Nationwide Permits and Regional Conditions Have Been Re-issued

By Chris Wright

On March 19, 2012, the U.S. Army Corps of Engineers (Corps) issued the latest Nationwide Permits (NWPs) under Section 404 of the Clean Water Act. Nationwide permits are issued by the Corps for activities in “waters of the U.S.” that have minimal impact on the environment. The Federal Clean Water Act requires the Corps to reissue the NWPs every five years. The current NWPs are valid through March 2017.

These 50 different permits authorize a broad array of activities including residential, commercial, and institutional developments, road construction, agricultural and mining activities, and renewable energy projects. The Corps has specific criteria and limitations (conditions) associated with each of the different NWPs, and most require that a pre-construction notification be given to the Corps. Issuance of a NWP also requires compliance with all other federal laws such as the Endangered Species Act, the National Historic Preservation Act, and the Magnuson-Stevens Act.

For the most part, the re-issued NWPs are very similar to the previous (2007-2012) permits. A notable exception is the revision of Regional General Conditions 4 and 5 for projects within the Seattle District requiring additional design criteria to be met before projects involving bank stabilization or installation and replacement of culverts can be permitted. Also, the Seattle District will no longer issue a NWP for impacts to greater than 300 linear feet of any type of stream bed. Previously, the Seattle District had the discretion to waive this requirement for ephemeral and intermittent streams.

The Corps has also issued two new NWPs for construction of renewable energy facilities. NWP 51 authorizes the construction of land-based facilities such as wind power generation projects. NWP 52 authorizes pilot projects for water-based projects such as hydrokinetic facilities. The new NWPs have similar provisions as other NWPs in that they cannot be used to authorize more than 0.5 acres of impacts to “waters of the U.S.” or more than 300 liner feet of stream bed.

In addition to meeting the requirements of Section 404 of the Clean Water Act, issuance of a NWP by the Corps also requires compliance with Section 401 of the Clean Water Act. This provision of the law requires permitted activities to be certified that they comply with all federal and state laws. For projects in the State of Washington, this means that the permitted activity must also comply with the Hydraulic Code and the Water Resources Act. For most projects in the State of Washington, this certification is made by the Department of Ecology.