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March 19, 2012

U.S. Army Corps of Engineers’ New Section 404 Nationwide Permits Take Effect March 19, 2012

U.S. Army Corps of Engineers’ New Section 404 Nationwide Permits Take Effect March 19, 2012

By Andrea A. Matarazzo

Effective March 19, 2012, the U.S. Army Corps of Engineers (“Corps”) is reissuing its Nationwide Permit (“NWP”) Program.  The new program reissues 48 of the 49 existing NWPs, general conditions, and definitions, with some modifications. The Corps also is issuing two new NWPs, three new general conditions, and three new definitions.  These NWPs are effective for five years and will expire on March 18, 2017.  Changes to the NWP Program may affect ongoing or future projects that require permits for impacts to wetlands or other waters of the U.S.

 

Section 404(e) of the Clean Water Act authorizes the Corps to issue general permits for activities that have minimal individual and cumulative adverse environmental effects.  General permits can be issued for a period of no more than five years.  A nationwide permit is a general permit that authorizes activities across the country, unless a district or division commander revokes the NWP in a state or other geographic region.  Currently, 49 NWPs authorize a wide variety of activities such as mooring buoys, utility lines, road crossings, mining activities, wetland and stream restoration activities, and commercial shellfish aquaculture activities.

 

Most of the new NWPs have no major changes from 2007, the last time the NWPs were reevaluated and reissued.  The Corps is reissuing 48 permits and adding two new ones.  These permits provide expedited review of projects that have minimal impact on the aquatic environment.  Categories of activities that may be covered under these NWPs include linear transportation projects, bank stabilization activities, residential development, commercial and industrial developments, aids to navigation and certain maintenance activities.

 

The two new permits (NWP 51 [land-based renewable energy facilities] and NWP 52 [water-based renewable energy projects, including water-based wind or hydrokinetic projects]) are intended to provide a mechanism to quickly evaluate renewable energy proposals in support of current clean energy initiatives.  According to the Corps, notification requirements and impact limits have been revised for some permits to provide greater national consistency and foster timely decision-making for the regulated community.  One existing NWP was not reissued (NWP 47, pipeline inspections and repairs).  NWP 3 (maintenance) and NWP 12 (utility lines) still offer NWP coverage for many utility line activities.

 

The Corps’ division engineers may add, after public review and consultation, regional conditions to NWPs if needed to protect local aquatic ecosystems or to minimize adverse effects on fish or shellfish spawning, wildlife nesting or other ecologically critical areas.

 

Authored by:

Andrea A. Matarazzo

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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