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The U.S. Army Corps of Engineers (Corps) issues nationwide permits to authorize specific categories of activities in jurisdictional waters and wetlands that have no more than minimal individual and cumulative adverse environmental effects. This action would be a deregulatory action because it proposes to remove specific terms of nationwide permits that impose costs on prospective permittees, and it would help simplify the nationwide permit authorization process. Since the submission and review of such nationwide permits can take significantly less time than individual permits, any changes to the program that increase the conditions under which the nationwide permits can be used could result in significant cost savings for the public. The issuance and reissuance of nationwide permits must be done every five years to continue the Nationwide Permit Program. The nationwide permits were last issued on December 21, 2016, and expire on March 18, 2022. On October 25, 2017, the Corps issued a report to meet the requirements of Executive Order 13783, Promoting Energy Independence and Economic Growth. In that report, the Corps recommended changes to nine nationwide permits that authorize activities related to domestic energy production and use, including oil, natural gas, coal, and nuclear energy sources, as well as renewable energy sources such as flowing water, wind, and solar energy. This rulemaking action would seek to review and, if appropriate, modify those nine nationwide permits in accordance with the opportunities identified in the report in order to reduce burden on the public.  In addition, the Corps is considering modifying an additional 23 nationwide permits to allow federal agencies to select and use nationwide permits without additional Corps review. This rulemaking action would help simplify the nationwide permit authorization process.

Statement of Need:

This proposed rule would propose executing the recommendations the Corps made in the report dated October 25, 2017, that it wrote in response to Executive Order 13783, Promoting Energy Independence and Economic Growth, as well as one of the legislative principles in the Administration's framework for rebuilding infrastructure in the United States. For Executive Order 13783, the Corps may propose to modify 9 nationwide permits that authorize activities association with energy production and distribution.  For the framework for rebuilding infrastructure in the United States, the Corps may propose to modify an additional 23 nationwide permits so that federal agencies that want to use these nationwide permits do not have to submit pre-construction notifications. 

Summary of the Legal Basis:

The Corps has authority to issue nationwide permits under the following statutes: Section 404 of the Clean Water Act (33 USC 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).  

Alternatives:

Potential alternatives consist of: (1) conducting the rulemaking necessary to make the proposed modifications or other modifications to these 32 nationwide permits prior to the expiration of the current nationwide permits, (2) conducting rulemaking to modify a smaller number of the current nationwide permits prior to the expiration of the current nationwide permits, and (3) taking no action until the next scheduled rulemaking. The current nationwide permits went into effect on March 19, 2017, and expire on March 18, 2022. If the nationwide permits are not reissued before March 18, 2022, the nationwide permits will automatically expire and project proponents would be required to obtain individual permits to conduct regulated activities under section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899, unless the applicable Corps district has regional general permits available to authorize similar categories of activities.

Anticipated Costs and Benefits:

The proposed changes to these 32 nationwide permits would reduce compliance costs for regulated entities by removing or changing certain terms of those nationwide permits to make them easier to use. According to the regulatory impact analysis prepared for the 2017 nationwide permits, a typical nationwide permit verification costs $4,308 to $14,358 to obtain, whereas a typical individual permit costs $17,230 to $34,460 to obtain. A more detailed cost/benefit analysis will be prepared when the proposed rule is developed.

Risks:

The nationwide permits reduce risks to public health, safety, and the environment by providing streamlined authorization for categories of activities that require Department of the Army authorization and result in no more than minimal individual and cumulative adverse environmental effects. The nationwide permits authorize the construction and maintenance of infrastructure that supports public health and safety. The streamlined authorization process provided by the nationwide permits reduces risks to the environment by giving incentives to project proponents to design their projects to reduce adverse environmental effects so that they are no more than minimal. Many of the nationwide permits have acreage and other terms that help regulated entities design their projects to qualify for nationwide permit authorization.