U.S. Army Corps Proposes to Reissue and Modify Nationwide Permits

On August 3, 2020, the U.S. Army Corps of Engineers (Corps) released a prepublication version of a proposal to reissue and modify its existing 52 nationwide permits (NWPs) and issue five new NWPs. The Corps issues NWPs to authorize categories of activities in jurisdictional waters and wetlands under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act that will result in no more than minimal individual and cumulative adverse environmental effects. The Corps typically updates NWPs every five years, and the current NWPs are scheduled to expire on March 18, 2022. However, in response to President Donald Trump’s March 18, 2017, Executive Order 13783, which directed the heads of federal agencies to review regulations that potentially burden domestic energy production, the Corps identified nine NWPs that could be modified. In addition to revising those nine NWPs, the Corps is proposing to reissue the remaining NWPs so that all NWPs are on the same five-year cycle.

Perhaps most significantly, the Corps is proposing to divide NWP 12, which authorizes utility line activities, into three separate NWPs. These revisions are notable due to recent litigation over NWP 12. If the revisions are finalized, the current NWP 12 would authorize only oil and natural gas pipeline activities. Two new NWPs would authorize activity associated with other utility lines. Of the remaining five new proposed NWPs, two would authorize seaweed and finfish mariculture activities, and one would authorize discharges of dredged or fill material associated with water reuse and reclamation facilities.

Public comments will be accepted until 60 days from the date of the proposal’s publication in the Federal Register.