Nationwide permits (NWPs) are general permits issued on a nationwide basis to streamline the Department of the Army (DA) authorization of activities that result in minimal individual and cumulative adverse effects on the aquatic environment. In order to qualify for the use of a NWP, perspective permittees must comply with all of the terms, general conditions (GCs), and regional conditions (RCs) of the NWP, including any requirements for the submittal of a pre-construction notification (PCN). Many of the NWPs, GCs and RCs require the submittal of a PCN before commencing the work, to ensure that activities authorized by those NWPs have minimal individual and cumulative adverse effects on the aquatic environment. If the proposed activity complies with the terms, GCs and RCs of the NWP, a DA NWP verification letter will be sent to the prospective permittee. The NWP verification letter may include additional case specific conditions Special Conditions (SC) to ensure the activity will not result in no more than minimal individual and cumulative adverse effects. The verification letter will indicate the specific period of time that the verification is valid, which is generally until the NWPs expire (i.e. March 18, 2022), unless the NWP authorization is modified, suspended, or revoked. Per regulation, the NWPs must be reissued every five years. The reissuance process involves a full interagency and public interest review.
Grandfathering Provision for Expiring NWPs
For any activities authorized under the 2012 NWPs, that have commenced or are under contract to commence by March 18, 2017, the permittee will have one year, until March 18, 2018, to complete those activities subject to the terms, GCs, and RCs of the 2012 NWPs (see 33 CFR 220.6(b)). Activities previously authorized under the 2012 NWPs that have not commenced or are not under contract to commence by March 18, 2017, will require re-authorization under the 2017 NWPs, provided those activities still comply with the terms, GCs, and RCs of the 2017 NWPs. If those activities no longer qualify for NWP authorization because they do not meet the terms and conditions of the 2017 NWPs (including any RCs imposed by Division Engineer), the prospective permittee will need to obtain an individual permit (Letter of Permission or Standard Permit) or seek authorization under a Regional or Programmatic General Permit if available.
2017 Nationwide Permit Reissuance
On January 6, 2017, the Corps published the notice in the Federal Register announcing the reissuance of all existing NWPs, GCs and definitions, with some modifications. The Corps also issued two new NWPs and one new GC. The NWPs took effect on March 19, 2017, and will expire on March 18, 2022.
The Federal Register notice can be found here. The Corps has also issued final decision documents for the new and reissued NWPs. These documents are available at www.regulations.gov at docket number COE-2015-0017-0656. Furthermore, the national NWP decision documents will be supplemented by Division Engineers to address decisions concerning the addition of regional conditions to the NWPs.
General Condition 27 of the NWPs requires that the activity comply with any RCs that may have been added by the Division Engineer (33 CFR 330.4(e)). The South Pacific Division has approved the final San Francisco District RCs which can be found here.
Section 401 Water Quality Certifications
For any activity that may result in a discharge of a pollutant into waters of the U.S., prospective permittees must obtain a Section 401 Certification, or waiver thereof, from the appropriate State, authorized Tribe, or the Environmental Protection Agency (EPA) for activities located on tribal lands in which a tribe does not have Section 401 Certification authority. Section 401 Certification, or waiver, is required prior to the commencement of any activity under a NWP. In accordance with GC 25, where States and authorized Tribes, or EPA have not previously certified compliance of an NWP with Section 401 of the Clean Water Act, individual 401 Water Quality Certification must be obtained or waived (see 44 CFR 330.4(c)). The terms and conditions of individual 401 Water Quality Certifications are incorporated into the NWP verification by becoming a Special Condition.
California State Water Resources Control Board (SWRCB): On March 17, 2017, the SWRCB issued a Section 401 WQC certifying 14 NWPs (NWPs 1, 4, 5, 6, 9, 10, 11, 12, 20, 22, 28, 32, 36, and 54) with conditions, and denying 38 NWPs (NWPs 2, 3, 7, 8, 13-19, 21, 23, 24, 25, 27, 29-31, 33-35, 37-46, and 48-53). NWPs 5, 6, 23, 33, 38, 43, 46, and 54 require notification and reporting requirements. For all NWPs that have been denied, individual Section 401 WQC is required.