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general permits are va lid only for a period of ve years.8 e C orps most recently revised and reissued the
NWPs in Februar y 2012.9
Both nationwide and general permits are designed to apply to categories of lling activities t hat “are
similar in nature, will cause only minimal adverse environmental eects when performed sepa rately, and
will have only minimal cumulative adverse eect on the environment.”10 Regulations governing the NW P
program are in 33 C.F.R. Part 330, General C onditions,11 and are established for the NW Ps when they
are issued. Most of the NW Ps require pre-construction notication (PCN) to the C orps, identifying the
planned action. e C orps has 45 days to review the PCN12 and provide a “verication” or authorization
under the nationwide permit. In most Corps’ Districts, the standard permit application also is used for
submission of the PCN.
Nationwide and general permits are essentially “self certifying” permits with pre-established, rather than
case-by-case, permit terms. Compliance with the sta ndards provided for the NWP satises §404. Because
many nationwide and general permits require pre-construction notication to the Corps, in reality most
actions taken under these permits obtain authorization from the Corps. e vocabulary and procedures are
dierent because the Corps is not “issuing” a new permit when it “authorizes” activities to proceed under
the exist ing nationwide or general permit. e most current N WPs are published in the Federal Register
and available on the Corps’ website.13
A. The Current Nationwide Permits and History
e most recently issued NWPs were released in early 2012, providing for 52 NWPs.14 Almost all of these
permits were the same as, or substantially similar to, the 2007 permits, which were themselves, in most
cases, modic ations of the 2002 NW Ps. e 2002 NWPs resulted from a seven-year process that signi-
cantly changed the program. By 2002, all of the NWPs were structured to cover specic activities, a nd
many NWPs had low acreage thresholds. In addition, there were new, detailed general conditions address-
ing issues such as mitigation, wetland delineation and other standards. e 2007 NWPs reorganized some
of the preexisting permits and added new permits. Many of the permits were largely unchanged from their
2002 version. e content of several permits was changed, and some terms that previously appeared in one
NWP were moved to other locations or new perm its. By 2012, the only changes to the 2007 NWPs were
the addition of two new permits (both for renewable energy projects), the removal of a third permit (for
pipeline safety repairs), and the modication of NW P 21 for surface coal min ing activities and NWP 48
for commercial shellsh aquaculture activities.
e current N WPs are available on the Corps’ website.15 e following brief sum mary of the 2012
NWPs is not comprehensive; the permits themselves must be reviewed to assure compliance with all spe-
NWP 21 (Surface Coal Mining Activities) was signicantly changed. e 2007 NW P 21 had autho-
rized unlimited quantities of ll if the activities had already been authorized, or were being processed “as
part of an integrated permit processing procedure, by the DOI, the OSM, or by states with approved pro-
grams under Title V of the Surface Mining Control and Reclamation Act of 1977.”16
e 2012 NW P 21 applies only to lls of less than one-half-acre and does not permit “valley lls”—
those “typically constructed within valleys associated with steep, mountainous terrain.17 For lls which had
been authorized under the 2007 NWP, the loss of waters must be veried by the district engineer to be no
greater than that authorized under the 2007 N WP 21 (“i.e., there are no proposed expa nsions of surface
9. 77 Fed. Reg. 10184 (Feb. 21, 2012).
11. See 33 C.F.R. §330.I.C.
13. See http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx (last visited Jan 4, 2012).
14. 77 Fed. Reg. 10184 (Feb 21, 2012).
15. See http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx (last visited Jan 4, 2012).
16. 72 Fed. Reg. 11184 (Mar. 12, 2007).
17. 77 Fed. Reg. 10274 (Feb 21, 2012).