CHAPTER 4 NATIONWIDE PERMITS
| Jurisdiction | United States |
(Nov 1993)
NATIONWIDE PERMITS
U.S. Environmental Protection Agency Region VIII
Denver, Colorado
I. Introduction.
A. Nationwide permits are a form of permitting-by-regulation, i.e. certain regulated activities are automatically permitted pursuant to Corps regulations.
B. Nationwide permits are one of the administrative remedies the Corps has available to it to address the problems posed by its broad jurisdiction and regulatory responsibilities on the one hand and its limited resources on the other.
1. The overwhelming majority of activities subject to Section 404 are covered under nationwide permits.
a. Some 75,000 — 80,000 activities are carried out under the authority of nationwide permits each year.
b. About 15,000 individual permit applications are received every year. 9,000 to 10,000 of these projects are finally approved in one form or another. About 500 permits are denied each year; the rest are withdrawn or cancelled either because the activity proposed has been modified so it could be authorized under a nationwide or regional general permit or because the applicant has elected not to proceed with the project. 1
C. Authority for nationwide permits comes from Section 404(e) of the Clean Water Act, 33 U.S.C. Section 1344(e), which reads in part:
"...the Secretary [of the Army, acting through the Chief of Engineers] 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
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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 environment. Any general permit issued under this subsection shall (A) be based on the guidelines described in subsection (b)(1) of this section, and (B) set forth the requirements and standards which shall apply to any activity authorized by such general permit."
D. There are inherent tensions between Section 404(e)'s provisions for the administrative flexibility of permitting-by-regulation and the limitations aimed at curbing the environmental impacts of the discharges.
1. The permitted activities may cause only minimal individual and cumulative environmental impact.
2. They must comply with the Section 404(b)(1) Guidelines, which are codified at 40 C.F.R. Part 230. 45 FR (249) 85336-85357, December 24, 1980.
E. During the early stages of implementation of this section of the Clean Water Act, administrative simplicity and broad applicability were emphasized over the limitations aimed at rigorously controlling environmental impacts.
F. However, mounting criticism over misuse of nationwide authorizations has resulted in a steady and continuing trend toward greater specificity of the activities authorized by regulation and more restrictive conditions aimed at bringing them into balance with the environmental safeguards contained in Section 404(e) and the Section 404(b)(1) Guidelines.
G. Because of this trend, legal and technical practitioners who aim to assist their clients in the use of nationwide, regional, and State general permits must stay informed on the current status of these permits and the manner in which they are being implemented. A closer look at some of the nationwide permits and related matters of interest to the mining industry will illustrate some of the reasons why this is the case.
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II. Some historical context on permits-by-regulation.2
A. Sec. 404 did not materialize overnight; it is the product of our culture and it reflects more than 100 years of debate between the judicial, legislative, and executive branches of the U.S. government. In large part this is a story about the Corps of Engineers.
1. From the early 1800's to the beginning of the 1890's the Corps' job was to build forts & defense facilities and promote navigation by improving rivers and harbors.
2. In 1888 the Supreme Court ruled that States could authorize or prohibit dams, bridges & other obstructions to navigation. Willamette Iron Bridge Co. v. Hatch 125 U.S. 1 (1888).
3. The federal role in regulating activities that affected navigation was reasserted when the Rivers and Harbors Act of 1890 was passed by Congress. Congress gave the Corps authority over construction and disposal of any material of any kind in navigable waters.
a. The Refuse Act of 1899 amended Rivers and Harbors Act to give Corps authority to enforce the provisions in the Rivers and Harbors Act.
b. The Corps' authority extended only to waters that had traditionally been used for commercial navigation.
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c. The Corps' role reflected government's role in the spirit of the times, i.e. nurturing laissez faire development and preventing uncoordinated or unplanned actions from hindering commercial navigation.
4. The Corps' mission of dredging, filling and flood control predated widespread awareness and interest in conservation and environmental protection. However, an overlay of environmental obligations began to be applied almost 50 years later.
a. The Fish & Wildlife Coordination Act of 1958 required federal construction agencies to consult with the U.S. Fish and Wildlife Service concerning the effects of their projects on wildlife and fisheries.
b. In 1966, President Johnson directed federal agencies to "provide leadership" to prevent, control and abate water pollution resulting from federal actions. Executive Order 11288.
c. The National Environmental Policy Act of 1969 was signed into law by President Nixon.
d. The Corps dealt with these obligations under a general public interest review of actions they took and permit decisions they considered. Occasionally, this public interest review was used to deny permits for reasons other than interference with navigation.
B. Public and Congressional outrage over inadequate pollution control by industries and municipalities, and lack of enforcement by either States or the federal government led to passage of the Federal Water Pollution Control Act Amendments (FWPCAA) of 1972.
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1. The FWPCAA of 1972 imposed somewhat conflicting agendas on the executive branch — continuing the dredging and filling of navigable waters in the interest of commerce while meeting the ambitious policies and goals of the law.
a. The broad policy in Sec. 101 is to "...restore and maintain the chemical, physical, and biological integrity of the Nation's waters. ... It is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985." 33 U.S.C. Section 1251(a).
b. For the traditional municipal and industrial discharges the mechanism for reaching this goal was FWPCAA Section 402, which established the National Pollution Discharge Elimination System of permits.
c. Congress chose not to address dredging and filling activities under a pollution discharge elimination system of permits. Instead, it defined dredged and fill material as pollutants and established a separate permit system under Section 404.
2. Unlike Section 402 responsibilities, which were given to the Administrator of EPA with potential for delegation to the States, Section 404 responsibilities were divided between the Corps of Engineers and EPA.
a. The Corps has responsibility for administering and enforcing the permit program, which was compatible with the Corps' own mission of dredging, filling and flood control activities and with the Corps' greater field presence.
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b. However, EPA was responsible for (among other things) setting the general policies and ground rules the Corps was supposed to follow in administering Section 404. These ground rules are regulations known as the Section 404(b)(1) Guidelines. 40 C.F.R. Part 230.
3. As a...
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