New Nationwide Permit Regulations Go into Effect
On March 19, 2012, 50 nationwide permits (“NWPs”) issued by the U.S. Army Corps of Engineers (“Corps”) for work done in navigable waters or wetlands went into effect. Forty-eight of these NWPs were reissued or revised versions of prior NWPs, and the other two NWPs were brand new. Most notably, these new and reissued NWPs impose new requirements on mining activities, while streamlining the permitting process for alternative energy projects. They also clarify the role of the Endangered Species Act (“ESA”) in assessing whether a project qualifies for an NWP, and establish a more rigorous pre-construction notification and review process.
Section 10 of the Rivers and Harbors Act and section 404 of the Clean Water Act (“CWA”) generally prohibit the discharge or fill of materials into navigable waters or wetlands without a permit from the Corps. The Corps may issue individual permits on a case-by-case basis. Or, for certain categories of activities, the Corps may issue NWPs actually or presumptively pre-approving them without the necessity of going through the individual permit process. NWPs may be issued for categories of activities that, individually or cumulatively, cause only minimal adverse environmental effects. Some of these categories require a project proponent to notify the Corps before construction (“pre-construction notification” or “PCN”) and give it the chance to object, but if there is no objection within 45 days then the project may proceed. Corps District offices may also develop their own regional conditions. NWPs are intended to simplify the permitting process for covered categories of projects so as to allow the Corps to focus its resources on projects whose environmental effects are likely to be more significant.
Even if a discharge is permitted by the Corps, individual States may still object and require case-by-case review. Section 401 of the CWA gives States a window of time to certify the NWPs, or else waive any objection. In California, the State Water Resources Control Board (“State Board”) is authorized to certify, object, or waive any objections to the reauthorized NWP program. States’ coastal management agencies, like the California Coastal Commission (“CCC”) and the San Francisco Bay Conservation and Development Commission, also must review NMPs for consistency with coastal policies under Section 307 of the Coastal Zone Management Act (“CZMA”).
Perhaps the most significant changes in the new and reissued NWPs relate to energy production. NWP 21 now authorizes new surface mining activities generally only if they will not cause the loss of more than 300 linear feet of stream beds (unless the Corps issues a written waiver as described below) or result in valley fill. This restriction is likely to exclude most new “mountaintop removal” coal mining projects from the NWP process. By contrast, the two new NWPs each authorize certain “green” energy projects: NWP 51 covers land-based renewable energy generation facilities, while NWP 52 permits water-based renewable energy generation pilot projects.
The new and reissued permits also clarify the role of the ESA in determining whether a project qualifies for an NWP. Under both the previous and current NWP regulations, a project proponent must submit a PCN to the Corps if any listed species or critical habitat “might be affected” by, or are in the vicinity of, the project. That notification gives the Corps the opportunity to decide whether formal consultation is required under section 7 of the ESA. Under the previous NWPs issued in 2007, the project could not proceed under an NWP if this process found that the proposed activity was “likely to jeopardize” listed species or damage their critical habitat. The new and reissued NWPs clarify that this exemption applies to activities that are likely to cause jeopardy or harm to listed species either “directly or indirectly.” The regulation adds a new definition of “indirect effects”—those effects that are a “reasonably foreseeable” result of the action.
The new and reissued NWPs also change the PCN process to make it more rigorous. The most significant new requirement relates to waivers. Many of the NWPs do not cover activities that would result in the loss of more than 300 linear feet of intermittent or ephemeral stream beds, but give the Corps authority to waive this limitation if the project will result in “minimal adverse effects.” The new and reissued NWPs now require the Corps to make a “written determination” of the “direct and indirect” (i.e., “reasonably foreseeable”) effects of the project if it decides to waive the limitation. Written findings may make a waiver decision easier to challenge in court.
The new and reissued permits will expire in five years (on March 18, 2017). California now has 60 days to object under the CWA, and 90 days to object under the CZMA. California has traditionally been stingy in certifying NWPs: the State Board certified only 14 of the NWPs from 2007, while the CCC refused to certify any of them.
Alicia Guerra and Peter Prows
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
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