The official process has begun for reissuance of Nationwide Permits, which authorize limited fill of U.S. waters, including wetlands.  On February 16, 2011, the U.S. Army Corps of Engineers published in the Federal Register  its proposed revisions to the 50 existing Nationwide Permits and identified two new permits it is considering; one for land based renewable energy generation facilities and another for pilot projects of similar water-based facilities.  In the next few days, each Corps District office will issue its proposed list of changes to Regional Conditions, which may suspend or limit the use of these permits. 

While the Corps is proposing to retain most of the current acreage limitations, for some of the most widely used Nationwide Permits, including NWP 29 for residential development and NWP 39 for commercial and industrial development, the Corps is proposing to add a new requirement that a written determination must be made by the district engineer confirming that the discharge will result in only a minimal adverse effect.  Imposing this new restriction appears redundant, since, by law, Nationwide Permits must cause only minimal adverse environmental effects.  District engineers have always had the discretion under current regulations to require an individual Section 404 permit instead of authorizing fill under a Nationwide Permit, but this was rarely invoked.  The proposed “written determination” requirement could lead to further delays in an already time-consuming process to obtain nationwide permit authorization and may create greater uncertainty for applicants.

Comments on the federal Nationwide Permit proposal must be submitted by April 18, 2011.  A 45 day comment period will follow issuance of each district’s public notice of Regional Conditions.