The Army Corps of Engineers recently proposed to reissue the existing NWPs authorizing the discharge of dredged or fill material into waters of the United States for specified projects. (See http://www.usace.army.mil/CECW/Documents/cecwo/reg/nwp/NWP_prop_fr_16Feb2011.pdf) For projects that fall within their scope, NWPs can take the place of individual permits under section 404 of the Clean Water Act and have the potential to streamline one part of the approval process as obtaining permit coverage through an NWP is generally quicker and less expensive than obtaining an individual 404 permit. Through its proposal, the Corps is planning to reissue 48 of the 49 existing NWPs with some modifications and to issue two new NWPs. The Corps is proposing to let one NWP expire—NWP 47 for Pipeline Safety Program Designated Time Sensitive Inspections and Repairs—and not reissue it.

The two new NWPs proposed by the Corps relate to renewable energy projects. The first, NWP A, would authorize fill related to the construction, expansion, or modification of land-based renewable energy projects—including solar, biomass, wind, and geothermal projects—and their attendant infrastructure such as roads, parking lots, utility lines, and water-management facilities. The second, NWP B, would authorize structures and work in navigable waters of the United States and fill in waters of the United States for the construction, expansion, and modification of hydrokinetic or wind energy pilot generation projects and their attendant infrastructure, including utility lines to transfer energy to land-based distribution facilities.
The Corps proposes to limit NWP A and NWP B to projects affecting ½ acre or less of non-tidal waters of the United States and 300 linear feet or less of streams (unless the district engineer makes a finding that exceeding the 300-foot limit would have minimal adverse affects). Pre-construction notification of the Army Corps would be required to use these NWPs. In addition, no more than 10 generation units (e.g., wind turbines) and no activities in coral reefs would be authorized under NWP B.

The Army Corps is taking comments on the proposed NWPs through April 18, 2011.