Corps Issues Nationwide Permits

The U.S. Army Corps of Engineers published its final rule for the Reissuance and Modification of Nationwide Permits in the waning days of the Trump Administration.  The final rule reissues and modifies 12 existing nationwide permits (NWPs) and issues four new NWPs.  These 16 NWPs went into effect on March 15, 2021.  President Biden’s Chief of Staff issued a memorandum to agencies in late January suggesting that they postpone the effective date of any final rule not yet effective for at least 60 days so that other actions could be considered.  That did not happen, and the rule is now effective.  However, in light of strong opposition to the rule by environmental groups, the final rule still faces headwinds.    

Nationwide permits are a streamlined way for the Corps to authorize minimal impacts to wetlands and other Waters of the United States under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.  Issuance and reissuance of NWPs normally occurs every five years.  The current NWPs will expire March 18, 2022.  The Corps issued a proposed rule in September 2020 to reissue all 52 NWPs and to issue five new NWPs.  That would have allowed all NWPs to become effective at the same time so they stay on the same five-year review and approval cycle.

The final rule was not what was expected.  The 40 NWPs issued in 2017 were left untouched and still have expiration dates of March 22, 2022.  The 16 NWPs issued under the final rule have new general conditions and definitions and an expiration date of March 15, 2026.  These differences alone will cause confusion.  The Corps said the 16 NWPs were issued partly in response to President Trump’s Executive Orders on energy independence and promoting American seafood competitiveness, and partly in response to two federal court decisions concerning NWP 12 (utility line activities) and NWP 48 (commercial shellfish maricultural activities). 

Among other things, the final rule removes the 300 linear foot stream impact threshold for 10 of the NWPs while retaining the 1/2-acre limit on loss of jurisdictional waters to satisfy the “no more than minimal adverse effects” requirement for NWPs.  It also divides the previous NWP 12 – the NWP that has been at the heart of pipeline litigation around the country – into three new permits: NWP 12 for oil and gas pipelines, a new NWP 57 for the construction of electric and telecommunication utility lines, and a new NWP 58 for the construction of water and sewer lines.  The Corps said it made this split to account for, among other things, “the differences in how different utility lines projects are constructed [and] the substances they convey….” 

With President Biden now in office, environmental groups have taken prompt action.  The Center for Biological Diversity, the Sierra Club and others sent the Corps in early February a 60-day notice of intent to sue.  The notice alleges that the Corps violated the Endangered Species Act because it failed to conduct formal ESA Section 7 consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service before issuing the final rule.  We will keep you apprised if litigation ensues.

Reissuance and Modification of Nationwide Permits, 86 Fed. Reg. 2744 (January 13, 2021) 
Regulatory Freeze Pending Review (January 20, 2021)
60-day Notice of Intent to Sue (February 8, 2021)