On December 27, 2021, the U.S. Army Corps of Engineers (USACE) announced reissuance of the remaining forty Nationwide Permits (NWPs) that were not previously renewed in January 2021. The December 27 reissuance rule includes one new NWP (No. 59) for activities associated with construction, expansion or maintenance of water reclamation facilities.
IMPACT ON OHIO
On February 23, 2022, the USACE Huntington, Buffalo, Louisville, and Pittsburgh Districts issued a Public Notice announcing USACE Regional and Ohio Environmental Protection Agency (OEPA) Section 401 conditions for use of the December 27 NWPs in Ohio. The renewed NWPs became effective February 25, 2022, and will expire March 14, 2026, synchronizing their terms with the sixteen Nationwide Permits previously issued in January 2021.
In general, modifications to the forty NWPs reissued December 27, 2021, are minor relative to their 2017 versions. However, there are some significant changes, including changes to USACE Regional and OEPA Section 401 conditions applicable in Ohio. Differing USACE Regional and Section 401 conditions apply in other states.
General modifications affecting multiple reissued NWPS in Ohio include:
- Where the term “discharge” is used, clarifying language “of dredged and fill material” has been added to explicitly clarify that the term applies to these discharge types;
- Ohio Section 401 conditions formerly stated as “This certification does not authorize…” have been revised to read “Individual 401 WQC is required for…”;
- References to “Section 404” have been revised to explicitly refer to Section 404 of the Clean Water Act.
Note that OEPA has not issued Nationwide Section 401 Water Quality Certification (WQC) for the following NWPs.
- NWP 17 – Hydropower Projects
- NWP 46 – Discharges in Ditches
- NWP 59 – Water Reclamation and Reuse Facilities
While USACE can still issue Nationwide Section 404 authorization for the above three NWPs (provided project activities meet all USACE related terms and conditions), Individual Section 401 Water Quality Certification by OEPA will be required for these NWPs.
Table 1 below summarizes principal permit-specific changes to the reissued December 27 NWPs, and the terms of new NWP 59, as they apply in Ohio.
Summary of Modifications to December 27, 2021
Reissued NWPs for Ohio