2017 Nationwide Permits

David Olson

Regulatory Program Manager

Headquarters, U.S. Army Corps of Engineers

March 28, 2016

Presentation overview

Regulatory program and Nationwide Permit background

Regional tailoring of Nationwide Permits Schedule

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Regulatory Program Authorities

Construction and dredging Section 10 Rivers and Harbors Act

Discharge of dredged and fill material Section 404 Clean Water Act

Transport and discharge of Dredged material Section 103 Ocean Dumping Act

What are Nationwide Permits? General permits issued by Corps Headquarters to

authorize activities across the country ◦ Categories of activities with no more than minimal individual and

cumulative adverse environmental effects ◦ Reissuance process every 5 years ◦ Rulemaking activity, with interagency review under EO 12866

managed by the Office of Management and Budget

Authorize: ◦ Discharges of dredged or fill material into waters of the United

States Section 404 of the Clean Water Act

◦ Structures or work in navigable waters Section 10 of the Rivers and Harbors Act of 1899

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What are Nationwide Permits? Congressional intent (Clean Water Act Section 404(e)) ◦ Streamlined authorization process for small activities with no

more than minimal adverse environmental effects

Authorize ~35,000 activities per year (reported) plus ~30,000 non-reporting activities

First issued in 1977 ◦ 15 nationwide permits

Current nationwide permits issued on February 13, 2012 ◦ 50 nationwide permits 31 general conditions

◦ Effective on March 19, 2012 ◦ Expire on March 18, 2017

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Nationwide Permits Authorization by Nationwide Permit ◦ Some activities can proceed without notifying Corps ◦ Other activities require notifying Corps before construction

(submit a pre-construction notification, or PCN) If loss of waters less than 1/2-acre, Corps-only review If loss of waters greater than 1/2-acre, Corps coordinates with

agencies

If authorized, district issues verification letter ◦ With or without special conditions to ensure no more than

minimal adverse environmental effects

If district determines adverse environmental effects are more than minimal, notifies applicant that individual permit is required

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Nationwide Permits

Before the NWP activity proceeds: ◦ If it involves discharges into waters and

wetlands subject to Clean Water Act jurisdiction, requires water quality certification from State, Tribe, or EPA (or waiver) ◦ If in coastal zone, requires Coastal Zone

Management Act consistency concurrence for State (or presumption of consistency)

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Minimal adverse environmental effects determination factors

Direct and indirect effects caused by the NWP activity Environmental setting in the vicinity of the NWP activity Type of resource that will be affected by the NWP activity Functions provided by the aquatic resources that will be

affected by the NWP activity Degree or magnitude to which the aquatic resources

perform those functions Extent that aquatic resource functions will be lost as a result

of the NWP activity (e.g., partial or complete loss) Duration of the adverse effects (temporary or permanent) Importance of the aquatic resource functions to the region

(e.g., watershed or ecoregion) Mitigation required by the district engineer

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Regional Tailoring of Nationwide Permit Program Division engineers have the authority to modify,

suspend, or revoke Nationwide Permits within a region ◦ Corps district, state, county, or other geographic area ◦ Regional conditions can only further restrict use of Nationwide

Permits ◦ Prohibit use of one or more Nationwide Permits in a region

District engineers have the authority to modify, suspend or revoke Nationwide Permits on a activity-specific basis ◦ Activity-specific conditions restricting use of Nationwide Permit ◦ Suspend or revoke a Nationwide Permit to require an individual

permit for the proposed activity

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Examples of Regional Conditions Restrict or prohibit use of NWPs in specific types of waters or

wetlands (e.g., fens, bogs) Revoke one or more NWPs in a watershed, county, state or other

type of geographic area Modify pre-construction notification (PCN) thresholds to require

notification for all activities or lowering PCN thresholds. Reduce NWP acreage limits in certain types of waters, or in

specific geographic regions Restrict activities authorized by NWPs to certain times of the year

in a particular river or estuary Conditions necessary to facilitate compliance with general

condition 18, endangered species

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Regional condition process Shortly after proposed NWPs published in

Federal Register ◦ Districts reach out to States and Tribes to seek

suggestions for new or modified regional conditions ◦ If within the Corps’ authority to enforce, regional

conditions can be adopted to facilitate issuance of water quality certifications and CZMA consistency concurrences

After final NWPs published in Federal Register ◦ Corps Districts work with their Divisions to

finalize the regional conditions

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Current Status 2012 NWPs expire on March 18, 2017 Undergoing rulemaking process to issue NWPs ◦ Approximately one-year process

Draft proposed NWPs under interagency review process managed by the Office of Management and Budget ◦ Various agency headquarters review draft and provide

their suggested changes before proposed rule is cleared by OMB and published in Federal Register for 60-day comment period

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NWP 2017 Rulemaking Timeline

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2015 2016 2017

OMB Interagency Review – minimum 90 days

Publish in Federal Register for 60-day comment period

OMB Interagency Review – approximately 90 days

Review comments, Prepare draft final NWPs

District public notices – 45 days

State water quality Certifications – 60 day minimum

State coastal zone consistency – 90 day minimum

Districts finalize regional conditions, issue public notices

2012 NWPs expire as 2017 NWPs go In effect 3/18/17

Submit draft proposed rule to OMB

Submit draft final rule to OMB

Publish final rule in Federal Register

Schedule December 11, 2015 – Corps submitted draft proposed rule

to OMB to initiate E.O. 12866 interagency review process April 2016 – proposed rule cleared by OMB ◦ Publish proposal in Federal Register for public comment ◦ 60-day comment period ◦ Districts issue local public notices, propose regional

conditions, request suggestions for new or modified regional conditions

◦ Districts make initial WQC, CZMA requests Summer 2016 – Corps HQ reviews comments on proposed

rule, prepares draft final rule

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Schedule Districts continue to work with others to develop

regional conditions September 2016 – Corps HQ submits draft final

rule to OMB for interagency review December 2016 – final rule cleared by OMB ◦ Publish final rule in Federal Register ◦ Districts work with States and Tribes to complete water

quality certification process ◦ Districts work with States to complete Coastal Zone

Management Act consistency concurrence process ◦ Corps divisions complete regional conditions Districts issue public notices announcing final regional conditions

NWPs effective on March 19, 2017

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Concurrent processes Tribal consultation ◦ Districts sent letters to Tribes requesting consultation on

regional conditions to protect trust resources

Historic properties ◦ Districts can work with State and Tribal Historic Preservation

Officers to identify potential exemptions for activities that have minimal or not adverse effects on historic properties

Endangered species ◦ Districts will coordinate with regional offices of FWS and NMFS

to identify new and modified regional conditions to protect listed species

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David Olson Regulatory Program Manager Headquarters, U.S. Army Corps of Engineers 202-761-4922 david.b.olson@usace.army.mil

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