Army Corps of Engineers Proposes Revising Broad Range of Clean Water Act Nationwide Permits

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On September 15, 2020, the Army Corps of Engineers published proposed revisions to a wide range of Nationwide Permits (NWP) issued under the Clean Water Act.  The revisions respond to Executive Order 13783, directing heads of federal agencies to review existing regulations that potentially burden development or use of domestically produced energy resources.  Accordingly, the proposed revisions affect NWPs commonly utilized by utility-scale wind and solar energy projects throughout the country.  The Corps will accept comments on the proposed revisions until November 16, 2020.  Here are highlights from the proposed revisions.

NWP 12: Utility Line Activities

As issued in 2017, NWP 12 authorizes activities required for construction, maintenance repair, and removal of utility lines and associated facilities in waters of the United States (WOTUS), provided the activity does not result in loss of more than ½ acre of WOTUS.  This NWP is commonly utilized by wind and solar projects to authorize impacts associated with construction of foundations for transmission lines, access roads, and utility substations.

The Corps proposes restricting this NWP to oil and natural gas pipeline activities and issuing two new NWPs.  A new NWP C would authorize electric utility line and telecommunications activities, provided the activity does not result in loss of greater than ½ acre of WOTUS for each single and complete project.  The new NWP C would cover any cable, line, or wire for the transmission of electrical energy, telephone, and telegraph messages, and internet, radio, and television communication.  It also authorizes construction, maintenance, or expansion of substation facilities, foundations for overhead electric utility lines, and access roads commonly associated with energy projects.

A new NWP D would authorize other utility line activities conveying other substances, including potable water, sewage, wastewater, stormwater, brine, or industrial products that are not petrochemicals.

The stated goal of these new NWPs is to effectively address potential differences in how different types of utility lines are constructed, maintained, and removed, and to add industry-specific standards for the NWPs.  So, while the new NWPs will retain the broad structure of the existing NWP 12, the Corps is seeking comments for national standards and best management practices to add to the new NWPs.

NWP 14: Linear Transportation Projects

This NWP authorizes “activities required for the construction, expansion, modification, or improvement of linear transportation projects (e.g., roads, highways, railways, trails, airport runways, and taxiways) in waters of the United States.”  Also authorized are temporary structures, fills, and work necessary to construct the linear transportation project.  Solar and wind projects commonly utilize NWP 14 to authorize impacts related to construction of access roads used for construction and maintenance purposes.

The Corps proposes adding “driveways” to the above-quoted list of types of linear transportation projects authorized under NWP 14, to clarify that construction or expansion of driveways is authorized.  The Corps explains that driveways can be considered linear transportation projects “at a smaller scale” because they provide means for a vehicle to get from a road to a house, commercial building, or other structure.  This revision is mainly meant to provide clarity to Corps district engineers and the regulated public.

NWP 51: Land-Based Renewable Energy Generation Facilities

This NWP authorizes discharges into non-tidal waters of the United States for construction, expansion, or modification of land-based renewable energy production facilities, including attendant features like laydown yards and access roads.  However, the discharge must not cause the loss of greater than ½ acre of non-tidal WOTUS.  Is also cannot cause the loss of more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds the district engineer waives this limit by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects.

The Corps proposes to remove the latter limit of 300 linear feet of stream bed losses in favor relying solely on the ½ acre limitation and Pre-Construction Notification requirements to ensure activities authorized by this NWP result in no more than minimal adverse environmental effects.  The Corps offers several rationales for this revision, including that there are other tools (e.g., acreage limits and Pre-Construction Notification) for measuring and minimizing adverse effects and that acres or square feet is a more accurate approach to quantifying losses of stream bed.

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Generally, activities authorized by the 2017 NWPs remain authorized until March 18, 2022.  If these previously authorized activities comply with the terms and conditions of the modified and reissued NWPs, those activities will remain authorized until March 18, 2022 unless otherwise specified by a district engineer.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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