Corps of Engineers Proposes New and Modified Nationwide Permits

The U.S. Army Corps of Engineers has proposed changes to its current list of 49 nationwide permits (NWPs) for discharges into wetlands and other waters of the U.S. Each NWP covers a category of activities the Corps concludes will cause minimal adverse environmental effects. Projects that meet the requirements of an NWP can fill federal wetlands or other waters with relatively little delay or paperwork.

The Corps proposes two new NWPs, for the following projects:

• Land-Based Renewable Energy Facilities: NWP for discharges of dredged or fill material into non-tidal waters, excluding non-tidal wetlands adjacent to tidal waters, for land-based renewable energy generation facilities
• Water-Based Renewable Energy Generation Pilot Projects: NWP for work in navigable waters and discharge of dredge or fill material into waters of the U.S. for hydrokinetic or wind energy generation pilot projects

The Corps also proposes several modifications to existing NWPs. One of the more important changes concerns NWPs that are currently limited to 300 linear feet of stream bed loss, “unless for intermittent and ephemeral stream beds this 300 linear foot limit is waived in writing by the district engineer.” The Corps proposes to apply this 300 linear foot limit to a greater number of existing NWPs as well as the two new NWPs. In addition, the district engineer’s waiver would require a “written determination concluding that the discharge will result in minimal adverse effects.” Where intermittent and ephemeral streams are at issue, these increased requirements would reduce the streamlining currently provided by the NWPs.

Another broadly applicable proposed change addresses the definition of a “single and complete project.” The activity subject to an NWP must comprise a single and complete project; an applicant cannot piecemeal a project into numerous smaller activities, claiming each qualifies for an NWP. The Corps proposes two separate definitions of “single and complete project,” one for linear projects (e.g., roads) and one for non-linear projects. The change is intended to clarify how the independent utility test, which measures whether a project is complete by asking whether it has utility independent of other related activities, applies to non-linear projects.

Another notable, although not generally applicable, proposal concerns the existing NWP for surface coal mines. The fate of this NWP has become sufficiently controversial that the Corps’ proposal describes three different options, including rescission of the NWP, for public comment, and has invited the public to propose its own options.

The Corps’ proposal includes many other detailed changes and is likely to evolve as a result of public comment as the Corps moves toward issuance of the final NWPs in December 2011. Comments on the Corps’ current proposals are due April 18, 2011.

For more information, please contact:

Ella Foley Gannon, Partner
ella.gannon@bingham.com, 415.393.2572