On December 27, 2021, the U.S. Army Corps of Engineers (Corps) issued a final rule reissuing 40 existing Nationwide Permits (NWPs) with modifications and issuing a new NWP for water reclamation and reuse facilities. The 40 existing NWPs that the Corps reissued includes NWP 17, which authorizes the discharge of dredged or fill material associated with certain small hydroelectric projects.
The Corps’ NWP program authorizes certain categories of dredging and filling activities that will have only a minimal environmental effect on jurisdictional waters and wetlands. Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act, the Corps issues NWPs to authorize groups of similar categories of activities under a “general permit,” thereby eliminating the need for individual project proponents to undertake an extensive environmental permitting process.
NWPs automatically expire every five years, and the Corps re-issues them with new or revised conditions. In September 2020, the Corps issued a Notice of Proposed Rulemaking (NOPR) to replace the 2017 NWPs, and in January 2021, the Corps issued a final rule revising and reissuing 12 of the 52 NWPs that were scheduled to expire in March 2022 and issuing four new NWPs that covered certain utility line activities, including work related to the construction, maintenance, and removal of oil and natural gas pipelines.
On December 27, 2021, the Corps issued a second final rule, pursuant to which it reissued the 40 remaining NWPs not covered by the January 2021 rule. Among other things, the final rule modified NWP 17, which authorizes the discharge of dredged or fill material associated with certain small, FERC-licensed hydropower projects. In response to the Hydropower Regulatory Efficiency Act of 2013, the final rule changes the definition of “small hydroelectric power project” from 5,000 kilowatts (kW) to 10,000 kW, thereby expanding the universe of projects covered by the NWP. The final rule also made changes to other NWPs, including those covering bank stabilization, certain linear transportation projects, aquatic habitat restoration, boat ramps, coal remining activities, and the removal of low-head dams. Finally, the Corps issued a new NWP 59, which authorizes the discharge of dredged or fill material into waters of the United States for certain construction activities associated with water reclamation and reuse facilities.
The final rule accelerated the expiration date of the January 2017 NWPs to February 24, 2022, and the new and modified NWPs will become effective on February 25, 2022. For developers currently covered by an existing NWP, the final rule provides that “if the previously verified activity continues to qualify for NWP authorization under any of the 40 existing NWPs reissued in this final rule, that verification letter continues to be in effect until March 18, 2022, unless the district engineer specified a different expiration date in the NWP verification letter.”