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January 11, 2017
Corps leaves WOTUS out of reissued NWPs

There has been considerable interest in how the Army Corps of Engineers (Corps) would address the Corps/EPA June 2015 final Definition of Waters of the United States (WOTUS) rule in its reissued set of nationwide permits (NWPs). Now published, the Corps’s final NWP rule essentially disassociates itself from the WOTUS rule pending the outcome of litigation. The reissued NWPs and two new NWPs take effect March 19, 2017.

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What are NWPs?

The NWPs authorize activities that have no more than minimal individual and cumulative adverse environmental effects. A variety of activities are authorized, including installing aids to navigation, utility line crossings, erosion control, road crossings, stream and wetland restoration activities, residential developments, mining activities, commercial shellfish aquaculture activities, and agricultural activities.

Some NWP activities may proceed without notifying the Corps as long as those activities comply with all applicable terms and conditions of the NWPs, including regional conditions imposed by division engineers. Other NWP activities cannot proceed until the project proponent has submitted a preconstruction notification to the Corps. For most NWPs requiring preconstruction notifications, the Corps has 45 days to notify the project proponent whether the activity is authorized by NWP(s).

NWPs are effective for 5 years and cannot be extended (i.e., they must be reissued or removed).

New NWPs and general condition

In the current action, the Corps is reissuing 50 existing NWPs, along with general conditions and definitions, with some modifications. The Corps is also issuing two new NWPs and one new general condition. The two new NWPs authorize the removal of low-head dams and the construction and maintenance of living shorelines. The new general condition—GC 31: Activities Affecting Structures or Works Built by the United States—address activities required under Section 14 of the Rivers and Harbors Act of 1899 to secure permission from the secretary of the Army for the alteration or occupation or use of federally authorized civil works projects built by the Corps.

WOTUS decision

The Corps takes the position that because of litigation and a stay the court has imposed on the WOTUS rule, the final NWPs must be governed by the preexisting definition of waters of the United States, which was published in 1986, as well as by guidance the Corps developed following several U.S. Supreme Court opinions.

The Corps did not agree with comments received after it proposed the NWP rule in June 2016, which recommended that the Corps should wait until the case against the WOTUS rule is resolved before finalizing the NWP rule. The Corps explained that this is not possible, since the existing (2012) NWPs expire May 18, 2017, and by law cannot be extended. If the Corps did not reissue the NWPs and litigation was not resolved by that date, no NWPs would be available.

In recognition of the uncertain status of the WOTUS definition, the Corps’s final rule includes changes to the text of some NWPs and general conditions, so they do not cite the new WOTUS regulatory language at 33 CFR part 328, including new definitions of adjacent and ordinary high-water mark, terms that are central to the legal battle to vacate WOTUS. The Corps recognizes that this is likely a temporary solution and is prepared to act once the legal picture clarifies.

“If the Corps determines that the NWPs issued today need to be modified to address changes in the geographic scope of Clean Water Act jurisdiction or other regulation changes, the Corps will conduct rulemaking in accordance with the Administrative Procedure Act prior to making those changes,” states the Corps.

The Corps’s reissued NWP rule was published in the January 6, 2017, FR.

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