Vol. 24, No. 8 June 1, 2016

COE Proposes Changes to Nationwide Permits

*The COE is proposing to add a new NWP to authorize the construction and maintenance of living shorelines. Living shorelines consist of natural and man-made materials to establish and maintain living elements to reduce erosion and retain ecological processes.
PHOTO CREDIT: Virginia Institute of Marine Science (VIMS). http://www.vims.edu/features/research/living-shorelines.php

The U.S. Army Corps of Engineers (COE) is proposing the reissuance and modification of the existing nationwide permits (NWPs). The COE seeks to clarify language in some of the NWP general conditions and definitions to be more easily understood by the regulated public, government personnel, and interested parties. Also, the COE proposes to issue two new NWPs and one new general condition (GC). The current group of fifty (50) NWPs is set to expire on March 18, 2017.

The process for reissuing the NWPs for the next five-year period begins with the publication of the draft NWPs in the Federal Register today, initiating a 60-day public comment period. If it is determined a public hearing(s) would assist in making a decision on the proposed NWPs, a 30-day notice will be published in the Federal Register to advise interested parties of the date(s) and location(s) of the public hearing(s). The COE will draft the final NWPs, subjected to another review under Executive Order 12866, Regulatory Planning and Review. The COE aims to publish the final NWPs in the Federal Register approximately 90 days before the planned effective date of March 19, 2017.

There are no significant changes proposed to the existing NWPs, but rather minor clarifications and modifications to improve the effectiveness to the program.

The most notable proposed changes in the 2017 NWPs include:

NWP 3 – Maintenance:
Clarification of authorization of regulated activities associated with the removal of previously authorized structures and fills.
NWP 3 – Maintenance and NWP 12 – Utility Line Activities:
Clarification of authorized use of temporary mats in jurisdictional waters of the U.S. (WOTUS) if used to minimize impacts during regulated activities. Temporary fills must be removed and the impacted areas returned to pre-construction condition.
NWP 12 - Utility Line Activities:
Proposed authorization of discharges of dredged or fill materials necessary to remediate inadvertent returns of drilling muds (aka “frac-outs”) that occur during directional drilling activities.
NWP 13 – Bank Stabilization:
Clarification that this NWP authorizes a wide variety of bank stabilization measures, not just bulkheads and revetments.
Clarification that not all fill material must be placed on the bank. Some can extend into stream channel. However, the limits have not changed.
Additional provisions requiring proper maintenance and possible repair after severe storms. Maintenance and repair activity would be authorized under this NWP.
NWP 19 – Minor Dredging and NWP 35 – Maintenance Dredging of Existing Basins:
Dredged material must be deposited in an area that has no jurisdictional WOTUS unless authorized by a separate COE permit.
NWP 33 – Temporary Construction, Access, and Dewatering:
Proposed to change the pre-construction notification (PCN) threshold to only require notification for work in navigable waters.
NWP 43 – Stormwater Management Facilities:
Clarification that stormwater or wastewater management facilities that meet the criteria at 33 CFR 328.3 (b)(6) are not WOTUS, and maintenance does not require a Section 404 permit.
NWP 21, 29, 39, 42, 43, 44, 50, 51, 52:
Clarification that any losses of stream bed count towards the ½ acre loss limit.

The COE is seeking comment on two newly proposed NWPs, which include:
NWP A – Removal of Low Head Dams:
This NWP will authorize the removal of low-head dams for river restoration and public safety. A low-head dam is defined as a dam built to pass upstream flows over the width of the dam crest on an uncontrolled basis.
NWP B – Living Shorelines:
This NWP will authorize fills to within 30 feet of the mean high water mark and 500 feet along the bank of navigable waters for construction and maintenance of living shorelines for shore erosion control. Living shorelines consist of natural and man-made materials to establish and maintain marsh fringes or other living elements to reduce erosion while retaining or enhancing ecological processes. May include stone or reef structures to protect the shoreline from low to moderate waves.
The COE is seeking comments on whether or not to increase the NWP acreage limits or revise PCN thresholds.

The COE is also seeking comments on one newly proposed GC:
GC 31 – Activities Affecting Structures or Works Built by the United States:
This GC is proposed to ensure no activity potentially authorized by a NWP can proceed until the project proponent received permission under 33 USC. 408 to alter or occupy structures or works built by the U.S.

Significant changes to existing GCs include:
GC 32 – Pre-Construction Notification:
The COE is proposing to develop a standard pre-construction notification (PCN) form for use with the 2017 NWPs. There will be a separate Federal Register notice seeking comment on the NWP PCN form.

Note that the COE regional conditions from each district are expected to be released in the near future with a separate public comment period.

Public Works agencies, land owners/developers, and contractors should assess these changes and submit comments.

Comments on the proposed NWPs must be submitted on or before August 1, 2016. To submit comments, you may use any of the following methods:
U.S. Mail:

U.S. Army Corps of Engineers
441 G Street, N.W.
Washington, DC 20314-1000; or
Note: due to security requirements, the COE cannot receive comments by hand delivery or courier.
Please refer to the June 1, 2016 Federal Register for specific instructions on how to format comments.
For further information, please contact Doug Chapin, Christie Blevins, or Mark Headly.