The U.S. Army Corps of Engineers issued a set of Nationwide Permits covering work in streams and wetlands conducted under Section 404 of the Clean Water Act, which regulates the discharge of materials into waters of the United States. 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 protection of these waters while allowing activities to proceed with minimal delay and paperwork.
These NWPs are reissued approximately every five years. The most recent set went into effect March 19, 2017, and is scheduled for review in 2022. However, due to legal challenges to the scope, applicability and environmental review process conducted for several of the permits, the Corps reissued and modified 12 of the existing 52 NWPs and issued four new NWPs mid-cycle.
The primary challenge that instigated the mid-cycle changes was the 2017 NWP 12: Utility Lines, which covered minor discharges to streams and wetlands resulting from the installation, repair or maintenance of utilities. The 2017 version of NWP 12 covered all types of utilities and pipelines, including oil and petroleum, electric and fiber, and water and sewer lines. Several US Districts brought challenges specific to oil and petroleum lines, claiming that the Corps did not properly and sufficiently assess the potential for impacts to the environment under NWP 12, specifically regarding endangered species. The District of Montana vacated NWP 12 in April 2020 and the Corps issued a directive to all of its regions not to process any more NWP 12 verifications until further notice. During the spring of 2020, the Corps resumed processing NWP 12 applications not related to oil and petroleum utilities and began developing three versions of the previous NWP 12 to separate out the various types of utilities.
The Corps took the opportunity presented by the NWP 12 challenge to make minor modifications to several other NWPs and add two pending NWPs that would have not been processed until the 2022 cycle. Notable changes and additions that will most likely affect our clients include:
The separation of the utility permits (now listed as NWP 12: Oil and Natural Gas, NWP 57: Electric and Telecommunications, and NWP 58: Water and Other Substances)
Revisions to NWPs 29: Residential Development, 39: Commercial Development and 42: Recreational Facilities. The revisions would remove the 300-linear-foot limit for losses of stream bed. The limit for losses of waters of the United States for each of these NWPs remains at half an acre, now unambiguously applying as a total for both stream and wetland impacts.
Published in the Federal Register on Jan. 14, 2021, the 16 revised and new NWPs will go into effect on March 15, 2021.