Summary

In a final rulemaking issued on January 12, 2017, the United States Army Corps of Engineers (Corps) reissued 50 existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. Simultaneously, the Corps issued two new NWPs and one new general condition. The effective date of the rule is March 19, 2017. The expiration date is March 18, 2022.

NWPs, which cannot be issued for a period longer than five years, are general permits that authorize certain activities that would otherwise require an individual permit under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. To qualify for an NWP, the Corps must conclude that the general activity has no more than minimal individual and cumulative adverse environmental effects.

Certain of the NWPs allow a project to proceed with the NWP activity without notice provided the activity will not affect a species or designated critical habitat under the Endangered Species Act. Other NWPs automatically require pre-construction notification (PCN) to the Corps. The PCN provides the Corps’ district engineer with the opportunity to review the proposed NWP activity, typically within 45 days, to ensure that it qualifies for NWP authorization.

Significantly, given the pendency of litigation in the Sixth Circuit Court of Appeals regarding the definition of ‘waters of the United States’ published in the Federal Register on June 29, 2015, the Corps determined that the districts will not implement the 2015 final rule unless the stay is lifted and that rule goes back into effect. Further, the Corps is retaining the proposed acreage limits and PCN thresholds for these NWPs. Accordingly, the rule changed the text of some existing NWPs, general conditions, and definitions so as not to cite specific CFR provisions addressed in the 2015 rule.

When a Corps district receives a PCN or a voluntary request for NWP verification, the district will process that PCN or request in accordance with the current regulations and guidance for identifying waters of the United States. If the stay issued by the Sixth Circuit is still in effect, the current regulations and guidance will be the definition of “waters of the United States” published in the November 13, 1986, issue of the Federal Register plus the January 2003 clarifying guidance regarding the U.S. Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) and the December 2008 guidance entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Ramanos v. United States & Carabell v. United States.

The reissued nationwide permits authorize a myriad of activities, including aids to navigation, utility line crossings, erosion control activities, commercial shellfish aquaculture activities, and agriculture activities. Of particular interest to Saul Ewing’s energy clients is the reissuance of nationwide permits 3 and 12. The new rule retained the prior acreage limits and PCN thresholds for these two NWPs.

Nationwide Permit 3 addresses maintenance associated with the repair, rehabilitation, or replacement of any serviceable structure or fill authorized previously by 33 CFR 330.3, provided the use of the structure or fill is unchanged.

Nationwide Permit 12 relates to utility line activities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than one-half acre for each single and complete project. This NWP permits the construction, maintenance, or repair of utility lines, including outfall and intake structures, and the associated excavation, backfill, or bedding for the utility lines, in all waters of the United States, so long as there is no change in preconstruction contours. A utility line is defined as “any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio and television communication. The term ‘utility line’ does not include activities that drain a water of the United States, such as drainage tile or French drains, but it does apply to pipes conveying drainage from another area.”

The two new NWPs authorize the removal of low-head dams and the construction and maintenance of living shorelines.