CHAPTER 4 USE OF NATIONWIDE AND OTHER GENERAL 404 PERMITS IN NATURAL RESOURCE DEVELOPMENT: OVERVIEW AND RECENT DEVELOPMENTS
| Jurisdiction | United States |
(Jan 2002)
USE OF NATIONWIDE AND OTHER GENERAL 404 PERMITS IN NATURAL RESOURCE DEVELOPMENT: OVERVIEW AND RECENT DEVELOPMENTS
Christopher M. Kamper
Davis Graham & Stubbs LLP
Denver, Colorado
I. INTRODUCTION
Section 404 of the federal Clean Water Act requires a permit from the U.S. Army Corps of Engineers (the "Corps") for virtually all discharges of dredged or fill material into any water of the United States, including wetlands.1 Because of the enormous breadth of regulated "waters of the U.S." as well as the activities considered to constitute a regulated "discharge of dredged or fill material," the Corps is expressly authorized to issue "general" permits by rule on a state, regional or nationwide basis for activities considered to have only minimal impacts.2 A party who meets the eligibility criteria and conditions for an existing general permit may generally proceed under that permitby-rule, without the need to obtain an "individual" 404 permit from the Corps. This "general" permitting scheme is intended to create a simplified, streamlined process for authorizing minimal impact discharges, in order to ease the regulatory burden on both the Corps and the public and to allow the Corps to focus its efforts on higher impact activities.
By far the most widely used of these three types of general permits are so-called "nationwide" permits ("NWPs"). During the first three decades the Corps has administered Section 404, over 80% of 404-regulated activities have been authorized under NWPs. As a result, NWPs have been very heavily relied on by the development sector and have been even more strongly criticized by the environmental community as "loopholes" responsible for inappropriate wetlands destruction. Accordingly, NWPs and other general 404 permits have been extremely controversial and remain a very hot topic.
Since its inception over 25 years ago, the 404 NWP and general permit program has shown a clear trend of becoming increasingly complex, limited, regionally uneven and subject to case-by-case Corps review and mitigation requirements. On March 9, 2000, the Corps made major changes to the NWP Program that continued that trend. In addition, NWP-authorized discharges, although generally relatively small in size, are increasingly being subjected to "compensatory mitigation" requirements, which in turn has increased the demand for and use of mitigation banks.
On August 9, 2001, the Corps proposed to reissue all 43 existing NWPs, so they will have a common termination date, and, in the process, to modify nine existing NWPs and
[Page 4-2]
six General Conditions and create one new condition. That proposal was originally scheduled to be completed on November 13, 2001 but, as of this writing, has not yet been finalized. Those proposed revisions are described in Part V below and the attached Exhibit E.
This paper briefly describes: (1) what a NWP is; (2) how NWPs have evolved; (3) how they work today; (4) how the Corps recently has substantially revised and limited them; (5) the proposed new revisions; (6) complications from regional conditions; (7) NWPs of particular interest to natural resource developers; and (8) steps that prudent practitioners and affected parties should take to avoid potential problems under the existing and future NWP Program. The paper also describes general regional permits that may be available as an alternative or in addition to NWPs, with a particular focus on regional general permits available for oil and gas exploration and production activities.
II. WHAT IS A NATIONWIDE PERMIT?
A NWP is a general "permitby-rule" that authorizes throughout the United States certain 404-regulated activities deemed to have only minimal impacts on wetlands or other "waters of the United States," upon a showing that the criteria and conditions of the NWP are met, without the need to obtain an "individual" 404 permit. Regional and state-wide general 404 permits operate in the same fashion but are adopted by Corps District or Division Offices and are available only in specified geographic areas.
The use of NWPs and other general 404 permits is expressly authorized under Section 404(e) of the Clean Water Act, 33 U.S.C. § 1344(e), which states in pertinent part:
... the Secretary [of the Army, acting through the Corps] 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 environment. Any general permit issued under this subsection shall (A) be based on the guidelines described in subsection (b)(l) of this section, and (B) set forth the requirements and standards which shall apply to any activity authorized by such general permit.
Section 404(e)(2) further provides that nationwide and other general permits:
1. May be issued for no longer than a five-year term, after which they must either expire or be reissued; and
2. May be modified or revoked if, after opportunity for a public hearing, the authorized activities are determined to have an adverse impact on the environment or be more appropriate for individual 404 permits.
[Page 4-3]
Prior to the Corps' March 9, 2000 amendments, there were 39 nationwide permits in place, along with 24 "general" and "Section 404 only" conditions on each NWP. In its March 9, 2000 rulemaking, the Corps terminated NWP 26 and created five new NWPs, for a current total of 43 NWPs, designated all applicable existing conditions as "general conditions," and added two new general conditions, for a current total of 26 general NWP conditions, with a proposal now pending to add a new 27th general condition, as listed on Exhibits C-l and C-2, attached, and described further below. The Corps' regulations governing the issuance and administration of NWPs are set out in 33 C.F.R. Part 330. The NWPs were formerly set out in Appendix A to those rules, but the Corps recently decided, unwisely in this author's view, to discontinue publishing the NWPs in the Code of Federal Regulations. As a result, while NWPs are published in the Federal Register at the time they are formally issued by the Corps, they are not published from year to year in any nationally available general publication and must be obtained directly from the national or a district office of the Corps. Although not a legally "official" source of the Corps' rules and requirements, probably the best, most up-to-date source regarding the currently applicable NWPs and any binding general or regional conditions is the Corps' national Internet website at www.usace.army.mil/inet/functions/cw/cecwo/reg/. This website also has information regarding Internet websites of the division and district offices of the Corps, which contain information regarding existing and proposed future state, local and regional conditions applicable to various NWPs and available regional general permits.3
Unless otherwise indicated, all 26 of the listed conditions generally apply to each NWP, with the exception of Condition No. 13, which requires pre-construction notification to the Corps before proceeding under a NWP. Condition No. 13 applies only where so indicated in a specific NWP or other condition. That notification condition is a critical one because, once notified, the Corps then can, and often does, either reject, modify or substantially condition a proposed NWP authorization. As discussed below, one clear trend under the NWP Program is increasingly to require pre-construction notification to the Corps in more circumstances and for more NWPs.
One unique characteristic of NWPs that require notice, however, is that, if the Corps fails to respond to the notice after 45 days, the permittee is automatically authorized to proceed under the NWP. This is fundamentally different than an "individual" permit, which must formally be "issued" and approved for the permittee to act under the permit. This 45-day limit also serves to prevent the lengthy delays associated with individual permits.
Most NWPs generally are very activity-specific, but several refer to broader topical subjects, such as NWP 23 (for federal actions constituting "categorical exclusions" under NEPA) and NWP 32 (for completed 404 enforcement actions). The greatest exception to that activity-specific characteristic to date was NWP 26, which was by far the most widely used and most controversial general permit. Before it was terminated effective June 7, 2000, NWP 26 authorized discharges affecting less than three acres in any waters that are either "isolated" or located "above headwaters." As discussed below, the Corps' NWP
[Page 4-4]
amendments adopted on March 9, 2000, primarily centered around the Corps' key objective to phase out NWP 26 and replace it with several more narrow, activity-specific NWPs.
It is critical to bear in mind, as summarized in Exhibit A, that all NWPs have the following fundamental characteristics:
1. NWPs are not an "entitlement." The Corps is expressly authorized in its discretion to deny, modify or revoke a NWP or require an applicant to apply for an individual permit4 ;
2. NWP permitted activities generally are subject to and must comply with EPA's 404(b)(l) Guidelines;
3. NWP permitted activities may cause only minimal individual and cumulative environmental impacts;
4. Full compliance with all conditions, including pre-construction notification where required, is a prerequisite to relying on a particular NWP. If any condition is not fully complied with at the time of the discharge, the Corps will consider the NWP inapplicable and the action to be an...
To continue reading
Request your trial