Member Article

Key Points

• U.S. Army Corps of Engineers finalized a rule renewing nationwide permits under the Clean Water Act for projects involving discharges of dredge or fill material to jurisdictional waters.
• The Army Corps also issued new nationwide permits, such as for water reclamation and reuse facilities and for activities involving water, stormwater, and wastewater utility lines.
• These new nationwide permits create opportunities to expedite permitting for certain infrastructure projects.

On December 27, 2021, the U.S. Army Corps of Engineers reissued, with modifications, 40 nationwide permits (NWPs) for certain activities requiring a permit under section 404 of the Clean Water Act. The Army Corps also issued a new NWP for discharges associated with water reclamation and reuse facilities. These latest efforts complete the Army Corps’ September 2020 proposal to reissue 52 existing NWPs and to issue five new NWPs.

The Army Corps’ NWPs are vital to many projects. When a project discharges dredge or fill material into jurisdictional waters—which may include certain wetlands—the project proponent may need a Clean Water Act permit from the Army Corps. An NWP is a general permit that streamlines that permitting process for certain projects involving no more than minimal individual and cumulative adverse environmental effects. NWPs thus create significant time and costs savings as compared to individual permits. In 2018, for instance, an applicant could expect the Army Corps to process their NWP pre-construction notice within 45 days; while, during that same time, the average processing time for a standard individual permit was 264 days.

Several of these reissued NWPs can expedite approval for infrastructure projects. For example, the Army Corps reissued NWP 14, which covers linear transportation projects. But it expanded its coverage by adding “driveways” as an example of an authorized activity and clarified that the term applies broadly and is not limited to driveways associated with single unit or multiple unit residences, or commercial and institutional buildings. The Army Corps also reissued NWP 41, which covers the reshaping of drainage ditches, with a modification to now explicitly include irrigation ditches.

The Army Corps’ new NWPs also promote infrastructure projects. For instance, the new NWP 59 covers discharges associated with constructing, expanding, and maintaining water reclamation and reuse facilities. This new permit recognizes that water reclamation and reuse facilities are important tools for addressing climate change—particularly in California. This new permit is in addition to NWP 58, a new permit the Army Corps had issued in January 2021 and which covers activities involving constructing, maintaining, and repairing utility line activities for water and other substances. “Other substances,” the Army Corps explains, may cover potable water, sewage, stormwater, and wastewater.

These NWPs are but some examples of the many general permits that may be available to project proponents. Because these permits can streamline project approval, project proponents should consider whether one or more may cover the proposed project.

For more information about nationwide and other permitting issues under the Clean Water Act, please contact our Water Law attorneys.