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On August 3, 2020, the U.S. Army Corps of Engineers (USACE) issued a pre-publication copy of a proposed rulemaking to reissue and modify the Clean Water Act Section 404 (Section 404) Nationwide Permits (NWPs) roughly 2 years ahead of schedule. The proposed rulemaking would be subject to a 60-day comment period following publication in the Federal Register. Based on the current timing, SWCA anticipates that the proposed NWPs will be included in the Federal Register in the coming months, with implementation occurring in late 2020 or 2021.

NWPs are issued and maintained by the USACE to provide Section 404 authorization for projects which discharge fill into waters of the U.S., and which have no more than minimal individual or cumulative adverse environmental effects. Some of the most substantive proposed changes to the existing NWPs include:

  • Trifurcation of NWP 12 (Utility Line Activities). The USACE is proposing to split the existing NWP 12 (Utility Line Activities) into three separate NWPs: Electric Utility Line and Telecommunications Activities; Utility Line Activities for Water and Other Substances; and Oil or Natural Gas Pipeline Activities. These newly proposed NWPs have similar impact thresholds and notification triggers as provided in the current NWP 12.

 

  • Reduction of PCN Triggers. An additional modification to the existing NWP 12 is the reduction of the number of pre-construction notification (PCN) triggers that apply to utility line activities from seven to two. If codified as currently proposed, PCN would be required for losses of waters of the U.S. in excess of 0.1 acre at any single and complete crossing, as well as for any crossing of a Section 10 River. (Note that other General Condition and Regional Condition PCN triggers still apply).

 

  • Removal of Streambed Loss Limit. The proposed 2020 NWPs would also eliminate the existing 300-foot maximum allowable loss of streambed that applies to multiple NWPs, including 29, 39, and 43 (Residential Development, Commercial/Institutional Development, and Stormwater Management Facilities, respectively). Instead, there would be no limit of streambed loss outside of the 0.5-acre loss of waters of the U.S. which applies to most NWPs.

Additional modifications to NWPs and General Condition language are included in the proposed rulemaking—SWCA recommends reviewing the proposed rule in its entirety if you are involved in projects that use these general permits.

It is important to note that the USACE is considering allowing projects that have been issued an authorization letter under the 2017 NWPs, and which conform to the reissued NWPs, to retain that authorization, provided the activities conform to the reissued or modified NWP conditions and requirements. Because the proposed modifications to the NWPs are generally more flexible, and with fewer constraints than the existing 2017 NWPs, there may be value in reviewing project permitting strategies developed under the 2017 NWPs to evaluate if a more favorable permitting path is available.

SWCA CAN HELP

SWCA will continue to monitor this development and will provide updates when the proposed NWPs are published in the Federal Register. Additional details and legal considerations are provided in this article published in The National Law Review.

SWCA encourages clients to participate in the comment period as a way to voice support, concerns, and perspectives that apply to your work.

If you have any questions about this regulatory development or would like to discuss SWCA’s ability to facilitate the preparation of comments to the proposed rule, please reach out to your SWCA point of contact, or email (email hidden; JavaScript is required) or (email hidden; JavaScript is required).