• Mark Ryan

The Newly Proposed NWPs Are Lengthy and Complex But Worth the Read

I completed my first run at the lengthy new proposal from the Corps to renew its long list of NWPs two years before they expire. (Which may be a first. The EPA and the Corps are usually ten years late in getting those big rulemakings and permit renewals out.) You can see the proposed permits by following the link in my August 4 blogpost. There are currently 54 NWPs, and they play a very big role in regulating fill placed into jurisdictional waters.

The Corps is proposing changes to 20 of the NWPs and adding up to five new ones. I have not read all of the changes in detail, and it will take some study combined with a good knowledge of the individual NWPs to provide a thorough analysis of the Corps’ proposal. I have worked with several of the NWPs over the years, but not most of them. The description of the proposed permit mods starts at page 62 of the Corps pre-release version of the proposed mods. Once they publish in the Federal Register, and the public comment period formally starts, I will post something.

Here are my general observations. There is a lot of detail in these proposed changes that I have not covered here.

  • One big change - - and the one likely driving this early-reissuance effort - - is to NWP 12 (Utility Line Activities), which includes pipelines. See discussion starting at page 63. Pipelines will stay under NWP 12 and other utility lines will be split out into their own NWPs. The stated purpose is to reduce regulatory burden and make it easier to undertake these activities. The Corps is taking comment on the need for national standards to replace regional conditions, which would make it easier to plan lengthy pipelines crossing multiple jurisdictions. The Corps is reducing the number of conditions under which a PCN is required, making it easier for pipelines to move forward without waiting for Corps approval. See page 70.

  • Coal mining preconstruction notifications (PCNs) will become automatically approved if not acted on in 45 days. Now, the coal companies have to wait for the Corps to approve their projects, which can be quite large and have huge impacts on the environment. See page 113.

  • For NWPS 21 (surface coal mining), 29 (residential development), 40 (agricultural activities), 43 (stormwater facilities), 44 (mining), 50 (underground coal mining), 51(land-based renewable energy) and 52 (water-based renewable energy) the Corps plans to remove the 300 linear foot impact on streams and replace it with a flat ½ acre impact. That means for a small headwaters stream typically found in coal mountaintop mining areas, the mining companies can now fill 3,470 feet instead of 300. It's hard to imagine how that constitutes a minimal impact, which is a base requirement for NWPs. See page 61.

  • There are new NWPs for commercial shellfish operations.

  • The economic analysis, which starts at page 168, is interesting. It shows that the Corps expects an increase in the number of activities authorized under NWPs for most of the permit modifications, but it only shows a nationwide $8 million dollar benefit to the economy. That number seems really low considering the impact the new permits will have on fill material being placed in stream and wetlands. Also, look at the chart on page 172. It shows only a slight decrease in the number PCNs each year from 2017 with this new proposal. It would be interesting to see the number for 2016, which predate the current administration.

  • The permits have been modified to comport with the new WOTUS rule, which now excludes ephemeral and many intermittent waters that were once covered by NWPs. If the 2020 WOTUS rule is overturned or repealed, the NWPs will have to be modified.

  • The 401 cert. provisions also appear to align with the newly-proposed 401 cert. rule. See pages 139 and 165. States should read this section carefully to see if they are losing clout here.

I will likely be writing more on this proposed permit revision as I dive deeper into the various provisions. I've certainly missed much of the nuance in the proposed changes. If any of you have thoughts on the proposal, please share them with me, either by writing a comment or sending me an email to:

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