Two new "Nationwide Permits," aimed specifically at encouraging renewable energy development and experimentation, promise to ease the regulatory burdens facing developers of such projects. The Nationwide Permits ("NWP"), issued by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act, will allow energy developers to obtain "dredge-and-fill" permits for wetlands and waterways on an expedited basis if they meet specified conditions. The NWPs set out uniform nationwide conditions for projects meeting the specified criteria, thus limiting the often lengthy and expensive process of negotiating project-specific conditions.
NWP 52 is of particular interest in the Pacific Northwest because it governs water-based renewable energy pilot projects. In recent years, a variety of experimental efforts have attempted to capture the energy potential of the Pacific Northwest's vast ocean, tidal, and freshwater resources. For example, GTH client Snohomish County PUD is currently developing a pilot project that will test the feasibility of capturing tidal energy in the Puget Sound. Many of these efforts have encountered significant problems with obtaining the necessary permits, including Section 404 permits from the Corp of Engineers. NWP 52 may provide some help in negotiating the regulatory maze because it requires the Corp to act within 45 days after receiving a completed pre-construction notice. NWP 52 is available for pilot projects with up to ten generating units placed in salt or fresh water provided the projects will result in a loss of no more than 1/2 acre of water or wetlands.
NWP 51 provides for similar expedited treatment for land-based renewable energy projects as long as no more than one-half acre of non-tidal waters or wetlands are lost.
Both NWPs contain specific conditions, including, for example, a requirement for mitigation of lost wetlands. Notably, where a project may result in a "taking" of a species listed under the Endangered Species Act, consultation with the relevant federal agencies will be required, even under the NWPs. Accordingly, most projects in or near the water in Washington will be required to address concerns with endangered species such as listed runs of salmon and steelhead.
Both NWPs also contain a variety of conditions. Among the most significant of these are a requirement for mitigation of any wetland loss exceeding one-tenth of an acre.
The new NWPs can be combined with existing NWPs governing the development of linear facilities such as electric transmission lines. Thus, the new NWPs provide a significant step forward in allowing renewable energy development on land, and in allowing pilot projects that may demonstrate effective means of capturing the huge energy potential of the Northwest's waves and tides.
