The U.S. Army Corps of Engineers is soliciting comments for the reissuance of existing nationwide permits (NWPs) under the Clean Water Act, including a couple of permits applicable to the renewable energy industry.
The Corps is also proposing to issue two new NWPs and one new general condition, said a notice to be published by the Corps in the June 1 Federal Register. The Corps is requesting comment on all aspects of these proposed nationwide permits. The reissuance process starts with this publication of the proposed NWPs in the Federal Register for a 60-day comment period.
The purpose of this Federal Register document is to solicit comments on the proposed new and modified NWPs, as well as the NWP general conditions and definitions. Shortly after the publication of this Federal Register document, each Corps district will publish a public notice to solicit comments on its proposed regional conditions for these NWPs.
The Corps issues NWPs to authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that will result in no more than minimal individual and cumulative adverse environmental effects. There are currently 50 NWPs. These NWPs were published in the Feb. 21, 2012, issue of the Federal Register and expire on March 18, 2017. These reissued NWPs are due to go into effect immediately after those current NWPs expire.
Section 404(e) of the Clean Water Act provides the statutory authority for the Secretary of the Army, after notice and opportunity for public hearing, to issue general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States.
A couple of these permits applicable to renewable energy are:
NWP 51 – Land-Based Renewable Energy Generation Facilities
The Corps is proposing to split Note 1 of the 2012 NWP 51 into two notes. Note 1 explains that utility lines constructed to transfer energy from the land-based renewable energy facility to a distribution system, regional grid, or other facility are generally considered to be linear projects. Proposed Note 2 states that if the only activities that require Corps authorization are utility line crossings or road crossings, those activities should be authorized by NWPs 12 and 14, respectively, if they satisfy the terms and conditions of those NWPs.
Based on comments and questions from stakeholders, the Corps is seeking comment on changing the pre-construction notification (PCN) threshold in this NWP, which currently requires PCNs for all authorized activities. It is soliciting comment on whether changing the PCN threshold so that some NWP 51 activities can proceed without pre-construction notification would streamline the authorization process for regulated activities associated with land-based renewable energy generation facilities while still ensuring that these activities have no more than minimal adverse environmental impacts. Comments should provide a recommended PCN threshold, such as losses of waters of the United States in excess of 1/10-acre or 1/4-acre. Pre-construction notification would still be required for all activities that trigger the PCN requirements in general condition 18, endangered species, and general condition 20, historic properties.
NWP 52 – Water-Based Renewable Energy Generation Pilot Projects
During the period the 2012 NWPs have been in effect, The Corps received a suggestion that this NWP also authorize floating solar energy generation facilities. In response, it is proposing to modify this NWP to include floating solar energy generation projects in navigable waters of the United States.
A single water-based solar renewable energy unit can occupy a substantial area of navigable waters. The Corps is proposing to limit the surface area of navigable waters covered by floating solar energy generation facilities to 1/2-acre, but is seeking comment on whether a different limit would be more appropriate for such projects. The current 10-unit limit for water-based wind turbines and hydrokinetic generation units does not seem practical for floating solar generation facilities and for ensuring that adverse effects to navigation and other public interest review factors due to floating solar energy facilities are no more than minimal, individually and cumulatively.
Floating water-based solar energy generation facilities installed in open waters subject only to Clean Water Act section 404 jurisdiction do not require Corps authorization unless there is an associated discharge of dredged or fill material into waters of the United States. Water-based solar energy generation facilities are structures floating on the water surface, and structures in section 404-only waters that do not involve discharges of dredged or fill material do not require Corps authorization.
On Dec. 22, 2014, the Corps issued guidance clarifying the circumstances when hydrokinetic projects that require authorization from the Federal Energy Regulatory Commission (FERC) or Corps authorization under Sections 9 and 10 of the Rivers and Harbors Act of 1899. That guidance concluded that hydrokinetic projects authorized by FERC under the Federal Power Act of 1920 do not require Corps authorization under sections 9 or 10 of the Rivers and Harbors Act of 1899. Therefore, NWP 52 would only be used to authorize hydrokinetic projects in navigable waters that do not require FERC authorization. Nationwide permit 52 can be used to authorize water-based renewable energy generation facilities on the outer continental shelf, if those generation facilities require authorization under section 10 of the Rivers and Harbors Act of 1899. Section 4(f) of the Outer Continental Shelf Lands Act of 1953, as amended, extended the Corps’ section 10 authority over installations, artificial islands, and structures on the outer continental shelf.
The Corps is requesting comments on modifying this NWP to remove the terms that limited the 2012 NWP 52 to pilot projects. It is also seeking comment on limits of the number of permanent water-based renewable energy generation units that could authorized by this NWP, if the pilot project limitation is removed in the final NWP.