Confustion Regarding Wetland Nationwide Permits and Regulatory Freeze

On January 20th, President Trump's Chief of Staff, Reince Priebus issued a Memorandum to the Heads of Executive Departments and Agencies imposing a regulatory freeze. There appears to be a lot of confusion among environmental attorneys and consultants as to whether the freeze applies to the Army Corps of Engineers (ACOE) Nationwide Permits (NWP).  

NWP are authorizations to fill wetlands and/or impact streams for certain projects that have limited impacts.  NWP are general permits that allow projects to bypass more complicated and costly individual permitting.  The NWPs are a key authorization necessary to allow projects to move forward. Without effective NWP a project only alternative was to seek an individual 404 permit which takes months.

The freeze applies to recently enacted regulations that had not taken effect by the date of the memorandum.  The new NWP were published in rule on January 6, 2017 but will not be effective until March 19, 2017.  Based upon the publication date, the NWP regulation would be subject to the freeze.

Federal agencies can petition the Office of Management and Budget (OMB) for a special exemption from the regulatory freeze.  The ACOE filed for and was granted an exemption so the 2017 NWP will go into effect on Marcy 19, 2017 which was the original effective date.  The ACOE issued a notification last week that it was granted an exemption from the freeze.

I have seen e-mails and memorandum circulating indicating NWP may not be available this spring due to the freeze.  That now appears not to be the case.  

[Photo courtesy Junior Libby]

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