Section 404 Nationwide Permits are Changing!

03.13.2012

 

The new U.S. Army Corps of Engineers Section 404 Clean Water Act Nationwide Permits (NWPs) will become effective March 19, 2012. The existing (2007) NWPs will expire on March 18, 2012. We’re here to help you keep your projects on track during this transition by providing resources, information, and assistance.

Contact pfinnemore [at] esassoc [dot] com (Priya Finnemore), ESA’s Regulatory Permitting Program Manager at (415) 896-5900 for more information or guidance on the 2012 NWPs. Priya can direct you to the appropriate regional contact at ESA, for information specific to your location, if needed.

Changes to the NWP Program could affect ongoing or future projects that require section 404 permits for impacts to federal waters or wetlands.

In addition to the re-issuance or revision of many of the existing 2007 NWPs, there are two new permits (NWP 51 and 52, for renewable energy projects), and one that was not re-issued (NWP 47, pipeline inspections and repairs). Of the 49 existing NWPs, 23 have no major changes from 2007 and remain the same.

Some NWPs were modified to increase ease or flexibility of use. Many were revised to increase protection of aquatic resources, through measures such as limiting the linear and/or aerial extent of impacts to waters allowed; requiring notification to the Corps prior to proceeding; and requiring demonstration of avoidance and minimization of impacts to the greatest extent practicable. All NWPs continue to require mitigation for all unavoidable impacts to waters or wetlands. Some of the notable NWP changes are detailed below.

Changes to the General Conditions (which apply to all NWPs) and Regional Conditions (set by each Corps District) will also come into effect on or after March 19, 2012.

Situations you or your projects may be in, relative to the 2012 NWP Reissuance, and what to do:

  • If a permittee has a valid NWP and is working in waters or is under contract to start work by March 18, 2012, then the permittee has one year (until March 2013) to complete their work in waters (including finishing any mitigation/restoration that requires work in waters). The project is essentially being 'grandfathered in' under the current 2007 NWP Regulations and associated General and Regional Conditions.
  •  If a permittee has a valid NWP and is working in waters or under contract now, but can't complete all impacts to waters by March 2013, then they will need to REAPPLY under the new 2012 NWPs for the any portion of the work that cannot be completed by March 2013. We recommend identifying the remaining work and submitting a new application under the 2012 NWPs now; the permittee can conduct the remaining work, in compliance with the new 2012 NWP Regulations and associated General and Regional Conditions, as soon as a new NWP verification is obtained.
  • If the permittee has a valid NWP, and has NOT started work or gotten under contract, the permittee has the option of:
    • re-applying under the new 2012 NWPs, or
    • starting construction or getting under contract before March 18, 2012 (to be eligible for the one year extension or ‘grandfathering,’ under the 2007 NWPs).
    • Note: as mentioned above, if the permittee cannot complete all work in waters by March 2013, they will need to REAPPLY under the new 2012 NWPs for the work that cannot be completed by March 2013.
  • If an applicant recently submitted an application for a NWP (and has not received a verification letter), their application is most likely being held for processing under the new 2012 NWPs; a permit will not be issued until after March 19, 2012, when the new NWPs become effective.
  • If an applicant is planning to submit an application for a NWP, their application will be processed under the new 2012 NWPs, and a permit will not be issued until after March 19, 2012, when the new NWPs become effective.

 

Notable NWP Changes:

NWP NOTABLE CHANGE
NWP 3 (Maintenance) Added the ability to place new/additional rip-rap to protect an existing, serviceable structure (previously limited to staying within the original structure’s footprint/size).
NWP 12 (Utility lines) Added new interagency coordination requirements for NOAA (in navigable waters) and for DOD (for overhead lines that could affect military activities).
NWP 27 (Aquatic Habitat Restoration, Enhancement) Clarified that compensatory mitigation is not required for NWP 27 activities; added tidal waters and wetlands; included discharges to restore streams after removing water control structures; authorized reestablishment of submerged aquatic vegetation and tidal wetlands; clarified that changes in wetland plant communities after restoring wetland hydrology are not considered ‘conversions;’ stipulated that the reporting provision must include information on baseline ecological conditions, such as a delineation of wetlands, streams, and other aquatic habitats.
NWP 29 (Residential) + NWP 39 (Commercial/Institutional) In order to receive a waiver to exceed the 300 linear foot limit on permanent impacts (loss) to waters (and still qualify for a NWP), the applicant has to provide written justification of why the waiver should be granted/why impacts are minimal.
NWP 31 (Maintenance of Existing Flood Control) Added the removal of vegetation from levees associated with flood control projects needing Corps permits.
NWP 43 (Stormwater Management Facilities) Clarified that stormwater facilities that that meet the definition of ‘waste treatment systems’ under 33 CFR 328.3(a)(8) are NOT waters of the U.S. and 404 permits are not required for maintenance of these. Added the requirement for low impact development (LID) features. Also: in order to receive a waiver to exceed the 300 linear foot limit on permanent impacts (loss) to waters (and still qualify for a NWP), the applicant has to provide written justification of why the waiver should be granted/why impacts are minimal.
NWP 44 (Mining) Added a 300 linear foot limit for permanent impacts (loss) of waters or wetlands.
NWP 45 (Repair of Uplands Damaged by Discrete Events) Clarified that beach restoration/nourishment is NOT included in the provisions of this NWP.
NWP 48 (Existing Commercial Shellfish/Aquaculture) Revised to authorize the expansion of existing operations and new activities, with a 0.5 acre limit of disturbance to submerged aquatic vegetation beds. Removed the reporting requirement for certain on-going commercial shellfish aquaculture activities. Prohibits cultivation of ‘aquatic nuisance species’ and non-indigenous species, unless currently cultivated.
 

New NWPs: 

  • NWP 51 (land based renewable energy facilities) – authorizes construction, expansion or modification of land-based renewable energy production facilities. Pre-Construction Notification (PCN) is required for all activities. Permanent impacts (loss) of waters cannot exceed 0.5 acre/300 linear feet (300 linear foot limit may be waived by the Corps, following coordination with other regulatory agencies).
  • NWP 52 (water based renewable energy projects, including water based wind or hydrokinetic projects) – authorizes construction, expansion, modification, or removal of water-based wind or hydrokinetic renewable energy generation pilot projects. Pre-Construction Notification (PCN) required for all activities. Permanent impacts (loss) of waters cannot exceed 0.5 acre/300 linear feet (300 linear foot limit may be waived by the Corps, following coordination with other regulatory agencies). Limited to “pilot projects.” Prohibits activities in coral reefs. Upon completion of the pilot project, structures and fills must be removed, unless separate authorization is obtained.
     

Revoked NWPs:

NWP 47 (time sensitive inspections and repairs of pipelines) - will not be re-issued. However, NWP 3 (maintenance) and NWP 12 (utility lines) will still offer coverage for many utility line projects. 
 

Notable Changes to the 2012 NWP Program General Conditions:

  • General Condition 14 – requires permittees to stop work and notify the Corps if cultural artifacts are discovered during project activities.
  • General Condition 23 – requires the safety of impoundments (dams) to be verified by the Corps and/or Division of Safety of Dams (DSOD).
     

Notable Changes to Regional Conditions: 

Regional Conditions (set by each Corps District) are developed to address the needs or requirements of a particular region or state, and are commonly issued concurrently or shortly after the new NWPs. To find out how the Regional Conditions have changed within your local Corps District, and when they are finalized, contact us, and we will connect you with an ESA Regulatory Permitting Specialist in an office nearest you; they can provide you with information specific to your local Corps District.
 

Useful Links:

For more detail on the NWPs re-issuance, we recommend reviewing the following documents on the U.S. Army Corps of Engineers website. Please contact pfinnemore [at] esassoc [dot] com (Priya Finnemore), ESA’s Regulatory Specialist at (415) 896-5900 to guide you through the process and determine whether these changes might affect your project.