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

The Army Corps of Engineers’ Nationwide Permits
Program: Issues and Regulatory Developments
Updated November 17, 2008
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division

The Army Corps of Engineers’ Nationwide Permits
Program: Issues and Regulatory Developments
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.
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, concern that coal mining
activities authorized by these permits have significant adverse environmental
impacts, 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.
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. Congressional involvement
in these issues could arise again as a result of reissuance of the nationwide permits
in 2007.

In troduction ......................................................1
Background ......................................................2
Nationwide Permits: 1977-2002..................................3
Nationwide Permit 26: Background and Controversies.............5
Replacement Permits for NWP 26 in 2000......................5
Lawsuits Challenging the Replacement Permits..................8
Reissuance of All Nationwide Permits in 2002.......................8
Permit Reissuance in 2007.......................................9
Critiques by Stakeholder Groups.....................................11
Specific Critiques.............................................12
300 Linear-Foot Prohibition................................13
Mitigation Requirements...................................14
Coal Mining Activities.....................................17
Fills Within the 100-Year Floodplain.........................19
Other Issues Concerning Nationwide Permits.......................20
Regional Conditioning.....................................21
State Coordination Issues...................................22
Defining Minimal Adverse Effects, Assessing Cumulative Impacts..24
Congressional Interest.............................................26

The Army Corps of Engineers’
Nationwide Permits Program:
Issues and Regulatory Developments
Federal laws require government approval prior to beginning any work in or
over waters of the United States that affects the course, location, condition, or
capacity of such waters, or prior to discharging dredged or fill material into U.S.
waters. Regulatory programs that implement these laws are administered through
permits issued by the U.S. Army Corps of Engineers (the Corps), which shares
responsibility with the Environmental Protection Agency (EPA), under the authority
of the Clean Water Act, the Rivers and Harbors Act, and the Marine Protection,
Research, and Sanctuaries Act.
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 action. A
nationwide permit is a form of general permit that 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. Under Section 404,
permits are required for discharges of dredged or fill material into waters of the
United States. Under Section 10, permits are required for any structures or other
work that affect the course, location, or condition of navigable waters of the United
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. At issue in the nationwide permit 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. For several years, however, interest
groups of differing perspectives have criticized the program and increasingly
question whether either objective is being achieved, much less both objectives.
Stakeholders involved in this debate include, on the one hand, industry groups
(members of building — especially homebuilding — design, realtor, and petroleum
and mining organizations) and, on the other, environmental advocacy groups, along
with many state water quality, water resources, and environmental agencies.
Particularly under the Clean Water Act, the Corps’ regulatory authority is
broadly defined. It covers waters of the United States, including the territorial seas,
and includes traditionally navigable waterways capable of supporting interstate and
foreign commerce, plus their tributaries, and adjacent wetlands and isolated waters

where the use, degradation, or destruction of such waters could affect interstate or
foreign commerce.1 In fact, much of the public concern about the nationwide permit
program — with regard to impacts of authorized activities, and terms and conditions
intended to limit impacts — often focuses on permits for projects that affect the
nation’s wetlands. Controversies about the permit program are compounded by
disputes about the data on which the Corps bases its conclusions that adverse
environmental impacts of authorized activities are minimal. Critics, especially
environmental advocates, argue that the Corps’ data are dated (the most recent
available statistics are from 2003) and inaccurate, because the Corps lacks an
effective tracking and monitoring system for evaluating impacts.
The nationwide permit regulatory program has drawn Congress’s attention
several times in the past. In 1997, House and Senate committees held oversight
hearings to review several issues and controversies. In 1999 and again in 2000,
congressional appropriators directed the Corps to take certain actions concerning its
overall regulatory program, and nationwide permits in particular.
This report describes and reviews the nationwide permit program and discusses
several major issues that have drawn the attention of stakeholder interest groups,
including program complexity, coordination with states, and assessing cumulative
impacts of the program.
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. Individual permits
are subject to public notice, public hearing, and case-by-case evaluation which
typically involve longer time before the activity is authorized. General permits are
intended to allow certain activities to proceed with little delay or paperwork.
According to Corps data, in 2003, general permits entailed average processing time
of 24 days, in contrast with individual permits, which, on average, took 187 days of
processing and evaluation, once an application was completed. Approximately
74,000 activities per year (representing 92% of the Corps’ regulatory workload) were
authorized by nationwide and other general permits. The Corps acknowledges that
it does not have resources to evaluate all of these activities as individual permits.
General permits, including nationwide permits, authorize activities that usually
would be authorized through the individual permit process with little or no change
in the scope of the work.2 While more than half require advance notification to the

1 Debate about the jurisdictional reach of the Corps’ regulatory program has been a
controversial policy and judicial issue for some time. It is beyond the scope of this report,
but for additional information see CRS Report RL33483, Wetlands: An Overview of Issues,
by Jeffrey Zinn and Claudia Copeland.
2 64 Federal Register 32268, July 21, 1999.

Corps for some or all covered activities, others only require after-the-fact
notification. The following are examples of nationwide permits:3
!Placement of aids to navigation approved by, and installed according
to, U.S. Coast Guard requirements (nationwide permit 1);
!Activities related to construction and maintenance of authorized
outfall structures and associated intake structures (nationwide permit


!Stream or river bank stabilization activities necessary to prevent
erosion (nationwide permit 13);
!Minor dredging, that is, dredging of no more than 25 cubic yards of
material (nationwide permit 19);
!Activities associated with restoration, enhancement, or
establishment of wetlands and riparian areas where the activities
result in net increase in aquatic resource functions and services
(nationwide permit 27);
!Discharges of dredged or fill material for the construction or
expansion of residential developments (nationwide permit 29); and
!Discharges for construction or expansion of recreational facilities
such as ski areas and golf courses (nationwide permit 42).
Many nationwide permits have specific conditions and terms (such as maximum
acreage limitations). In addition, a number of general conditions apply to some or
all nationwide permits; 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 mitigation to offset more than
minimal impacts on the aquatic environment, to the maximum extent practicable.
The specific statutory authority for these permits is Section 404(e) of the Clean
Water Act.
In carrying out the functions relating to the discharge of dredged or fill material
under this section, the Secretary [of the Army] may, after notice and opportunity
for public hearing, issue general permits on a State, regional, or nationwide basis
for any category of activities involving discharges of dredged or fill material if
the Secretary determines that the activities in such category are similar in nature,
will cause only minimal adverse environmental effects when performed
separately, and will have only minimal cumulative adverse effect on the
Nationwide Permits: 1977-2002
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.

3 The full text of the current nationwide permits and related general conditions, issued in
March 2007, is available at [
nationwide_permits.htm] .

95-217). Nationwide and other general permits4 are valid only for a period of five
years, as is the case with other Clean Water Act permits. Thus, they were reissued
in 1982 and 1987. They were reissued as a group in November 1991, taking effect
in January 1992. Prior to 1991, the nationwide program involved little individualized
review of these permits, as the guiding criterion was that covered activities impose
so minimal an environmental impact that the full review given individual permits
was not warranted. In the 1991 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) to the Corps was required for several of the nationwide permits,5
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
generally has 45 days to notify the person of approval to proceed or, instead, of the
need to obtain an individual permit before the applicant may proceed. Even with
those changes, the nationwide permits 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). The
Corps had several substantive purposes behind modifying the permits at that time.
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 that reflect
differences in aquatic ecosystem functions and values that exist across the nation.

4 Section 404(e) of 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) are derived from an existing state, local, or other federal agency
program and are designed to avoid duplication with that program. They 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 its 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 49 nationwide permits, the Corps has authorized several hundred
regional general permits (RGPs) and more than 50 PGPs. Also, some activities qualify for
abbreviated permit processing with authorization by district engineers in the form of Letters
of Permission.
5 A PCN is a brief document that is intended to provide the Corps district engineer with
enough information to determine whether an activity is authorized by a nationwide permit.
Detailed studies or analyses are not required.

Nationwide Permit 26: Background and Controversies. Controversies
about the program are reflected especially in one of the nationwide permits,
nationwide permit 26, which authorized discharges in headwaters or isolated waters.
It had been added to the program in 1977 and expanded in 1982. Headwaters and
isolated waters are areas that 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 had been controversial for several reasons. Unlike other nationwide
permits, it did not authorize specific activities, such as minor dredging or bank
stabilization. Instead, it authorized discharges to certain types of waters, based on
acreage and lack of hydrologic connection to navigable waters. Environmental
groups had long been concerned that this nationwide permit was overly broad, could
be abused by applicants through segmenting of projects, and could result in large
amounts of unmonitored wetland losses. Many believed that the permit was illegal,
because it violated the Clean Water Act’s requirement that activities covered by
nationwide permits are “similar in nature.” Environmental groups and other
protection advocates, including federal and state natural resource agencies, pressed
for repeal or modification of NWP 26.
Industry groups, including developers and landowners, viewed NWP 26 as an
important mechanism for minimizing regulatory burdens on small businesses and
other permit applicants. According to Corps’ statistics, residential development and6
transportation activities were the major types of activities authorized by NWP 26.
From the perspective of these groups, NWP 26 was valuable for much the same
reason that the permit was controversial with environmentalists: it authorized
discharges to types of waters and was not restricted to specific activities. Corps data
also indicated that 75% of all environmental impacts resulting from all of the
nationwide permits were authorized under this one permit.7
In 1996 the Corps re-issued NWP 26 but with modifications 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 would affect a acre or more (compared
with 10-acre and 1-acre thresholds previously). Second, the Corps reissued this
permit only for two years, intending to replace NWP 26 with activity-based permits.
The Corps proposed permits to replace NWP 26 in July 1998, but it took until March

2000 for these permits to be finalized. NWP 26 remained in effect during that time.

Replacement Permits for NWP 26 in 2000. In March 2000, the Corps
issued several new activity-based permits to authorize specific categories of

6 U.S. Department of the Army, Corps of Engineers, “Proposal to Issue and Modify
Nationwide Permits,” 63 Federal Register 36041, July 1, 1998.
7 Presentation by Michael Davis, Deputy Assistant Secretary of the Army for Civil Works,
at the Environmental Law Institute, February 4, 1997.

activities, replacing the approach in NWP 26, which was based on acreage and
particular geographic types of waters (headwaters and isolated wetlands). The final
permits8 repealed NWP 26 entirely, authorized five specific activity-based permits
as replacements, modified several existing NWPs and general conditions, and added
two new general conditions. They became effective June 7, 2000. The five new
permits cover the following activities:
!Residential, commercial, and institutional developments, including
construction of building pads, building foundations, and attendant
features (NWP 39).
!Reshaping of existing serviceable drainage ditches constructed in
non-tidal waters in a manner that benefits the aquatic environment
or improves water quality (NWP 41).
!Recreational facilities (facilities with low environmental impact such
as playgrounds, campgrounds, biking and hiking trails). This permit
may be used for the construction or expansion of recreational
facilities that are integrated into the existing landscape (NWP 42).
!Stormwater management facilities (such as stormwater management
ponds or detention basins) involving construction or maintenance of
such facilities (NWP 43).
!Aggregate and hard rock mineral/mining activities with minimal
adverse effects on the aquatic environment (primarily commercial
sand, gravel, stone, and hard rock metals and minerals) (NWP 44).
All but the new permit for reshaping existing drainage ditches (NWP 41) were
limited to activities that do not cause the loss of greater than ½ acre of non-tidal
waters 9 (compared with the previous 3-acre maximum in NWP 26) or more than 300
linear feet of streambed. Even with that size limitation, several of these permits
require preconstruction notification to the Corps for impacts of greater than one-tenth
of an acre to ensure that any activity that potentially may have more than minimal
adverse effects on the aquatic environment is reviewed on a case-by-case basis.
Several of the new permits issued in 2000 (residential, commercial, and
institutional activities; recreational facilities; and stormwater management facilities)
required compensatory mitigation to offset unavoidable losses 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. A mitigation bank is a site where wetlands or other
aquatic resources have been 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

8 U.S. Department of the Army, Corps of Engineers, “Proposal to Issue and Modify
Nationwide Permits; Final Notice,” 65 Federal Register 12818, March 9, 2000.
9 “We have not imposed a ½ acre limit on NWP 41 because it only authorizes activities that
benefit the aquatic environment.” 65 Federal Register 12825.

from the permittee.10 Specific compensatory mitigation requirements are determined
by district engineers on a case-by-case basis, but the basic Corps concept was that
there should be a minimum requirement of an acre-for-acre (1:1) wetland
replacement as compensatory mitigation for all activities requiring preconstruction
notification. Greater than a 1:1 ratio can be required in some cases to adequately
replace aquatic resource functions and values lost as a result of NWP-authorized
The Corps also modified six existing permits in 2000 to increase the number of
activities authorized by them. For example, NWP 40 was expanded to authorize
certain discharges associated with agricultural activities which are necessary for
increasing agricultural production and constructing farm buildings. One of the goals
of NWP 40 is to reduce duplication between the Corps and the Natural Resources
Conservation Service (which implements wetlands programs on agricultural lands
under federal farm law) and provide some regulatory relief to agricultural producers.
However, to ensure that authorized activities will have minimal adverse effects, like
other nationwide permits, NWP 40 restricts the types of agricultural activities and
sets acreage limits (in terms of discharges into wetlands) allowable under the permit.
Further, the Corps lowered the acreage limit for NWP 29, which authorizes
single-family housing activities, from ½ acre to ¼ acre in non-tidal waters — i.e.,
discharges associated with construction or expansion of a single-family home and
attendant features may not cause the loss of more than ¼ acre of non-tidal waters or
wetlands. This permit must be obtained by the person who will use the house as a
personal residence, not by contractors or developers who offer a house for sale upon
The new general conditions adopted in 2000 put limits on the use of nationwide
permits for projects within critical resource waters, and for permanent above-grade
wetland fills within the 100-year floodplain as defined by the Federal Emergency
Management Agency (FEMA). Critical resource waters are those designated as
having particular environmental or ecological significance (such as designated
marine sanctuaries and state natural heritage sites). Regarding the 100-year
floodplain, the Corps said it sought to ensure that the nationwide permit program
discourages further development that would reduce the flood storage capacity of the
floodplain, but not create undue constraints or costs on the regulated public, unless
necessary to improve the aquatic environment.
As with the previous nationwide permits, Corps officials retained 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 expected that its district and division
engineers would utilize a significant amount of regional conditioning to ensure
effective protection at the local level of wetlands and other water resources, because
aquatic resource functions and values vary considerably across the country and

10 63 Federal Register 36045, July 1, 1998.

cannot be imposed through more stringent national limitations (regional conditioning
cannot be used to make an NWP less restrictive).11
Lawsuits Challenging the Replacement Permits. Soon after the final
replacement and modified permits were published in 2000, several industry groups
challenged the permits in court. The lawsuits contended that the Corps exceeded its
authority by imposing broad restrictions through the NWP program and that the
program no longer is the streamlined permitting approach intended by Congress
when it authorized general permits in 1977. They also said that the Corps had not
considered impacts on small businesses. Industry petitioners wanted the Corps to re-
instate NWP 26. However, the Corps has repeatedly said that, since NWP 26 expired
in 2000, this permit will not be reinstated.
The consolidated cases were initially dismissed by a federal district court in
2003. The court said it lacked jurisdiction, saying that a final agency action does not
take place until a project seeking to be covered by a nationwide permit has exhausted
all of its permitting options. In 2005, a federal appeals court partly reversed the
ruling and remanded the case to the district court. (National Association of Home
Builders v. Army Corps of Engineers (417 F.3d 1272 (DC Cir 2005)). The appeals
court said that the challenged permits constituted final action subject to judicial
review. This court also determined that nationwide permits are regulations for
purposes of the Administrative Procedure Act and, thus, are subject to the Regulatory
Flexibility Act and other administrative requirements to assess impacts on small
businesses and unfunded mandates, and also are subject to requirements to prepare
environmental documentation and comply with the Congressional Review Act.
Previously, the Corps had taken the position that the nationwide permits do not
constitute regulations.
Upon remand of the case, the federal district court rejected the lawsuit for a
second time in 2006 (National Association of Home Builders v. Army Corps of
Engineers, 453 F.Supp. 2d 116 (DDC 2006)). The court ruled that the Corps had not
acted arbitrarily, capriciously, or contrary to the law in its issuance and reissuance of
nationwide permits, as the Corps had adequately explained its reasoning and had
acted within its authority.
Reissuance of All Nationwide Permits in 2002
In August 2001, with the approaching expiration of the 1996 nationwide
permits, the Corps proposed to reissue those and others that had been issued and
modified since 1996 (including the 2000 replacement permits for NWP 26) in order
to put all of the nationwide permits in the program on a unified five-year schedule.12
The proposals raised controversies and criticism from environmental advocates
and some other federal agencies, including EPA and the U.S. Fish and Wildlife
Service. Environmental groups said that the proposal would substantially weaken

11 65 Federal Register 12838.
12 U.S. Department of the Army, Corps of Engineers, “Proposal to Reissue and Modify
Nationwide Permits,” 66 Federal Register 42069, August 9, 2001.

protection of the nation’s wetlands and streams. On the other hand, industry groups
said that the proposal involved only minor changes. These changes offered some
benefits, they said, but any such benefits are more than offset by problems with the

2000 replacement permits, which developers and other groups continued to oppose,

saying that the permits impose arbitrary and burdensome restrictions. Following a
public comment period that generated more than 2,100 comments, the nationwide
permits were reissued in January 2002, essentially as proposed, with an effective date
of March 18, 2002. The Corps’ action modified nine existing permits and six
existing general conditions and added one general condition.13
Permit Reissuance in 2007
Authorization for the 2002 NWPs expired in March 2007. In preparation for
that expiration, on September 26, 2006, the Corps published a proposal to reissue the

43 existing NWPs, with some modification, and to issue six new permits.14

Following a public comment period, the permits were reissued in March, essentially
as proposed, with an effective date of March 19, 2007.15 The reissued permits also
modified some of the general conditions and definitions that apply to nationwide
permits. The six new permits are:
!Repair of Uplands Damaged by Discrete Events. This general
permit is intended to apply to activities for restoration of upland
areas that have been damaged by storms, floods, fire, or other
discrete events. The permit only authorizes activities to restore
damaged areas to previously existing conditions. (NWP 45)
!Discharges in Ditches. This permit applies to discharges of dredged
or fill material into certain types of ditches and canals that are
constructed in upland areas, that receive water from another water
of the United States, and that divert water to another water of the
United States. The Corps argues that, with these limitations, the
types of ditches and canals covered by the permit are likely to affect
few aquatic resources, thus ensuring that the environmental impact
of the discharge is minimal. The permit is limited to discharges that
cause the loss of no more than one acre of waters of the United
States. (NWP 46)
!Pipeline Safety Program Designated Time-Sensitive Inspections and
Repairs. This permit authorizes inspection, repair, rehabilitation, or
replacement of any currently serviceable structure or fill for

13 U.S. Department of the Army, Corps of Engineers, “Issuance of Nationwide Permits,” 67
Federal Register 2020, January 15, 2002.
14 U.S. Department of the Army, Corps of Engineers, “Proposal to Reissue and Modify
Nationwide Permits; Notice,” 71 Federal Register 56257, September 26, 2006.
15 U.S. Department of the Army, Corps of Engineers, “Reissuance of Nationwide Permits;
Notice,” 72 Federal Register 11091, March 12, 2007. A summary table, identifying changes
in the 2007 permits, is available at [
NWP2007/PN-NWP07/NWP% 20T able_2007_final.pdf].

pipelines that are time-sensitive, for example, following a pipeline
rupture and are done in accordance with Department of
Transportation procedures. The new permit would allow rapid
response when needed to reduce environmental impacts. No PCN
would be required. (NWP 47)
!Existing Commercial Shellfish Aquaculture Activities. This permit
authorizes structures or works in navigable waters, as well as
discharges into all waters of the United States for the continued
operation of existing commercial oyster, clam, geoduck, mussel or
scallop aquaculture operations. It does not apply to new projects or
expansion of existing ones and would not include operations that
raise crustaceans or finfish. (NWP 48)
!Coal Remining Activities. This permit is intended to authorize
activities for the restoration of coal mine sites that are causing
physical and/or chemical impacts to water; many are likely to be
abandoned or closed sites. The permit would allow new mining,
either at the site or as part of a reclamation project, or together with
adjacent unmined areas, and would authorize related discharges of
dredged or fill material into non-tidal waters of the United States.
There is no specific acreage limit for this permit, which would apply
only to activities already authorized under the Surface Mining
Control and Reclamation Act by the federal Office of Surface
Mining or qualified states. The applicant must demonstrate to the
Corps that the overall project, including the reclamation activity and
any new mining, will result in a net increase in aquatic resource
functions. (NWP 49)
!Underground Coal Mining Activities. This permit authorizes a
number of different activities associated with underground coal
mining, such as excavating rock and soil on the surface in order to
expose coal seams; providing road access for people and equipment
to a site; and constructing acid mine drainage impoundments or
sedimentation ponds. It could be used to authorize permanent
structures or fills that would remain after reclamation of the site.
The permit authorizes discharges to non-tidal waters only. It would
not authorize coal preparation and processing activities outside the
mine site (but these could be authorized by NWP 21). Like NWP 21
(surface coal mining), no specific acreage limit applies. (NWP 50)
The reissued permits include modification of a number of the nationwide
permits. For example, previously two NWPs applied to construction of residential
developments: NWP 29, which authorized single unit residences (i.e., single family
homes; see page 7), and NWP 39, which authorized multiple unit residential
developments, as well as commercial and institutional developments. In 2007 the
Corps modified these permits so that NWP 39 now authorizes commercial and
institutional developments, and NWP 29 authorizes all types of residential
developments. The change in effect eliminates the previous NWP 29, which had a
¼-acre limit on authorized discharges. As reissued, the revised NWP 29 has the

same conditions as NWP 39: authorized discharges would be limited to impacts
affecting ½ acre of non-tidal waters and a 300-foot linear foot limit on the loss of a
stream bed. The Corps’ rationale for the changes to these two permits was that it is
inappropriate to establish different permits for single and multiple unit residential
developments, because impacts to the aquatic environment are determined by permit
conditions (such as the ½-acre limit), not the type of residential development.
Regarding the changes to NWP 39, the Corps argued that commercial developments
(e.g., retail stores, industrial facilities, and shopping centers) and institutional
structurets (e.g., schools, fire stations, hospitals, and places of worship) are different
from residential developments in a number of ways, such as different state and local
requirements concerning planning, zoning, and stormwater management. Therefore,
it is appropriate to group them in one permit (NWP 39) and to group residential
structures in a separate permit (NWP 29).
Both industry groups and environmental advocates criticized the modifications
to NWP 29. Industry groups, particularly homebuilders, objected to the fact that new
NWP 29 would require preconstruction notification (PCN) for all applications
(previously, NWP 29 required PCN for projects with certain impacts over one-tenth
of an acre), arguing that it is unclear why a PCN should be required for all activities,
regardless of size. Many single-unit projects that previously were not required to
submit a PCN would have to do so under the revised permit, they said. Further, they
objected to the 300-foot linear limit and the ½-acre threshold under this permit,
saying these limits are too stringent (presumably for multiple unit developments) and
will exclude many projects with minimal impact from seeking a nationwide permit.
Environmental groups, on the other hand, argued that the ¼-acre threshold in NWP

29 should be retained, not increased.

Critiques by Stakeholder Groups
As noted previously, as the nationwide permit program has become more
complex over time, major interest groups are increasingly united in arguing that the
program as it has developed fails to meet its overall objectives, although their reasons
for this criticism are very different. One view was expressed by an environmental
advocacy group in comments on the 2006 draft NWPs.
The nationwide permit system was presumably developed in order to balance two
somewhat contrary objectives: to ensure that the permits issued result in only
minimal impacts on aquatic resources, and to provide a predictable, fair, and
simply regulatory system for citizens applying for permits. Given the complexity
and confusion surrounding the nationwide permit program, together with the
clearly more than minimal environmental impacts, we question whether either16
of these objectives is being achieved.
Similar views were expressed by a group representing one set of land developers.

16 Gulf Restoration Network et al., Comments Submitted on Docket number COE-2006-

0005, undated, pp. 1-2.

Over time, however, the NWPs have become increasingly restrictive and
complex to the point that they faintly resemble the streamlined permitting
process Congress envisioned when it enacted Section 404(e).... [T]he program
waivers between providing administrative relief and imposing red tape, between
a truly streamlined process and one that is so severely limited that few projects
can qualify.... The history of the NWP has been a consistent tightening of the
eligibility for the program.... Each time the Corps has drawn the line between17
NWP eligibility and ineligibility, eligibility has been restricted, never relaxed.
Beyond apparent broad agreement that the program fails to meet its objectives,
the views of industry and environmental advocacy groups diverge greatly. Major
industry groups support the NWP program, or the type of streamlined program that
they believe was originally intended, and agree with the Corps that the use of
nationwide permits will result in minimal adverse environmental impacts.
Nevertheless, they were highly critical of many aspects of the Corps’ 2006 proposal.
The Corps’ attempt to illegally expand its jurisdiction, the stringent and largely
inflexible acreage and PCN [preconstruction notification] thresholds, the lack of
a proper administrative process and record to support the proposal, the
problematic regional conditions and the overall trend toward the elimination of
NWPs all contribute to a permit package that is hardly even a semblance of the18
streamlined process directed by Congress.
Major environmental groups argue that permitted activities will have more than
minimal impacts on the environment and that the Corps has no substantial or
scientific evidence to conclude otherwise. They argue that the permits are unlawful
because they violate the requirements of Section 404(e) that there may be no more
than minimal adverse environmental effects on aquatic resources, both individually
and cumulatively. Environmental groups are highly critical of many aspects of the
program, such as inconsistent and inadequate PCN requirements, overly vague
requirements which will result in weakened regulatory protection, the granting of
excessive authority to Corps district engineers to waive permit limits in individual
cases, and what they describe as “irrational reliance” on compensatory mitigation to
offset the harmful effects of permitted activities.19
Specific Critiques
In addition to general objections, a number of specific concerns became evident
after issuance of the 2002 permits and continue with the 2007 permits.

17 National Association of Home Builders, “Advice and Recommendations of the National
Association of Home Builders on the Department of the Army, Corps of Engineers’
Proposal to Reissue and Modify Nationwide Permits,” undated, pp. 3, 21, 44.
18 Ibid., pp. 3-4.
19 See generally, Comments of the Gulf Restoration Network, et al.; Natural Resources
Defense Council, et al., Comments Submitted on Docket # COE-2006-0005; and Ohio
Valley Environmental Council, “Re: Proposal to Reissue and Modify Nationwide Permits,
Docket No. COE-2006-0005,” November 27, 2006.

300 Linear-Foot Prohibition. One of the most significant changes in the
permits that were issued in 2002 affected development activities along streams.
Several of the 2000 permits that had replaced NWP 26 included a prohibition
limiting the permits to development activities affecting 300 linear feet or less of a
streambed; projects affecting larger areas would not qualify for a nationwide permit.
The Corps believed that this restriction had resulted in requiring individual permit
review for many projects that involve no more than minimal adverse effects on the
aquatic environment. In the 2002 reissuance, the Corps modified this prohibition for
nationwide permits 39 (residential and commercial developments), 40 (agricultural
activities), 42 (recreational facilities), and 43 (stormwater management facilities) to
allow Corps districts to issue case-by-case waivers to the 300 linear-foot limit for
discharges affecting intermittent streams (streams that only have flowing water only
during certain times of the year, when groundwater provides water for stream flow).
As reissued in 2002, the prohibition remained in effect for perennial streams which
have flowing water year-round. The Corps decided at that time that this limitation
on perennial streams was necessary to ensure that losses result only in minimal
adverse effects, since significant impacts are more likely to occur in perennial than
in intermittent streams.
The modification concerning the 300 linear-foot prohibition was needed, the
Corps said, to add flexibility to the permit process, by allowing district engineers to
authorize activities that have minimal adverse effect on the aquatic environment. It
was not intended to relax aquatic protection, the Corps said, but was intended to
allow the Corps to focus limited resources more intensively on areas where impacts
are likely to be more than minimal. Opponents of the modification argued that the
waiver would lead to severe stream destruction from construction, agricultural and
other activities. Some said that the 300 linear-foot limit gives predictability to the
regulated community and state agencies and that the waiver authority would result
in decisionmaking variations between Corps districts, and even within the same
district. The Corps disagreed and said that district engineers will use their knowledge
of the local aquatic environment to make case-by-case determinations whether a
waiver is applicable.
This topic was addressed again in the 2007 reissued permits. The Corps
extended the 300 linear-foot limit under NWPs 39, 40, 42, 43, and revised 29 to
include ephemeral streams (streams that have flowing water only during, and for a
short time after, a precipitation event), as well as permanent and intermittent streams.
However, the Corps also will allow district engineers to waive the 300 linear-foot
limit for discharges to ephemeral streams on a case-by-case basis, in addition to case-
by-case waivers of discharges to intermittent streams that have been allowed since


Commenters on this change viewed the issue from two very different
perspectives. Environmental advocates endorsed extending the 300-linear foot limit
to ephemeral streams, so as to protect them as well as permanent and intermittent
streams, but they criticized the proposal to allow district engineers to waive the limit.
Linear foot limits should be firm, they said, and proposed actions that exceed these
limits should be subject to individual permit requirements. The Corps provided no
justification for proposing to allow district engineers to waive the limit, they said, nor
criteria for how waiver decisions will be made.

On the other hand, regulated industry groups said that extending the 300-linear
foot limit to ephemeral streams would greatly increase the regulatory burden of the
overall program and reduce the utility of permits like NWPs 29 and 39, while serving
no environmental purpose. They observed that the only apparent rationale for treating
ephemeral streams in the same fashion as other streams is Corps administrative
convenience, since the Corps stated that it may be hard to distinguish between
intermittent and ephemeral streams in the field (71 Federal Register 56261). Several
industry commenters noted that the legal basis for the Corps to assert regulatory
jurisdiction over waters that are dry nearly all the time is uncertain, in light of recent
court rulings — including the Supreme Court’s June 2006 ruling in Rapanos v.
United States — that have narrowed rather than expanded Corps jurisdiction. While
the Court’s plurality ruling in that case was split (there was no majority opinion) and
left open to many jurisdictional questions,20 these groups argue that ephemeral waters
are for the most part not legally jurisdictional or subject to a requirement for a
Section 404 permit. The Corps stated that it will assert jurisdiction over ephemeral
streams on a case-by-case basis, in accordance with case law as it evolves and with
any future agency guidance on recent court cases.
Mitigation Requirements. The Corps acknowledges that, although minimal
adverse effects are anticipated from the nationwide permit program, the use of NWPs
may still affect the aquatic environment. Therefore, the permits include a general
condition detailing how district engineers may require compensatory mitigation to
offset the authorized impacts. Mitigation is intended to compensate for lost functions
and values resulting from permitted activities. Compensatory mitigation can be
accomplished through the restoration, creation, enhancement, and/or preservation of
aquatic resources, either by the permittee’s individual project, or the use of mitigation
banks or other consolidated mitigation efforts. Mitigation requirements incorporated
in the nationwide permit program have become more specific over time, especially
since 1996, and are viewed by environmental protection advocates as critically
Before reissuance in 2002, this general condition required one-for-one
mitigation of adverse impacts to wetlands with a stated preference for restoration of
wetland impacts over preservation (see discussion on page 6).21 In 2002, the Corps
revised the mandate to allow a case-by-case waiver of this requirement in cases
where the Corps determines that some other form of mitigation, such as
establishment of vegetated buffers, is more appropriate. The intention of the change,
the Corps said, was to have a more ecologically and watershed-based approach to
mitigation. In the agency’s view, the one-for-one acreage requirement was too
restrictive, in that it focused solely on wetlands but did not allow the Corps to
mitigate aquatic impacts to streams and other non-wetland aquatic resources.
Because the Corps regulates the entire aquatic environment, not just wetlands, it said,
mitigation should consider the entire aquatic environment, as well. The Corps said

20 For additional information, see CRS Report RL33263, The Wetlands Coverage of the
Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States, by Robert
Meltz and Claudia Copeland.
21 The policy preference for restoration derives from the fact that preservation does not
provide new acres and thus cannot compensate for wetlands loss on an acreage basis.

that it will require mitigation for impacts based on a watershed approach, often
involving a mix of vegetated buffers and other mitigation in non-wetland areas.
Thus, for example, a district engineer might authorize a project with impacts on a
particular wetland and require mitigation within the overall aquatic environment of
the particular watershed involved but not wetland-acre-for-wetland-acre mitigation.
This approach, the Corps said, allows district engineers to require the mitigation for
project impacts that best protects the aquatic environment.22
Environmentalists strongly opposed this change in 2002, saying that it
effectively ignores the principle of “no net loss” of wetlands which has been a goal
of national wetlands policy since 1990. In response, Corps officials said that under
the revision, project applicants must ensure that wetland functions are replaced and
that the “no net loss” goal be met on an acreage basis within a Corps district.23
Environmental groups also argued that the Corps is too quick to look towards
mitigation as the answer for development activities affecting wetlands and should
focus on avoiding impacts as a first priority.
In 2007 the Corps also made certain modifications to the general condition for
mitigation. Previously, compensatory mitigation was required for all activities
requiring a PCN and for permanent losses of U.S. waters, at a minimum one-for-one
ratio, unless the district engineer decides that another form of mitigation would be
more appropriate. The Corps modified this requirement in 2007 by adding a one-
tenth of an acre threshold — that is, if a PCN is required, and if the proposed activity
is expected to result in the loss of more than one-tenth of an acre of wetlands, the
permittee must comply with compensatory mitigation requirements. Mitigation
banks and in-lieu fee programs can be used for compensatory mitigation activities
authorized by nationwide permits. The Corps also added language stating that
district engineers may require mitigation when certain functions and services of
waters of the United States would be permanently changed by the permitted activity
(such as conversion of a forested wetland to a herbaceous wetland in a permanently
maintained utility line right-of-way).
In the decision documents accompanying the NWP proposal in 2006, the Corps
estimated that in total the permits (including the six new permits) will be used 52,434
times per year and are expected to impact 6,366 acres of wetlands and other waters
per year. The Corps also estimated that 19,501 acres will be mitigated to offset the
impacts of authorized activities. The data in these estimates was based on reported
use of the NWPs during FY2003 and the period of July 1, 2005, to June 30, 2006, as
well as a survey of Corps district offices.
Environmental groups were skeptical of these data, asserting that it is unclear
how the numbers were obtained, due to inconsistencies in the Corps’ permit database.

22 U.S. Department of the Army, Corps of Engineers, “Issuance of Nationwide Permits,” 67
Federal Register 2063-2067, January 15, 2002.
23 U.S. Department of the Army, Corps of Engineers, “U.S. Army Corps of Engineers
clarifies inaccuracies in wetlands permit reporting,” press release, January 16, 2002.

Even more troubling is the notion that the Corps uses these flawed permit
numbers to arrive at the acres of wetlands and waters impacted, and for the
presumed use and impact of the proposed NWPs. Again, we can only assume
that the Corps has averaged the impacts associated with some subset of known
nationwide permit applications. This type of statistical mean does not provide
us with the actual impact to waters of the United States, nor can it be used as a24
basis for predicting the future cumulative impacts of the proposed NWPs.
In their comments on the 2006 proposal, environmentalists continued to be
critical of the Corps’ reliance on mitigation as the basis for concluding that impacts
of the nationwide permits will be minimal. They pointed to the incomplete track
record of mitigation projects described in a number of reports, including a June 2001
report of the National Research Council25 and a 2005 GAO report, showing that
mitigation is not fully successful and does not compensate for wetlands lost to
permitted fills.26 In light of the lack of data that mitigation is performed or that it
would successfully replace lost functions and values, they asserted that the Corps
lacks sufficient evidence to conclude that mitigation will render the impacts of
authorized activities minimal. If an activity requires mitigation, these critics said, by
definition it has more than minimal adverse effects to begin with, and under the
Clean Water Act, activities with more than minimal adverse effects can only be
authorized by an individual permit. They noted that the Council on Environmental
Quality has said that relying on mitigation to assume impacts are reduced below the
threshold of significance violates the National Environmental Policy Act.27 The
Corps acknowledges that ecological success of mitigation varies widely, but argues
that mitigation is important to ensuring that nationwide permits result in minimal
adverse effects. The Corps says that it has increased its compliance efforts to ensure
that authorized projects are constructed as authorized, and that mitigation is
Under the reissued NWPs, compensatory mitigation would be required for all
wetland losses that exceed one-tenth of an acre, unless the district engineer issues a
project-specific waiver. Industry was critical that the Corps appears to elevate one
form of mitigation (compensation) above all others28 and does not give district

24 Gulf Restoration Network et al., Comments Submitted on Docket number COE-2006-

0005, p. 4.

25 National Academy of Science, National Research Council, Compensating for Wetland
Losses under the Clean Water Act, Washington, 2001, 267 p.
26 U.S. Government Accountability Office, “Wetlands Protection: Corps of Engineers Does
Not Have an Effective Oversight Approach to Ensure that Compensatory Mitigation is
Occurring,” GAO-05-898, September 2005.
27 Council on Environmental Quality, “Forty Most Asked Questions Concerning CEQ’s
National Environmental Policy Act Regulations,” March 23, 1981.
28 Under its regulations and policy, when the Corps evaluates standard permit applications,
it first determines that potential impacts to wetlands and other aquatic resources have been
avoided to the maximum extent practicable; remaining unavoidable impacts will then be
mitigated to the extent appropriate and practicable, in a sequence beginning with avoidance
of impacts, followed by minimization of adverse impacts, and then compensatory mitigation

engineers flexibility to determine the extent to which mitigation is needed, on a case-
by-case basis. Environmental groups, on the other hand, strongly objected to
allowing waivers from mitigation requirements and giving discretion to district
engineers, particularly because the NWPs contain no criteria or performance
standards that would govern mitigation.
Coal Mining Activities. The use of nationwide permits to authorize coal
mining activities has been and continues to be controversial, particularly in
connection with NWP 21, which concerns surface coal mining activities. Critics say
that the environmental impacts of coal mining are typically far greater than the
standard set forth in the Clean Water Act (CWA) Section 404(e), that authorized
activities will cause only minimal adverse environmental effects, individually and
cumulatively. The mining industry argues that nationwide permit procedures are
necessary to minimize regulatory burdens that would threaten the economics of coal
mining and to provide the kind of flexibility needed by industry to respond to quickly
changing operating requirements. The Corps responds that the terms and conditions
of NWP 21 are sufficient to ensure that environmental impacts are minimal.
Nationwide permit 21 authorizes discharges from surface coal mining activities
which result in no more than minimal impacts (site-specifically and cumulatively) to
the aquatic environment. There is no acreage limit or threshold for a project to use
this permit. The Corps reissued NWP 21 in 2002 with two changes intended to
strengthen environmental protection for projects authorized by the permit. First, the
reissued permit requires the Corps to determine appropriate mitigation in accordance
with nationwide permit general conditions, rather than relying primarily on less
restrictive state-required mitigation established under the Surface Mining Control and
Reclamation Act, as had previously been the case. Second, the revised permit
requires explicit authorization before the activity can take place, rather than only
requiring preconstruction notification, as in the past.
Critics were less focused on these 2002 changes than on the basic permit itself,
because environmentalists have long contended that the permit authorizes disposal
of coal mining waste material which buries streams with overburden material,
thereby disturbing the natural stream processes and water quality in entire watersheds
and resulting in permanent loss of habitat. According to that view, mitigation cannot
sufficiently compensate for these impacts, and any use of this permit is inconsistent
with ensuring “minimal adverse effects” on the aquatic environment.
Contributing to controversy over NWP 21 is the fact that in recent years the
Corps has allowed the use of this permit to authorize mountaintop mining activities29
in several Appalachian states (e.g., West Virginia and Kentucky). This practice
involves removing the tops of mountains to expose and remove underlying coal

28 (...continued)
for unavoidable impacts which remain. Compensatory mitigation might include restoration
of a former wetland, or enhancement for specified purposes such as water quality
29 For information, see CRS Report RS21421, Mountaintop Mining: Background on Current
Controversies, by Claudia Copeland.

seams. Upon completion of the coal removal, some amount of the waste rock is
placed back on the top of the mountain, while the majority is disposed in nearby
valleys where streams and wetlands are filled with the excess mining waste.
Environmentalists have sought to strengthen regulation of mountaintop mining, if not
halt it altogether, in part by arguing that the practice should be regulated under more
stringent Clean Water Act provisions than Section 404, which authorizes the
nationwide permit program. So far, protection advocates have been unsuccessful in
their efforts. The Corps continues to assert that use of NWP 21 for surface mining
and mountaintop mining activities avoids and minimizes impacts to the extent
practicable and that adequate mitigation can be used to determine that a project has
minimal effects. These activities, the Corps believes, can result in a “substantial
improvement in downstream water quality and aquatic habitat within a watershed.”30
Citizen groups have filed lawsuits seeking generally to halt the Corps’ use of
nationwide permit 21 for mountaintop mining operations. In the first such case, a
federal district court ruled that NWP 21 violates the Clean Water Act by authorizing
activities that have more than minimal adverse environmental effects. In 2004, the
court enjoined the Corps from using NWP 21 to authorize new mountaintop mining
in southern West Virginia and ordered the Corps to revoke previous authorization for
11 operations. On appeal, the judgment of the district court and the injunction
against NWP 21 were vacated when the court of appeals found that the Corps had
complied with the Clean Water Act when it promulgated NWP21 (Ohio Valley
Environmental Coalition v. Bulen, 429 F.3d 493 (CA4 2005)). The case was
remanded to the district court to address remaining issues that were never decided,
fact-based issues such as when a general permit is appropriate. In January 2005,
three groups filed a lawsuit to extend the 2004 West Virginia federal district court
decision to Kentucky valley fills (Kentucky RiverKeeper v. Rowlette, Civil No. 05-

181, E.D.Ky.). Both of these cases are pending.

In the September 2006 proposal to reissue the 2002 permits, the Corps noted a
number of administrative steps that have been taken to address public concerns about
NWP 21, such as adopting a standard operating procedure for review of permit
applications. In the proposal, the Corps requested public comment on the need for
an acreage limit for this permit, as it previously included none. The mining industry
generally supported NWP 21 and two related new permits, 49 and 50. However, they
opposed any acreage limit on NWP 21, saying that the permit would be useless to
them if it included an acreage limit. Most coal companies would not be able to
comply with such a limit and would, therefore, be required to obtain an individual
permit, they said. Getting an individual permit imposes costs of time and money to
applicants and to government, industry contended, without additional environmental
benefits. In the revised permits, issued in March 2007, the Corps did not include an
acreage limit for NWP21.
Environmental critics cited data on the degrading impacts of current NWP 21
to aquatic life in Appalachian streams, as well as terrestrial resources and wildlife,
including data from a programmatic environmental impact statement on mountaintop

30 U.S. Department of the Army, Corps of Engineers, “Issuance of Nationwide Permits,” 67
Federal Register 2043, January 15, 2002.

mining prepared by the Corps which acknowledged that fills authorized by this
permit have eliminated more than 1,200 miles of streams in the past.31 In the 2006
decision document for NWP 21, the Corps estimated that in total this permit will be
used 204 times per year and is expected to impact 81 acres of wetlands and other
waters per year. The Corps also estimated that 71 acres will be mitigated to offset
the permit’s impacts. Environmental groups argued that there is no support for the
Corps’ claim that mitigation will reduce impacts of this permit to a minimal level,
and urged that individual permits should be required. In their view, nationwide
permits should only be used for mining-related activities with lesser impacts than
valley fills, such as road crossings, temporary sediment ponds, or stream diversions.
The Corps responds that NWP 21, like the other nationwide permits, requires
compliance with general conditions, which address many of these criticisms.
Two of the new permits, 49 and 50, also address coal mining activities. The
Corps’ intention with the proposed new permits was to provide incentives to coal
remining and underground mining activities, arguing that for permittees that meet
specified terms and conditions such as acreage impact limits, it will be faster to gain
authorization under an NWP than it would be to obtain an individual permit. It is the
Corps’ judgment that the environment will benefit from encouraging coal remining
in this manner. By allowing such activities to proceed under a nationwide permit,
rather than requiring an individual permit, the environmental benefits of remining
(such as removing existing sources of water pollution that harm downstream waters)
are more likely to occur, according to the Corps. Further, while acknowledging that
permits 21, 49, and 50 have the potential to result in more than minimal adverse
effects on water quality, the agency contended that compensatory mitigation,
opportunities for division engineers to impose regional conditions, and site-specific
evaluation of PCNs will ensure that adverse environmental effects are minimal. In
the decision documents accompanying the NWP proposal, the Corps estimated that
permits 49 and 50 will be used 204 times per year and are expected to impact 475
acres of wetlands and other waters per year. The Corps also estimated that 404 acres
will be mitigated to offset the impacts of authorized activities.
Environmental critics said that the Corps has no factual basis for determining
that impacts of the new coal mining permits will be minimal, since there are no
documented data for estimating future impacts of permits that did not exist before
2007. They point out that coal mining waste contains chemicals that are toxic to
aquatic life; there have been cases of spills of impounded wastes, with impacts that
are more than minimal. Underground mining is a destructive practice, they said, that
results in loss of stream and wetland functions through subsidence and waste
disposal. They also argue that the general permit process is inappropriate for such
large scale activities.
Fills Within the 100-Year Floodplain. As discussed above, in 2000 the
Corps established a general condition for the nationwide permit program limiting
activities within the 100-year floodplain as defined by FEMA. In 2002, the Corps

31 U.S. Environmental Protection Agency, “Mountaintop Mining/Valley Fills Final
Programmatic Environmental Impact Statement,” October 2005. Available at [http://www. regi on3/mt ntop/index.htm] .

modified a portion of this general condition to delete a mandate that permittees
document that the project meets FEMA-approved requirements and delete a
requirement for preconstruction notification to the Corps for certain activities
occurring in the 100-year floodplain. Environmental critics argued that the
modification allows development in ecologically sensitive floodplain areas. The
Corps said it believed that requiring applicants to comply with FEMA requirements
is just as effective as also requiring applicants to document their compliance and that
the changes to this general permit condition would not reduce the floodplain
restrictions adopted in 2000.
This general condition prohibits the use of certain NWPs (39, 40, 42, and 44)
to authorize discharges of dredged of fill material in waters of the United States
resulting in permanent above-grade fills within mapped 100-year floodplains located
above or below headwaters of streams. It also prohibits the use of NWP 43
(stormwater management) discharges within mapped 100-year floodplains located
below headwaters. Activities covered by these permits are subject to PCN
requirements, meaning that the permittee must notify the district engineer before
beginning the work and cannot proceed sooner than 45 days after filing a complete
PCN without written notice from the Corps. In 2007, the Corps modified the general
condition related to mitigation to simply require permittees to comply with applicable
state or local floodplain management requirements that have been approved by
FEMA. Thus, potential impacts to 100-year floodplains will be addressed through
case-by-case review resulting from preconstruction notification by the permittee. The
Corps argued that modifying this general condition will increase government
efficiency by promoting conformity with state and local planning and zoning efforts,
and federal programs, since FEMA is the lead federal agency for floodplain
While industry groups supported this change, environmental groups and others
criticized lifting restrictions on activities in the 100-year floodplain, saying that
allowing fills in the 100-year floodplain could lead to catastrophic consequences
during significant flood events. Restrictions should be retained or even strengthened,
some said, so as to prevent cumulative losses of valuable resources which are
allowable under FEMA requirements. Without regulatory limits, development can
occur in the floodplain, inducing citizens to occupy areas that are at risk of severe
flooding. Environmental groups argued that the job of reducing U.S. flood losses by
controlling new development should not be left just to state and local governments
and that the Corps’ regulatory responsibility under the CWA is not lessened by the
involvement of other agencies. In the 2007 reissued permits, the Corps said that the
revised general condition will provide protection to floodplain values that is
appropriate to the scope of the Corps’ regulatory authority; additional restrictions or
prohibitions on development in the 100-year floodplain are more appropriate to land
use planning and zoning, not Corps regulations.
Other Issues Concerning Nationwide Permits
The nationwide permits issued since 1996 have raised a number of additional
issues. For example, the 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, many industry stakeholders question whether a

number of administrative requirements of the permits, such as advance notification
to the Corps and other agencies, written verification of permit compliance, and
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.
Regional Conditioning. The purpose of regional conditioning is to consider
local differences in aquatic resource functions and values to ensure that nationwide
permits do not authorize activities with more than minimal adverse effects on the
aquatic environment. One type of regional conditioning is done by district and
division engineers who propose specific conditions if there are concerns for the
aquatic environment in a particular district, watershed, or other geographic region.
Corps officials also may propose revocation of NWP authorization for all, some, or
portions of the nationwide permits. A second type of regional conditions is imposed
by state Section 401 water quality certification or for state coastal zone consistency
(see discussion below). Regional conditions might include identifying 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 permits issued in
2000 provided a new and somewhat more formal approach than in the past to
developing appropriate conditional requirements in each Corps District, providing
explicitly for public input and coordination with federal resource agencies.
The 2002 permits emphasized that, like the 1996 and 2000 permits, the NWP
program will rely greatly on regional conditioning to adjust the national program to
local watersheds. A district engineer can either add special conditions to the NWP
authorization or exercise discretionary authority to require an individual permit. This
flexibility continues to cause various concerns among stakeholders, with some
environmentalists arguing that more restrictive national standards on the NWPs
should be imposed instead of relying upon a discretionary authority process. Some
in industry believe that the discretionary authority results in greater complexity and
less predictability for regulated entities.
However, regarding increased use of regional conditioning to strengthen
permits, some environmental groups have been skeptical that the Corps would be
able to attach meaningful conditions, while developers have had the opposite concern
— that restrictions imposed by Corps regions would be unduly burdensome.32
The 2007 reissued NWPs continue the Corps’ reliance on regional conditioning
and review of preconstruction notification of specific projects as a way for regulators
to ensure that impacts of activities are minimal. Echoing their concerns about the
Corps’ reliance on compensatory mitigation, environmental groups criticized the
Corps’ expectation that regional conditioning can assure that impacts are minimal.
Industry groups contend that regional conditions make the NWPs more complex and
burdensome for both the Corps and permit applicants. “As more conditions are

32 “Six New Classes of Activities Covered Under Proposed Corps Replacement Permits,”
Daily Environment Reporter, June 25, 1998, No. 122, p. AA-1.

placed on the use of NWPs, fewer permit applicants fall outside of the many
restrictions and exclusions, thus fewer will qualify for the efficient NWP process.”33
State Coordination Issues. 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 certification by states
that a proposed project seeking a federal license or permit, such as a Section 40434
permit, will not violate a state’s water quality standards. In addition, the 34 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, because a state can use this authority to place its own conditions
on the federal permit, or to deny the permit’s use in that state.35 Coordination begins
at the time the Corps proposes to issue or reissue the nationwide permit package.
However, coordination evidences a number of tensions between the Corps and states,
especially when states deny certification or CZM concurrence.
NWP Reissuance: Public Review and Coordination; State
Responses. Issuance or reissuance of NWPs begins approximately six months in
advance of expiration of existing nationwide permits. The process involves
publishing the proposal for public comment and coordinating with states.
Publication of the proposed permits in the Federal Register initiates a 60-day public
comment period on the draft permits and also serves as the Corps’ request to states
to issue, deny, or waive certification of the NWPs. Concurrent with the Federal
Register Notice, Corps district offices solicit comments on proposed regional
conditions and also on their proposals to suspend or revoke some or all of the NWPs,
if they have issued or propose to issue regional general permits, programmatic
general permits, or letters of permission in lieu of NWPs. The comment period for
district public notices is 45 days.
After reviewing public comments on the draft NWPs, the Corps prepares final
NWPs, which are subject to another round of review by interested federal agencies

33 National Association of Home Builders, “Advice and Recommendations of the National
Association of Home Builders on the Department of the Army, Corps of Engineers’
Proposal to Reissue and Modify Nationwide Permits,” p. 19.
34 States also may waive 401 certification, which is effectively the same as issuing an
unqualified certification.
35 For additional information, see CRS Report 97-488, Clean Water Act Section 401:
Background and Issues, by Claudia Copeland.

(but not the public). The Corps then publishes the final NWPs, which become
effective 60 days after publication. During the 60-day period, Corps division
engineers approve regional conditions for the final NWPs and issue decision
documents which address the environmental considerations related to the use of
NWPs in specific Corps districts. The decision documents certify that the NWPs,
together with any regional conditions or geographic revocations, will only authorize
activities that result in minimal individual adverse effects on the aquatic
environmental at the regional level.
Also during the 60-day post-publication period, states and Indian Tribes
complete their 401 water quality certification and CZMA consistency decisions.
Water quality certifications and/or CZMA consistency determinations may be issued
without conditions, issued with conditions, or denied for specific NWPs. Conditions
placed as a result of 401 certification or CZMA concurrent by a state automatically
become part of a nationwide permit in that state. Many states have denied blanket
water quality certification for certain NWPs. For example, many states have opposed
NWP 29 since it was first issued in 1995, and about one-third of states have denied
401 certification, because the permit was determined to be inconsistent with state
water quality standards or other state wetlands management activities. Other states
have attached additional conditions to the use of NWPs to ensure that water quality
impacts are minimal.
The Corps believes, in general, that activities authorized by NWPs will not
violate state or tribal water quality standards and will be consistent with CZM plans.
Thus, if a state denies a water quality certification or disagrees that the activities
authorized by the NWPs are consistent with a state CZM program, the Corps will
deny authorization for the affected activities within that state, but does so without
prejudice. Thus, when applicants request approval of such activities, and the Corps
determines that the activities meet the terms and conditions of the NWP, the Corps
will issue provisional verification letters, notifying the applicant that NWP
authorization is contingent upon obtaining the necessary project-specific water
quality certificate or waiver thereof, or CZMA consistency determination, from the
state, through a process called “individual certification of NWP use on a case-by-case
An issue of long-standing concern to states is the fact that, if a state denies 401
certification or CZM concurrence, 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
object that when the Corps issues provisional verification of NWP authorization, this
puts pressure on states to certify projects. Many states take the position that, if a state
denies certification, the Corps should evaluate the project under the individual permit
process. States would like the Corps to treat a 401 denial of an NWP as a veto. The
Corps may deny the permit (withdrawing its applicability in a state), but will not
always do so. The Corps does not believe that state denial of 401 certification should
be the sole basis for requiring an individual permit. 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 through issuance of a project-specific 401 certification or CZM
consistency determination.
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 in Section 402 of the act), if a state denies 401 water quality
certification, EPA insists on changes to the project until it gains certification.
One option is for states to seek approval of a programmatic general permit
(PGP; see discussion in footnote 4), 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 a number of states with PGP programs, which replace some or all of the
federal nationwide permits. State PGPs are duplicative of some nationwide permits
and offer a more streamlined regulatory process for applicants. 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 able 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.
Defining Minimal Adverse Effects, Assessing Cumulative Impacts.
Some observers have been critical that, while the Corps has made some
environmentally strengthening improvements to many of the nationwide permits
since 1996, it has not addressed a number of outstanding concerns. For example,
both environmental groups and industry groups have criticized the Corps for
declining to define what are “minimal adverse effects.” Industry groups contend that
a determination of minimal effects is central to whether an individual permit is
required. If the Corps cannot define “minimal effects,” they say, how can it claim
that any particular restriction is required to achieve it? Environmental groups argue
a different point, that without defining what “minimal” is, the Corps cannot argue
that, even with specified restrictions, a given activity will have only minimal
environmental impacts. 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 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 has 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 argues
that 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 permit program. Partly in

response to this litigation, the Corps announced in June 1998 that it would prepare
a programmatic environmental impact statement (PEIS) on the nationwide permit
program and would consult with the other federal resource agencies, although the
Corps continued to hold that the program has no significant impact on the
environment or on endangered species.36 The Corps viewed voluntary preparation
of this PEIS as part of its commitment to ensure that the nationwide program
authorizes only activities with minimal individual and cumulative environmental
effects. A draft PEIS was issued in July 2001,37 and the Corps said at the time that
a final PEIS would be issued early in 2002. This did not occur, because the Corps
determined that it was not necessary to complete the PEIS. For the nationwide
permits, the Corps contends that it fulfills the requirements of NEPA through the
issuance of environmental assessments.38
Rather than conducting an EIS for any of the nationwide permits individually
or a PEIS for the package of permits, the Corps prepares “preliminary decision
documents” for each proposed NWP, including an environmental assessment and a
Finding of No Significant Impact. These documents consider the environmental
effects of each NWP from a national perspective, and thus comply with requirements
of NEPA. Environmental groups are strongly critical of these documents, saying that
they “consist mostly of rote boilerplate with little actual analysis and no real
evaluation of alternatives.”39 Others argue that the documents “are nearly identical
in language for each NWP, and merely reiterate the language of section 404(e) of the
Clean Water Act, as if repeating the mantra that the impacts are minimal, they
magically become minimal.”40 By extracting data from each of the 2006 draft
decision documents, environmental groups estimated that the permits proposed by
the Corps would impact 31,800 acres over five years, or 49.7 square miles. While
these groups argue that the data used by the Corps are flawed and undercount likely
impacts, they also argue that it is not reasonable to conclude that impacts of that
scope are below the required threshold of minimal, even with the addition of regional
conditions and district engineers’ discretionary authority to limit impacts.41

36 U.S. Department of the Army, Corps of Engineers, “Finding of No Significant Impact for
the Nationwide Permit Program,” June 23, 1998.
37 U.S. Department of the Army, Corps of Engineers, “Draft Nationwide Permits
Programmatic Environmental Impact Statement,” July 31, 2001.
38 David B. Olson, U.S. Army Corps of Engineers, personal communication, November 17,


39 Natural Resources Defense Council et al., Comments Submitted on Docket #COE-2006-

0005, p. 32.

40 Gulf Restoration Network et al., Comments Submitted on Docket number COE-2006-

0005, p. 13.

41 Ibid., pp. 2-5.

Congressional Interest
Congressional interest in legislation to revise the federal wetlands regulatory
program has been apparent for several years, as groups have pursued proposals
intended to simplify and streamline permitting; revise federal and state roles in
permitting; or clarify the geographic reach of Clean Water Act programs, in response
to court cases that have created jurisdictional uncertainties. (For additional
information, see CRS Report RL33483, Wetlands: An Overview of Issues.) None has
focused specifically on nationwide permits. For some time, controversy over the
direction of overall wetlands policy has been a major component of debates on the
Clean Water Act and is partly the reason that no comprehensive clean water
legislation has been enacted. Interest groups have been unable to reach consensus on
whether legislative reform is needed and, if so, how far it should extend.
Congress has shown some interest in permitting issues, however. In April 1997,
the House Transportation and Infrastructure Subcommittee on Water Resources and
Environment held an oversight hearing on the developments concerning nationwide42
permits and other issues. In June 1997, the Senate Environment and Public Works
Subcommittee on Clean Air, Wetlands, and Private Property held a similar hearing.43
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, responding that the
changes would allow the Corps to implement a more fair, flexible, and effective
program which is appropriately responsive to environmental protection needs.
Interest in these topics recurred in the 106th Congress, focusing on changes to
nationwide permit 26. Regulatory issues first were addressed in the FY2000 Energy
and Water Development Appropriations bill. As approved by the House in July
1999, this bill included a provision to require the Corps to submit a study on the
workload impact and compliance costs of replacement permits for NWP 26.
Landowner and developer groups supported the provision, contending that the costs
and impacts should be better identified before revised permits were issued, but the
Clinton Administration opposed it, saying that the study was unnecessary and would
increase wetlands loss in the nation by delaying issuance of replacement permits.
The final bill, P.L. 106-60, modified the House language by directing the Corps to
study the workload impacts and costs of compliance of the proposed replacement
permits, but dropped language that would have required submission of a report to
Congress before publication of final permits. In March 2000, the Corps reported

42 U.S. Congress, House of Representatives, Committee on Transportation and
Infrastructure, Subcommittee on Water Resources and Environment, “Recent Regulatorythst
and Judicial Developments on Wetlands,” Hearing, 105 Cong., 1 sess., April 29, 1997
(105-36), 461 p.
43 U.S. Congress, Senate, Committee on Environment and Public Works, Subcommittee on
Clean Air, Wetlands, Private Property and Nuclear Safety, “Wetlands: Review of Regulatorythst
Changes,” Hearing, 105 Cong., 1 sess., June 26, 1997 (S.Hrg. 105-328), 230 p.

estimates of increased permitted workload and compliance costs associated with
changes to the nationwide permit program that were proposed in July 1999.
In connection with the FY2001 funding bill for the Corps, Congress addressed
the issue of the activity-specific permits issued in 2000, but it did not attempt to
modify or rescind the permits themselves. Congress included legislative language
in the FY2001 Energy and Water Development Appropriations Act, directing the
Corps to improve the analysis and increase information available to the public
regarding the costs of the nationwide permit program and permit processing times.
This bill was enacted in October 2000 as P.L. 106-377 (after the effective date of the
replacement permits that were issued in March 2000). It directed the Corps to revise
its cost estimate of the nationwide permits program, based on the final replacement
permits (which differed in a number of ways from the July 1999 proposal); prepare
a plan to manage the additional workload of these permits; provide quarterly program
performance reports and annual reports on two specific Corps divisions; and provide
improved information on permit applications and the functioning of the
administrative appeals process. A revised analysis of the permitting changes and
incremental compliance costs for the 2000 permits was issued in August 2001.44 This
report concluded that the replacement package would increase by about 25% the
number of individual permit applications submitted to the Corps, due to activity
restrictions and new general conditions, and that processing time and pending
applications would rise steadily each year. In principle, the additional permitting
time could be avoided if the Corps’ permitting budget were increased sufficiently, the
report said.45
It has been nearly 10 years since Congress examined the nationwide permit
program through oversight hearings and eight years since there was legislative
consideration, in connection with appropriations bills. As this report has described,
the program has continued to evolve and to generate wide-ranging concerns among
stakeholder and interest groups. Future congressional attention may address the
overall regulatory program, as well as specific issues raised by the Corps’ reissuance
of the permits in 2007.

44 U.S. Army Corps of Engineers, Institute for Water Resources, “Cost Analysis for the 2000
Issuance and Modification of Nationwide Permits,” August 2001.
45 Appropriations for the Corps’ regulatory program, which totaled $117 million in FY2000,
have increased 35% to $158.4 million in FY2007. The President’s FY2008 budget requests
$180 million.