Proposed Nationwide Permits under the Clean Water Act

Posted Wednesday, June 29th, 2016

On June 1, 2016, the U.S. Army Corps of Engineers (Corps) published its proposal in the Federal Register for reissuing nationwide permits (NWPs) under section 404 of the Clean Water Act for the discharge of dredged or fill material in waters of the United States.   The Corps is requesting comments on all the NWPs, general conditions, definitions, regional conditions, and the NWP application procedures, including pre-construction notification.  Comments on the draft are due August 1, 2016.  The Federal Register notice, index of general conditions, and June 5, 2016, draft of the proposed revised regional conditions can be found here.

NWPs are general permits streamlining authorization for regulated activities within waters of the United States that have only minimal individual and cumulative adverse environmental effects. For some NWPs, the project component may proceed without notice as long as the applicant complies with all the terms and conditions of the NWP, including regional conditions. Other NWPs require applicants to notify the Corps of their proposed activities before conducting the regulated activities. The notification takes the form of a pre-construction notification (PCN). The purpose of the PCN is to provide the Corps an opportunity to review a proposed NWP activity to ensure that the proposed activity is authorized and to impose any additional conditions deemed necessary. NWPs are issued on a nationwide basis and last for five years. The current NWPs issued by Corps are set to expire on March 18, 2017. The Corps is providing notice that they are beginning the process for reissuing the NWPs so that the reissued NWPs will be in effect when the current NWPs expire.

The Corps is proposing to reissue the 50 existing NWPs with changes to some, and issuing 2 new NWPs.   The new NWPs would authorize (1) construction and maintenance of living shorelines and (2) the removal of low-head dams.  The Corps is also requesting comments on a number of issues, most significantly, whether the half-acre limit of wetlands/waters impacts for use of several of the NWPs should be increased or changed in light of the revised definition of Waters of the United States (33 C.F.R. part 328, stayed pending appeal), which many believe has significantly increased the extent of waters that are subject to federal regulation under the Clean Water Act.  Additionally, the Corps is proposing to create a standardized PCN form, which will be the subject of a separate Federal Register notice.

Please contact Susan Stephens  should you have any questions about the NWP proposal.


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