Clean Water Current

(August 5, 2020) - The U.S. Army Corps of Engineers (Corps) released a pre-publication version of its upcoming proposal to reissue and modify its streamlined Clean Water Act Section 404 permits, known as the “nationwide permits,” or “NWPs.”  The NWPs are reissued every five years and authorize small discharges of dredged or fill material into “waters of the United States” associated with specified activities that will result in “no more than minimal individual and cumulative adverse environmental effects.” 

For the first time, the Corps is proposing two new NWPs that could be used by NACWA’s members where appropriate to obtain expedited Section 404 permits. 

The first would authorize activities associated with the construction, maintenance, repair, and removal of utility lines – including pipes and pipelines – that convey potable water, sewage, stormwater, wastewater, and certain other non-petrochemical substances.  Notably, this would separate the authorization for water utility lines from the NWPs used for oil and gas pipelines and electric transmission and telecommunications lines, which are frequently the subject of legal challenges. 

The new water utility line NWP would limit allowable impacts to ½ acre of non-tidal wetlands.  In addition to pipes and pipelines, the Corps is also proposing to allow its use for construction and maintenance of utility line substations, foundations for above-ground lines, access roads, and temporary fills. 

The second new proposed NWP relevant to NACWA’s members would authorize discharges of dredged or fill material into non-tidal wetlands (up to ½ acre) for the construction, expansion, and maintenance of water reclamation and reuse facilities, including vegetated areas enhanced to improve water infiltration and constructed wetlands to improve water quality.  The Corps notes that such activities “can improve the security, sustainability, and resilience of our nation’s water resources.”

The Corps will be soliciting comments and suggestions concerning national standards or best management practices that could be incorporated into the water utility line NWP, as well as input on whether the Corps should clarify that other NWPs can be used for the construction, expansion or maintenance of water reclamation and reuse facilities in lieu creating a new separate NWP as proposed. 

NACWA is considering filing comments once the proposal is published in the Federal Register and is seeking member input on all aspects of the proposal, but particularly on the two new proposed NWPs for water infrastructure and reuse/reclamation.  Please contact Amanda Aspatore, NACWA’s Chief Legal Counsel, with any questions or comments.