Corps of Engineers Proposes Changes to Nationwide 404 Permits

The US Army Corps of Engineers proposed in the Federal Register on February 16 to change certain Nationwide Permits (NWPs) for activities resulting in fill material being placed in waters of the United States under Section 404 of the Clean Water Act. NWPs are the general permits that allow minor wetlands filling without a full permit, and often require only a notification to the Corps. Here is a short summary of some of the changes proposed: 

current acreage limits for the NWPs and

propose to modify some of the NWPs

acreage limits. We are also proposing to

modify the language concerning the use

of waivers in NWPs 13, 29, 36, 39, 40,

42, and 43 by clarifying that a waiver

may be granted only after the district

engineer makes a written determination

concluding that the discharge will result

in minimal adverse effects. The

modified waiver language will also be

applied to NWPs 21, 44, and 50, as well

as proposed new NWPs A and B. We are

proposing to replace the 25 cubic yard

limit for temporary pads in NWP 6 with

a

NWP 50 we are proposing a

limit on non-tidal waters of the United

States including the loss of no more

than 300 linear feet of stream bed,

unless for intermittent and ephemeral

stream beds the district engineer waives

the 300 linear foot limit by making a

written determination concluding that

the discharge will result in minimal

adverse effects. In NWPs 40 and 44 we

are proposing to increase protection of

streams by adding a 300 linear foot limit

for losses of stream bed, which can be

waived for intermittent and ephemeral

stream beds if the district engineer

makes a written determination

concluding that the discharge will result

in minimal adverse effects.

Proposed NWP A, Land-Based

Renewable Energy Generation Facilities,

and proposed NWP B, Water-Based

Renewable Energy Generation Pilot

Projects, have a

of non-tidal waters of the United States,

including the loss of no more than 300

linear feet of stream bed, unless for

intermittent and ephemeral stream beds

the district engineer waives the 300

linear foot limit by making a written

determination concluding that the

discharge will result in minimal adverse

effects. Both of these proposed NWPs

require PCNs.

In NWP 48, we are proposing to add

another PCN threshold for proposed

expansions of the project area for the

production of shellfish.1⁄10-acre limit for temporary pads. For1⁄2-acre1⁄2-acre limit for losses

We are proposing to retain most of the

Of particular interst to West Virginians is the proposed reissuance of NWP 21, with  the following preferred option:

Option 2 (Preferred Option)

—21.

Surface Coal Mining Activities.

Discharges of dredged or fill material

into waters of the United States

associated with surface coal mining and

reclamation operations provided the

activities are already authorized, or are

currently being processed by states with

approved programs under Title V of the

Surface Mining Control and

Reclamation Act of 1977 or as part of an

integrated permit processing procedure

by the Department of Interior (DOI),

Office of Surface Mining Reclamation

and Enforcement (OSMRE).

The discharge must not cause the loss

of greater than

waters of the United States, including

1⁄2-acre of non-tidalKHWCL6B1PROD with NOTICES2

the loss of no more than 300 linear feet

of stream bed, unless for intermittent

and ephemeral stream beds the district

engineer waives the 300 linear foot limit

by making a written determination

concluding that the discharge will result

in minimal adverse effects. This NWP

does not authorize discharges into tidal

waters or non-tidal wetlands adjacent to

tidal waters.

This NWP does not authorize

discharges of dredged or fill material

into waters of the United States

associated with the construction of

valley fills.

Notification:

submit a pre-construction notification to

the district engineer and receive written

authorization prior to commencing the

activity. (See general condition 30.)

(Sections 10 and 404)The permittee must

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