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Army Corps Reissues and Revises Nationwide Permits under CWA Section 404 Program and NWP 12 Again Under Attack

May 24, 2022

On December 27, 2021, the U.S. Army Corps of Engineers (“Corps”) issued a final rule regarding its Nationwide Permits (“NWPs”) for dredge and fill activities (“December 2021 Rule”). See 86 Fed. Reg. 73522 (Dec. 27, 2021). The December 2021 Rule reissued 40 NWPs and issued one new NWP. The Rule also retained consequential changes made to 16 other NWPs in January 2021 and incorporated some of those changes into the newly reissued permits. Most significantly, the December 2021 Rule retained and extended to all NWPs a stringent new mitigation condition adopted in January 2021. The new and revised NWPs took effect on February 25, 2022.

In addition, as of late May 2022, a lawsuit is pending in Montana challenging and attempting to rescind NWP 12 for oil and gas pipelines. The Corps has also undertaken a formal review of that NWP, after seeking public comment about whether NWP 12 should be made more limited or restrictive. Entities seeking to use these revised or challenged NWPs should carefully review the pertinent revisions and stay apprised of the pending challenges and ongoing agency review of NWP 12.

Background on the Corps’ Nationwide Permit Program

The Corps regulates dredge and fill activities (e.g., stream crossings and wetland fills) under Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344, and Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403. In lieu of requiring individual permits for every regulated activity, the CWA authorizes the Corps to issue “general” permits, including NWPs, for categories of activities that “are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). Project proponents commonly rely on NWPs for earth-moving activities associated with real estate development, mining, oil and gas activities, water, transportation, and energy facilities, and related maintenance and repair operations. The Corps’ website has a useful summary of the 57 current NWPs, including changes from the last two rulemakings.

Many renewable energy facilities and other sustainability projects benefit from the Corps’ NWP Program. For example, the Corps has issued NWPs for land-based renewable energy generation facilities (NWP 51) and water-based renewable energy generation pilot projects, like offshore wind farms (NWP 52). As discussed below, the Corps recently issued a new NWP for water reclamation and reuse facilities (NWP 59), such as wastewater treatment plants that produce treated effluent for reuse applications like irrigation. And, of course, all these types of projects also benefit from more general NWPs, like NWP 3 (for maintenance activities), NWP 57 (for electric utility and telecom lines), and NWP 58 (for other types of non-oil and gas utility lines).

NWPs greatly reduce—but do not eliminate—the complexities of dredge and fill permitting. Some NWPs require project proponents to provide the Corps with pre-construction notification (“PCN”), which allows the Corps to evaluate NWP-eligible projects on a case-by-case basis. PCN requirements vary by NWP and project type. For example, under NWP 51, proponents of land-based renewable energy generation facilities must submit a PCN if the proposed activity will result in the loss of more than 0.10 acres of waters in the United States. In contrast, under NWP 44, all mining activities are subject to PCN.

The Corps imposes terms and conditions for projects through conditions in each NWP and in the Nationwide Permit General Conditions. For example, under General Condition 23 as revised in 2021 (see below), the Corps requires compensatory mitigation at a minimum one-to-one ratio for projects that require PCN and will result in the loss of more than 0.10 acres of wetland or more than 0.03 acres of stream bed. Each District Office may impose additional or amended conditions for the use of NWPs within its district, including project-specific conditions and region-wide PCN requirements that do not appear on the face of the NWPs. See 33 C.F.R. § 330.4(e)(1), (2). Each state also may impose additional restrictions or conditions on certain NWPs (when used within such state) through CWA Section 401 certification of the new or newly reissued NWPs. Section 401 certification nominally must occur within one year of issuance of the NWPs.

The Corps Addressed 16 NWPs in a Final Rule Issued in Early 2021

Under the CWA, the Corps may issue an NWP or other regional or statewide general permit for only five years, requiring periodic reissuance. Prior to December 2021, the Corps last issued new and revised NWPs just 11 months earlier, in January 2021. See 86 Fed. Reg. 2744 (January 13, 2021) (“January 2021 Rule”). However, the January 2021 Rule only applied to 16 NWPs. This resulted in two groups of NWPs subject to two different expiration dates—those issued or reissued in January 2021 (set to expire on March 14, 2026) and those last issued or revised in January 2017 (set to expire on March 18, 2022), see 82 Fed. Reg. 1860.

The January 2021 Rule complicated the NWP program in two other ways. First, the Corps issued revised NWP General Conditions that applied only to the 16 NWPs addressed by that Rule. Notably, the Corps set a 0.03-acre threshold for the amount of stream-bed loss that triggers required compensatory mitigation and made that mitigation requirement applicable to all 16 NWPs if and when they require PCN. Id. at 2871.

Second, due to long-pending controversies over the use of NWP 12 for extensive oil and gas pipelines, the Rule separated linear transmission projects into three categories subject to separate NWPs. NWP 12—which previously covered linear transmission projects generally—was revised to apply only to construction, maintenance, repair, and removal of oil and natural gas pipelines and associated activities. Id. at 2769. Two new NWPs were issued to cover electric and telecommunication projects (NWP 57) and water and any other utility line projects (NWP 58).

The Corps Declined to Revisit the January 2021 Rule in Its Recent Final Rule

The Corps issued another final rule in December 2021. Given that the January 2021 Rule was issued in the last days of the Trump Administration, some commentators expected the Corps to walk back changes to the NWPs, including the more lenient standards imposed on oil and gas pipeline projects under NWP 12. However, the Corps declined to revisit the NWPs and conditions issued or revised in January 2021, instead opting to restore some consistency across the NWP program. See 86 Fed. Reg. 73522, 73525.

Five important takeaways from the December 2021 Rule are as follows:

  1. The General Conditions issued or revised in January 2021 now apply to all NWPs. See 86 Fed. Reg. 73522, 73525. Most importantly, all 57 NWPs are now subject to a uniform General Condition 23, requiring at least one-to-one compensatory mitigation for any project that requires PCN and will cause the loss of more than 0.03 acres of stream bed. This is an extremely low threshold. Because streams are considered “difficult-to-replace resources,” the Corps encourages permittees to implement stream rehabilitation, enhancement, or preservation to accomplish compensatory mitigation; however, permittees also may accomplish mitigation through restoration or enhancement of riparian areas. See 86 Fed. Reg. 2744, 2871; see also 33 C.F.R. § 332.3(e)(3). Potential NWP permittees should carefully consider whether their project will trigger this mitigation requirement and, if so, determine in advance how, where, and when the requirement can be satisfied. This determination may call for pre-construction conferral with the Corps.
  2. The Corps did not reconsolidate NWPs 12, 57, and 58, and will continue to authorize dredge and fill activities associated with eligible oil and gas pipeline projects only under NWP 12 or individual Section 404 permits. Proponents of other linear transmission projects seeking to use an NWP must still seek authorization under the two distinct permits issued early last year, NWP 57 (electric utility line and telecommunication activities) and NWP 58 (utility line activities for water and other substances).
  3. The Corps reissued 40 NWPs but only amended the text of a few of them. The textual changes made in the December 2021 Rule were minor. For example, the Corps added “driveways” to the list of linear transportation projects covered by NWP 14. 86 Fed. Reg. 73522, 72535, 73574. The January 2021 Rule, on the other hand, implemented more consequential changes to the NWPs, such as eliminating provisions that used to disqualify projects from NWP authorization if they would cause the loss of more than 300 linear feet of stream bed. See 86 Fed. Reg. 2744, 2785.
  4. The Corps issued one new permit, NWP 59, which authorizes discharges of dredged or fill material from the construction, expansion, and maintenance of water reclamation and reuse facilities. See 86 Fed. Reg. 73522, 73558. The Corps recognized the importance of such facilities for climate change adaptation, including both potable and non-potable reuse applications.
  5. All existing NWPs now expire on the same date, March 14, 2026.

To some extent, the December 2021 Rule reduces the complexity and uncertainty injected into the NWP program by the January 2021 Rule—the regulated community can again look to a single set of NWPs, with uniform General Conditions and expiration dates. That said, the December 2021 Rule could greatly expand the number of projects that need to conduct compensatory mitigation by extending the expanded General Condition 23 to all 57 NWPs.

Prospective NWP permittees also should be on the lookout for any regional NWP conditions added or amended by the Corps’ District Offices, as well as any state-specific conditions added by states through their CWA Section 401 certification of the NWPs. Permittees should pay special attention to any new PCN requirements added by those supplemental conditions, which could trigger General Condition 23’s stringent mitigation requirement for NWPs that do not on their face require PCN.

The Corps’ December 2021 Rule Is Not the Final Word on NWP 12

Although the Corps declined to reconsolidate or otherwise revise NWPs 12, 57, and 58, controversy remains over the provisions of NWP 12. In May 2021, environmental organizations, including the Center for Biological Diversity and Sierra Club, sued the Corps in the District of Montana. See Center for Biological Diversity, et al. v. Spellmon, et al., No. 4:21-cv-47-BMM (D. Mont. May 3, 2021). The plaintiffs contend that reissuance of NWP 12 violated the Endangered Species Act, National Environmental Policy Act, and Clean Water Act, and they ask the court to vacate the permit. As of late May 2022, cross-motions for summary judgment are pending before Chief Judge Brian Morris.

Spellmon illustrates some of the tensions inherent in the clean energy transition. The plaintiffs take issue with the streamlined permitting afforded to oil and gas pipeline projects under NWP 12, but their arguments are not entirely unique to oil and gas issues. In an amicus brief filed on April 1, 2022, the Edison Electric Institute argued that the plaintiffs’ claims under the ESA, NEPA, and CWA threaten to undermine the entire NWP Program—and hence, the streamlined permitting process upon which renewable energy and other sustainability projects have come to rely. The U.S. Chamber of Commerce raised a similar concern in its amicus brief.

Amidst the flurry of briefing in Spellmon, the Corps published a notice of its intent to conduct a formal review of NWP 12. See 87 Fed. Reg. 17281 (Mar. 28, 2022). In the Corps’ view, “[p]revious uses of NWP 12 have raised concerns identified in Executive Order 13990, such as environmental justice, climate change impacts, drinking water impacts, and notice to impacted communities.” Id. at 17282. As part of its review, the Corps held public meetings throughout May 2022 and solicited public comment on a variety of topics, including whether further limits on NWP 12 or changes to the NWP General Conditions would be prudent. Id. at 17283. The Corps’ review will likely track President Biden’s emphasis on progressive environmental policies like environmental justice and climate change mitigation. However, further changes to the NWP General Conditions could have unintended impacts on sustainability projects, which already face more onerous mitigation requirements following the December 2021 Rule.

Entities seeking to use any NWPs should carefully review and comply with the pertinent changes to those NWPs and should also closely follow the pending challenges and ongoing agency review of NWP 12, which may very well have ramifications for the entire NWP Program.