Army Corps' New Nationwide Permits for Renewable Energy Projects Go Into Effect

19 March 2012 Publication
Author(s): Tanya C. O'Neill Sarah A. Slack

Legal News Alert: Environmental

Effective March 19, 2012, are two recently issued nationwide permits that allow for discharges of dredged or fill material in conjunction with certain renewable energy projects. Nationwide Permit (NWP) 51 may be used for land-based renewable energy generation facilities, including solar, wind, biomass, or geothermal energy projects, while NWP 52 is to be used for water-based renewable energy generation pilot projects. These two new NWPs are intended to provide a mechanism for quickly evaluating and, where applicable, permitting land and water-based renewable energy projects in support of the Obama administration’s clean energy initiatives. The NWP permitting process is implemented by the United States Army Corps of Engineers (ACE) under the agency’s authority to regulate impacts to waters of the United States.

NWP 51 — Land-Based Renewable Energy Generation Facilities
NWP 51 was created to authorize discharges of dredged or fill material into non-tidal waters of the United States for the construction, expansion, or modification of land-based renewable energy projects. This permit may be used on projects of up to half an acre on non-tidal wetlands, or projects that will impact no more than 300 linear feet of stream bed. The NWP covers the installation of actual renewable energy structures as well as attendant features, including roads, parking lots, utility lines, and stormwater management facilities. A significant factor for a project applicant who is considering using NWP 51 is that it requires preconstruction notification to, and approval by, ACE prior to the commencement of the project. ACE may exercise discretionary authority to place additional conditions on a proposed activity, or to require an applicant to pursue a regional general permit or an individual permit.

NWP 52 — Water-Based Renewable Energy Generation Pilot Projects
NWP 52 is similar to NWP 51 in that it requires preconstruction notice for any activities, and may be used on projects of up to half an acre of non-tidal wetlands, or that will impact no more than 300 linear feet of stream bed. However, NWP 52 applies only to pilot projects, which is limited to experimental projects where the renewable energy generation units will be monitored to collect information on their performance and environmental effects at the project site.

New NWP General Condition 19 — Migratory Birds and Bald and Golden Eagles
In addition to the new NWPs for renewable energy projects, ACE also added a new NWP General Condition for all NWPs that is specific to migratory birds and bald and golden eagles. Under NWP General Condition 19, ACE clarified that if issuance of an NWP will result in a “take” of a migratory bird or a bald or golden eagle, that it is the applicant’s responsibility to apply for, obtain, and comply with any required take permit.

Impact to Industry
Although the goal of these new NWPs was to simplify the permitting process for the development of renewable energy projects, the requirement under both NWP 51 and NWP 52 for a preconstruction notification to ACE creates a higher burden than for most other NWPs. Under the majority of existing NWPs, including NWP 12 for construction of utility lines and NWP 14 for linear transportation projects, preconstruction notifications are generally only required if more than one-tenth of an acre will be disturbed. Although these new NWPs provide a good option for reducing the permitting requirements for certain elements of renewable energy projects, including the construction of parking lots or stormwater features, it is likely that many renewable energy projects will continue to rely solely upon NWPs 12 or 14 where the impacts to navigable waters from projects are limited to impacts from the construction and installation of utility lines or roads.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this Alert or would like to discuss the topic further, please contact your Foley attorney or:

Tanya C. O’Neill
Milwaukee, Wisconsin

Sarah A. Slack
Madison, Wisconsin

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