Originally published as a Schiff Hardin Environmental Update newsletter

The “discharge of dredged or fill material into [] navigable waters” is prohibited by the Clean Water Act (“CWA”) unless authorized by the U.S. Army Corps of Engineers (the “Corps”). 33 U.S.C. § 1344 (“Section 404”). Pursuant to its authority under Section 404, the Corps issues general nationwide permits (“NWPs”) every five years to allow the discharge of dredged or fill material into navigable waters for categories of activities that are “similar in nature” and “will cause only minimal cumulative adverse effects on the environment.” 33 U.S.C.A. § 1344(e). Because the NWPs are not designed specifically for a single industry, nascent industries, such as renewable energy production, have struggled to fit within the confines of a NWP designed for other activities. However, due to the recent growth in the renewable energy production industry, the Corps has now proposed two new nationwide permits: one for land-based renewable energy generation facilities (“NWP A”) and one for water-based renewable energy generation pilot projects (“NWP B”). 76 Fed. Reg. 9174.

NWP A would apply to all activities related to the “construction, expansion, or modification of land-based renewable energy production facilities,” including the construction of infrastructure and “attendant features” such as “roads, parking lots, utility lines, and storm water management facilities.” NWP B would apply to all activities related to the construction, expansion, and modification of water-based renewable energy generation pilot projects, including the same attendant features listed under NWP A.

While NWP A would permit a discharge of dredged or fill material only into non-tidal waters (excluding non-tidal wetlands adjacent to tidal waters), NWP B would allow a similar discharge into all waters of the United States. 76 Fed. Reg. 9184. However, NWP B would prohibit the discharge of dredged or fill material in certain areas, such as “danger zones and restricted areas” as defined by the Corps, “anchorage areas and shipping safety fairways or traffic separation schemes” as defined by the U.S. Coast Guard, “open water dredged material disposal areas” as defined by the Corps or USEPA, and any activity in coral reefs. Id.

Both proposed permits allow a discharge of dredged or fill material to result in the loss of up to one-half acre of waters “including the loss of no more than 300 linear feet of stream bed.” Id. In the case of “intermittent and ephemeral stream beds,” the permits would allow a waiver of the 300 linear feet limit by obtaining a written determination that the discharge will result in minimal adverse effects. Id. Both permits also propose pre-construction notification of all discharge activities. Id.

The Corps seeks comments on the new nationwide permits, as well as the other changes it has proposed to the NWP program. All written comments must be received by April 18, 2011. Please contact an environmental attorney from Schiff Hardin to discuss the new nationwide permits if you believe that the new permits may affect your industry.