By Janice Schneider, Joel Beauvais, Stacey VanBelleghem, Jennifer Roy, and Francesca Bochner
On March 19, 2017, 52 new or reissued nationwide permits (NWPs) for discharges into “waters of the United States,” issued pursuant to Section 404(e) of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act went into effect. The U.S. Army Corps of Engineers (Corps) requires a Section 404 permit when development activities discharge dredged or fill materials into jurisdictional waters (i.e., “waters of the United States,” including wetlands). The NWPs – which are used to permit tens of thousands of new projects each year – cover a broad range of activities, including development of oil and gas pipelines, transmission and other utility lines, linear transportation projects, renewable energy, coal mining activities, and residential development. The Corps developed the NWPs as programmatic permits to expedite approval of specific types of activities deemed to have minimal environmental impacts. Seeking authorization under an NWP is less expensive and less time-consuming than obtaining an individual permit.
The prior NWPs were issued in March 2012 and expired on March 18, 2017. In the new NWPs, the Army Corps: (1) reissued all 50 of its existing NWPs, with revisions to twenty-seven; (2) issued two new permits; and (3) added one new general condition. The new NWPs include a grandfather provision that allows activities authorized under the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, to have until March 18, 2018, to complete the activity under the terms and conditions of the 2012 NWP. Activities that have not commenced by March 18, 2017, and/or will not be complete by March 18, 2018, must seek authorization under the new NWPs.
While the 2017 NWPs largely preserve the availability of these critical general permits without major changes, the revised permits incorporate a number of new features that may affect both new and existing projects in key industry sectors. Further, it is likely that environmental groups will challenge the NWPs in court on a number of grounds, including the National Environmental Policy Act, the Endangered Species Act, and consistency with the requirements of CWA Section 404(e). Effective implementation and successful defense of the new permits will be of critical importance for multiple sectors – including oil and gas, electric utilities, mining, and others. Latham & Watkins’ Environment, Land and Resources attorneys participated directly and intensively in the development of the new 2017 NWPs, and have substantial experience in securing and defending NWP authorizations for new projects. For further discussion of the new NWPs, including important changes to the permits and issues likely to be raised in future litigation, please see our Client Alert.
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