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The U.S. Army Corps of Engineers Proposes Renewal of Nationwide Permits

The U.S. Army Corps of Engineers (“Corps”) has proposed new and revised Nationwide Permits (“NWPs”) for certain activities that require authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.  Nationwide Permits provide streamlined authorization for dredge and fill activities that the Corps has determined will have minimal adverse effects on the aquatic environment, individually and cumulatively.  The Corps is soliciting comments until August 1, 2016.

The Corps last issued NWPs in 2012, and those permits are set to expire on March 18, 2017.  The proposed rule, published on June 1, 2016, is the beginning of the process for reissuing the NWPs so that the reissued NWPs will go into effect immediately after the current NWPs expire.  Under a grandfathering provision, if projects authorized under the 2012 permits have commenced or are under contract to commence activities by March 18, 2017, they will have an additional year to complete work within waters.  Activities that were previously authorized by the 2012 NWPs that have not commenced or are not under contract to commence by March 18, 2017, will require reauthorization under the 2017 NWPs.

The proposal includes two new permits and 50 reissued permits, many of which contain revisions.  The Corps has provided a table summarizing the changes to the existing NWPs.  Most of the changes are minor, such as clarifying that the loss of stream bed counts towards linear feet and acreage limits that apply to several NWPs or adding a note to NWPs 12 (Utility Line Activities) and 14 (Linear Transportation Projects) on the term “single and complete project” to clarify that an individual permit may be required for a project with multiple crossings if one crossing does not qualify for a NWP (i.e., exceeds the 1/2-acre threshold) and the other crossings do not have independent utility.

The two new permits authorize impacts related to the removal of low-head dams and construction and maintenance of living shorelines for shore erosion control.  The permit revisions affect a variety of activities, including residential, commercial, and industrial development; flood control; storm water management; mining; and agriculture and aquaculture.

Twenty-one of the proposed NWPs require the submittal of Pre-Construction Notification (“PCN”) to the District Engineer before the prospective permittee may act pursuant to the permit.  The Corps is also proposing to develop a standard form for PCN that will be published in a separate notice and subject to its own notice and comment period.

The Corps has solicited comments on the proposed NWPs generally and specifically on several issues, including the following:

  • Views on how the 2015 revisions to the definition of “waters of the United States” might affect the applicability and efficiency of the proposed NWPs;

  • Whether to retain the 1/2-acre limit that has been imposed on NWPs 12, 14, 21, 29, 39, 42, 43, 44, 50, 51, and 52), or to impose different acreage limits on these NWPs; and

  • Whether to change the PCN thresholds for those NWPs that require pre-construction notification.

The Corps is also seeking comment on:

  • Waivers of requirements that are available under certain NWPs, including making changes to the numeric limits that can be waived;

  • Whether to retain the authority of district engineers to issue activity-specific waivers of certain NWP limits;

  • Whether to impose a linear foot cap on certain waivers;

  • Whether to impose a linear foot cap on losses of intermittent and ephemeral stream bed potentially eligible for certain waivers; and

  • Whether to require compensatory mitigation.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VI, Number 154


About this Author

S. Keith Garner, Sheppard Mullin, Legal Specialist, environmental laws

Keith Garner, AICP, is a partner in the Real Estate, Land Use, Natural Resources and Environmental Practice Group in the firm's San Francisco office.

Areas of Practice

Mr. Garner's practice focuses on state and federal environmental laws, land use planning and entitlement procedures, and natural resources permitting issues for large residential, commercial and mixed use communities and energy generation and transmission projects, including wind and solar facilities. He provides legal and strategic planning advice to clients at every stage of the complex...

James Rusk, land use attorney, sheppard mullin

James Rusk is an associate with the Land Use and Natural Resources practice group in the firm’s San Francisco office.

Areas of Practice

Natural Resources. Mr. Rusk represents residential, commercial and energy developers in natural resources permitting, regulatory compliance and litigation. He focuses on endangered species, wetlands, and storm water issues under federal and state law, in addition to compliance with the National Environmental Policy Act ("NEPA") and California Environmental Quality Act ("CEQA"). Because every project is inherently local, he complements his substantive knowledge with expertise in local development ordinances and procedures. He has worked on major projects all over the state, from the Bay Area to the Central Valley and Southern California.