Final 2020 NWP Rule
Every five years, the U.S. Army Corps of Engineers (Corps) typically reissues the Nationwide Permits (NWPs) under their Clean Water Act (CWA) Section 404 permit program. The NWPs are activity-based and intended to make the permitting process faster and more efficient for the applicant. On January 13, 2021, the Corps modified and reissued 12 of the nationwide permits and created four new nationwide permits, as well as NWP general conditions and definitions. State specific conditions were published by NDEE; however, the final 2020 NWP Rule originally reissued all the NWPs.
The state was unable to redact and reissue state specific conditions for just the 16 NWPs in the final rule.
In addition, the regional conditions were published as draft, so the Corps’ regional conditions apply to the final 2020 NWP Rule. On June 11, 2021, the Corps submitted a draft final rule for the remaining 41 NWPs for review by the Office of Management and Budget under Executive Order 12866, Regulatory Planning and Review.
No material changes were made to the 41 proposed NWPs that would trigger the Corps to submit new 401 Water Quality Certification (WQC) requests for the 41 proposed NWPs. August 18, 2021, the Corps provided the state with a reasonable period of time extension for the remaining 41 NWPs to end on October 13, 2021. NDEE reviewed the original state specific conditions and determined that no additional conditions were necessary for the remaining 41 NWPs.
The WQC for the 2020 NWPs was updated to correct minor clerical inconsistencies between the WQC and the NWP rule. The updated WQC was public noticed on September 6, 2020, for 30 days. These new and reissued NWPs became valid on March 15, 2021 and will remain in effect through March 15, 2026.
Pursuant to CWA Section 401 regulations, when the new NWPs are published, states and Tribes review each proposed NWP to determine whether activities under each permit will be in compliance with state and/or Tribal Water Quality Standards. As the state water pollution control agency with jurisdictional authority over Nebraska’s surface waters, NDEE is tasked with review and Water Quality Certification (WQC) of the NWPs.
WQC is based on input received during a 30-day public comment period and NDEE’s determination as to whether there is reasonable assurance that NWPs will not violate applicable provisions in Title 117 – Nebraska Surface Water Quality Standards. The WQC is then incorporated by the Corps into their federal 404 permits.
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