2021 Nationwide Permits: Pre-Publication Notice

On January 5, the United States Army Corps of Engineers released a pre-publication of the final reissue of Nationwide Permits (NWPs), which reissues 12 NWPs and adds four new NWPs. It is expected to be published in the Federal Register before January 20, 2021, effective 60 days later, and expire after four years. The 40 unaddressed NWPs in this final rule remain in effect from 2017 and expire on March 18, 2022. This final rule follows the permit decision to split up NWP 12 to address environmental impacts more accurately by construction type and stage. Developers can expect to see a significant change to required NWPs as these new NWPs come into play.

Nationwide Permit Updates

Reissued Nationwide Permits

• NWP 12 – This permit authorizes the discharge of dredged or fill material into waters of the United States (WOTUS) for oil or natural gas pipeline activities. These activities must not impact more than ½ acre of WOTUS, and the preconstruction contours of the waters must not change.

• NWP 21 – This permit authorizes the discharge of dredged or fill material into WOTUS surface coal mining activities. These activities must have the authorization of the Department of the Interior, Office of Surface Mining Reclamation and Enforcement or Title V of the Surface Mining Control and Reclamation Act of 1977, must not result in more than a ½ acre loss of non-tidal waters, and not be associated with a “valley fill.’

• NWP 29 – This permit authorizes dredged of fill material discharge into non-tidal WOTUS for residential developments. NWP 29 allows the development of building foundations or building pads, or other features necessary for attendants.

• NWP 39 – Authorizes the discharge of dredged or fill material into non-tidal WOTUS for commercial and institutional developments. These activities must not result in over a ½ loss of non-tidal waters. A pre-construction (PCN) notification is required.

• NWP 40 - This permit authorizes the discharge of dredged or fill material into non-tidal WOTUS for agricultural activities. This permit does not allow the construction of aquaculture ponds.

• NWP 42 – This permit authorizes the discharge of dredged or fill into WOTUS recreational facilities. This authorization does not include the discharge of dredge or fill into non-tidal wetlands adjacent to tidal waters or losses over ½ acre of non-tidal WOTUS. These activities require a pre-construction notification.

• NWP 43 – This permit authorizes the discharge of dredged or fill material into WOTUS for stormwater management facilities that do not result in over a ½ acre loss of non-tidal WOTUS. This permit authorizes these activities to the extent that a section 404 permit is required. This authorization does not include discharge of dredge or fill material into perennial streams.

• NWP 44 – This permit authorizes the discharge of dredged or fill material into non-tidal WOTUS for all non-coal mining activities. The activities must not cause non-tidal jurisdiction wetlands over a ½ acre loss. This permit does not cover discharge into non-tidal wetlands adjacent to tidal waters, and these authorized activities require a PCN. 

• NWP 48 - This NWP authorizes the installation of containers, floats, buoys, trays, racks, nets, tubes, lines, and other structures into navigable WOTUS for commercial shellfish mariculture activities. Authorization is also provided to discharge dredged or fill material into WOTUS required for cultivating, rearing, shellfish seeding, transplanting, and harvesting activities.

• NWP 50 - Underground coal mining activities with approval from the Department of the Interior, Office of Surface Mining Reclamation and Enforcement are authorized under this permit to discharge dredged or fill material in WOTUS. These activities must not result in over a ½ loss of non-tidal WOTUS and require a PCN.

• NWP 51 – This permit authorizes land-based renewable energy generation facilities to discharge dredged or fill material into non-tidal WOTUS. This discharge must not result in over a ½ acre loss of non-tidal WOTUS, and a PCN is required.

• NWP 52 – This permit authorizes water-based renewable energy generation pilot projects to discharge materials into WOTUS. This authorization does not include coral reefs.

New Nationwide Permits

• NWP 55 – This permit authorizes the installation of long-lines, buoys, anchors, rafts, floats, racks, and other similar structures into navigable WOTUS. NWP 52 also allows the construction of other necessary facilities for these activities.

• NWP 56 – This permit authorizes the construction of structures and installation of equipment necessary for finfish mariculture activities. This permit does not allow the construction of land-based fish hatcheries or similar attendant features.

• NWP 57 – This permit authorizes the discharge of dredged or fill material into the jurisdictional waters of the United States (WOTUS) and the construction of necessary structures for electric utility lines and telecommunications activities. This permit does not include non-tidal wetlands adjacent to the United States' tidal waters.

• NWP 58 – This permit authorizes the discharges of dredged or fill material into WOTUS for utility line activities. The pre-construction water contours must see no change. This permit is for utility line activities for water and other substances- not including oil or natural gas. This permit does not authorize the draining of WOTUS.

Impacts on an Existing NWP

Note that verifications issued under the 2017 NWPs for the 12 reissued NWPs remain valid until March 18, 2022, provided the verified activities comply with the terms and conditions of any of the 12 reissued NWPs. Activities authorized under the 2017 NWPs, but do not qualify under any of the 12 reissued NWPs, continue to be valid for 12 months. These activities must have commenced (i.e., are under construction) or are under contract to begin relying upon an NWP before the NWP expires (which is 59 days from the date it is published in the Federal Register). 

NWP Authorization

These NWPs authorize impacts on jurisdictional waters of the United States protected by the Clean Water Act. Clean Water Act section 404 provides the ability to approve these actions. This Clean Water Act section outlines the United States water quality requirements. It directs the steps necessary to protect water quality and the species whose critical habitat lies within these waters. Additional permitting is required should a species granted protection by the Endangered Species Act be found in these waters.

Developers applying for these permits should know when their authorization expires and when regulations change.

New NWP Impacts on Pipeline Projects

Notable to the energy industry is NWP 12 will be limited to Oil and Gas Pipeline Activities. This action is to narrow the scope of permitting for more accurate regulation. More accurate environmental protection can occur by regulating the differences between pipeline and utility line activities and only requiring the necessary permits.

Pre-Construction Notice Standards for Pipeline Activity

The standards for oil and natural gas PCNs are projects that:

• Need a Section 10 permit (involve navigable water crossing)

• Cause more than a one-tenth of an acre loss of waters of the United States

• Involve new pipelines over 250 miles long, not including repair or maintenance activities

Impacts on Utility Line Activities

The creation of NWP 57 and 58 addresses "Electric Utility Line and Telecommunications Activities" and "Utility Line Activities for Water and Other Substances." This final rule accounts for some edits, clarifications, and addressing of public comments. Generally, the same PCN triggers and NWP thresholds remain as proposed in the draft rule published in September 2020.

NWP 12 no longer applies to utility projects and is reserved for pipeline activity. This permit decision addresses the individual processes for each type of construction and aids in more accurately addressing cumulative adverse environmental effects via these specific industry standards.

2022 UPDATE: Revised NWP

The four new permits introduced remain in the final rule in the Federal Register.

Per CWA Section 404, NWPs cannot be issued for more than five years. The NWPs reissued and new NWPs will expire on March 14, 2026, and be subject to review.