Vol. 29, No. 3  ●  March 12, 2021

2021 Nationwide Permits to Become Effective March 15 - with Significant State Process Changes

The sixteen Nationwide Permits (NWPs) published in the Federal Register on January 13, 2021 will become effective on March 15, 2021, most of these without a 401 Water Quality Certification (WQC) from the Virginia Department of Environmental Quality (DEQ). On Monday, March 1, 2021, the U.S. Army Corps of Engineers (COE)’s Norfolk District published a Public Notice denying many of the Section 401 Water Quality Certification conditions proposed by DEQ for the sixteen 2021 Nationwide Permits (NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 55, 56, 57, and 58), that will result in additional permitting requirements, and likely more costs and time delays for projects that use these permits.

Wetland Studies and Solutions, Inc. (WSSI) has been following this NWP renewal process in Field Notes over the last 17 months (see below for the related articles) and is sharing this news today to keep you informed regarding the changes scheduled to go into effect on Monday, March 15, 60 days from the January 2021 publication. We are following the process, are providing a brief synopsis herein, and will keep you informed via Field Notes. A list of all the NWPs can be found here.

Norfolk COE Public Notice - Highlights and Implications:

  • Declined 401 WQC conditions by the Norfolk District for the 2021 NWPs, aside from the condition which requires a separate DEQ permit
    • This includes NWPs: 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 55, 56, 571, and 582
    • Implications:
      • Must obtain a separate Virginia Water Protection (VWP) permit or waiver from the DEQ for the activity.
      • Potential project delays and additional costs associated with obtaining an additional permit.
  • Some flexibility in regard to 401 WQC approval for the use of certain 2021 NWPs if the proposed impacts are below 0.10 acre and 300 LF (as applicable)
    • Potentially applicable 2021 NWPs include: 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52
    • This could allow for a small window of projects to apply solely for a NWP
    • However, Regional Condition 13 contradicts this flexibility for most of the above listed NWPs and requires a VWP permit, 401 WQC, or waiver
    • Implications
      • Clarity is needed from Norfolk on how to apply Regional Condition 13.
      • It is unclear how and when Applicants can take advantage of this flexibility.
  • 2021 NWPs are effective March 15, 2021 and will expire on March 14, 2026
  • Currently permitted activities under the 2017 NWP program for the 12 existing NWPs that were reissued in January 2021 will continue to be authorized for 12 months so long as construction has commenced or the project is under contract by March 14, 2021.
    • If you have a current NWP authorization for one of these 12 NWPs and it does not meet all of the new conditions – get your project under contract!
  • The 40 existing NWPs not included in the January 2021 final rule remain in effect under the 2017 NWP program as they currently stand and are set to expire March 18, 2022, unless the Corps reissues those NWPs and changes the expiration date.
    • The COE is in the midst of the renewal process for these 40 NWPs based on public comments received when all the NWP changes were public noticed last year and intends to issue them with the same expiration date of the 2021 NWPs.
  • Certain activities under NWP 123 have been denied 401 WQC by DEQ
    • Any natural gas transmission pipeline greater than 36 inches in diameter will require an individual 401 WQC (or waiver) from the DEQ.
    • For all other proposed NWP 12 activities, project proponents are required to obtain either a VWP permit, an individual Section 401 WQC or waiver from DEQ.

Why did this happen?

This stems from the Final 401 Certification published by the Environmental Protection Agency (EPA). This is a problem in several states and not Virginia specific.

It was an unintended consequence of changes to the Section 401 WQC process implemented in 2020. Unfortunately, it appears that many states did not realize how the EPA and COE would interpret the new 401 rule and that conditions acceptable in the past decades would no longer be accepted. There are many positive attributes to the 401 rule. EPA’s 401 rule requires certifying authorities to act on a certification request before the federal permit (including a general permit) is issued, so that the conditions of the WQC can be incorporated into the issued permit. The certifying authorities were required to act on the certification request within the reasonable period established by the Corps districts last fall, and that reasonable period of time expired before the end of calendar year 2020 (the specific date depended on when the Corps district sent the certification request to the state), not the date the NWPs are scheduled to go into effect. The Corps’ NWP regulations at 33 CFR 330.4(c)(1) state that WQCs or waivers are required before the Corps issues or reissues the NWPs. In addition, EPA’s 401 regulations do not allow for modifications of issued WQCs.

The result will be that some projects are delayed and face increased permitting costs and many state agencies will face increased workloads.

How could this problem be alleviated right now? Ask your State Representatives!

There are many possibilities – though we do not know of any sure-fire solutions. Hopefully, our elected officials and Agency staff are working on solving this conundrum that could cause impacts to our economy right when our nation does not need such an impact.

One potential pathway, though not without its problems, is that the COE could suspend the planned effective date (Monday, March 15) of the new NWPs - that would keep the existing NWP and Section 401 WQC in place.

The Administration could then direct states to work together with the EPA and the COE to develop a mutually acceptable framework of what is permissible in a 401 WQC, and then states could develop new 401 Certifications that would be acceptable to the federal agencies. In that time period, it is possible that all of the 2021 proposed Nationwide Permits could also be updated to address public comments and be ready to publish on their normal schedule, effective March 2022, instead of issuing some of the permits one (1) year early (which is confusing in itself). Then the process would culminate in the release of the 2021 Nationwide Permits with the new 401 Certifications.

Questions?

WSSI will continue to monitor this process and will share updates in Field Notes.  If you have questions in the meantime, please contact Christie Blevins, Lauren Conner, or Mark Headly in our Gainesville office; Bob Kerr or Mark McElroy in our Hampton Roads office; or Mike Klebasko or Scott Petrey in our Maryland office.

1 NWP #57 is for Electric Utility Line and Telecommunications Activities, previously authorized under NWP #12.
2 NWP #58 is for Utility Line Activities for Water and Other Substances, previously authorized under NWP #12.
3 NWP #12 is for Oil or Natural Gas Pipeline Activities only. Other activities previously authorized under NWP #12 are now authorized under NWP #57 or 58.

Check out past issues in the Field Notes Archive.

Reading someone else's copy of Field Notes?
Click here to sign up for our mailing list.