By Janice Schneider, Laura Godfrey, Buck Endemann, Josh Bledsoe, and Jennifer Roy

On February 21, 2012, the U.S. Army Corps of Engineers (Army Corps) reissued 48 of its 49 existing nationwide permits (NWP) and also announced two new NWPs applicable to land- and water-based renewable energy development projects.[1]  The Army Corps is issuing the NWPs pursuant to Section 404 of the Clean Water Act, which governs discharges into “waters of the United States,” including wetlands (jurisdictional waters).[2] 

The Army Corps requires a Section 404 permit when development activities discharge dredged or fill materials into jurisdictional waters, such as filling in a streambed to build an access road to a wind turbine.  The Army Corps has developed various NWPs designed to expedite approval of specific types of activities deemed to have minimal impacts.  To be eligible for a NWP authorization, a project must fit into a category for which a NWP already exists and typically impact less than one-quarter acre or one-half acre of jurisdictional waters (depending on the applicable NWP).

This month’s Army Corps announcement results in important changes that could impact already-approved projects or projects currently under review by federal and state agencies:

  • Grandfather provision: Activities that are authorized under existing NWPs that have commenced or are under contract to commence by March 18, 2012, will have until March 18, 2013, to complete the activity under the terms and conditions of the existing NWP.  Activities that will not be complete by March 18, 2013, must seek authorization under the new NWPs.
  • Definition of Single and Complete Project:  The Army Corps clarified what constitutes a single and complete project for purposes of calculating the relevant loss of waters of the United States.  For linear projects (projects constructed for the purpose of moving goods or services from A to B, such as transmission lines), the definition of a single and complete project has been clarified to mean the portion of the project that includes each crossing of a single waterbody at a specific location.  As such, there may be many “single and complete projects” along the length of a linear project.  In contrast, a single and complete non-linear project is generally defined as the entire project.[3]  For a portion of a non-linear project to be considered a separate single and complete project, it must have independent utility from other portions of the non-linear project.
  • General Condition 19:  The Army Corps included a new general condition, providing that a developer is responsible for applying and obtaining any appropriate permit from the U.S. Fish and Wildlife Service if any activities regulated by the Army Corps would result in the “take” of a migratory bird or bald or golden eagle.  Based on the Final Rule and comments, the general condition appears to only clarify that it is the responsibility of the permittee, not the Army Corps, to obtain the necessary permits. It does not appear to require such permits as a pre-requisite to the issuance of the authorization.  It will be important to monitor how this general condition is ultimately implemented.  Project developers should also be aware of Regional Conditions adopted by district engineers that can influence the applicability and operation of the NWPs.
  • New NWP 51:  NWP 51 applies to the construction, expansion, or modification of land-based renewable energy generation projects, including solar, wind, biomass, and geothermal projects.  Utility lines transporting renewable energy from the project may be separately authorized under NWP 12, and their maintenance may be authorized under NWP 3.
  • New NWP 52:  NWP 52 applies to water-based wind and hydrokinetic renewable energy pilot projects, which is defined as an experimental project where the renewable energy generation units will be monitored to collect information on their performance and environmental effects.  For each project, no more than ten generation units are authorized.  At the pilot project’s completion, all structures must be removed, unless they become authorized separately by the Army Corps.
  • Department of Defense Notification Requirements:  For any activity that involves the construction of a wind turbine, solar tower, or overhead transmission line, a copy of any required pre-construction notification[4] and NWP verification[5] will be provided by the Army Corps to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.

The new NWPs will become effective on March 19, 2012.

[1]  77 Fed. Reg. 10184 (Feb. 21, 2012).
[2]  33 U.S.C. § 1344. 
[3]  77 Fed. Reg. at 10290.
[4]  Pre-construction notification allows district engineers to review proposed NWP activities to ensure that they will result in minimal adverse impacts.  See 77 Fed. Reg. at 10188.  A project developer is required to give pre-construction notification under some NWPs.
[5]  NWP holders may, and in some cases must, request NWP verification, a confirmation from a district engineer that an activity complies with the terms and conditions of an NWP.  See 33 C.F.R. § 330.6.