AGC Invites Members to Share Feedback 

On June 1, 2016, the U.S. Army Corps of Engineers (Corps) published a proposal to reissue and modify the nationwide (general) permits (NWPs). The Corps issues NWPs to authorize a variety of construction operations in “Waters of the U.S.” (WOTUS) that have minimal individual and cumulative adverse environmental effects. Based on recent data, the Corps has authorized roughly 30,000 projects through the NWP program each year.  Public comments are due by August 1.  AGC invites members to share their feedback by using AGC’S NWP DISCUSSION DOCUMENT.

NWPs are general permits issued by the Corps under Clean Water Act Section 404.  They authorize (on a nationwide basis) discharges of dredged or fill material into WOTUS, including activities associated with road crossings, utility lines, stormwater management, wetland and stream restoration, coal mining and renewable energy generation. General permits are intended to allow certain activities to proceed with little delay or paperwork.  However, NWPs are valid only if all the terms and conditions are met, including regional conditions. Otherwise, an individual (or in some cases regional) permit is required.  Separate local permits and authorization also may be required.

Specifically, the Corps is proposing to reissue 50 NWPs, as well as the general conditions and definitions. The Corps is also proposing to issue two new NWPs and one new general condition. Notable changes to the NWPs, general conditions, and definitions that may impact commercial construction work performed by AGC members are highlighted in AGC’S NWP DISCUSSION DOCUMENT.  A complete summary of the proposed modifications are tabulated in the Corps’ summary table for the proposal.  In addition, AGC members should be aware that the Corps is seeking comment on changes in the overall application of the NWPs – which could include changes in the relationship between the NWP program and the definition of WOTUS (which defines the scope of the Corps’ jurisdiction), changes in acreage and linear foot limits for certain NWPs, changes in the pre-construction notification (PCN) thresholds, changes in how compensatory mitigation is conducted, and changes in the Corps’ use of waiver provisions, as summarized in AGC’S NWP DISCUSSION DOCUMENT.

AGC is preparing to submit comments to the Corps on the proposed NWPs in advance of the August 1, 2016, deadline.  Please use AGC’S NWP DISCUSSION DOCUMENT to share your feedback with AGC.  You may submit your own/company comments directly to the Corps via e-mail at:NWP2017@usace.army.mil or through the Federal eRulemaking portal at www.regulations.gov (Docket ID No. COE-2015-0017).

The current set of NWPs expires on March 18, 2017. According to the proposal, activities that were authorized by the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, will have one year (i.e., until March 18, 2018) to complete those activities under the terms and conditions of the 2012 NWPs.  Previously authorized activities that continue beyond March 18, 2018, will require re-authorization under the 2017 NWPs.  [Note: Some permittees will not need to seek re-authorization if their verification letters include specific language, per 33 C.F.R Part 330.6(a)(ii), stating verification will remain valid if the NWP authorization is reissued without modification or the activity complies with any subsequent modifications of the NWP authorization.]

Visit the Corps’ Nationwide Permits Web page for more information.  Also, the U.S. Environmental Protection Agency (EPA) maintains a Web page that provides a chronology of NWPs issued to date and related materials.  Additional information about the Corps’ regulatory program can be found at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.

If you have additional questions, please contact Leah Pilconis at pilconisl@agc.org.