Environmental Permitting, Sustainability

Streamlined CWA Permitting Final Rule Issued

On December 27, 2021, the Army Corps of Engineers (Corps) issued a final rule for the reissuance and modification of nationwide permits (NWP), which authorizes “certain activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act (RHA) of 1899 that have no more than minimal individual and cumulative adverse environmental effects.”

This is a crucial permitting tool for regulated industry and the government to “obtain authorization for the discharge of dredged or fill material into ‘waters of the United States’ (WOTUS) through the Corps’ streamlined NWP process,” says law firm Hunton Andrews Kurth in a Lexology article. “With this rule, the Corps reissued 40 existing NWPs and one new NWP. These 41 NWPs will combine with 16 NWPs issued on January 13, 2021, to authorize use of the full suite of NWPs through March 14, 2026.”

To discharge dredged or fill materials into any WOTUS-designated area, Section 404 of the CWA generally requires permitting that provides permission from the Corps. A streamlined permitting process with specific requirements was created by Congress, which includes the NWP program.

Receiving NWP project authorization instead of going through the 404-permit process can save regulated industries substantial money and time.

“The Corps reports that in fiscal year 2018, the average time to process a standard individual permit application was 264 days, while the average time to process an NWP authorization was 45 days,” adds Hunton Andrews Kurth. “By tailoring projects to limit impacts to WOTUS and thereby qualify for a NWP, project developers can substantially reduce federal permitting costs and delays.

“For example, NWP 51 authorizes discharges of dredged or fill material into non-tidal waters of the United States associated with the construction, expansion, or modification of land-based renewable energy production facilities, including infrastructure to collect solar, wind, biomass, or geothermal energy, provided the discharge of dredged or fill material does not cause the loss of greater than ½-acre of non-tidal waters of the United States. Other projects, such as residential developments, roads, mining activities, recreational facilities, and commercial and institutional developments can also qualify for an accelerated permit if impacts are below ½-acre, and the project satisfies other conditions of the applicable NWP.”

On September 15, 2020, the Corps published a proposed rule “to reissue 52 existing NWPs and issue five new NWPs, plus the NWP general conditions and definitions,” according to the Corps final rule. “In a final rule published in the January 13, 2021, issue of the Federal Register, the Corps reissued 12 of the 52 existing NWPs and four of the five new NWPs, as well as the NWP general conditions and definitions. In this final rule, the Corps is reissuing the remaining 40 existing NWPs and issuing the remaining one new NWP. The NWP general conditions and definitions published in the January 13, 2021, issue of the Federal Register apply to the 41 NWPs reissued or issued in this final rule.”

2021 NWP key points

The Hunton Andrews Kurth analysis includes these key takeaways for industry:

  • Grandfathering. There are two conditions that apply to continued authorization under the 40 reissued NWPs after the February 24, 2022, expiration date:
    • Activities that have begun or are contracted to begin under an NWP permit “generally remain authorized provided the activity is completed within twelve months of the NWP’s expiration.”
    • The second scenario applies to those projects that have received “a verification letter stating that an activity is covered by an NWP will remain valid until the expiration date stated in the verification letter if the NWP is reissued without modification or the activity complies with any modification of the NWP.”
  • Splitting of NWP 12 into 3 NWPs. The January 21, 2021, final rule created “a new NWP 12 limited to oil and natural gas pipeline activities, NWP 57 for electric utility line and telecommunications activities, and NWP 58 for utility lines that convey other substances, such as water, sewage, brine, etc.” The Corps’s stated intent is to “recognize differences in how various types of utility line projects are constructed, the substances they convey, and the different standards and best management practices that help ensure those NWPs authorize only those activities that have no more than minimal adverse environmental effects.”
  • New NWPs in 2021. Three new NWPs were also promulgated:
    • NWP 55 (Seaweed Mariculture Activities)
    • NWP 56 (Finfish Mariculture Activities)
    • NWP 59 (Water Reclamation and Reuse Facilities)
  • Mitigation general condition. The stream compensatory mitigation threshold has been modified from 1/10 acre to 3/100 acre. “General condition 23 … now includes a requirement for compensatory mitigation for stream bed losses exceeding 3/100-acre” and “retains flexibility for district engineers to determine the appropriate mitigation for a particular NWP activity to ensure that the activity causes no more than minimal adverse environmental effects.”
  • NWP 14 (Linear Transportation Projects). The NWP 14 added driveways (including both single- and multi-unit residences) to its covered project examples. “Driveways are subject to the same acreage limits as other linear transportation projects authorized by NWP 14, including larger scale linear transportation projects (e.g., ½-acre of losses of WOTUS).”
  • NWP 41 (Reshaping Existing Drainage and Irrigation Ditches). Irrigation ditches were added to NWP 41. This is expected to “improve water quality by regrading the drainage or irrigation ditch with gentler side slopes that can reduce erosion, increase growth of vegetation within the ditch, and increase vegetation uptake of nutrients.”
  • WOTUS definition. The final rule notes NWPs are not intended to define WOTUS “regarding what water bodies are or are not subject to CWA jurisdiction” and asserts that the Corps is not required to formally determine whether an area is subject to the CWA before issuing an NWP verification. It defines NWP discharges as those that either:
    • “(1) are legally authorized under the CWA (to the extent that the waterbody is subject to CWA jurisdiction) or
    • (2) are otherwise consistent with the CWA to the extent that the waterbody is not jurisdictional under the CWA.”
  • Endangered Species Act compliance. Under 33 Code of Federal Regulations (CFR) § 330.4(f) and NWP general condition 18, nonfederal permittees are required “to submit pre-construction notifications for any activity that ‘might’ affect listed species or designated critical habitat. An activity that triggers a pre-construction notification under general condition 18 is not authorized by an NWP until either the Corps makes a determination that the project will have ‘no effect’ on listed species or designated critical habitat or completes ESA Section 7 consultation.”

This final rule becomes effective February 25, 2022, and the 41 NWPs included in the rule expire March 14, 2026.