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Army Corps Moves to Finalize New Clean Water Act Section 404 Water Infrastructure Permit

Jan 6, 2021

(January 7, 2021) - The U.S. Army Corps of Engineers released a pre-publication version this week of its final reissued and modified streamlined Clean Water Act Section 404 permits, known as “nationwide permits” (NWPs), which included key NACWA recommendations.  

The NWPs are reissued every five years and authorize small discharges of dredged or fill material associated with specified activities that will result in “no more than minimal individual and cumulative adverse environmental effects.”   

At the urging of NACWA and several of its members, the package for the first time includes a separate permit (NWP 58) for the construction, maintenance and removal of water and wastewater infrastructure.   

Activities related to water pipes, pipelines and related features had previously been authorized under NWP 12, which was also used for other linear projects such as oil and natural gas pipelines.  However, pointing to comments from the clean water community, the Corps determined that issuing a separate NWP for water utility lines will help “reduce regulatory uncertainty for local water authorities that construct, maintain, and operate these utility lines,” and allow Corps districts to continue to authorize water and wastewater infrastructure activities even if courts invalidate the use of the streamlined permits for projects such as interstate oil pipelines.   

The Corps also expressly noted that the newly finalized NWP 58 will “benefit the people who rely on utility lines to deliver potable water,” and “the public will also benefit from the removal of sewage and wastewater to protect public health and the environment.”  Utility lines constructed to convey hydrogen or carbon dioxide can also be authorized by NWP 58.   

The Corps is also clarifying that municipalities may use NWP 43, which authorizes activities related to stormwater management facilities, for the construction and implementation of green infrastructure projects to meet water quality criteria, designated uses, and compliance with postconstruction stormwater requirements. 

While the finalized permits will help streamline construction and maintenance of water and wastewater infrastructure, however, the Corps for unexplained reasons did not finalize a proposed new permit for activities related to water reclamation and reuse facilities.     

The Corps is also finalizing the proposed removal of the 300 linear foot limit for losses of jurisdictional stream bed previously applicable to multiple NWPs, which NACWA and others objected to in light of the potential impacts on smaller stream channels removing the limit may cause.  According to the Corps, a 1/2-acre limit for losses of non-tidal waters provides a “more accurate accounting of the impacts of activities authorized,” and division engineers can add regional conditions to address concerns related to the additional streambed losses that may be authorized by the new permits.  

The new NWPs will become effective 60 days after their publication in the Federal Register, though activities authorized under the existing NWPs will continue to be authorized for up to 12 months if construction has begun or is under contract to commence before the new NWPs go into effect.   

Importantly, environmental organizations and states have already expressed concerns with the new permits, and it is unclear how the incoming administration intends to move forward with the NWP program.  NACWA will continue to keep members apprised of any developments as they occur.  Please contact Amanda Aspatore with any questions.   

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