USACE Announces Expirations to Some Nationwide Permits

Early Expirations to Certain Nationwide Permits Could Affect You

On January 13, 2021, the U.S. Army Corps of Engineers (USACE) published their Final Rule to modify and reissue twelve (12) existing Nationwide Permits (NWPs) and to authorize four (4) new NWPs. The Final Rule and details on the NWP changes can be found here.

The Final Rule included an effective date of March 15, 2021 for the new NWPs. However, the new Administration has placed a 60-day governmentwide freeze on implementation of all pending regulations in the federal register with details listed here. As a result, the 2021 NWP effective date will be frozen until at least March 20, 2021. During this regulatory review period, implementation of new NWPs could be withdrawn or modified through the Corps’ rulemaking processes before it ever takes effect. We will continue to follow any new developments.Current NWPs which will be impacted include:

NWP 12* – Oil or Natural Gas Pipeline Activities
NWP 21 – Surface Coal Mining Activities
NWP 29 – Residential Developments
NWP 39 – Commercial and Institutional Developments
NWP 40 – Agricultural Activities
NWP 42 – Recreational Facilities
NWP 43 – Stormwater Management Facilities
NWP 44 – Mining Activities
NWP 48 – Commercial Shellfish Mariculture Activities
NWP 50 – Underground Coal Mining Activities
NWP 51 – Land-Based Renewable Energy Generation Facilities
NWP 52 – Water-Based Renewable Energy Generation Pilot Projects

New NWPs include:
NWP 55 – Seaweed Mariculture Activities
NWP 56 – Finfish Mariculture Activities
NWP 57* – Electric Utility Line and Telecommunications Activities
NWP 58* – Utility Line Activities for Water and Other Substances

* Note that NWP 12 previously authorized all ‘Utility Line Activities’ but has now split into three separate NWPs (NWPs 12, 57, & 58) under the Final Rule based on the specific type of utility transmission.

All other NWPs are unaffected and will be reissued as schedule in March 2022

What does this mean?
1. Projects authorized under the NWPs identified using the link above will expire on March 14, 2021, unless the final rule is revoked or revised.
2. If your project is currently authorized under one of the expiring NWPs, your project may qualify for a 1-year extension (through March 14, 2022) if your project schedule meets either of the following conditions: 
• The project will have commenced work by March 14, 2021 or
• The project has a signed contract to commence work by March 14, 2021.

*Note: If your project qualifies for an extension due to the conditions above, the activity must be complete within 12 months of the date of the NWP expiration, modification or revocation unless discretionary authority has been exercised by a division or district engineer on a case by case basis.
3. If your project does not meet either condition above and the final rule is not revoked or revised during the 60 day freeze, your permit will expire on March 14, 2021 and you will need to reapply for coverage under the new NWPs once they become effective (on or after March 15, 2021).

We would like to help you make sure that your project stays in compliance with federal and state wetland/stream impact regulations. Please contact Brian Breissinger (804.200.6439), Matt Neely (804.200.6369) or Eli Wright (804.200.6582) to discuss the NWP reissuance.

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