Corps of Engineers Issues Final Rule on Nationwide Permit for Small Water-based Renewables

by Carolyn Elefant on May 16, 2012

USACE logo largeOn February 21, 2012, the U.S. Army Corps of Engineers issued a Nationwide Permit 52 for small water-based renewable energy products.  I’ve tracked this issue for a while; announcing the Corps’ intent to develop an NWP for water based renewables back in 2010, and in 2011, in my capacity as counsel to Ocean Renewable Energy Coalition (OREC), I filed these comments.

Still, if you’d rather not read these old posts, by way of background, a nationwide permit is essentially a permit that is automatically granted to all projects that meet the established criteria.  Instead of evaluating a project on a case by case basis as is typically what happens when a permit is issued, with an NWP, a project holder basically makes the case that it meets certain criteria under the permit and it is automatically granted.  By creating a standard, one-size-nearly-fits-all permit, the Corps’ nationwide process speeds up the permit issuance process and creates more certainty and uniformity.

The NWP 52 is ideally suited  for water-based renewable energy projects like marine hydrokinetic.  Projects that fall within FERC’s definition of “pilot” (i.e., projects getting a pilot license and/or less than 5 MW), are fewer than 10 units in size and cause a loss of less than a 1⁄2-acre of non-tidal waters of the United States, including the loss of no more than 300 linear feet of stream bed will generally qualify for the NWP. There is also a provision for the district engineer to waives the 300 displacement requirement.

Each NWP program is implemented on a regional specific basis – and regions can define how the stream bed requirements are measured, whether the program is consistent with other regulation, etc.

Moving forward, an NWP may assist MHK developers in further streamlining the process of obtaining a pilot license at FERC.  And as I previously opined, the NWP will prove even more useful for developers who wish to apply for a Verdant exemption, i.e., which allows a developer to deploy an MHK device and connect it to the grid without a license for a period of up to 18 months, so long as the purpose of the deployment is to gather data to support the licensing process.  Even though a FERC license is not required to deploy under the Verdant exemption, other permits, notably, a Corps Section 10 and 404 are necessary.  So the availability of an NWP could expedite the process of deployment for test purposes while reducing the costs.  A positive development all around.

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