The Foundation Water Law Newsletter
(By Lisa M. Bruderly)
On September 15, 2020, the U.S. Army Corps of Engineers (Corps) published proposed revisions to certain nationwide permits (NWPs) under section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, for discharges of dredged and fill material into waters of the United States. See Proposal to Reissue and Modify NWPs, 85 Fed. Reg. 57,298 (proposed Sept. 15, 2020). At that time, the Corps proposed to reissue all NWPs, rather than only reissuing those with proposed changes. However, on January 13, 2021, the Corps published the final NWP rule, reissuing only 12 existing NWPs, issuing four new NWPs, and reissuing the NWP general conditions and definitions with limited modifications. See Reissuance and Modification of NWPs, 86 Fed. Reg. 2744 (Jan. 13, 2021). The 16 reissued/issued NWPs are effective on March 15, 2021, and will expire on March 14, 2026.
Of particular interest to the oil and natural gas industry is the Corps’ decision to divide the existing NWP 12 (utility line activities) into three NWPs, depending on the type of utility line: oil and natural gas pipeline activities (NWP 12), electric utilities and telecommunications (NWP 57), and utility lines for water and other substances (NWP 58).
State/Regional NWP Conditions
On September 30, 2020, the Corps’ Baltimore, Philadelphia, and Pittsburgh Districts proposed, in SPN-20-62, draft state/regional conditions for the proposed NWPs, as well as a list of “Final 2020 Nationwide Permit Suspensions” for Pennsylvania, among other states/geographic locations. The proposed regional conditions for Pennsylvania pertained to 22 NWPs and six general conditions, including the requirements for completing a pre-construction notification (PCN). The Corps’ Districts asked for comments on the proposed regional conditions and on the need for additional regional conditions to help ensure that the adverse environmental effects of authorized activities would be no more than minimal. The public comment period closed on November 16, 2020. When finalized, the final regional conditions will likely not include the proposed regional conditions pertaining to NWPs that were not reissued in January 2021.
Changes to Regional Conditions for NWP 12. The proposed regional conditions for the reissued NWP 12 differ in notable ways from the regional conditions for the 2017 NWP 12. Many of the 2017 regional conditions have been removed. For example, the proposed regional conditions would eliminate the prohibition from using NWP 12 in Pennsylvania for projects involving the permanent loss of more than 300 linear feet of stream bed for a single and complete project. Among other changes, the proposed regional conditions would also introduce the requirement for pipeline projects completed by horizontal directional drilling or other boring methods to include in their PCN a plan to address the prevention, containment, and cleanup of sediment or other materials caused by inadvertent returns of drilling fluids to waters of the United States.
Change in Scope of NWP Suspensions. Typically, the Pennsylvania State Programmatic General Permit (currently, PASPGP-5) is the mechanism that the Pennsylvania Department of Environmental Protection (PADEP) and the Corps rely upon to permit projects in Pennsylvania with impacts to regulated waters, which do not trigger the need for individual section 404 permitting. With the availability of the state programmatic permit, 34 NWPs (including NWP 12) have typically been suspended in Pennsylvania, except in certain section 10 waters and, for certain NWPs, when the regulated activity or indirect impacts extend across state boundaries. (“Section 10 waters” are waters that are considered as navigable under section 10 of the River and Harbor Act of 1899, 33 U.S.C. § 403.)
The “Final 2020 Nationwide Permit Suspensions” for Pennsylvania, issued with SPN-20-62, however, could significantly expand the use of these 34 NWPs by adding a provision that the suspensions do not apply for “Areas within Pittsburgh District’s area of responsibility in the Commonwealth of Pennsylvania.” This exception to the NWP suspensions could significantly increase the use of NWPs in the western part of Pennsylvania. However, reliance on the NWPs is not certain because the Pittsburgh District will still have discretion to utilize the most efficient and effective permitting tool in its evaluation of a specific action.
Conditional State Water Quality Certification for NWPs
On October 15, 2020, the Corps’ Baltimore District, on behalf of the Corps’ Baltimore, Philadelphia, and Pittsburgh Districts, requested that PADEP provide State Water Quality Certification (SWQC) under section 401 of the CWA, 33 U.S.C. § 1341, for discharges of dredged and fill material into waters of the commonwealth that are authorized by the proposed NWPs. PADEP published its proposed conditional SWQC on October 31, 2020. See 50 Pa. Bull. 6062 (Oct. 31, 2020). The public comment period for the proposed SWQC closed on November 30, 2020. One comment letter was received.
Pennsylvania’s conditional SWQC became effective on December 15, 2020. See 51 Pa. Bull. 238 (Jan. 9, 2021). The three conditions of the SWQC are summarized below:
- All necessary environmental permits or approvals must be obtained and all necessary environmental assessments must be submitted to PADEP before beginning any activity authorized by the Corps under a NWP.
- Fill material may not contain any waste as defined in the Solid Waste Management Act, 35 Pa. Stat. §§ 6018.101–.1003.
- Applicants and projects eligible for these NWPs must obtain all necessary state permits and/or approvals to ensure that the project meets the state’s applicable water quality standards, including any project-specific SWQC.
PADEP’s SWQC is conditional because it is based on the Corps’ September 15, 2020, proposed NWPs. PADEP has reserved the right to amend or withdraw this conditional SWQC if the language set forth in the final NWPs, Pennsylvania suspensions, or regional conditions published by the Corps “differs so substantially from the language in the proposed NWPs, Pennsylvania suspensions or regional conditions that the conditions contained herein can no longer insure compliance with Pennsylvania’s State Water Quality Standards Program.” 51 Pa. Bull. at 239. PADEP has not indicated whether it will revise the conditional SWQC based on the changes in the scope of the final NWPs.
Proposed Rulemaking—Revisions to Dam Safety and Water Management Regulations
On December 5, 2020, the Pennsylvania Department of Environmental Protection’s (PADEP) proposed amendments to 25 Pa. Code ch. 105 were published in the Pennsylvania Bulletin. See 50 Pa. Bull. 6863 (Dec. 5, 2021). Among other purposes, chapter 105 regulates obstructions and encroachments along or within waters of the commonwealth, similar to the U.S. Army Corps of Engineers’ section 404 permitting program under the Clean Water Act. The public comment period for the proposed rulemaking closed on February 3, 2021. The amendments will become effective upon final publication in the Pennsylvania Bulletin.
In addition to adding and/or amending at least 20 definitions, the proposed rulemaking would make several other changes to chapter 105. Among other revisions, the proposed rulemaking would (1) clarify existing waivers and add permit waivers for certain low impact structures and activities; (2) add antidegradation and cumulative impacts subsections to the applicant information requirements; (3) amend the environmental assessment provisions to add application information requirements specific to environmentally beneficial projects; (4) update provisions relating to compensatory mitigation obligations for proposed aquatic resource impacts that cannot be avoided, including the addition of siting criteria for mitigation projects, compensation factors, and monitoring and performance standards; (5) add new structures and activities that may be exempt from submerged lands licensing charges; and (6) provide further specificity regarding application requirements, such as the cumulative impact analysis, a water dependency demonstration, a stormwater management demonstration, alternatives analysis, antidegradation analysis, impacts analysis, and mitigation plan for projects seeking to discharge dredged or fill material into aquatic resources.
More detailed analysis of the proposed changes was reported in Vol. LIII, No. 2 (2020) of this Newsletter.
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