On January 5, 2021, the U.S. Army Corps of Engineers (Corps) released a prepublication version of its final rule reissuing and modifying 12 existing Nationwide Permits (NWPs) and issuing four new NWPs. NWPs authorize activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899 when those activities will result in “minimal individual and cumulative adverse environmental effects.” In addition to finalizing 16 NWPs, the rule also changed general conditions and definitions associated with those NWPs. Through this action, the Corps did not reissue or modify the remaining 40 existing NWPs, which will remain in effect until March 18, 2022.
The majority of reissued NWPs were modified to remove the 300-linear-foot limit for losses of stream bed. The utility line NWP was split into three separate NWPs — one for oil or natural gas pipeline activities, and two new ones for electric utility line and telecommunications activities and utility line activities for water and other substances. Preconstruction notification obligations associated with utility lines were also reduced. The remaining two new NWPs concern seaweed mariculture activities and finfish mariculture activities. The 16 NWPs will go into effect 60 days after publication. If the final rule is not published before January 20, the Biden administration could prevent it from becoming effective. This is a possibility as the final rule faces opposition from environmental groups.
This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.