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Nationwide Permits for Wetlands Projects:
Specialist in Environmental Policy
Updated January 21, 1999
Nationwide Permits for Wetlands Projects:
Nationwide Permits for Wetlands Projects:
Federal laws require government approval prior to beginning any work in or over navigable waters of the United States which affects the course, location, condition or capacity of such waters, or prior to discharging dredged or fill material into the waters of the United States. Regulatory programs which implement these laws are administered through permits issued by the U.S. Army Corps of Engineers (the Corps), but it shares responsibility with the Environmental Protection Agency (EPA).
In December 19%, the Corps issued 37 revised and two new nationwide permits authorizing various types of development projects in wetlands and other waters of the United States. A nationwide permit is a form of general permit which authorizes a category of activities throughout the nation and is valid only if the conditions applicable to the permit are met. These permits are issued under authority of section 404(e) of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899. They cover categories of activities that are similar in nature and will cause only minimal adverse effect on the environment, both individually and cumulatively. At issue in this program is the balance of two objectives: providing regulatory protection to ensure minimal impacts on aquatic resources, and providing a fair and efficient regulatory system.
One of the nationwide permits, Permit 26, has been particularly controversial and has drawn considerable attention. In the past, Permit 26 was criticized by environmentalists who contended that it results in a significant loss of wetlands acreage. As reissued in 19%, the scope of Permit 26 was greatly reduced, leading to criticism by landowner and developer groups who said it will be more burdensome for permit applicants. The nationwide permit regulatory program drew Congress' attention in 1997; House and Senate committees held oversight hearings to review several issues and controversies.
In addition, when it modified Permit 26 in 1996, the Corps reissued this permit for only 2 years and announced its intention to replace it with activity-specific permits that would be both environmentally protective of aquatic resources and more fair and consistent for the regulated community. In July 1998, the Corps proposed these further changes to Permit 26, but the revisions have been criticized by environmentalists, regulated industry and other stakeholders. Because of confusion about the July proposal, in October 1998, the Corps proposed additional changes and solicited more public comment. The Corps extended Permit 26 until September 15, 1999, when the agency expects to issue final changes.
General permits, including nationwide permits, are a key means by which the Corps seeks to minimize the burden and delay of its regulatory program: they authorize a landowner or developer to proceed with the covered activity without having to obtain an individual, site-specific permit in advance. They are intended to allow certain activities to proceed with little delay or paperwork and entail average processing time of 14 days, in contrast with individual permits which, on average, take 104 days of processing and evaluation, according to Corps statistics. Approximately 55,000 activities per year (representing 86% of the Corps' regulatory workload) are authorized by nationwide and other general permits. While some require advance notification to the Corps or state natural resource agencies, many only require after-the-fact notification. The following are examples: 1
Many individual nationwide permits have specific conditions and terms (such as acreage limitations and requirements for advance notification to the Corps or other agencies). In addition, a number of general conditions apply to all nationwide permits. These include, for example: no activity may cause more than a minimal adverse effect on navigation; no activity may jeopardize a threatened or endangered species; discharges into spawning areas and migratory waterfowl breeding areas must be avoided, to the maximum extent practicable; and discharges of dredged or fill material must be minimized or avoided through on-site mitigation, to the maximum extent practicable.
The Corps first issued regulations for general permits in the mid-1970s, and Congress codified the concept in amendments to the Clean Water Act in 1977 (P.L. 95-217). Nationwide and other general permits 2 are valid only for a period of 5 years, as is the case with other Clean Water Act permits. They were last reissued as a group in November 1991, taking effect in January 1992. In accordance with that renewal schedule, in mid-1996, the Corps proposed reissuing the existing 37 nationwide permits, including a number of clarifications and modifications to more than one-half of them, and issuing 4 new nationwide (61 Federal Register 30779-30795, June 17, 1996). After holding six public hearings and reviewing 4,000 comment documents, the Corps reissued the existing nationwide and 2 new ones on December 13, 1996, with an effective date of February 11, 1997 (61 Federal Register 65873-65922). 3 With the exception of nationwide permit 26 (discussed below), all will expire on February 11,2002, unless otherwise modified, reissued, or revoked. Of the existing permits, the agency reissued 25 with no change and modified 12. It also modified five of the general conditions (out of 22) which apply to all permits and added two new general conditions.
The Corps had several substantive purposes behind modifying the permits. One was the need to better ensure that permits have minimal adverse effects, especially on isolated wetland areas. A second was the need to better regionalize the program, by emphasizing that Corps officials (38 district and 11 division engineers) should condition nationwide permits on a local basis with limitations which reflect differences in aquatic ecosystem functions and values that exist across the nation. A third was the need to conform several existing permits to a broadened definition of "discharge" adopted by the Corps in 1993 related to regulation of excavation activities (see discussion below, "Uncertainty Due to Overturning the Tulloch Rule.")
Prior to the 1991 reissuance, the nationwide program involved little individualized review of these permits, as the guiding criteria was that covered activities impose so minimal an environmental impact that the full review given individual permits is not warranted. In the 1991 program revisions, however, district engineers were given greater authority to modify, suspend, or revoke nationwide permits for specific activities, and division engineers were authorized to exercise discretionary authority to revoke applicability of specific nationwide permits in high value aquatic areas and to then require individual permits for the activity. Further, preconstruction notification (PCN) was required for several of the nationwide permits, and when such notice is required, the applicant must provide a wetlands delineation, as well. Advance notification is intended to give the Corps time to determine that the adverse effects of the discharge or activity will be minimal. The district engineer has 30 days (45 days, in the case of Permit 26) to notify the person of approval to proceed or, instead, of the need to obtain an individual permit; thereafter, the applicant may proceed.
Even with those changes, the nationwides did not attract significant controversy when they were reissued in 1991. More attention and more controversy focused on the Corps' process of reissuing the permits in 1996, much of it centering on nationwide permit 26 (NWP 26), which was added to the program in 1977 and expanded in 1982.
Nationwide Permit 26 - Background and Controversies. Nationwide permit 26 authorizes discharges in headwaters or isolated waters, that is, nontidal waters with a flow rate of less than 5 cubic feet per second, or nontidal waters which are neither part of nor adjacent to a surface water system. Prior to reissuance in 1996, the filling authorized by this nationwide could affect no more than 10 acres of waters, including wetlands, and required PCN to the Corps if it would affect from 1 to 10 acres. Discharges affecting less than 1 acre required no advance notification or wetland delineation. Headwaters and isolated waters are areas which many people have difficulty identifying as wetlands, because they may appear dry for much of the year or lack the types of vegetation commonly associated with wetlands. Yet, they meet criteria developed by scientists and wetland delineators of areas that are, in fact, wetlands (criteria concerning characteristic hydrology, soil, and vegetation), and are increasingly recognized as providing important functions within entire aquatic ecosystems.
Permit 26 has been controversial for several reasons. Unlike other nationwide permits, it does not authorize specific activities, such as minor dredging or bank stabilization. Instead, it authorizes discharges to certain types of waters, based on acreage and lack of hydrologic connection to navigable waters. Environmental groups have long been concerned that this nationwide permit is overly broad, can be abused by applicants through segmenting of projects, and can result in large amounts of unmonitored wetland losses. Many believe that the permit is illegal, because it violates the Clean Water Act's requirement that activities covered by nationwide permits are "similar in nature." In 1991, the Corps considered lowering the acreage limits of NWP 26 but made no change at that time, stating that the then-new notification process in connection with this NWP was anticipated to ensure that only minimal adverse effects on the environment would occur.
Industry groups, including developers and landowners, view NWP 26 as an important mechanism for minimizing regulatory burdens on small businesses and other permit applicants. According to Corps' statistics, residential development is the major type of activity authorized by NWP 26, comprising about one-quarter of all NWP 26 authorizations. Transportation activities are the next largest category, comprising about 20% of all NWP 26 authorizations. 4 Without general permits, including NWP 26, landowners would face delays in project development and increases in costs. From the perspective of these groups, NWP 26 is valuable for much the same reason that the permit is controversial with environmentalists: it authorizes discharges to types of waters and is not restricted to specific activities.
According to Corps' statistics, between one-quarter and one-third of all nationwide permits authorized annually are for NWP 26 activities. Corps data indicate that 90% of all NWP 26 actions involve areas of less than 3 acres, but 50% of the environmental impacts resulting from the permit affect projects greater than 3 acres in size. Further, the Corps estimates that 75% of all environmental impacts resulting from all of the nationwide permits are authorized under this one permit. 5
Reissuance of Nationwide Permit 26 - 1996 Modifications, More Controversy. Prior to reissuance of the nationwide permits in 1996, environmental groups and other protection advocates, including federal and state natural resource agencies, pressed for repeal or modification of NWP 26. They argued that the Corps is unable to fully account for the environmental impact of NWP 26 either individually or cumulatively, because of poor record keeping and monitoring, and therefore the Corps cannot support a conclusion that the effects of nationwide permits are not significant.
The Corps acknowledged criticism that it lacks data with regard to the use of NWP 26 and its impact, yet said that based on available statistics and considering required on-site mitigation, the Corps has received more wetlands acreage than has been lost by use of the permit. 6 Nevertheless, in response to such long-standing criticisms and to what Corps officials say is increased understanding of the ecological importance of isolated and headwater wetlands, the Corps modified this permit in 1996 in order to ensure that in the future, no more than minimal adverse effects occur, both individually and cumulatively.
The Corps modified NWP 26 in two major respects. First, it reduced the acreage limits to cover discharges to nontidal headwaters and isolated waters no larger than 3 acres and to require advance notification by the applicant if the discharge affects one-third acre or more (compared with 10-acre and 1-acre thresholds previously). Discharges affecting more than 3 acres are required to obtain individual project authorization (compared with the previous 10-acre limit). Second, the Corps reissued this permit only for two years, intending to replace NWP 26 after Dec.13, 1998, with activity-based permits similar, perhaps, to those authorized in NWP 29: construction of single-family residences that impact less than 1/2-acre of wetlands or waters of the United States.
The Corps itself summarized the responses by groups who opposed modifying NWP 26 and narrowing its scope.
Considering these views, the Corps determined that, "for fair, effective, and efficient implementation of the Corps regulatory program" (61 FR 65893), it was necessary to have a general permit such as NWP 26, yet because of the ecological importance of isolated and headwater wetlands and the potential for adverse impacts by NWP 26, the agency reissued this permit in a "more restrictive and environmentally sensitive form during the two-year phaseout." (61 FR 65891)
On the issue of increased workload, the Corps estimated that the lower acreage limits in the revised permit would require the agency to process approximately 500 additional individual permits per year, a 10% increase over FY 1996. Industry sources said that an additional 1,000 individual permit reviews is a more accurate estimate. On the other hand, the Corps further estimated that if NWP 26 were totally eliminated and all such projects were subject to individual project review and verification, the agency's workload would increase seven-fold, an increase that "would render the program ineffective and would be a disservice to the American public and overall environmental protection." (61 FR 65894) Industry groups also were concerned that the Corps would not be able to issue replacement permits for NWP 26 within 2 years. A coalition of industry stakeholders, led by homebuilders, challenged the reissued NWP 26, arguing that it is too restrictive and had not been subject to adequate public comment and review. Complying with a court order in that case, in November 1997, the Corps agreed to reopen the comment period on phasing out NWP 26 (National Association of Home Builders V. US. Army Corps of Engineers, 97464 D.D.C.). In the mean time, however, the Corps was working on activity-specific permits to replace NWP 26, as it had indicated intent to do in December 1996.
On July 1, 1998, the Corps published its proposal to revise NWP 26 and set a public comment deadline of August 31. At the same time, the Corps proposed to extend the life of the existing NWP 26 from December 13, 1998, its planned expiration date, to March 28, l999. As indicated in 1996, the Corps proposed several new activity-based permits which would authorize specific categories of activities, replacing the current approach in NWP 26 which is based on acreage and particular geographic types of waters (headwaters and isolated wetlands). The new proposed permits would apply to the following activities:
Most of the proposed new permits are limited to work in non-tidal waters of the United States and do not authorize work in tidal waters (those subject to the ebb and flow of the tide) or in non-tidal wetlands contiguous to tidal waters (i.e., wetlands connected by surface waters to tidal waters). Thus, their geographic reach is potentially broader than current NWP 26, which is restricted solely to activities in headwaters and isolated wetlands. The Corps believes that removing the headwaters restriction will help reduce confusion by eliminating the need to determine where the median flow of a waterbody is less than 5 cubic feet per second (i.e., the threshold determining areas where current NWP 26 may be used).
Several of the proposed permits (residential, commercial, and institutional activities; passive recreation facilities; and mining activities, for example) require compensatory mitigation for losses of greater than one-third acre of waters of the United States. Compensatory mitigation may be provided through restoration, enhancement, or creation of aquatic habitats; preservation of adjacent open or green space; land trusts; or mitigation banks. 9
As with the existing nationwide permits, Corps officials retain the authority to apply special conditions to use of any of the proposed new permits or even to revoke use of specific permits in aquatic environments of particularly high value or in specific geographic areas. Indeed, the Corps expects that its division engineers will utilize a significant amount of regional conditioning to ensure effective protection at the local level of wetlands and other water resources. Regional conditions might include distinct watersheds or waterbodies where certain nationwide permits should be suspended or revoked, thus requiring landowners to obtain individual project-specific permits; reducing the acreage thresholds in certain types of waters; or adding notification requirements for all permitted work in certain watersheds. The July proposal provided a new and somewhat more formal approach than in the past to developing appropriate conditions in each Corps District, providing explicitly for public input and coordination with federal resource agencies. Regional conditioning occurs prior to the date the nationwide permits become effective.
The Corps also proposed to modify six existing permits to increase the number of activities authorized by them: No.3 (maintenance); No.7 (outfall structures and maintenance); No.12 (utility activities); No.14 (linear transportation crossings); No. 27 (stream and wetland restoration); and No.40 (agricultural activities). For example, NWP 3 would be expanded to allow its use for restoration of upland areas adjacent to waters of the United States (shorelines and river banks) where those uplands have been damaged by discrete events such as floods or storms. The Corps believes that the proposed changes to existing nationwide permits will result in minimal impacts to the aquatic environment and in some cases may enhance aquatic environments; for instance, repairing a damaged seawall may eliminate turbidity caused by erosion. The proposal to modify NWP 27 would authorize its use for stream restoration and enhancement (but not for conversion of wetlands to another use), for the purpose of restoring and enhancing natural stream hydrology, wetland hydrology, vegetation, and aquatic function. Current NWP 27 applies to restoration, enhancement, and creation of wetlands and riparian areas.
Proposed modifications to NWP 40 would authorize certain discharges associated with agricultural activities, including installation of drainage tiles, construction of drainage ditches or levees, and mechanized land clearing and land leveling. To use this permit, a landowner must obtain a "minimal effect" exemption from the Natural Resources Conservati6n Service, and the activity must not cause the loss of greater than 1 acre of non-tidal wetlands. With these proposed changes, the permit would be coordinated with "minimal effects" provisions of the 1996 farm bill. The Corps had previously proposed permit language to this effect, but was not able to finalize the permit as part of the 1996 reauthorization (see footnote 3).
Further, the Corps proposed in July to lower the acreage limit for NWP 29, which authorizes single-family housing activities, from one-half acre to one-quarter acre - i.e., discharges associated with construction or expansion of a single-family home and attendant features may not cause the loss of more than one-quarter acre of non-tidal waters or wetlands. This permit is used by the person who will use the house as a personal residence, not by contractors or developers who offer a house for sale upon completion. The proposed change to this permit is the result of a lawsuit against the Corps which had challenged the issuance of NWP 29, contending several issues, including that its use would lead to more than minimal adverse environmental effects. A U.S. district court in Alaska supported plaintiffs in the lawsuit, and in April 1998, the court ordered the Corps to consider excluding high value waters from NWP 29, to consider lower acreage limits, and to prepare an amended environmental assessment. (Alaska Center for the Environment V. West, No. A96-245 CV (D. Alaska, Apr.30, 1998))
Throughout the July 1998 proposal, the Corps stated that its goal is to improve protection of aquatic resources, while ensuring that those activities with truly minimal impacts are authorized in an efficient manner by a general permit.
However, reactions by interest groups and stakeholders to the proposal suggest that some believe the Corps is far from achieving its intended goal. Developers indicated that the proposal would do little to help groups such as homebuilders, since much of their activity occurs m isolated or headwater wetlands, which are included in current NWP 26 but would not be included in the proposed activity-specific permits. Environmental groups criticized the proposed permits because they expand the types of wetlands that can be filled, expand the types of activities, and increase acreage limits. Regarding increased use of regional conditioning to strengthen permits, some environmental groups are skeptical that the Corps will be able to attach meaningful conditions, while developers have the opposite concern - that restrictions imposed by Corps regions will be unduly burdensome. 11
Additional Changes Proposed. Because of what the Corps described as confusion and misunderstanding of some aspects of the July 1998 proposal, in October 1998, the agency proposed additional changes and more time for development of permits to replace NWP 26. 12 First, the Corps withdrew the proposed activity-specific permit for master-planned developments, saying that initial public comments suggest the need for additional appropriate terms and conditions to ensure that the permit would protect aquatic resources while still encouraging planned developments. The Corps may consider reproposing this permit at a future date.
Second, the Corps proposed additional limitations on the use of existing and proposed nationwide permits for projects within critical resource waters or impaired waters, and for permanent above grade wetland fit's within the 100-year floodplain as defined by the Federal Emergency Management Agency (FEMA). Critical resource waters are waters that have high ecological functions and values; impaired waters are those with reduced functions and values caused by prior filling. Regarding the 100-year floodplain, the Corps explained that it seeks to limit permits to ensure that the nationwide permit program discourages further development that would reduce the flood storage capacity of the floodplain, but not create unnecessary constraints or costs on the regulated public, unless necessary to improve the aquatic environment.
As a result of these supplements to the July 1998 proposal and the need for more public comments prior to issuing final activity-specific permits, the Corps extended NWP 26 until September 15, 1999.
Implementation of the Corps' regulatory program, including the nationwide permits, requires considerable coordination between federal and state governments. For one thing, many states (and some localities) administer their own wetlands management and protection programs which vary in the way wetlands are defined and the activities that may or may not take place within or near regulated wetlands, and officials attempt to minimize duplication and overlap.
More important, however, is a coordinating responsibility given to states under section 401 of the Clean Water Act. This provision requires states to certify that a proposed project seeking a federal license or permit, such as a section 404 permit, will not violate a state's water quality standards. 13 In addition, states and territories that operate management programs under the Coastal Zone Management Act are required to provide concurrence that the activity is consistent with the state's coastal zone management (CZM) program. Review under the 401 water quality certification process or CZM concurrence is an important means by which states ensure that their water quality concerns will be considered in federally licensed activities.
The 60 delay period between Dec.13, 1996, and Feb.11, 1997 publication of the revised permits and the effective date) was provided to give states time to review the final permits and determine if they would certify compliance with water quality standards, certify conditional compliance (requiring the applicant to take additional protective steps), or deny certification. Conditions placed as a result of 401 certification or CZM concurrence by a state automatically become part of a nationwide permit. Some of the modifications in the 1996 permits were endorsed by many states (changes to narrow the scope of NWP 26, for example), because they are considered to be more protective than the previous permit. In those cases, states provided 401 certification, and projects authorized by the nationwide will proceed without additional state restrictions. However, some states favored modifications to other permits which the Corps did not adopt, 14 and in those instances, states declined to provide 401 certifications.
Following their 60-day review of the 1996 permits, 35 states and U.S. territories certified NWP 26 for compliance with the state's water quality requirements. Six of the 35 states issued, or certified, the permit without additional requirements, while 29 states imposed special conditions. For example, Wisconsin specified that an individual permit from the Corps would be required when the discharge affects more than 2 acres of wetlands. Washington imposed conditions sufficient, in the state's view, to prevent fi~ture listings of salmon under the Endangered Species Act. 15 Eleven states, the District of Columbia, and several territories denied certification for NWP 26, after determining that it would have a negative impact on state water quality. By comparison, when NWP 26 was last reissued, 5 years earlier, 27 states had certified the permit, but a smaller number of them (17) imposed special requirements. 16
An issue of long-standing concern to states is the fact that, if a state denies 401 certification or CZM concurrence because the project (under either a general or individual permit) would violate water quality standards, the Corps does not necessarily consider the state's action sufficient cause to deny issuance of the federal permit. When this happens in the case of nationwide permits, the state is forced either to accept the permitted activity, as authorized by the Corps, or to expend its resources to review the project separately and issue a 401 certification with conditions specific to that project. States would like the Corps to treat a 401 denial as a veto. The Corps may deny the permit (withdrawing its applicability in a state), but will not always do so. The Corps' position is that denial of state water quality certification for a nationwide permit does not necessarily mean that unacceptable adverse effects will occur on a case-by-case basis, and the Corps prefers that the burden of conditioning or restricting the project at that point be with the state.
This tension over state and federal responsibilities does not exist under other Clean Water Act permits. For example, under the Act's discharge permit program for industrial and municipal sources (the National Pollutant Discharge Elimination System program m section 402 of the Act), if a state denies 401 water quality certification, EPA insists on changes to the project until it gains 401 certification.
One option is for states to seek approval of a programmatic general permit (PGP; see discussion in footnote 2), if the state is qualified and has sufficient regulatory authority. The Corps would then suspend federal permitting, and there would be less question over state water quality or other requirements. This is the case in Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island, states with PGP programs which replace the federal nationwide permits. Another option is for states to seek authorization for full assumption of the 404 program, a more complicated process than PGP approval, and only Michigan and New Jersey have done so. However, not all states are interested or in a position to seek PGP approval or full program authorization. Thus, even though the Corps has stated its intention to work in partnership with states, most states will continue to conduct 401 certification reviews of nationwide and other wetlands permits, and it is likely that conflicts over water quality certification will persist.
The nationwide permits reissued in 1996 raise a number of additional issues. For example, the nationwide permit program is intended to balance a desire for administrative simplicity and reduced regulatory burden, on the one hand, with protecting aquatic resources, including wetlands. Yet, some persons questioned whether a number of administrative requirements of the 1996 permits, such as more extensive advance notification to the Corps and other agencies, written verification of compliance with a permit, and greater opportunities for regional conditions, are tilted too much in the direction of protecting aquatic resources and not enough in the direction of regulatory relief, while also making the nationwide permit program unduly complicated, according to this view.
As one example, industry groups were particularly concerned that the reauthorized permits restricted the multiple use of nationwide permits (a practice referred to as "stacking"). Previously, in many cases applicants could use nationwide permits in combination to speed authorization of their activities. However, the Corps determined that this often results in unintended cumulative impacts because of increased acreage being affected. Thus, the Corps prohibited stacking of some permits and required prior notification to the Corps for most others, to allow officials to determine whether it is appropriate to combine nationwide permits, or whether the activity should be evaluated under an individual permit.
The Corps was criticized for the method of publication of the nationwide permits. The agency announced previously that, from now on, it will publish these permits only in the Federal Register, but not in the Code of Federal Regulations. This change (they had previously been codified as an Appendix in the CFR) carne because the Corps argued that NWPs are permits, not regulations. Since the Corps does not publish either individual wetland permits or regional permits in the CFR, it will follow the same procedure of publishing only in the Federal Register. Some commenters said that the information is more easily accessible when published in the CFR, because many libraries do not retain depository collections of the Federal Register. The Corps responded that publication in the CFR also would omit state 401 certifications or regional conditions imposed by the Corps and, in addition, would not be timely since the CFR is only published annually.
Some persons also were critical that, since the Corps argued that the permits are not regulations, they were not submitted to Congress for review under the Small Business Regulatory Enforcement Fairness Act (the Congressional Review Act, Title II of P.L. 104-121, 5 U.S.C. 801-808). This 1996 law requires that federal agencies promulgating major rules must submit to each House of Congress and the Comptroller General a copy of the rule and a cost-benefit analysis of it. Before the rule can take effect, the Congress is given 60 legislative days to pass a joint resolution of disapproval, under procedures specified in the Act. 17 A resolution of disapproval would prevent the Corps from implementing the new permits, although such resolutions are subject to the presidential veto power and would require a two-thirds majority in each chamber to override a veto. Prompted by congressional interest, in February 1997, the Corps did submit the package of 1996 new and revised nationwide permits to the Congress for review, although Corps officials continued to insist that the permits are not a rule under the Administrative Procedure Act and thus not subject to the requirements of the Congressional Review Act. 18
Other observers were critical that, while the Corps made environmentally strengthening improvements to many of the nationwide permits, it did not address a number of outstanding concerns. For example, the Corps declined to define what is "minimal effects." The agency also declined to require mitigation of wetlands losses, as opposed to expressing a preference for it, and declined to require that mitigation be done on-site. On these points, the Corps' general position is that it is not appropriate to define or dictate these matters on a nationwide basis, because what constitutes minimal adverse environmental effects or adequate compensatory action for wetlands loss can vary widely from state to state and watershed to watershed.
Environmentalists have urged the Corps to conduct a cumulative impact analysis of the nationwide permit program. The agency declined to do so, contending that the permits do not constitute a major federal action having a significant effect on the human environment, since Corps data on the usage of permits suggest that the adverse effects, even cumulatively, are less than minimal. Thus, the agency says it is not required to prepare an Environmental Impact Statement under provisions of the National Environmental Policy Act, nor is a cumulative impact analysis warranted.
In February 1998, environmental groups brought suit against the Corps for failure to fully evaluate the effects of the nationwide permitting program. The lawsuit contends that the Corps should have examined the effects of the nationwide permits on threatened and endangered species and their habitat before reissuing them in 1996 and should have consulted with the U.S. Fish and Wildlife Service and/or the National Maine Fisheries Service on the effects on listed species (Natural Resources Defense Council V. West, 98-0560 VR, N.D. Calif, filed Feb.11, 1998). Partly in response this litigation, the Corps announced in June 1998 that it will prepare a programmatic environmental impact statement (PEIS) on the nationwide permit program by December 2000 and will consult with the other federal resource agencies, although the Corps continues to hold that the program has no significant impact on the environment or on endangered species. 19 The Corps views preparation of this PEIS as part of its commitment to ensure that the nationwide permit program authorizes only activities with minimal individual and cumulative environmental effects.
Uncertainty Due to Overturning the Tulloch Rule. The status of some existing Corps permits and aspects of its wetlands regulations was made uncertain by a federal court ruling of Jan.23, 1997. In this case (American Mining Congress V. U.S. Army Corps of Engineers; No.93-1754 SSH (D.D.C.)), the U.S. District Court for the District of Columbia overturned regulations issued by the Corps and EPA in 1993 which had extended the scope of the wetlands regulatory program to include certain landclearing and excavation activities. The Corps and EPA issued the 1993 regulations as part of the settlement of a lawsuit brought by environmental groups over the agencies' failure to regulate discharges associated with excavation (North Carolina Wildlife Federation, et al. V. Tulloch, Civil No. C90-713-CIV-5-BO (E.D.N.C. 1992)). At issue was whether "fallback" from dredging activities constituted pollution, under the CWA.
The federal district court ruled that, in issuing the rules that resolved the Tulloch case, the agencies had exceeded their authority under the Clean Water Act. The 1993 rules revised the definition of "discharge" to clarity that discharges or redeposit associated with mechanized landclearing or excavation are subject to regulation. The federal district court ruled that, in issuing the rules that resolved the Tulloch case, the agencies had exceeded the authority of the Clean Water Act by requiring permits from persons who engage in wetland excavation activities which result in coincidental fallback" of dredged material, because excavation is not defined as a regulated activity under the Act. The court said that the appropriate remedy for what the agencies now perceive to be an imperfect statute, however, is Congressional action; defendants' authority is limited to adopting regulations that effect the will of Congress as expressed in the statute.. .The Court finds that the Tulloch Rule exceeds the scope of the agencies' statutory authority and, accordingly, declares it invalid and sets it aside. (slip opinion at 25)
Following the district court's ruling in January 1997, the Corps and EPA issued guidance to field staff regarding the federal government's authority to regulate certain excavation activities in wetlands. Staff were directed not to take administrative or enforcement actions related solely to the "incidental feedback" of dredge or fill material in wetlands. According to the guidance, such activities would include dredged material that falls from a dredge bucket as it is raised up through the water column, but would not include ditching activities where the excavated material is sidecast into U.S. waters; the latter would require a permit. Other activities would require case-by-case examination to determine whether they are affected by the ruling. One example of this type cited in the guidance is channelization and the reconfiguring or straightening of streams. 20
Corps officials and environmentalists viewed the ruling as a major setback for the regulatory program. The government argued that the case has important implications for the scope and effectiveness of the CWA section 404 permit program, since the Tulloch Rule was adopted to close a significant loophole that had allowed developers to degrade waters without obtaining a 404 permit. However, a government appeal of the ruling was rejected by the U.S. Court of Appeals for the D.C. Circuit (National Mining Association V. US. Army Corps of Engineers, 97-5099, D.C. Cir., June 19, 1998). The court found that the Tulloch Rule's "overriding purpose appears to be to expand the Corps' permitting authority to encompass incidental fallback and, as a result, a wide range of activities that cannot remotely be said to 'add' to the waters of the United States." The court said it would give "considerable deference" to an effort by the Corps to draw a line between incidental fallback on the one hand, and redeposits which are subject to regulation on the other hand, but that the Tulloch Rule drew no such line. The appeals court upheld a nationwide injunction that the district court had issued against enforcement of the Tulloch Rule. Government requests for rehearing of the appeals court's decision also were rejected, and attorneys have said they will not seek review of the case by the Supreme Court.
Two new nationwide permits issued in the December 1996 reauthorization (NWP 30 and NWP 31) were intended to authorize by general permits certain activities associated with excavation having minimal' adverse environmental effects, one dealing with maintenance of existing flood control projects and the other with activities necessary to manage wildlife habitat and feeding areas. In addition, modifications to several existing nationwide permits were made to conform to the 1993 regulations (for example, NWP 12, concerning discharges in connection with utility line construction, was modified to authorize mechanized landelearing necessary for installation of utility lines). Corps officials believe that the ruling which overturned the Tulloch Rule will have no effect on the nationwide permits program, but it draws more attention to the Corps' regulatory program and leaves unsettled the scope of its authority to regulate. The greatest uncertainty concerns the effect on existing individual permits previously issued for excavation activities and whether those permit holders are subject to restrictions specified in the permit.
Congressional interest in legislation to revise the wetlands regulatory program has grown for several years, as groups have pursued proposals intended to simplify and streamline permitting and revise federal and state roles in permitting. In the last three Congresses, wetlands were a major component of the debate on reauthorization of the Clean Water Act and were partly the reason that no clean water legislation was enacted. Interest groups were unable to reach consensus on whether legislative reform is needed and, if so, how far it should extend. In May 1995, the House passed legislation to reauthorize the Clean Water Act (H.R 961) that, in part, would have significantly amended the wetlands permit program in section 404. It would have required that landowners be compensated if a federal agency action under section 404 diminishes the fair market value of property by 20% or more. It also would have established a wetlands classification system nationwide, allowing for differential regulatory procedures; in areas deemed least ecologically valuable, no permit would be required. The changes contained in H.R. 961 were opposed by environmentalists and the Administration. The Senate did not take up Clean Water Act legislation during the 104th Congress, and no legislative activity occurred in the 105th Congress.
The controversies that surrounded debate on H.R. 961 led many observers to believe that future wetlands reform efforts might focus on narrower, strategic revisions, rather than comprehensive proposals. For example, proposals might include exempting categories of activities below a certain threshold (less than 1 or 2 acres, for example) or clarifying the scope of authorized state general permit programs. Revision of the nationwide permits and the federal court decision affecting regulation of excavation activities could be impetus for congressional action. For example, legislation to codify the previous language of NWP 26, with higher acreage limits than provided in the 1996 reissued permits, was introduced in the 105th Congress by Rep. Mark Neumann (H.R. 2155).
Other persons might support legislation to overturn the federal district court's ruling concerning the Tulloch Rule by adding excavation to the list of activities which are regulated under section 404. According to one perspective, this would be consistent with recent congressional views on the issue, because the leading proposals in the 104th Congress (H.R 961, which passed the House, and a similar Senate bill, S. 851) did include such a provision. However, others interpret the excavation language in those bills as having been intended to balance out some of the more controversial reform provisions in the legislation and, thus, might have less support as standalone measures. It is possible that supporters of these different proposals -one group of changes supported by industry, others supported by environmentalists and many states - might work together to achieve statutory changes. No such proposals were introduced in the 105th Congress.
Congress has shown interest in these issues, however. On April 29, 1997, the House Transportation and Infrastructure Subcommittee on Water Resources and Environment held an oversight hearing on the developments concerning nationwide permits and the federal district court ruling. On June 26, 1997, the Senate Environment and Public Works Subcommittee on Clean Air, Wetlands, and Private Property held a similar hearing. At both hearings, witnesses representing developers and other groups subject to wetlands regulation expressed concern about impacts of the overall wetlands regulatory program, and a number were critical of the 1996 changes to the nationwide permit program, saying that the changes would be costly and could result in project delays. Administration witnesses supported the modifications, saying that the changes will allow the Corps to implement a more fair, flexible, and effective program which is appropriately responsive to environmental protection needs. At the Senate subcommittee hearing, other public witnesses supported the 1996 changes to NWP 26, discussed the need to regulate excavation activities, and criticized the federal district court's ruling concerning the Tulloch Rule. 21
1 The full text of the December 1996 Federal Register Notice with the reissued permits discussed in this report is available online, along with summaries and environmental assessments for the final permits, at http://www.spk.usace.army.rnil/cespk-co/regulatory/
2 The Act authorizes the Corps to promulgate general permits on a regional, state, or nationwide basis. The Corps' regulations authorize the issuance of general permits on a regional (sub-state) or statewide basis by district or division engineers, rather than headquarters, which issues the nationwide permits. The Corps uses the general permit authority to authorize statewide general permits covering activities in states that are deemed to have sufficient state regulatory authority. These statewide general permits programmatic general permits, or PGPs) function as a substitute for full state program authorization to administer the 404 program, Depending on the core state program, state PGPs may encompass all wetlands regulation in a state, certain waters only, or certain types of regulated activities. Once a PGP is approved, the Corps suspends permit activity in lieu of the authorized state or sub-state entity, although the Corps retains the right to override the PGP and issue a federal permit in individual cases. Thus, in addition to the 39 nationwide permits, the Corps has authorized approximately 400 regional general permits (RGPs) and 50 PGPs.
3 Two of the proposed permits were not issued in December 1996. One, concerning minimal effects exemptions under the 1996 farm bill, was not issued because related US Department of Agriculture regulations had not been issued with enough time available to consider combined effects. The other, concerning certain mining operations, was not issued because the Corps determined it would be preferable to develop regional general permits to reflect differing geographical areas, rather than a uniform nationwide permit.
4 Department of the Army, Corps of Engineers. "Proposal to Issue and Modify Nationwide Permits." 63 Federal Register 36041. July 1, 1998.
5 Presentation by Michael Davis, Deputy Assistant Secretary of the Army for Civil Works, at the Environmental Law Institute, Feb. 4, 1997.
6 FY1995, 13,837 activities were authorized by NWP 26, impacting 5,020 acres of wetlands. The Corps says it received approximately 5,909 acres of mitigation for these impacts, yielding a mitigation ratio of 1.15:1. (61 FR 65892). In addition, however, Corps districts estimate that another 20,000 NWP 26 activities were accomplished without a requirement for reporting to the Corps (i.e., they affected areas of less than 1 acre), and the total acreage impact, as well as whether any mitigation occurred, is unknown (61 FR 65894). Further, these data provide no information about the long-term quality of the mitigation.
7 U.S. Department of the Army, Corps of Engineers. "Proposal to Issue and Modify Nationwide Permits." 63 Federal Register 36040, July 1, 1998.
8 This permit relates to a Corps proposal from 1996 which was not made final that would have established an NWP for mining operations.
9 "A mitigation bank is a site where wetlands or other aquatic resources are restored, created, enhanced, or preserved to provide compensatory mitigation in advance of the authorized impacts. The entity that developed the mitigation bank provides these aquatic resources in return for payment from the permittee." Corps of Engineers, Proposal to Issue and Modify Nationwide Permits, July 1, 1998.63 Federal Register 36045.
10 Ibid., p. 36041.
11 "Six New Classes of Activities Covered Under Proposed Corps Replacement Permits." Daily Environment Reporter, June 25, 1998, No.122, p. AA-l
12 Department of the Army, Corps of Engineers. "Proposal to Issue and Modify Nationwide Permits." 63 Federal Register 55095, Oct.14, 1998.
13 States also may waive 401 certification, which is effectively the same as issuing an unqualified certification.
14 For example, many states oppose NWP 29, the single-family residence nationwide permit: 17 states denied 401 certification when NWP 29 was issued in 1995, because the permit was inconsistent with state water quality standards or other state wetlands management activities. While the Corps modified this permit in the 1996 revisions (by requiring a "no fill" buffer between the project site and any free-flowing stream), it did retain the permit and did not respond to comments from some states and others asking that the ¼-acre limit be reduced or that the permit be withdrawn. Sixteen states denied certification of this permit following its reissuance in 1996.
15 "Corps compiling WQ certifications." Endangered Species & Wetlands Report, March 1997, vol.2, no.6, p.19.
16 "Corps Says 35 States, Territories Certified Permit Affecting Discharges in Isolated Areas." Daily Environment Report, No.134, July 14, 1997, p. A-i.
17 For additional information on congressional review procedures, see CRS Report 96-777, Congressional Review of Agency Rulemaking: A Brief Overview and Assessment.
18 "Hill Staffer Says Corps Satisfied Threshold of Review Requirements under SBREFA," Daily Environmental Report, No. 30, Feb. 13, 1997. p. A-10.
19 U.S. Department of the Army, Corps of Engineers. "Finding of No Significant Impact for the Nationwide Permit Program." June 23, 1998.
21 Testimony from the House subcommittee hearing is available at; http://www.house.gov/transportation/water/wrhearin/4-29-97/429.htm .Testimony from the Senate hearing is available at: http://www.senate.gov/~epw/105th/stmts_1.htm .
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