USACE Nationwide Permits Reissued

March 12, 2012
by BRETT E. SLENSKY
MGKF News Flash

On February 21, 2012, the final notice on the U.S. Army Corps of Engineers' ("USACE") reissuance of Nationwide Permits ("NWPs"), as authorized by Section 404 of the Clean Water Act, was published in the Federal Register. See 77 Fed. Reg. 12024. The 2012 NWPs will replace the current NWPs, which were issued in March 2007 and expire on March 18, 2012. The 2012 NWPs will be effective for a five year term beginning March 19, 2012, and expiring on March 18, 2017.

NWPs are a type of general permit issued by USACE for certain categories of activities involving discharges of dredged or fill material to, or work in, jurisdictional waters of the U.S. that have been determined to cause only minimal adverse environmental affects when performed separately or on a cumulative basis. NWPs provide a streamlined approval process for activities that have been authorized on a nationwide basis, except where revoked by a particular USACE district or division commander.

NWP Reissuance

Most of the existing NWPs are being reissued with no changes or only minor modifications from the 2007 version. Important clarifications and/or substantive changes have, however, been made to certain permits, including changes that may limit or expand the range of activities covered by the permit (e.g., NWP 3 – Maintenance, NWP 12 – Utility Line Activities, NWP 20 – Response Operations for Oil and Hazardous Substances (f/k/a Oil Spill Cleanup), NWP 43 – Stormwater Management Facilities), and changes to certain waiver provisions (e.g., NWP 13 – Bank Stabilization, NWP 29 – Residential Developments, NWP 39 – Commercial and Institutional Developments). Existing NWP 47, which relates to pipeline inspections and repairs, is not being reissued. As described by USACE in the February 21, 2012 final notice, the reasons for this include the failure of federal Pipeline and Hazardous Materials Safety Administration to develop and issue a key system for permittees to use to meet the NWP’s requirements, and the existence of other NWPs and permitting mechanisms that may be used to satisfy the pertinent permitting requirements for these activities.

The 2012 set of NWPs will also include two new NWPs pertaining to renewable energy projects (NWPs 51 and 52). NWP 51 authorizes the discharges of dredged or fill material into non-tidal waters of the U. S., excluding non-tidal wetlands adjacent to tidal waters, for the construction, expansion, or modification of land-based renewable energy production facilities. Examples of covered activities include infrastructure to generate solar (concentrating solar power and photovoltaic), biomass, wind or geothermal energy and their collection systems, and related features including roads, parking lots, utility lines, and stormwater management facilities. NWP 52 authorizes structures or work in navigable waters of the U.S. and discharges of dredged or fill material into waters of the U.S., for the construction, expansion, or modification of water-based wind or hydrokinetic renewable energy generation pilot projects, and related features including land based distribution facilities, roads, parking lots, utility lines, and stormwater management facilities.

The 2012 reissuance of the NWPs also includes certain changes to the applicable NWP general conditions and definitions. If you have any questions regarding USACE's NWP permitting program, please contact Brett Slensky (bslensky@mgkflaw.com; 484-430-2322).