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October 26, 2011

U.S. Army Corps of Engineers Modifying Several Nationwide Permits

The United States Army Corps of Engineers ("USACE") is well into the process of modifying some key Nationwide Permits ("NWPs") governing the placement of dredged or fill material into navigable waters and wetlands under Section 404(e) of the Clean Water Act. The NWP program is intended to provide authorizations to the public in a timely manner while ensuring protection of the nation's aquatic resources. The 60-day public comment on the proposed changes and reissuance of the NWPs ended on April 18, 2011. The USACE intends to promulgate these revised NWPs in time for them to be in effect upon expiration of the current NWPs on March 18, 2012.

The USACE's proposal will result in the modification and reissuance of 48 of the 49 existing NWPs, the addition of two new NWPs, the discontinuance of NWP 47, and the modification of the NWP general conditions ("GCs") and definitions. Some of the more significant NWP modifications being considered by the USACE are set forth below.

  • NWP 3 (Maintenance) will be revised to clarify that a pre-construction notification will not be required for a stream channel excavation next to a structure, the discharge of fill to maintain an area of fill in waters of the United States, or other maintenance work in navigable waters.
  • While most acreage limits will remain unchanged, acreage limits for three NWPs will be altered as follows:
    • NWP 6 (Survey Activities) will replace the 25 cubic yard limit for temporary pads with a limit of 1/10th acre; and
    • NWP 40 (Agricultural Activities) and NWP 50 (Underground Coal Mining Activities) will require that a discharge shall not cause the loss of more than ½ acre of non-tidal waters.
  • Waiver language will be modified in several NWPs to clarify that a waiver can be obtained only if and after the district engineer determines in writing that "minimal adverse impacts" will result from the discharge. NWPs impacted by this clarification are NWP 29 (Residential Developments), NWP 39 (Commercial and Institutional Developments), NWP 40 (Agricultural Activities), NWP 42 (Recreational Facilities), and NWP 43 (Stormwater Management Facilities).
  • NWP 13 (Bank Stabilization), which authorizes bank stabilization activities that do not exceed an average of one cubic yard per running foot placed along the bank below the plane of the ordinary high water mark or the high tide line, will be revised to delete the existing waiver that is available for certain kinds of bank stabilization activities that exceed one cubic yard per running foot and replace it with a waiver for bank stabilization activities that use bioengineered techniques. This change would not permit any activities that would include hardening the bank with sheet pile, rip rap, concrete or similar materials if the discharge exceeds one cubic yard per running foot. Any bank hardening activities that exceed one cubic yard per running foot will require a separate authorization (individual permit or regional general permit). The USACE feels that bioengineered techniques will slow erosion and have beneficial effects on habitat, even if they involve more than one cubic yard of materials per running foot. The proposed changes also include adding language authorizing the use of temporary structures or fills, as well as the temporary dewatering of the site. 
  • NWP 40 (Agricultural Activities), NWP 44 (Mining Activities) and NWP 50 (Underground Coal Mining Activities) will be modified to limit the loss of stream bed to 300 linear feet, unless with respect to intermittent and ephemeral stream beds such limit is waived pursuant to a written determination of the district engineer that "minimal adverse impacts" will result from the discharge. 
  • GC 14 (Discovery of Previously Unknown Remains and Artifacts) will be revised to require a permittee, to the maximum extent practicable, to stop work that would adversely impact those remains. 
  • GC 19 (Endangered Species) will be modified to clarify that both direct and indirect impacts must be considered when evaluating whether an activity may jeopardize the continued existence of a threatened or endangered species, or destroy or adversely impact the habitat of such species.

The lone NWP that is not proposed for reissuance is NWP 47 (Pipeline Safety Program Designated Time Sensitive Inspections and Repairs). NWP 47 required permittees to report their use of that NWP through the Pipeline Repair and Environmental Guidance System ("PREGS"). The USACE intended to use PREGS to monitor projects authorized under NWP 47, but PREGS ceased to be developed by the Pipeline and Hazardous Materials Safety Administration ("PHMSA"). The USACE is now proposing to allow time sensitive inspections and repairs of pipelines, as well as other non-time sensitive projects subject to the PHMSA's Pipeline Safety Program, under either NWP 3 (Maintenance) or NWP 12 (Utility Line Activities), provided the projects meet the requirements of the applicable NWP.

The USACE is also considering how to reissue NWP 21 (Surface Coal Mining Activities). The reissuance, if approved, would take one of two forms. Under the first option, the NWP will be modified to limit losses of non-tidal waters of the United States to a ½-acre or less, to limit losses of stream beds (with the same waiver applicable to intermittent and ephemeral stream beds as noted above) to 300 linear feet or less, and to prohibit the use of the NWP to allow dredged or fill material to be discharged into the waters of the United States in connection with the construction of valley fills for surface coal mining activities. The second option would mirror the first, but there would be no provision prohibiting the discharge of dredged of fill material associated with the construction of valley fills. Neither option would permit the discharge of dredged or fill material into tidal waters or non-tidal waters adjacent to tidal waters.

Two new NWPs are proposed for issuance. The first, NWP 'A,' concerns Land Based Renewable Energy Generation Facilities. This new NWP would authorize the discharge of fill material into non-tidal waters of the United States for the construction, expansion, or modification of land-based renewable energy production facilities; provided that the non-tidal waters are not adjacent to tidal waters. The second, NWP 'B,' pertains to Water-Based Renewable Energy Generation Pilot Projects and would authorize structures and work in navigable waters of the United States, including the discharge of dredged or fill material, for the construction, expansion, and modification of hydrokinetic or wind energy generation pilot projects.

The USACE is currently revising its proposed NWPs based upon the comments received and will provide the revised NWPs to interested federal agencies for a final review. The USACE is targeting publication of the new NWPs in the Federal Register by December 2011. The new NWPs will become effective 90 days after publication.

Please contact us if you would like more information on the proposed modification and reissuance of the NWPs, or if you have questions about how the proposed NWPs may impact your business.


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