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New 2017 Nationwide Permits Are Effective as of March 19, 2017

on Monday, 17 April 2017 in Dirt Alert: David C. Levy, Editor

In accordance with section 404(e) of the Clean Water Act (the “CWA”) and section 10 of the Rivers and Harbors Act of 1899, the U.S. Army Corps of Engineers (the “Corps”) adopted a general permitting process to address limited common discharges of dredged or fill material into jurisdictional “waters of the U.S.”  Nationwide Permits (“NWPs”) provide a streamlined cost-effective means for thousands of projects each year to comply with the CWA, in contrast to the costly and time-consuming individual permitting process.  NWPs cover a wide array of projects, including residential development, transmission lines, oil and gas pipelines, and roads projects.  Projects must meet the requirements of the applicable NWP, in addition to the General Conditions (“GCs”) applicable to all NWPs.  The Corps regularly alters the GCs and the scope of impacts and documentation required for the use of NWPs, which are typically effective for five years. 

The Corps adopted new GCs and 54 new NWPs, which became effective March 19, 2017.  In addition to establishing two new permits, the 2017 NWPs impose changes to a number of the preexisting permits and the GCs applicable to all NWPs.  

Of particular importance are changes to NWPs 51 and 52, which govern land- and water-based renewable energy generation facilities.  Unless an applicant obtains a waiver, impacts from these projects to “waters of the U.S.” are limited to one-half acre.  Furthermore, land-based renewable energy generation projects covered by NWP 51 now require the applicant to provide the Corps a pre-construction notification (a “PCN”).  When a project requires a PCN, the applicant cannot commence the covered activity until after a 45-day waiting period, during which time the Corps can review and comment on an NWP’s applicability to the proposed project.  

In many cases, applicants must either tailor projects to fall within the scope of impacts permissible under a specific NWP or seek a waiver from the Corps to proceed under an NWP if impacts will exceed limitations.  Unpermitted impacts to “waters of the U.S.” can trigger an enforcement action by the Corps and significant civil and criminal penalties.  Accordingly, we recommend a thorough review of the new 2017 NWPs and GCs prior to proceeding with a project that may impact “waters of the U.S.”

A complete list of the 2017 NWPs and GCs is available here.

Vanessa A. Silke


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