Nationwide Permits (NWP) are blanket authorizations issued by the U.S. Army Corps of Engineers (ACOE) for projects that are determined to have a minimal impact on aquatic resources. These authorizations (50 in all) are issued at one time and expire on the same date (March 19, 2017 for the 2012 series). Certain activities require landowners to submit a pre-construction notice (PCN) to insure the activity complies with the issued NWP. If a PCN was required, regardless of the date your project received authorization under an ACOE NWP, this permit expires in March 2017. It’s imperative to understand what this expiration means to your project. We most frequently work with clients on NWP 29 (Residential Development) and NWP 39 (Commercial Development), so this blog will focus on these authorizations, although the concepts are applicable to all 50.
- If your project is complete, under construction or under contract for construction, you have 1 additional year to complete construction under the 2012 NWP. If your project is complete by March 19, 2018 you will comply with the NWP.
- If your project will not be complete by March 19, 2018 or you are not under contract to commence construction by March 19, 2017, you will need to re-authorize your activity under the new set of NWPs. If nothing about the project or regulations have changed, re-authorization should be straightforward, however you should consider the following:
- Has the NWP that authorized your activities changed? For example: NWP 29 and 39 added stream bed to count toward the 0.50 acre allowable impact threshold, otherwise there are no changes. Refer to (http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2017/nwp2017_sumtable_draft_May2016.pdf) for an ACOE table comparing each 2012 NWP to the proposed 2017 NWP.
- Have there been any rule changes to the Clean Water Act (CWA) or Endangered Species Act (ESA) that now affect your project? Permit holders should keep in mind that the most recent CWA revision to the jurisdictional rule is currently on-hold and Florida’s secondary/indirect impact guidance is also on-hold. Significant changes in policy after the 2008 mitigation rule have been implemented since 2012. Specifically, if your project can now be serviced by a wetland mitigation bank, an on-site wetland mitigation plan may not still be acceptable for a NWP. New listed wildlife species should also be considered including the Florida bonneted bat; new ACOE programmatic keys such as the indigo snake and new locations for protected species such as the bald eagle.
- Will your project require a new Section 7 consultation with the USFWS? If your project has already gone through Section 7 consultation with USFWS for a species such as the sand skink or eastern indigo snake, you understand the importance of obtaining a Biological Opinion or Technical Assistance letter through the process. Ensuring the Biological Opinion associated with the Section 7 Consultation remains valid is of utmost importance to a project schedule and budget and this should be addressed on a case by case basis.
The ACOE has a comprehensive webpage for more information on the 2017 and 2012 NWPs: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx. If you have any questions about how the expiring NWPs and re-issuance of NWPs may affect your project, please contact WRA’s Environmental Manager, Matthew Miller (mmiller@localhost).