Notable Changes to the U.S. Army Corps of Engineers 2017 Reissued Nationwide Permits

Posted on May 8, 2017

download (1)The U.S. Army Corps of Engineers’ (USACE) Nationwide Permit (NWP) program involves a streamlined permitting process for “general activities” that involve discharges of dredged or fill material in jurisdictional wetlands and waters. In order to qualify for these general permits, the activities must cause “no more than minimal” adverse environmental effects and have minimal cumulative effects on the environment. The nationwide permits are reissued every five years. The 2017 permits became effective on March 19, 2017. If you have coverage under an existing 2012 permit, and you have entered into a contract to commence construction or have commenced construction by March 18, 2017, you will have one year to complete the project under the 2012 permit terms and conditions.

All previous NWPs were reissued and two new permits were added. The new permits are NWP 53, which authorizes the removal of low-head dams, and NWP 54, which authorizes the construction and maintenance of living shoreline in coastal waters. Overall, there were no major changes to the NWPs; however, there were some changes to the general conditions of the NWPs. The general conditions are applicable to all NWPs. The new NWPs, most commonly used changed NWPs, and changed general conditions are summarized below. The USACE has also published a table summarizing the 2017 NWPs.

NWP 3 Maintenance
Under (a) for repair, rehabilitation, or replacement of previously authorized, currently serviceable structures or fills, the USACE clarified that the NWP authorizes removal of previously authorized structures or fills and that no documentation of the previous authorization is necessary.

Under (b) for discharges associated with removal of accumulated sediments and debris in the vicinity of existing structures, including intake and outfall structures and associated canals, the USACE removed the provision allowing the placement of new or additional riprap to protect the structure but stated that riprap may be authorized under NWP 13.

Under (c) for temporary structures, fills, and work necessary to conduct maintenance activity, the USACE clarified that the NWP authorized the use of temporary mats, if regulated by the district.

NWP 12 Utility Line Activities
The “Single and Complete Linear Project” definition has been left in place to allow each separate and distant crossing of waters to be authorized by a separate NWP, as is the current practice for large linear utility projects. The USACE stated that the decision as to what will constitute a “separate and distant” crossing will be made on a case-by-case basis. The cumulative adverse environmental effects of the whole project can be no more than minimal. In order to evaluate this, NWP 12 applicants are now required to submit in their Pre-Construction Notification (PCN) information on all proposed crossings including those that do not trigger the need for a PCN. If one or more crossings do not qualify under NWP 12, the entire utility line project may require an individual permit. However, portions of the utility line may be able to be permitted under NWP 12 if the applicant can show that those portions have independent utility from the portions that require an individual permit. The USACE recommends that NWP 12 applicants identify in their PCNs those portions of the entire utility line that may have independent utility in case one or more crossings are determined not to meet the NWP 12 thresholds.

Other changes to NWP 12 include the authorization of the use of temporary mats including timber mats. The District Engineers retain the discretion on a case by case basis to determine whether use of temporary timber mats requires USACE authorization.

Temporary structures are now authorized for the remediation of inadvertent returns of drilling fluids through sub-soil fractures during horizontal directional drilling operations. Remediation must occur as soon as practicable. Additionally, optic cables and other lines that communicate “through the internet” are considered utility lines under NWP 12.

NWP 13 Bank Stabilization
The USACE clarified that this NWP authorizes many types of bank stabilization techniques not just bulkheads and revetments. They also added a statement that native plants must be used for stabilization activities.

NWP 14 Transportation Projects
The USACE added some clarifying notes regarding the submittal of PCNs. Similar to NWP 12, applicants must include any other NWP(s), regional general permit(s), or individual permit(s) used or planned to be used for all related projects, including other separate and distant crossings that require USACE authorization but do not require a PCN. They also clarified that NWP 14 does not authorize storage buildings, parking lots, train stations, aircraft hangars, or other non-linear transportation features.

NWP 27 Habitat Restoration and Enhancement
The USACE added a requirement to use an ecological reference to plan, design, and implement the NWP activity. “Ecological reference” is defined as “a model used to plan and design an aquatic habitat and riparian area restoration, enhancement, or establishment activity.” The removal of stream barriers such as undersized culverts, fords, and grade control structures were added to the list of examples of authorized activities. This NWP can no longer be used for bank stabilization, stormwater management, or best management practice facilities constructed to meet TMDLs (total maximum daily loads) for Section 303(d) waters.

NWP 29 Residential Development
This permit was not changed except that the ACOE clarified that any losses of stream bed are applied to the ½ acre limit. This was already the case in several districts as mandated by their regional conditions.

NWP 33 Temporary Construction, Access and Dewatering
The USACE clarified that a PCN is only required for activities in navigable Section 10 waters under this NWP. If the project is not located in a Section 10 water, then a PCN is not required.

NWP 35 Maintenance Dredging of Existing Basins
The only change is the addition of the requirement that dredged material must be deposited in areas with no waters of the U.S. unless authorized by a separate permit.

NWP 39 Commercial and Institutional Developments
Like NWP 29, the USACE clarified that any losses of stream bed are applied to the ½ acre limit. Additionally, wastewater treatment facilities were added to the list of examples of attendant features that are authorized by this NWP.

NWP 51 Land Based Renewable Energy Generation Facilities
The USACE lowered the PCN threshold to 1/10 acre. They also clarified that stream bed losses are included as part of the ½ acre limit.

NWP 52 Water Based Renewable Energy Generation Pilot Projects
The USACE broadened its regulatory scope for this NWP by adding wave energy projects and floating solar panels in Section 10 waters to the list of activities authorized by the NWP. Like the other NWPs, they clarified that stream bed losses are included as part of the ½ acre limit. They also added a note stating that hydrokinetic renewable energy generation projects authorized by the Federal Energy Regulatory Commission under the Federal Power Act of 1920 do not require separate authorization under Section 10 of the Rivers and Harbors Act of 1899.

General Conditions (GC) Changes
The general conditions apply to all the NWPs. The USACE made a few changes and added one new general condition.

Activities Affecting Structures or Works Built by the U.S. New General Condition 31
This new condition was inserted into the general conditions and pertains to projects that may affect federal projects. This new condition states that any NWP activity that also requires permission from the USACE under a Section 408 permit because it will alter or temporarily or permanently occupy or use a USACE-authorized civil works project, must submit a PCN and is not authorized until the USACE issues the Section 408 permit and the written NWP verification.

Tribal Rights – General Condition 17
The threshold and scope of the analysis of the effects of a project on tribal rights and resources has been lowered and broadened, respectively. The new GC 17 requires “no more than minimal adverse effects”. If the project/activity has more than a minimal adverse effect on tribal rights, then an individual permit is required. GC 17 scope now includes “protected tribal resources” in addition to treaty rights. “Protected tribal resources” are defined as “any natural resources and properties of traditional or customary religious or cultural importance, either on or off Indian lands, retained by, or served by or for, Indian tribes through treaties statutes, judicial decisions, or executive order including tribal trust resources.”

Endangered Species Act (ESA) – General Condition 18
GC 18 requires a PCN for projects that “might affect” listed species and/or their designated critical habitat. In the preamble, the USACE states that they “established the ‘‘might affect’’ threshold because it is more stringent than the ‘‘may affect’’ threshold for Section 7 consultation in the U.S. Fish and Wildlife Services (USFWS) and National Marine Fisheries Service’s (NMFS). The word ‘‘might’’ is defined as having ‘‘less probability or possibility’’ than the word ‘‘may’’ (Merriam Webster Dictionary)” (USACE, 2017). The USACE added definitions for direct and indirect effects. “Direct effects” are defined as “effects that are caused by the activity and occur at the same time and place.” “Indirect effects” are defined as “Effects that are caused by the activity and are later in time or farther removed in distance, but are still reasonably foreseeable.

The USACE added a new paragraph (f) to state that ESA consultation has been satisfied when a non-federal permittee has a valid ESA incidental take permit and an approved Habitat Conservation Plan that covers a project included in the proposed NWP activity.

Historic Properties – General Condition 20
This GC was modified to include “designated tribal representative” among the options for the USACE to request assistance from regarding information on the location of potential historic resources.

Mitigation – General Condition 23
The USACE kept the 1/10-acre threshold for the requirement of compensatory wetland mitigation. The District Engineer is allowed the discretion to waive the mitigation requirement. The new condition clarifies that District Engineers can consider the type of aquatic resource, and whether it is natural or man-made, when deciding if compensatory mitigation should be required. The new GC also states that “compensatory mitigation for losses of streams should be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult-to-replace resources”. A complete mitigation plan is not required. The plan only needs to provide the baseline information and a description of the number of credits to be provided. A new paragraph (f) to state that the amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects was added.

Pre-Construction Notification – GC 32
The USACE clarified information that is not required for a complete PCN application. An approved or preliminary jurisdictional determination (PJD) is not required. A floodway analysis is not required, even if the activity is located in a FEMA mapped floodway. A complete mitigation plan is not required. The plan only needs to provide the baseline information and a description of the number of credits to be provided.

The USACE added a note that when responding to a PCN, the USACE should make only one request for additional information. Except for NWPs 21, 49, and 50, and unless the project would require Endangered Species Act Section 7 consultation and/or National Historic Preservation Act Section 106 consultation, if the applicant has not received a verification reply from the USACE within 45 days, he or she may assume that the project is authorized, consistent with the information provided in the PCN. The USACE may later revoke or suspend the activity, however.

As previously stated, each USACE district has the right to impose regional conditions in their district that may be more restrictive than those published under the Nationwide Permits.  The regional conditions of the districts have been recently finalized. If you have a project that may require a permit from the USACE, please contact Environmental 360 Senior Biologist Amy Egoroff to provide assistance and answer any questions you may have.

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