Early NWP Reissuance

Early Reissuance of Nationwide Permits

In accordance with Executive Order 13783, Promoting Energy Independence and Economic Growth issued on March 28, 2017, the U.S. Army Corps of Engineers (COE) is working on modifying several Nationwide Permits (NWPs) ahead of their current expiration date of March 18, 2022 and probably will reissue all NWPs to avoid reopening the NWP program again in 2022. It is anticipated these proposed revisions will be published in the Federal Register as early as first quarter 2020¹.

The issuance and reissuance of NWPs normally occurs every 5 years. The current NWPs are set to expire on March 18, 2022. However, in light of Executive Order (EO) 13783, the COE is considering reissuing these NWPs early as noted in the COE’s Fall 2019 unified agenda. The COE previously prepared a report identifying nine NWPs relating to domestic energy production and use (oil, gas, coal, renewables, etc.) wherein changes are being proposed in accordance with EO 13783. Additionally, the COE is considering modifying several other NWPs to provide consistency across the entire NWP program – including the potential of removing the 300 linear foot stream impact threshold and relying on the 1/2-acre limit to satisfy the no more than minimal adverse environmental effects requirement for NWPs.  The intent is to help simplify the NWP authorization process.

What does this mean?

1. 1. NWPs expire early!
   1. If your project is authorized by a current NWP and hasn’t started construction, it will likely need to be reissued under the new NWPs and the associated conditions may change (unless you have commenced work or signed a contract to commence work and complete the work within 12 months of the expiration).
2. Permitting strategy may change
   1. Not only will some NWP conditions change, the Virginia Department of Environmental Quality (DEQ) 401 certification associated with these NWPs will also have to be reissued and these conditions may change.
   2. Changes to the associated permit conditions as well as the early expiration date may lead to re-evaluating the best type of permit for your project. Due to timing, an Individual Permit may become more advantageous.
3. Opportunity to re-open the State Program General Permit (SPGP)
   1. As part of the process to streamline the COE’s permitting process, this provides an opportunity to also reissue the SPGP and streamline the SPGP process which has become slower over the past several years.

What will change?

We can speculate based upon the COE’s October 25, 2017 report – but since that is now 2+ years old, the best summary is to say that the goal of the these changes is to streamline the NWP process which has become more data intensive and time consuming since the 1980s. This potentially includes changes to how historic issues are addressed – which often delays wetlands permits. For more details, see either the October 25, 2017 Summary of Draft Recommendations or the entire report.

Will the standard “45 day” review period change?

There is no indication in public records that the 45 day standard review period will be reduced. The COE indicated that 87% of NWPs, regional general permits, and programmatic general permits were verified by the COE districts in 60 days or less². Historically this review goal has gone from 20, to 30, to 45 days.

When will this happen?

This rulemaking action will require approval from the Office of Management and Budget, and then publication of the proposed rule in the Federal Register for public comment. Those comments will then need to be evaluated and addressed, and a final rule published. Additionally, once the final rule is published, DEQ will have 60 days to prepare the associated 401 conditions (these must be reissued in order for the NWPs to be valid). Therefore, it is likely the issuance/reissuance of the NWPs may not go into effect until mid-2020 at the earliest.

For more information about the NWP reissuance please contact Christie Blevins in our Gainesville office, Bob Kerr in our Hampton Roads office, or Mike Klebasko in our Maryland office.

¹ As noted by Kim Prisco-Baggett, Deputy Chief of the COEs Norfolk District Regulatory Branch, at the Virginia Association of Wetland Professionals (VAWP) conference on November 15, 2019

² Page 7 of “Review of 12 Nationwide Permits Pursuant to Executive Order 13783,” U.S. Army Corps of Engineers, Sept. 25, 2017