The U.S. Army Corps of Engineers’ (Corps) 2017 Nationwide Permits (NWPs) covering work in streams and wetlands went into effect March 19, 2017. The NWPs are a type of general permit issued by the Corps that are designed to regulate the bulk of minimal impact activities affecting jurisdictional waters and wetlands, with the goal of establishing standard terms and conditions for protections of these waters while allowing the activities to proceed with minimal delay and paperwork.
The 2017 NWPs are valid for a period of five years, replacing the 2012 NWPs that expired on March 18, 2017. Permittees with coverage under a 2012 NWP will be considered “grandfathered” by the Corps if they entered into a contract to perform the work authorized by the 2012 NWPs by March 18, 2017, or if they had 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.
The Corps reissued all 52 existing NWPs and added two new NWPs:
- NWP 53 authorizes removal of low head dams.
- NWP 54 authorizees 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, clarifications have been made to several NWPs. The Corps issued a Summary Table which identifies for each NWP the applicable limitations, the major changes, and the requirement for when to file a Preconstruction Notification (PCN).
Two actions of President Trump’s new administration were thought to potentially affect the implementation of these NWPs. One of the first actions of the Trump administration was to put a freeze on all recently promulgated regulations, including the reissued NWPs; however, at the request of the Corps and private developers, the freeze was lifted from the NWPs due to the significant deleterious effect it would have had on ongoing development and business operations.
Additionally, President Trump issued an executive order requesting that the EPA and Corps revisit recent changes in the definition of “Waters of the United States” that would have expanded the number of waters regulated by the Corps. However, the NWPs have been written to be neutral in terms of the actual definition of Waters of the US and can therefore be applied to whatever the current accepted definition is without changes to the permits.