CHAPTER 14 USE OF NATIONWIDE 404 PERMITS
| Jurisdiction | United States |
(Apr 2012)
USE OF NATIONWIDE 404 PERMITS
ERO Resources Corporation
Denver, Colorado
STEVEN DOUGHERTY is a senior ecologist and principal with ERO Resources Corporation. He specializes in wetland and riparian systems, Section 404 of the Clean Water Act compliance, Endangered Species Act compliance, and environmental issues associated with water supply.
by
Steve Dougherty
ERO Resources Corporation
Denver, Colorado
303-830-1188
sdougherty@eroresources.com
April 27, 2012
I. INTRODUCTION
Section 404 of the federal Clean Water Act (CWA) requires a permit from the U.S. Army Corps of Engineers (Corps) for nearly all discharges of dredge or fill material into any CWA-regulated water of the United States, including most wetlands (33 U.S.C. § 1344). The Corps issues two types of 404 permits: (1) individual permits and (2) general permits. Nationwide permits (NWPs) are a type of general permit and are the most widely used type of 404 permit. Other forms of general permits are regional permits, which are similar in form to NWPs but are limited in their geographic scope and are typically issued by Corps district offices. The NWPs are modified and reissued every five years. Most recently, the NWPs were modified and reissued to replace the NWPs that expired on March 18, 2012 (77 Fed. Reg. 10184 (February 21, 2012)).
This paper briefly describes: (1) what a NWP is; (2) trends in NWPs; (3) the NWP rules; (4) how NWPs should fit into an overall 404 permit strategy; (5) changes made to the NWPs that were recently modified and reissued; (6) some of the most useful NWPs; (7) NWPs most frequently used in the oil, gas and mining industries; (8) advantages to using NWPs; and (9) tips for using NWPs.
II. WHAT IS A NATIONWIDE PERMIT?
The use of NWPs and other general 404 permits is expressly authorized under Section 404(e)(1) of the CWA, 33 U.S.C. § 1344(e)(1). Section 404(e)(2) further provides that nationwide and other general permits:
1. May be issued for no longer than a five-year term, after which they must either expire or be reissued; and
2. May be modified or revoked if, after opportunity for a public hearing, the authorized activities are determined to have an adverse impact on the environment or be more appropriate for individual 404 permits.
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NWPs were designed to be a "streamlined" 404 permitting process for dredge and fill activities with minimal environmental effects, which would allow the Corps to focus its time and resources on proposed dredge and fill activities with potentially more substantial effects through the more comprehensive and complex individual permit process. Most NWPs authorize the discharge of dredge or fill material associated with specific activities that have minimal aquatic impacts (e.g., roads, maintenance of existing structures, or utility lines). A few NWPs authorize the discharge of dredge or fill material that will have minimal aquatic impacts but are not associated with specific activities (e.g., minor discharges or temporary construction, access, and dewatering). Most NWPs have impact thresholds. Impacts are defined as the loss of waters of the U.S. (i.e., permanent impacts). Some NWPs are "self-authorizing" or "non-reporting"; however, most NWPs require notification of the Corps prior to initiating the activity, referred to as a preconstruction notification (PCN). For NWPs requiring a PCN, authorization by NWP is at the Corps' discretion and the Corps can determine that the activity must be authorized by an individual permit. Exercise of this discretion is not a permit denial since the Corps has not denied a permit, but is a determination that the applicant must apply for an individual permit.
NWPs are not an exemption from Section 404 regulation. Authorizing an activity by NWP is a federal action by the Corps and as such, triggers compliance with other federal environmental laws and regulations (e.g., Endangered Species Act and National Historic Preservation Act). Authorization of an activity by NWP does not trigger compliance with the National Environmental Policy Act (NEPA). NEPA compliance for the NWPs is performed programmatically when the NWPs are reissued and modified every five years. 401 water quality certification for NWPs by each state is required and varies by state.
Multiple NWPs can be used to authorize a single and complete project, but the combined acreage loss of waters of the U.S. cannot exceed the acreage threshold of the NWP with the greatest specified impact threshold (i.e., the impact acreage thresholds of the multiple NWPs are not additive).
NWPs can also be used to authorize activities after the fact with Corps concurrence. NWP 32 can be used to authorize the discharge of fill material, including fill left in place, associated with completed enforcement actions.
NWPs and the Corps' verification of authorizations under NWPs have a shelf life. The recently reissued NWPs became effective on March 19, 2012 and will expire on March 18, 2017. On February 21, 2012, the Corps reissued 48 existing NWPs, deleted one NWP (NWP 47), and created two new NWPs, for a current total of 50 NWPs; and reissued 28 existing NWP General Conditions and added three new General Conditions, for a current total of 31 General NWP Conditions.
III. TRENDS IN THE NWP PROGRAM
Since its inception more than 30 years ago, the 404 NWP program has shown a trend of becoming increasingly complex, restrictive, sensitive to regional conditions, and
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subject to case-by-case Corps review. In addition, NWP-authorized discharges, although generally relatively small, are increasingly being subjected to compensatory mitigation requirements, which have increased the demand for and use of approved wetland mitigation banks. The 2012 NWP modifications and revisions made far fewer and less significant changes than previous NWP renewals but continued the trend of imposing strict impact thresholds (0.5-acre) and PCN requirements on the two new NWPs created (NWPs 51 and 52).
The following are trends in the NWPs:
• An increase in NWPs. In 1986 there were 26 NWPs; there are currently 50 NWPs.
• More restrictive impact thresholds. In 1986, NWP 26 (revoked in 2000) had an impact threshold of 10 acres of waters of the U.S. Currently most NWP impact thresholds are in the 0.5-acre or less range, and some NWPs cannot authorize dredge and fill activities in wetlands.
• An increase in NWPs requiring notification. With each five-year cycle of modification and renewal there is an increase in the number of NWPs that require a PCN. Regional NWP conditions further add to the increasing PCN requirement.
• An increase in General Conditions. With each five-year cycle of modification and renewal there is an increase in the number of General Conditions that limit either the applicability of NWPs or increases the information the permit applicant must provide to the Corps for NWP authorization.
• An increase in NWP Regional Conditions. These regional conditions can substantially reduce the applicability of NWPs within a region.
• Increased compensatory mitigation requirements. Compensatory mitigation is now required at a minimum one-for-one ratio for all wetland losses that exceed 0.1 acre and when a PCN is required. The Corps Final Compensatory Mitigation Rule requires that all compensatory mitigation occur prior to or concurrent to the authorized activity (http://www.usace.army.mil/cecw/pages/final/cmr.aspx).
• Increased ESA compliance. With time, the number of federally listed species has substantially increased, which has increased ESA compliance for NWPs.
• Increased National Historic Preservation Act (NHPA) compliance. With time and development, the number and age of historic properties listed or eligible to be listed in the National Register of Historic Places (NRHP) has substantially increased, which has increased NHPA compliance for NWPs.
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Historically, many project proponents would design their projects to fit within a NWP authorization and avoid the complexities of the individual permit process if possible. The trends in NWPs discussed above have many project proponents now exploring ways to design their projects to avoid all Section 404 permitting if possible.
In some situations (e.g., an environmental audit, due diligence investigation, or alleged violation), it can be important to know how the NWP program has evolved or changed because past dredge and fill activities may have met the NWP criteria and conditions when they were performed, but would not be authorized under the current NWP program. The NWPs have been modified and reissued five times since the first issuance of the NWPs in 1986. Many past activities authorized by the NWPs in force at the time did not require notification of the Corps and there may not be records of Corps notification or verification. Understanding the history of the NWP program to demonstrate past compliance using the past NWP requirements can be an important Section 404 compliance tool when needed.
IV. NWP RULES
The NWPs are published in the Federal Register at the time they are formally issued by the Corps. They can be obtained directly from the national or a district office of the Corps. The Corps' national Internet website is: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx. The home page for this website also has information regarding Internet websites of the division and district offices of the Corps, which contain information regarding existing and proposed future regional, state, and local conditions applicable to various NWPs and available regional general permits (RGPs).
A. NWP Conditions
The NWPs have: (1) a specific definition or eligibility criteria for the activity authorized, (2) specific conditions, (3) general conditions, and (4) regional...
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