On February 21, 2012, the U.S. Army Corps of Engineers (the “Corps”) released new and revised Nationwide Permits (“NWPs”) for certain activities that require authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act, such as development activities that impact wetlands or navigable waters. NWPs are intended to provide expedited authorization for dredge and fill activities that the Corps has determined will have minimal adverse impacts on the aquatic environment. Activities authorized by NWPs, nevertheless, still require a permitting process for individual projects causing impacts to waters of the United States.

The 2012 NWPs include two new permits and reissuance of 48 of the 49 NWPs issued in 2007. The two new NWPs authorize construction of certain land-based renewable energy generation facilities and pilot projects for water-based renewable energy generation facilities. Of the 48 reissued NWPs, 25 contain minor revisions. The two most common NWPs sought by our clients, NWP 29 for residential development and NWP 39 for commercial and industrial development, received minor modifications, including requiring the Corps’ District Engineer to make written determinations of minimal effects when waiving the 300 linear foot limit for losses of intermittent and ephemeral streams, and to coordinate with other agencies when waiving this limit. The acreage limitation of 0.50 acres of allowed impact under these two NWPs remains intact in the proposed reissued NWPs.

The 2012 NWPs are now under review by local Corps districts and states and tribes. This review process can and often does result in the issuance of additional specific regional conditions that affect the terms of the NWPs. These regional, state, or tribal conditions are not expected to be finalized for at least 60 days.

This process occurs every five years because NWPs are valid for only five years and must be reissued to continue to authorize these activities. The 2007 NWPs are set to expire on March 18, 2012, and the 2012 NWPs will become effective on March 19, 2012. If your project was authorized under a 2007 NWP, you have 12 months from March 18, 2012, to complete the authorized work or you will have to seek reauthorization under the 2012 NWPs.