SEIA Comments on U.S. Army Corps of Engineers' New Renewable Generation Nationwide Permits A & B

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New Renewable Energy Generation Nationwide Permits Should Include an Exemption from Pre-Construction Notification Requirements
While SEIA appreciates the U.S. Army Corps of Engineers’ (Corps) efforts to develop a nationwide permit (NWP) tailored to renewable energy generation, SEIA is concerned that the proposed NWPs A and B will hamper, rather than aid, solar energy development. This is because the proposed NWPs A and B do not include a pre-construction notification (PCN) exemption for impacts under 1/10 acre, but instead require that every applicant submit a PCN. A PCN is a formal process through which a project developer is required to submit a formal notification package, including delineations, and requests confirmation from the district engineer that an activity complies with the terms and conditions of an NWP prior to commencing the proposed work. 76 Fed. Reg. 9,178 (Feb. 16, 2011). District engineers will respond to a PCN within 45 days of receiving a completed PCN. If the project developer has not received a reply from the Corps within 45 days, the developer may assume the project is authorized. Id. at 9,179.
Prior to issuance of this Federal Register notice, solar developers wishing to install generation tie (gen-tie) lines or other linear electrical facilities would qualify for a NWP 12 (Utility Line Activities). NWP 12 applies to activities required for the construction, maintenance, repair and removal of utility lines and associated facilities in U.S. waters, provided the activity does not result in the loss of greater than one-half acre of U.S. water. The definition of “utility line” includes any cable, line or wire used for electric transmission. Id. at 9,190-91. NWP 12 includes a PCN exemption whereby any project that does not, among other things, discharge greater than 1/10 acre of U.S. water is not required to submit a PCN. The effect of which is that to the extent practicable, developers seek to minimize their wetland impacts so they can remain under this threshold, thereby benefitting the project, the Corps and the resources themselves.
Since the issuance of NWP 12 in 2007, solar projects have qualified for a NWP 12, and have met the PCN exemption criteria. All of these projects have had no or minimal impact on the aquatic environment, and have provided clean, renewable energy to power thousands of homes. To continue the development of solar power projects in an efficient and cost-effective manner, proposed NWPs A and B should include a PCN exemption like NWP 12. Without a PCN exemption similar to the exemption in NWP 12, NWPs A and B will effectively impose a new burden on the linear aspects of solar projects, and would subject renewable energy projects to a more stringent permitting regime than non-renewable utility projects that continue to qualify for NWP 12.

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