The Clean Water Act authorization rule finalized by the Army Corps

On December 27, 2021, the US Army Corps of Engineers (Corps) released a Nationwide Licensing Final Rule (NWP) renewing an essential licensing tool for the government and the regulated community. To comply with the Clean Water Act (CWA or the Act), projects with minimal adverse environmental effects may obtain an authorization for the discharge of dredged or fill material into “United States Waters” (WOTUS) by through the Corps’ streamlined PTN process. With this rule, the Corps reissued 40 existing NWPs and one new NWP. These 41 NWPs will be combined with 16 NWPs issued on January 13, 2021 to allow use of the full suite of NWP until March 14, 2026.

Projects that discharge dredged or infill material into wetlands, rivers, streams, and other aquatic features considered to be WOTUS generally must obtain clearance for such discharges from the Corps in the form of a CWA Section 404 permit. Congress has created a streamlined licensing process, including the NWP program, for activities that meet specified requirements designed to ensure that impacts to WOTUS are minimal, such as activities that fall under a specified maximum area impacts on WOTUS. Authorizing a project through a PTN can result in significant time and cost savings compared to authorizing via an individual Section 404 permit. The Corps reports that in fiscal 2018, the average processing time for a standard individual permit application was 264 days, while the average processing time for an NWP permit was 45 days. By adapting projects to limit the impacts on WOTUS and thus qualify for a PTN, project developers can significantly reduce costs and federal authorization times.

For example, NWP 51 permits releases 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 that the dumping of dredged or fill material does not result in the loss of more than ½ acre of non-tidal water from the United States. Other projects, such as residential developments, roads, mining activities, recreational facilities, and commercial and institutional developments may also be eligible for an accelerated permit if the impacts are less than ½ acre and the project meets the others. conditions of the applicable PTN.

In a rule proposal released on September 15, 2020, the Corps proposed to reissue 52 existing NWPs (already released on January 6, 2017) and issue five new NWPs. In a final rule released on January 13, 2021, the Corps reissued 12 of the 52 existing NWPs and four of the proposed new NWPs, as well as terms and conditions and definitions of NWP. On December 27, 2021, the Corps reissued the remaining 40 existing NWP and released the remaining new NWP (NWP 59 for water recovery and reuse facilities). The NWP terms and conditions and definitions published on January 13, 2021, apply to the 41 NWPs reissued or issued in the final rule of December 27, 2021. The 40 existing NWPs replaced by the final rule will expire on February 24, 2022 and the 41 NWPs will take effect. effective February 25, 2022 and will expire March 14, 2026 (the same date that the 16 NWP issued in January 2021 expire).

Key aspects of the 2021 PTNs:

  • Grandfather. Activities previously authorized under the 40 reissued PTNs may continue to be authorized after the expiration date of February 24, 2022 in two scenarios. First, activities which have started (i.e. are under construction) or which are contracted to start on the basis of a PTN generally remain permitted provided the activity is completed within twelve months. the expiration of the PTN. 33 CFR § 330.6 (b). Second, even if an activity has not yet started and is not under contract to begin, a verification letter indicating that an activity is covered by a PTN will remain valid until the expiration date indicated in the letter. whether the PTN is reissued without modification or the activity complies with any modification of the PTN. 33 CFR § 330.6 (a) (3) (ii).

  • NWP 12 trifurcation. The final rule of January 13, 2021 trifurcated the old NWP 12, which allowed utility line activities, into a new NWP 12 limited to petroleum and natural gas pipeline activities, NWP 57 for utility lines activities. electrical and telecommunications utilities, and NWP 58 for utility lines that carry other substances, such as water, sewage, brine, etc. The Corps explained that the trifurcation of NWP 12 into three NWP aims to recognize the differences in how the various types of utility line projects are constructed, the substances they carry, and the different standards and best management practices that help ensure that these NWPs only allow activities that have no more than minimal negative effects on the environment.

  • New NWP in 2021. In addition to the two new NWP utility lines, discussed above, the Corps has promulgated three new NWP: NWP 55 (Seaweed Mariculture Activities), NWP 56 (Fish Mariculture Activities) and NWP 59 (Facilities water recovery and reuse).

  • General mitigation conditions. The final rule changed the compensatory attenuation threshold for streams from 1/10 acre to 3/100 acre. General Condition 23, which deals with mitigation, now includes a compensatory mitigation requirement for stream bed losses in excess of 3/100 acres. According to the Corps, General Condition 23 allows district engineers to determine appropriate mitigation measures for a particular Numerical Weather Prediction activity to ensure that the activity results in minimal adverse environmental effects.

  • NWP 14 (Linear transport projects). The Corps added aisles to the examples of activities covered by NWP 14. This applies broadly to include features that are used by vehicles to move to and from buildings and other facilities, and is not limited to aisles associated with residences with one or more units. The aisles are subject to the same area limits as other linear transport projects authorized by NWP 14, including larger scale linear transport projects (eg, ½ acre of WOTUS losses).

  • NWP 41 (Remodeling of existing drainage and irrigation ditches). The Corps has added irrigation ditches to the types of ditches covered by NWP 41. The purpose of this NWP is to allow dumping of dredged or fill material into WOTUS to reshape existing drainage and irrigation ditches. to improve water quality by reclassifying the drainage or irrigation ditch with side slopes which can reduce erosion, increase vegetation growth in the ditch and increase nutrient uptake by vegetation .

  • WOTUS definition. The preamble to the Dec. 27, 2021 Final Rule referred to the ongoing rule making to change the definition of WOTUS, and stated that PTNs “are not intended to conclude or imply a conclusion or determination regarding the masses. of water that are or are not subject to the jurisdiction of the CWA. “Instead, an NWP indicates that discharges of dredged or fill material into a water body in accordance with the NWP will comply with the CWA because such discharges either” (1) are legally permitted under the CWA (to the extent that the body of water is subject to the CWA jurisdiction) or (2) are otherwise compatible with the CWA to the extent that the body of water is not jurisdictional under the CWA. Corps notes that it is not necessary to formally determine whether a particular wetland or water is under the jurisdiction of the CWA before issuing a Numerical Weather Forecast check, and that many project proponents prefer save time by receiving a numerical weather prediction check without spending time and resources for a formal and final jurisdictional determination.

  • Endangered Species Act Compliance. NWP regulations at 33 CFR § 330.4 (f) and general condition NWP 18 require non-federal licensees to submit pre-construction notifications for any activity that “may” 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 the Corps has determined that the project will have “no effect” on any listed species or. critical habitat identified or will not have completed the consultation of Section 7 of the ESA.

Copyright © 2022, Hunton Andrews Kurth LLP. All rights reserved.National Law Review, Volume XII, Number 7

About Edward Fries

Check Also

Divers removed 25,000 pounds of trash from Lake Tahoe. Now they want to clean up more Sierra lakes

A first-of-its-kind project to clear underwater trash and trash along Lake Tahoe’s 72-mile shoreline wraps …