On January 13, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule modifying the Corps’ Nationwide Permit (NWP) program (the Final Rule). Consistent with the Corps’ draft rule, which was discussed in a prior VNF Alert, the Final Rule will replace several of the 2017 NWPs and add several new NWPs. As explained below, however, the Final Rule is likely to be challenged in court, and it could be withdrawn or modified by the Corps or Congress after President-elect Biden takes office.
The Corps states that the Final Rule is supported by a biological assessment concluding that the rulemaking has “no effect” on listed species and designated critical habitat under the Endangered Species Act (ESA). Despite a recent federal district court decision holding that the Corps was required to undertake a national programmatic ESA Section 7 consultation when it modifies the NWP program, the Corps concluded that it was not required to support the Final Rule with such a programmatic consultation.
Background and Overview
NWPs are general permits issued by the Corps that are designed to streamline the agency’s review of certain categories of activities in jurisdictional waters and wetlands that have no more than minimal individual and cumulative adverse environmental impacts. The ultimate goal of the NWP program is to establish standard terms and conditions for protection of jurisdictional waters and wetlands, while also allowing the activities to proceed with minimal delay and paperwork.
NWPs automatically expire every five years. The Corps usually reissues the NWPs on a five-year cycle. The current 2017 NWPs are not scheduled to expire until March 18, 2022, but the Final Rule would reissue and revise twelve of the NWPs (NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, and 52) and add four new NWPs (NWPs 55, 56, 57, 58) nearly two years ahead of schedule.
In its draft rule, the Corps proposed that in addition to reissuing certain NWPs in revised form, it would also reissue all “remaining NWPs,” apparently without modification, “so that all of the NWPs remain on the same 5-year approval cycle.” In its Final Rule, the Corps abandoned that approach, stating that it is not reissuing or modifying the forty 2017 NWPs unaffected by the Final Rule. With the Final Rule, the NWPs will be split into two separate five-year cycles for expiration and reissuance. For the 16 NWPs covered by the Final Rule, the Corps also reissued the general conditions and definitions, with some changes. As explained below, several of the changes relate to NWPs for various kinds of utility lines.
Changes to the NWP Program for Utility Lines
The Corps’ decision to reissue this set of NWPs early was driven in part by recent court decisions that partially enjoined the use of two NWPs—NWP 12…