWP 54 (Living Shorelines). Proposed NWP B has been finalized and is now NWP 54, authorizing the construction and maintenance of living shorelines. The Corps intends to complement NWP 13 with this permit, which covers a wider variety of shoreline stabilization and erosion control measures.

• GC 31 (Activities Affecting Structures or Works Built by the United States). This new general condition addresses compliance with Section 14 of the Rivers and Harbors Act, 33 U.S.C. § 408, which requires Corps approval before structures or works built by the United States are altered, occupied or used. Where Section 408 is implicated, an NWP verification will not be issued until the 408 permission has been granted or deemed inapplicable.

The NWP program plays a significant role in the CWA’s regulatory structure. Projects, activities and operations across the landscape are often subject to regulation under Section 404 of the CWA and rely on NWPs to secure compliance. The NWP program also provides important incentives to permit applicants to reduce impacts to jurisdictional waters to satisfy permit requirements and receive authorization more quickly than through the individual permit process. Accordingly, the Corps has developed a multitude of provisions over the decades to ensure that authorized activities result in no more than minimal adverse environmental effects.