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Wednesday, February 15, 2012

The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory Developments

Claudia Copeland
Specialist in Resources and Environmental Policy

Permits issued by the U.S. Army Corps of Engineers authorize various types of development projects in wetlands and other waters of the United States. The Corps’ regulatory process involves two types of permits: general permits for actions by private landowners that are similar in nature and will likely have a minor effect on wetlands, and individual permits for more significant actions. The Corps uses general permits to minimize the burden of its regulatory program: they authorize landowners to proceed with a project without the time-consuming need to obtain standard individual permits in advance. About 90% of the Corps’ regulatory workload is processed in the form of general permits.

Nationwide permits are one type of general permit. Nationwide permits, which currently number 49, are issued for five-year periods and thereafter must be renewed. They were most recently reissued in total in March 2007. The current nationwide permit program has few strong supporters, for differing reasons. Developers and other industry groups say that it is too complex and burdened with arbitrary restrictions that limit opportunities for an efficient permitting process and have little environmental benefit. Environmentalists say that it does not adequately protect aquatic resources, because the review procedures and permit requirements are less rigorous than those for individual or standard permits. At issue is whether the program has become so complex and expansive that it cannot either protect aquatic resources or provide for a fair regulatory system, which are its dual objectives. Controversies also exist about the use of specific nationwide permits for authorizing particular types of activities, such as surface coal mining operations.

In addition to general objections, interest groups have a number of specific criticisms of the permits, such as requirements that there must be compensatory mitigation for impacts of some authorized activities, impacts of regional conditioning through which local aquatic considerations are addressed, and the need to define “minimal adverse effects” for purposes of implementing the nationwide permit program. Coordinating implementation of the nationwide permits between federal and state governments also raises a number of issues. Of particular concern to states is tension over whether their authority to certify the nationwide permits is sufficient to assure that water quality standards or coastal zone management plans will not be violated.

The nationwide permits issued in 2007 are due to expire March 18, 2012. In anticipation of that date, in February 2011 the Corps proposed to reissue and modify the current permits. One focus of that proposal is modification or repeal of one nationwide permit, number 21, which authorizes discharges associated with surface coal mining activities and has been controversial. The Corps expects to take final action on reissued and modified permits by March 18.

Congressional interest in wetlands permit regulatory programs has been evident in the past in oversight hearings and in connection with bills to fund the Corps’ regulatory programs. For some time, there has been a stalemate over legislation that would revise wetlands regulatory law and that could, if enacted, modify the nationwide permit program. During this time, no consensus has emerged on whether or how to reform overall wetlands policy legislatively. Recently, Obama Administration initiatives and actions intended to restrict harmful effects of surface coal mining activities in Appalachia have drawn congressional attention and criticism that is likely to continue in the 112th Congress and that could include oversight of the Corps’ regulatory program generally.

Date of Report: January 30, 2012
Number of Pages: 25
Order Number: 97-223
Price: $29.95

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