Corps Announces Changes to Clean Water Act Permit Program

On January 13, 2021, the U.S. Army Corps of Engineers (Corps) announced revisions to its Nationwide Permit (NWP) Program under the Clean Water Act.  The final rule reissues 12 existing NWPs and creates four new NWPs.

Major changes to existing NWPs include removing limits on stream loss measured in linear feet from 10 NWPs and dividing coverage for various types of linear utility infrastructure into three separate permits. These new and reissued NWPs are slated to take effect on March 15, 2021.

Forty other NWPs issued in 2017 and not impacted by this final rule will remain in effect until March 2022 unless subject to earlier modifications to the NWP program by the Biden administration.

The four new NWPs are as follows:

• NWP 55 & 56 — Seaweed and Finfish Mariculture — provides for the construction of certain structures in marine waters to grow seaweed and cultivate fish.

• NWP 57 — Electric Utility Line and Telecommunications Activities — for those activities necessary to construct, maintain, repair, and remove electric utility lines, telecommunication lines, and associated facilities in waters of the U.S. (WOTUS), except those that would result in the loss of greater than 1/2-acre of WOTUS.

• NWP 58 — Utility Line Activities for Water and Other Substances — Addressing activities necessary for the construction, maintenance, repair, and removal of utility lines for water and other substances, excluding oil, natural gas, products derived from oil or natural gas, and electricity. This NWP also covers associated utility line facilities in WOTUS that do not result in a loss greater than 1/2-acre.

As the modifications arose in the Trump Administration, but are set to take effect under the Biden Administration, it is certainly possible, if not probable, that the rule could be modified or rescinded at the executive level or invalidated by Congress through the Congressional Review Act. In fact, on January 20th, President Biden’s Chief of Staff, Ron Klain, issued a Regulatory Freeze Memorandum to the Heads of Executive Departments and Agencies, the impact of which is to suggest a 60-day postponement in effective date to those rules already published in the Federal Register.

Furthermore, if the NWPs become final, opponents can always challenge them in court, a familiar landing spot for debates over the breadth and scope of the NWP program.