Corps Announces New and Reissued Nationwide Permits.

The Army Corps of Engineers recently reissued its 48 existing nationwide general permits (NWPs) and issued two new NWPs to facilitate renewable energy projects (77 FR 10184, 2/21/12). The reissued and new NWPs became effective on March 19th and will expire on March 18, 2017.

The NWPs contain three new general conditions. However, activities authorized by the NWPs issued on March 12, 2007 that have commenced or are under contract to commence by March 18, 2012 will not have to comply with the new conditions if those authorized activities are completed by March 18, 2013. Special conditions apply to NWP 21 which authorizes surface coal mining activities (see below).

Readers interested in the NWPs should review the federal notice announcement that discusses the NWPs. Here are a couple of highlights.

The first new NWP is NWP 51 applies to Land-Based Renewable Energy Generation Facilities. This NWP authorizes the discharges of dredged or fill material for the construction, expansion, or modification of land-based renewable energy production facilities. Such facilities include infrastructure to generate solar (concentrating solar power and photovoltaic), biomass, wind or geothermal energy and their collection systems. The NWP also applies to associated features of these projects including but not limited to roads, pads, parking lots, utility lines, and stormwater management facilities.

The discharge may not result in a loss of more than 1/2-acre of waters of the United States(e.g., wetlands) and 300 linear foot of stream bed loss. The linear limit does not apply for intermittent and ephemeral stream beds. Pre-construction notification is required for all activities authorized by this NWP and the permittee may not commence work that would result in discharges of dredged or fill material until the district engineer verifies the activity is authorized by this NWP.

Division engineers can regionally condition this NWP to restrict or prohibit its use in waters of theUnited States where the discharges are likely to result in more than minimal adverse effects on the aquatic environment, the activity may affect an endangered or threatened species, or is located in critical habitat for an Endangered Species Act. In such instances, consultation with the Fish and Wildlife Service is required. Moreover, general condition 19 provides that if the activity will result in the “take” of a migratory bird or a Bald or Golden Eagle, and a “take” permit is required from the U.S. Fish and Wildlife Service (FWS), the permittee must apply for and obtain the appropriate ‘‘take’’ permits.

The Corps noted that the draft FWS Land-based Wind Turbine Guidelines are voluntary guidelines that project proponents may incorporate into their land-based wind energy projects. The Corps does not have the authority to condition this NWP to incorporate the recommendations provided in those guidelines.

However, the Corps noted that other NWPs may apply to certain segments of these projects. For example, NWP 12 may be used to authorize discharges associated with the construction, maintenance, repair, or removal of utility lines for land-based renewable energy facilities. Utility lines that are used to transfer energy from the renewable energy generation facility to a distribution system, regional grid, or other facility are generally considered to be separate single and complete linear projects. Those utility lines may be authorized by NWP 12. Likewise, NWP 14 may be used to authorize road crossings. If the proposed activity qualifies for authorization under that particular NWP, the district engineer will issue a verification letter.

The second new NWP is NWP 52 for Water-Based Renewable Energy Generation Pilot Projects authorizes structures or work in navigable waters and discharges of dredged or fill material into waters of the United States for the construction, expansion, or modification of water-based wind or hydrokinetic renewable energy generation pilot projects. The associated features that are authorized by this NWP may include but are not limited to land-based distribution facilities, roads, parking lots, utility lines, and stormwater management facilities.

The NWP imposes a 1⁄2-acre and 300 linear foot limits, and restricts its use to pilot projects that have minimal adverse effects on the aquatic environment. All activities require pre-construction notice. As with NWP 51, the Corps said it was not the intent to limit use of other applicable NWPs to cover discharges of dredge or fill material associated with activities involved in the construction of water-based renewable energy generation pilot projects. Instead, this NWP provides an additional option for authorization of such discharges that are not currently covered by any other NWP.

The Corps clarified that each separate and distant water crossing as well as each crossing of other waters along the corridor for the linear project may be permitted by separate NWP. The acreage and other applicable limits for an NWP would be applied to each crossing so long as those crossings are far enough apart to be considered “separate and distant”.

Finally, there were some interesting changes to NWP 21 for Surface Coal Mining Activities has some important changes. First, there is now a prohibition on using this NWP to construct “valley fill”.  The NWP also contains a 1/2-acre limit and a 300 linear foot limit for the loss of stream bed. District engineers to waive the 300 linear foot limit for intermittent or ephemeral stream bed when the engineer determines that the proposed activity will result in minimal individual and cumulative adverse effects on the aquatic environment. District engineers will have to coordinate the pre-construction notifications with the resource agencies to solicit their comments. However, the 300 linear foot limit may not be waived for perennial streams. The Corps acknowledged that the new limits and prohibiting valley fills will result in more surface coal mining activities requiring individual permits.

As discussed above, the new conditions on acreage limits, linear foot limits, and prohibition against using discharges of dredged or fill material to construct valley fills do not apply to surface coal mining activities previously authorized by the 2007 NWP 21. Surface Coal Mining Activities that were authorized by the 2007 NWP 21 may be reauthorized without applying the new limits imposed by the 2012 NWP 21 if the permittee submits a written request for reauthorization to the district engineer by February 1, 2013, and the district engineer determines that the on-going surface coal mining activity will result in minimal adverse effects on the aquatic environment and notifies the permittee in writing that the activity is authorized under the 2012 NWP 21. The Corps encouraged operators who received a 2007 NWP 21 verification and plan to operate past March 18, 2013, to submit their letter as soon as possible to allow for uninterrupted NWP 21 permit coverage. The Corps also recommended that any projects that will extend beyond March 18, 2017 expiration for 2012 NWP 21 that do not meet the new limits in NWP 21 apply for an individual permit and allow sufficient time for the Corps to process their application to allow uninterrupted coverage when the new NWP 21 expires in 2017.

General Condition (GC) 18 relating to endangered species was modified to clarify that both direct and indirect effects are to be taken into account when assessing if an activity may jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, or destroy or adversely modify the critical habitat of such species. New definitions of definitions of ‘‘direct effects’’ and ‘‘indirect effect ’’ were added.

New GC 19 clarifies that permittees are responsible for complying with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, and obtaining any ‘‘take’’ permits that may be required under FWS regulations.

GC 23 clarifies that compensatory mitigation must comply with the compensatory mitigation rules of 33 CFR part 332. Prospective permittee is responsible for proposing an appropriate compensatory mitigation plan if the district engineer determines that compensatory mitigation is needed to minimize adverse effects on the aquatic environment.

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