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The 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. 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. The proposed rule inviting public comment on the changes identified in the 2017 report was published in the Federal Register on September 15, 2020 (85 FR 57298). The comment period for the proposed rule ends on November 16, 2020. In response to E.O. 13921, Promoting American Seafood Competitiveness and Economic Growth, the Corps is soliciting comment in its September 15, 2020, proposal on whether to issue new nationwide permits for seaweed and finfish mariculture activities. The Corps is also inviting public comment on whether to separate the current nationwide permit that authorizes utility line activities into three separate nationwide permits for oil/natural gas, electricity/telecommunications, and water/other substances. The Corps is also seeking comment on whether to issue a new nationwide permit that authorizes water reclamation and reuse facilities.

Statement of Need:

This proposed rule would propose executing the recommendations the Corps made in the report dated October 25, 2017, pursuant to Executive Order 13783, Promoting Energy Independence and Economic Growth. Under that Executive order, the Corps may propose to modify nine nationwide permits that authorize activities associated with energy production and distribution. The proposed rule was published in the Federal Register on September 15, 2020 (85 FR 57298). The proposed rule also includes potential new nationwide permits to authorize other mariculture activities, pursuant to Executive Order 13921, Promoting American Seafood Competitiveness and Economic Growth. In that proposed rule, the Corps is also inviting public comment on whether to issue three separate nationwide permits for different utility line sectors (i.e., oil/natural gas, electricity/telecommunications, and water/other substances) and whether to issue a new nationwide permit that authorizes regulated activities associated with water reclamation and reuse facilities.

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 U.S.C. 1344) and section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).  

Alternatives:

Potential alternatives consist of: (1) conduct a rulemaking to make the proposed modifications or other modifications to nationwide permits prior to the expiration of the current nationwide permits, (2) conduct a rulemaking to modify a smaller number of the current nationwide permits prior to the expiration of the current nationwide permits, (3) conduct a rulemaking to reissue and modify all of the nationwide permits, and (4) take 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:

Proposed changes to nationwide permits would be expected to 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 $4,412 to $14,705 to obtain, whereas a typical individual permit costs $17,646 to $35,293 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.