The US Army Corps of Engineers (COE) reissued 48 of the 49 nationwide permits (NWPs) which authorize certain activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1889. The COE reissues the NWPs every five years, with the current NWPs expiring March 18, 2012 and the new NWPs becoming effective on March 19, 2012. Each state must then adopt the new NWPs and may add Regional Conditions as they see fit. In addition to reissuance of the existing NWPs, the COE will issue two new NWPs, reissue 28 existing general conditions and issue three new general conditions. The COE is reissuing all definitions and will add three new definitions. Final Notice of the modifications was published in the Federal Register on February 21, 2012. Reissuance of Nationwide Permits Final Notice, 77 Fed. Reg. 10184 (Feb. 21, 2012).
This article focuses on NWP 12 and NWP 39, related to oil and gas activities. This blog supplements a previous blog on NWPs published on February 15, 2012, which focused on coal mining activities. See http://eem.jacksonkelly.com/2012/02/corps-of-engineers-reissue-nationwide-permits-mining-related-permits.html.
Nationwide Permit (NWP) 12 - Utility Line Activities (Pipeline Water Crossings). 77 Fed. Reg. 10195-10197.
This permit authorizes activities associated with the construction, maintenance, repair and removal of utility lines. These activities include construction of the actual utility line, utility line substations, foundations for poles and towers and construction of access roads. Also included are temporary structures to complete this work. The COE will issue this permit provided the work does not cause the loss of greater than ½-acre of waters of the United States.
The NWP authorizes the construction of access roads in conjunction with utility lines, with the identical loss of water threshold. The modifications made by the COE involve the definition of “single and complete project” as used to calculate that loss. The calculations are also used to determine whether pre-construction notification is required (PCN). While the language in the NWP remains effectively the same, the COE made revisions in the definitions section to further clarify the loss calculation.
In the new NWP, the definition of “single and complete project” has been split into two new definitions; “single and complete linear project” and “single and complete non-linear project”. 77 Fed. Reg. 10263-10264. At issue were the complexities associated with loss calculations for crossings over multiple water bodies for linear projects versus non-linear projects. In the commentary provided in the Final Notice, the COE defined a linear project as one which is “constructed for the purposes of getting people, goods, or services from a point of origin to a terminal point.” 77 Fed. Reg. 10263. For the purposes of constructing a pipeline or access road across multiple water bodies or wetlands, each separate and distant crossing is considered to be a separate single and complete project according to this new NWP. More importantly, the acreage and other limits would be applied to each crossing separately, although the COE notes that District Engineers will evaluate the cumulative effects of all crossings to determine whether a NWP permit is appropriate or if compensatory mitigation is required.
Other modifications include the addition of Note 4, which requires notification to the Department of Defense Siting Clearinghouse if the proposed activity involves an overhead utility line and further consideration of how NWP 12 will apply in terms of off-shore wind energy projects. The existing thresholds for pre-construction notification (PCN) were reaffirmed and General Condition 11 now addresses use of particular low-impact equipment. The COE also confirmed that NWP 12 applies to all activities associated with construction of utility lines, including mechanized clearing of forested wetland.
Nationwide Permit (NWP) 39 – Commercial and Institutional Developments (Well Pad Construction). 77 Fed. Reg. 10222-10223.
NWP 39 authorizes the discharge of dredged or fill materials as part of construction or expansion of building pads or other similar features for the use and maintenance of the structures. While the NWP specifically states that it does not apply to the construction of oil and gas wells, the COE revised the NWP to apply to construction of pads for oil and gas wells. 77 Fed. Reg. 10223. Furthermore, the COE suggested that District Engineers may require permittees to remove the pads and restore the site once oil and gas extraction activities have ceased. The COE requires pre-construction notification (PCN) for all NWP 39 permits.
The primary modification of this NWP was in regards to waiver provisions associated with the loss of greater than 300 linear feet of intermittent and ephemeral stream bed. Should the District Engineer make a written determination that discharge of dredged or fill materials will result in minimal adverse effects, the District Engineer may then waive the 300 linear foot limit of NWP 39.
The COE then reaffirmed other provisions of the NWP, including the ½-acre limit and the 300 linear foot limit required to make sure that there are only minimal individual and cumulative adverse effects on the aquatic environment.
This article was authored by Carolyn McLain, Jackson Kelly PLLC. For more information on the author see here.