In a much anticipated Federal Register Notice, the U.S. Army Corps of Engineers ("Corps") on February 21, 2012 announced the reissuance of its Nationwide Permit ("NWP") Program. 77 Fed. Reg. 10,184 (Feb. 21, 2012). NWPs provide streamlined authorization for certain activities under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act and are reevaluated and reissued every five years by the Corps. The 2007 NWPs are set to expire on March 18, 2012. The 2012 NWPs will take effect on March 19, 2012.
Notable Changes
In this iteration of the program, the Corps is reissuing 48 of 49 existing NWPs and adding two new ones. Although most of the reissued permits have no major changes from 2007, NWP 21, Surface Mining Activities, is revised to impose new limits on stream impacts that may be authorized and to prohibit valley fills.
The two new NWPs (51 and 52) are for the development of certain land- and water-based renewable energy generation facilities. NWP 51 authorizes the construction, expansion, or modification of land-based renewable energy production facilities, such as solar, biomass, wind, and geothermal facilities. NWP 51 also provides coverage for utility lines, roads, parking lots, and stormwater management facilities associated with generation facilities, but the total discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the United States. Moreover, pre-construction notification is required for all activities authorized under NWP 51, regardless of level of impacts to jurisdictional waters.
NWP 52 authorizes the construction, expansion, modification, or removal of water-based wind or hydrokinetic renewable energy generation pilot projects and their attendant features. NWP 52 only authorizes up to 10 generation units (e.g., wind turbines or hydrokinetic devices). Like NWP 51, a PCN is required for any activity authorized under NWP 52.
The 2012 NWPs also include three new general conditions and three new definitions. Key among these revisions is the Corps' decision to split the definition of "single and complete project" into "single and complete linear project" and "single and complete non-linear project." Although this revision provides some clarity by distinguishing between linear and non-linear, it places greater emphasis on cumulative impacts and crossings within close proximity to one another, potentially giving the Corps further incentive to exercise its discretionary authority to impose additional conditions on projects. The Corps also added a new general condition (GC 19) to clarify that permittees are responsible for complying with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, and obtaining any "take" permits that may be required under those statutes.
As with the NWPs, however, many of the definitions and general conditions remain unchanged. For example, the scope of the general condition respecting endangered species (GC 18) remains unclear. Although several commenters suggested that language requiring the permittee to notify the Corps if listed species were in the "vicinity" was ambiguous, the Corps failed to define "vicinity." Further, the Corps is standing by its controversial Appendix C regulations for National Historic Preservation Act Section 106 compliance, as evidenced by the agency's numerous references to those protocols in the preamble and in the general condition respecting historic properties (GC 20).
Under a grandfathering provision in the 2012 NWPs, if projects have commenced or are under contract to commence by March 18, 2012, developers have until March 18, 2013 to complete activities under the 2007 NWPs.
For more information on the 2012 NWPs please contact a key contributor.