Streamlining Restoration Projects with Nationwide Permit 27: An Explainer
By: Becca Madsen
Note: unless otherwise noted, information below comes from the December 2021 reauthorization of Clean Water Act Nationwide Permits.
Restoration permitting complexity and delay makes it harder for organizations and agencies to achieve beneficial outcomes for the environment and pushes investment capital away from these projects. But that’s a general and theoretical statement. What does better permitting look like in practice? The US Army Corps of Engineers’ (USACE) Nationwide 27 General Permit for Aquatic habitat restoration is a great example. It’s expected to be used more than a thousand times per year to cover ‘net benefit’ water resource restoration activities. A General Permit like this provides what is effectively a simple, streamlined recipe for more automatic approval of a project. While there has certainly been some controversy about some of the 53 different kinds of General Permit the USACE has approved, this shouldn’t be one of them – it’s helping thousands of projects to improve the environment.
This explainer reviews how NWP 27 created huge efficiencies in permitting aquatic resource restoration with widespread benefits to coastal and upland wetlands, streams, and other resources. Other Federal and state regulations could take a cue from this example and streamline projects proven to create a net benefit in natural resources.
Nationwide Permits (NWPs) are a way to receive Clean Water Act (CWA) Section 404 authorization for impacting wetlands and streams for specific activities, given that those activities only cause minimal adverse environmental effects. NWPs provide approval with “little, if any, delay or paperwork.” As of February 2022, there are 53 different types of NWPs covering a wide variety of activities. Aquatic habitat restoration, establishment, and enhancement (NWP 27) is one of them.
How does NWP 27 streamline restoration permitting?
NWP 27 provides a quicker approval process for aquatic restoration permitting. An NWP takes generally 45 days or less, whereas an individual permit from the USACE had an average processing time of 264 days.* We’d love to confirm that the 45 day timeline is happening in reality.
NWP 27 allows impacts to WOTUS if the restoration can prove net increase in aquatic resource functions and services, and the restoration “results in habitat that resembles an ecological reference.” Those two conditions - net gain, and resembling a reference site - are core pieces of NWP 27 and were repeated multiple times in response to comments. A report or pre-construction notice (PCN) and a delineation of WOTUS is a requirement for USACE to be able to determine that net gain can be achieved.
A restoration project can be large or small; there is no size limit.
NWP 27 “can be used to authorize compensatory mitigation projects, including mitigation banks and in-lieu fee projects.” NWP 27 is agnostic as to the purpose of restoration; there is no differential treatment of restoration completed for use as compensatory mitigation versus voluntary restoration.
Compensatory mitigation for impacts during the restoration process is not required, “since these activities must result in net increases in aquatic resource functions and services.” This had been a source of ambiguity prior to the 2017 reauthorization of NWP 27.
Whereas other agencies like the U.S. Fish and Wildlife Service struggle with concepts of no net loss and net benefit, the Army Corps has made it a routine practice to successfully reach these determinations and benchmarks. This is a big deal for global net zero and similar efforts for natural resources - we have an agency already adept at this kind of framework.
This general permit has been available for over 20 years, getting refinements with reauthorizations every five years. The December 2021 reauthorization of NWP 27 stipulated two new types of aquatic restoration that could be permitted in this streamlined approach: coral restoration, and sediment releases from reservoirs that have the intention to maintain continuity of sediment transport to sustain or improve downstream habitat. The @NationalLawReview describes other changes in the rule. For NWP 27, sediment release was the subject of many critiques of the open comment period (see p.73544 - 73549 in the preamble of the NWP regulations), but the USACE repeatedly affirmed that if sediment releases had a net increase in aquatic resource functions and services, it was allowed as a restoration activity covered by NWP 27 - we agree that it should be. For example, restoration work like the Mid-Barataria Sediment Diversion project is “mimic[ing] historic deltaic sediment deposition” to turn the skinny straw that is now the Mississippi Delta to its former fan-shaped glory.
What NWP 27 doesn’t do
NWP 27 does not allow conversion of one form of aquatic resource to another. USACE noted that conversions of aquatic resource type could potentially be permitted under an individual permit.
NWP 27 does not approve restoration projects within a state or Tribe that has assumed CWA Section 404 permitting responsibilities.
NWP 27 does not replace the Mitigation Banking Instrument (MBI) approval process for wetland and stream banks. MBIs go through an approval process prior to approval of restoration activities under NWP 27.
NWP 27 in Practice
USACE estimated that the January 2017 version of NWP 27 was used about 1,300 times annually across the US during the period of 2017 to 2019 (USACE, personal communication, May 2022). Under those 1,300 NWP 27 authorizations, there were multiple sites - over 6,000 sites in total - where wetlands, streams, and other water resources were restored (see figure).
Restoration practitioners have reported they use NWP 27 frequently and appreciate that it reduces the time to permit their net-benefit restoration projects (45 days as opposed to 264).
We hope regulators will treat restoration projects with more deference than the many projects - pipelines, surface mining - that also regularly receive expedited NWP approvals. The Ecological Restoration Business Association (ERBA) asked for language to confirm that NWP 27 is consistently applied across the nation to restoration projects conducted by “third-party ecological restoration provider[s]” - including mitigation banks, but the suggestion was not incorporated into the 2021 reauthorization.
One slow-down that restoration projects are experiencing is a general increase in the time that USACE needs to determine whether waters are jurisdictional. This relates to the ping pong changes in how Waters of the United States (WOTUS) have been defined and redefined over Administrations. Of course, it’s not just restoration projects affected by WOTUS. As Leah Pilconis, Associated General Contractors of America’s construction and environmental risk management advisor noted recently: “There’s a lot riding on these jurisdictional determinations with construction projects because you have to work around areas deemed as waters of the U.S., and every couple of years, depending on who is in office, things get changed around” (ENR, May 2022). WOTUS is really up in the air right now, with the Biden Administration working on revising the definition while the Supreme Court hears a case - Sackett vs. EPA - that could have huge consequences for wetlands.
Overall, NWP 27 has created a fantastic permit efficiency with widespread benefits to coastal and upland wetlands, streams, and other resources.
Federal and state regulations could take a cue from this example and streamline projects proven to create a net benefit in natural resources.
Other ideas for restoration permitting streamlining can be found in:
Recent Efforts to Streamline Restoration Permitting: Why it matters, a blog piece explaining California’s Cutting Green Tape initiative and Maryland’s Conservation Finance Act (one piece of that Act establishes a Commission to make recommendations on how to promote ecological restoration through green and blue infrastructure practices)
Net Zero or Better: Priorities for Offset Policies that Benefit the Environment and Communities, which provides recommendations on mitigation policies, including ways to streamline approval of restoration projects that create offsets
*If Endangered Species Act-listed species or critical habitat has the potential to be impacted, the project must go through ESA consultation, increasing the timeframe in those circumstances.
