New Nationwide Permits Released in Pre-Publication Form, Will Be Proposed Soon
The changes include revisions to NWP 12 for utility lines
The U.S. Army Corps of Engineers (COE) posted the pre-publication copy of the 2020 Nationwide Permit (NWP) Proposed Rule on their website on August 3, 2020. This proposed Rule will be published in the Federal Register for public comment in the coming weeks. Wetland Studies and Solutions, Inc. (WSSI) has completed an initial review of the proposed Rule, and we are providing an overview of a few key points and changes below. We will continue to review the document and will share a more comprehensive analysis – including the publication and public comment dates and links – in a future edition of Field Notes.
WHAT’S HAPPENING NOW?
The Nationwide Permits are a streamlined way for the COE to authorize minimal impacts to wetlands and other Waters of the U.S. (WOTUS) for designated activities. This 2020 NWP Proposed Rule comes in response to the March 28, 2017 Executive Order 13873, which directed federal agencies to review existing regulations relating to energy resources. In a subsequent October 2017 report the COE noted nine NWPs that could be modified in response to this Executive Order. The COE is now proposing to reissue all the remaining NWPs with some modifications so they all stay on the same five-year approval cycle, in addition to five new proposed NWPs outlined below.
NEW NWPS PROPOSED
The COE has proposed five new NWPs: two focused on utility lines, one on water reclamation facilities, and two on mariculture activities.
Utility Lines
The Split: The COE proposed to split the existing NWP 12 into three NWPs for the following categories:
- Oil and Gas (will remain NWP 12)
- Electric Utility Line and Telecommunications Activities (Proposed NWP C)
- Water and Other Substances (Proposed NWP D)
The intent of the proposed division of NWP 12 for utility line activities – based on the substances they convey – is to tailor each of these permits to how the different utilities are constructed, maintained, and removed. If appropriate, and based on comments provided, the conditions of each permit will incorporate national best management practices and standards.
You can read the recent Nationwide Permit news in our previous Field Notes articles:
- Early Reissuance of Nationwide Permits, November 21, 2019
- Update: Nationwide Permit 12 Available AGAIN, July 7, 2020
- Update: Nationwide Permit 12 Available (For Some), May 12, 2020
- Nationwide Permit 12 Vacated, April 21, 2020
NWP 12 Revisions: Previously, applicants had to notify the COE by submitting a Pre-Construction Notification (PCN) based on seven triggers. The COE is proposing to reduce the number of triggers to two:
- Proposed activities with an overall project that is greater than 250 miles in length, of which the majority of the project length is the installation of a new pipeline (new PCN threshold).
- Discharges that result in a loss of greater than 1/10 acre of Waters of the U.S. (existing PCN threshold)
Water Reclamation and Reuse Facilities (Proposed NWP E)
The proposed change would authorize the discharge of dredged or fill material into WOTUS associated with the construction, expansion and maintenance of water reclamation and reuse facilities (for both potable and non-potable water reuse), so long as the total proposed impact is to less than ½ acre of WOTUS. This would include both engineered infrastructure for water treatment and ecological infrastructure (i.e., bioretention swales and vegetated areas). Previously these proposed activities have been authorized under other existing NWPs; however, the COE is proposing to dedicate a new NWP to this proposed activity to simplify the application process and reduce confusion. The COE is seeking comments on whether a new NWP dedicated to these activities would be useful for the general public, or if authorization should continue under the previously cited existing NWPs.
OTHER NOTEWORTHY ACTIONS
Proposed Removal of the 300 Linear Foot Limit for Losses of Stream Bed
The COE has proposed using stream bed acreage – rather than length – for the classification of stream impacts. The COE states that in this way, cumulative impacts can be consistently calculated across the different types of WOTUS as the total impact must be less than ½ acre for the applicable NWPs. The COE has also proposed a hybrid approach to calculating stream impacts for NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51 and 52, in which stream bed impacts would continue to be calculated using linear feet – so long as there are no proposed impacts to other WOTUS. If both streams and wetlands are proposed to be impacted under these NWPs, the COE proposes that the stream bed impact be calculated on an acreage basis. The COE is requesting comments on the validity of a hybrid approach to calculating stream impacts as well as the proposal to quantify the loss of stream bed in acreage as opposed to linear feet.
Pertinent General Condition Changes
General Condition 23 for mitigation requirements: The compensatory mitigation threshold for stream impacts is proposed to be 1/10 acre to adhere to the revised stream bed acreage impact classification. This will likely mean that some projects in our region that currently require compensatory mitigation for stream impacts will not – since most stream impacts are to small width streams (i.e., 4 to 5 feet) due to other state and local regulations in Virginia’s Chesapeake Bay Act localities. For example, a project could impact more than 1,000 linear feet of a 4-foot-wide stream – versus the current 300 linear foot limit – without requiring compensatory mitigation. The proposed rule also contains a statement that the District Engineer can waive mitigation requirements if other measures are deemed preferable to offset the proposed impacts to WOTUS.
General Condition 20 for Historic Properties: The proposed change requires the COE to notify a non-federal applicant if consultation in accordance with Section 106 of the National Historic Preservation Act is necessary within 45 days of the determination of a complete application.
Endangered Species Act Compliance
The COE states that it is not required to undertake programmatic consultation under Section 7 of the Endangered Species Act because the reissuance/modification of the NWPs will not affect endangered and threatened species – and any proposed activity covered under a NWP would undergo activity-specific consultation if the District Engineer makes a “may affect” determination when reviewing a proposed project. This may leave projects using NWPs vulnerable to the litigation similar to the recent Keystone pipeline lawsuits.
WHAT’S NEXT?
Public Comment: Once the proposal to reissue and modify the NWPs is published in the Federal Register, it will be open for public comment for 60 days (per the pre-publication document). WSSI will share the information regarding publication and public comment once it is available.
Regional Conditions: Because the NWPs are written to address the entire U.S., the COE district offices develop Regional Conditions that address local environmental concerns and conditions. Those Regional Conditions may suspend or revoke NWPs that are addressed under other general permits (for example, this is the case in Virginia, where the State Programmatic General Permit replaces NWPs 14 and 39). WSSI anticipates those Regional Conditions will be issued and open for a 45-day public comment period soon after the NWPs are published in the Federal Register.
State Conditions: Following the Federal Register publication, the COE districts will notify certifying agencies (states, authorized tribes, or EPA Region as appropriate) to request Water Quality Certification (WQC) for these proposed NWPs. The certifying agencies will have 60 days to issue, deny or waive WQC for the NWPs.
Timing: Given the steps that must be taken before the NWPs can go into effect, it is likely that the reissued and modified NWPs may not go into effect until late 2020 or next year.
QUESTIONS IN THE MEANTIME?
WSSI will monitor this process and will analyze the changes that may impact your projects. If you have questions about this proposed action, please contact Christie Blevins, Lauren Conner, or Mark Headly in our Gainesville office, Bob Kerr or Mark McElroy in our Hampton Roads office, or Mike Klebasko in our Maryland office.