February 11, 2022
FEDERAL REGISTER NOTICE ANNOUNCING THE REISSUANCE OF THE NATIONWIDE PERMITS AND NORFOLK DISTRICT’S FINAL REGIONAL CONDITIONS, 401 WATER QUALITY CERTIFICATION, AND COASTAL ZONE MANAGEMENT ACT DETERMINATION FOR THE 41 NATIONWIDE PERMITS
On December 27, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 73522) announcing the reissuance of 40 existing nationwide permits (NWPs) and one new NWP. These 41 NWPs will go into effect on February 25, 2022, and they will expire on March 14, 2026:
• NWP 1 – Aids to Navigation
• NWP 2 – Structures in Artificial Canals
• NWP 3 – Maintenance
• NWP 4 – Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
• NWP 5 – Scientific Measurement Devices
• NWP 6 – Survey Activities
• NWP 7 – Outfall Structures and Associated Intake Structures
• NWP 8 – Oil and Gas Structures on the Outer Continental Shelf
• NWP 9 – Structures in Fleeting and Anchorage Areas
• NWP 10 – Mooring Buoys
• NWP 11 – Temporary Recreational Structures
• NWP 13 – Bank Stabilization
• NWP 14 – Linear Transportation Projects
• NWP 15 – U.S. Coast Guard Approved Bridges
• NWP 16 – Return Water From Upland Contained Disposal Areas
• NWP 17 – Hydropower Projects
• NWP 18 – Minor Discharges
• NWP 19 – Minor Dredging
• NWP 20 – Response Operations for Oil or Hazardous Substances
• NWP 22 – Removal of Vessels
• NWP 23 – Approved Categorical Exclusions
• NWP 24 – Indian Tribe or State Administered Section 404 Programs
• NWP 25 – Structural Discharges
• NWP 27 – Aquatic Habitat Restoration, Establishment, and Enhancement Activities
• NWP 28 – Modifications of Existing Marinas
• NWP 30 – Moist Soil Management for Wildlife
• NWP 31 – Maintenance of Existing Flood Control Facilities
• NWP 32 – Completed Enforcement Actions
• NWP 33 – Temporary Construction, Access, and Dewatering
• NWP 34 – Cranberry Production Activities
• NWP 35 – Maintenance Dredging of Existing Basins
• NWP 36 – Boat Ramps
• NWP 37 – Emergency Watershed Protection and Rehabilitation
• NWP 38 – Cleanup of Hazardous and Toxic Waste
• NWP 41 – Reshaping Existing Drainage Ditches
• NWP 45 – Repair of Uplands Damaged by Discrete Events
• NWP 46 – Discharges in Ditches
• NWP 49 – Coal Remining Activities
• NWP 53 – Removal of Low-Head Dams
• NWP 54 – Living Shorelines
• NWP 59 – Water Reclamation and Reuse Facilities
The new NWP 59 authorizes discharges of dredged or fill material into waters of the United States for the construction, expansion, and maintenance of water reclamation and reuse facilities. The 40 existing NWPs published in the December 27, 2021 final rule replace the 2017 versions of these NWPs. The 2017 versions of NWPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 45, 46, 49, 53, and 54 expire on February 24, 2022.
The NWP general conditions and definitions that were issued in the final rule published in the January 13, 2021 issue of the Federal Register (86 FR 2744) apply to the 40 reissued NWPs and the new NWP 59 that were initially published in the Federal Register on December 27, 2021.
The Corps also issued final decision documents for these new and reissued NWPs. These final decision documents are available at www.regulations.gov at docket number COE-2020-0002.
This Public Notice also announces Norfolk District’s Final Regional Conditions, the Section 401 Water Quality Certification (WQC) and the Coastal Zone Management Act (CZMA) determination for the 41 nationwide permits (NWPs). The Norfolk District received the CZMA determination on December 17, 2020, and the Section 401 WQC on December 21, 2020, from the Commonwealth of Virginia’s Department of Environmental Quality (DEQ) for the 41 NWPs and the regional conditions applicable in Virginia, including the Northern Virginia Military Installations within Baltimore District’s Area of Responsibility. The Section 401 WQC and CZMA determination were provided for the entire set of NWPs proposed in the September 15, 2020, Federal Register (85 FR 57298). However, Norfolk District developed new regional conditions to address only the Section 401 WQC and the CZMA conditions for the 41 NWPs finalized in the December 27, 2021, Federal Register. The Regional Conditions for the 16 NWPs finalized in the January 13, 2021, Federal Register were discussed in a March 8, 2021, Public Notice and are posted on our website. The Regional Conditions, including the Section 401 Water Quality Conditions specific to those 16 NWPs, remain in effect.
Norfolk District evaluated the DEQ’s December 21, 2020, WQC for the 41 NWPs based on the 1971 Regulations for “State Certification of Activities Requiring a Federal Permit or License” and we accept all corresponding WQC conditions. The DEQ provided general Section 401 WQC for NWPs 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 16, 18, 19, 20, 22, 23, 25, 27, 28, 30, 31, 33, 34, 35, 36, 37, 38, 41, 45, 46, 49, 53, 54 and 59. As a condition of the General Certifications, applicants are required to either comply with the DEQ’s WQC Conditions A 1-12 (Appendix A of the Regional Conditions) or meet the DEQ’s Condition A 13, which requires applicants to obtain a Virginia Water Protection (VWP) permit or a waiver from the DEQ’s VWP program. Norfolk District developed Regional Condition 13 to address the WQC conditions. We believe that applicants requesting authorization under these NWPs, who comply with Regional Condition 13, will fulfill the requirements of the general 401 WQC, except when specific thresholds (for NWPs 3, 13, 14, 16, 18, 22, 27, 33, 36 and 59) are exceeded and then an individual 401 WQC (or Section 401 waiver) from the DEQ is required. The DEQ provided a waiver of Clean Water Act Section 401 WQC for NWP 1, NWP 2, NWP 9, NWP 10, NWP 24, and NWP 32. Therefore, an applicant will not be required to receive a separate WQC for those NWPs. The DEQ denied general WQC for NWP 17; therefore, applicants must obtain an individual Section 401 WQC from the DEQ to qualify for use of NWP 17.
An applicant can submit a Preconstruction Notification (PCN) to the DEQ at the same time it is submitted to the Corps to expedite the review process for projects that require a VWP permit or waiver from the VWP. If an individual 401 WQC is required, applicants must follow the process outlined in the “State Certification of Activities Requiring a Federal Permit or License,” 36 Federal Register 22487, November 25, 1971. Codified at 40 C.F.R. §121.
Norfolk District considered all public comments as well as federal and state agency comments and revised the regional conditions as appropriate. The Norfolk District’s Final Regional Conditions and Section 401 Water Quality Certification Conditions for the 41 NWPs are attached to this Notice and available on our webpage at: http://www.nao.usace.army.mil/Missions/Regulatory.aspx
The 2017 versions of the 40 NWPs reissued expire on February 24, 2022. If a previously verified activity continues to qualify for NWP authorization under any of the 40 existing NWPs reissued in the final rule, that verification letter continues to be in effect until March 18, 2022, unless the district engineer specified a different expiration date in the NWP verification letter. For most activities authorized by the 2017 NWPs, where the district engineer issued an NWP verification letter, the verification letter identified March 18, 2022, as the expiration date. Provided the verified NWP activities continue to comply with the terms and conditions of the 40 existing NWPs reissued in this final rule, those activities continue to be authorized by the applicable NWP(s) until March 18, 2022, unless a district engineer modifies, suspends, or revokes a specific NWP authorization. According to 33 CFR 330.6 (b), activities which have commenced (i.e., are under construction) or are under contract to commence in reliance upon an NWP will remain authorized provided the activity is completed within twelve months of the date of an NWP's expiration, modification, or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5 (c) or (d).
Activities that were authorized by the 2017 NWPs, but no longer qualify for authorization under any of the 40 existing NWPs that are reissued in the final rule, continue to be authorized by the 2017 NWP(s) for 12 months as long as those activities have commenced (i.e., are under construction) or are under contract to commence in reliance upon an NWP prior to the date on which the NWP expires. That authorization is contingent on the activity being completed within twelve months of the date of an NWP’s expiration, modification, or revocation, unless discretionary authority has been exercised by a division or district engineer on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5(c) or (d).
If you have any questions, please contact Melissa Nash at (757) 201-7489 or by email at melissa.a.nash@usace.army.mil or the Regulator of the Day at 757-201-7652.
The December 27, 2021, Federal Register notice is available for viewing at https://www.federalregister.gov/documents/2021/12/27/2021-27441/reissuance-and-modification-of-nationwide-permits
The January 13, 2021, Federal Register notice is available for viewing at: https://www.federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits
As an alternative, interested parties can access the December 27, 2021, and January 13, 2021, final rules and related documents at: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/
PRIVACY & CONFIDENTIALITY: Comments and information, including the identity of the submitter, submitted in response to this Public Notice may be disclosed, reproduced, and distributed at the discretion of the U.S. Army Corps of Engineers. Information that is submitted in connection with this Public Notice cannot be maintained as confidential by the U.S. Army Corps of Engineers. Submissions should not include any information that the submitter seeks to preserve as confidential.