Federal Wetlands Law Permits Under §404

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 83-134

Page 83

Chapter 4

Federal WetlandsLaw PermitsUnder§404

As discussed in the Introduction and in Chapter 3.1, t he CWA prohibits the discharge of any

pollutant into waters except in compliance with a permit.1e CWA dene s “pollutants” to

include material u sed to ll wetlands (“ll material”)2 a nd establishes aseparate regulatory

program and permit regime for discharges of “ll” under §404.3 While t he regulatory denition of

ll material has changed over time, it is currently dened very broad ly as any material that changes

the bottom elevation of a water area or converts a portion of a water of the United States into dr y

land. A s described in Chapter 3.1.B.9, certain discharges which might initia lly appear to be subject to

this requirement, such as stormwater sediment and t hose containing hazardous waste, are actually be

subject to other aut horities.

e CWA authorizes the Secretary of the Army to issue permits under §404 for lling of wetlands,

streams or other waters that are not otherwise exempt or not regulated. e Corps has two types of per-

mit programs. e rst is the general permit program, which includes permits issued from headquarters

(nationwide permits) as well as general permits issued by particular Corps districts. Both types of general

permits are available for certain activities that the Corps has allowed as a class subject to preestablished

terms and conditions. e second permit program provides for an individual permit for a proposed activ-

ity and is subject to project-specic review and terms and conditions that a re established for the specic

proposed activity. Each permit program has its own regulations, standards, and history.

I. Nationwide Permits

To provide exibility in administering the §404 permit program, §404(e) authorizes the Corps to pro-

mulgate general permits on a state, regional, or nationwide basis.4 Statutory authority for these permits

was added in the 1977 CWA Amendments to eliminate individual review and allow certain activities to

proceed with little delay or paperwork.5

e Corps’ nationally applicable general permits are established after notice and an opportunity for

comment.6 e Corps’ regulations also authorize the issuance of general permits on a regional or statewide

basis by district or division engineers, rather than headquarters.7 For ease of reference, nationwide permits

(NWPs) are those general permits promulgated by headquarters for nationwide application, while the

locally issued general permits are called “general permits” (GPs). e CWA provides that nationwide and

1. 33 U.S.C. §1311(a), ELR S. FWPCA §301(a).

2. 33 U.S.C. §1362(b), ELR S. FWPCA §502(b); see also infra Chapter 3.

3. 33 U.S.C. §1344, ELR S. FWPCA §404.

4. 33 U.S.C. §1344(e), ELR S. FWPCA §404(e).

5. e Corps issued general permit regulations prior to the 1977 Amendments, 42 Fed. Reg. 37121, 37145 (1977), and the concept was later

codied. See S. R. N. 370–80 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4405.

6. 33 U.S.C. §1344(e)(l), ELR Stat. FWPCA §404(e)(1).

7. 33 C.F.R. §325.2(e)(2) (2008). For example, the Corps’ New England District, covering Connecticut, Maine, Massachusetts, New Hampshire,

Rhode Island, and Vermont, has suspended the NWP program and replaced it with a set of state general permits. See http://www.nae.usace.

army.mil/Regulatory/SGP/index.htm.

Page 84 Wetlands Deskbook, 4th Edition

general permits are valid only for a period of ve years.8 e Corps most recently revised and reissued the

NWPs in February 2012.9

Both nationwide and general permits are designed to apply to categories of lling activities that “are

similar in nature, will cause only minimal adverse environmental eects when performed separately, and

will have only minimal cumulative adverse eect on the environment.”10 Regulations governing the NW P

program are in 33 C.F.R. Part 330, General Conditions,11 and are established for the NW Ps when they

are issued. Most of the NW Ps require pre-construction notication (PCN) to the Corps, identifying the

planned action. e Corps has 45 days to review the PCN12 and provide a “verication” or authorization

under the nationwide permit. In most Corps’ Districts, the standard permit application also is used for

submission of the PCN.

Nationwide and general permits are essentially “self certifying” permits with pre-established, rather than

case-by-case, permit terms. Compliance with the standards provided for the NWP satises §404. Because

many nationwide and general permits require pre-construction notication to the Corps, in reality most

actions taken under these permits obtain authorization from the Corps. e vocabulary and procedures are

dierent because the Corps is not “issuing” a new permit when it “authorizes” activities to proceed under

the existing nationwide or general permit. e most current N WPs are published in the Federal Register

and available on the Corps’ website.13

A. The Current Nationwide Permits and History

e most recently issued NWPs were released in early 2012, providing for 52 NWPs.14 Almost all of these

permits were the same as, or substantially similar to, the 2007 permits, which were themselves, in most

cases, modications of the 2002 NW Ps. e 2002 NWPs resulted from a seven-year process that signi-

cantly changed the program. By 2002, all of the NWPs were structured to cover specic activities, and

many NWPs had low acreage thresholds. In addition, there were new, detailed general conditions address-

ing issues such as mitigation, wetland delineation and other standards. e 2007 NWPs reorganized some

of the preexisting permits and added new permits. Many of the permits were largely unchanged from their

2002 version. e content of several permits was changed, and some terms that previously appeared in one

NWP were moved to other locations or new permits. By 2012, the only changes to the 2007 NWPs were

the addition of two new permits (both for renewable energy projects), the removal of a third permit (for

pipeline safety repairs), and the modication of NW P 21 for surface coal mining activities and NWP 48

for commercial shellsh aquaculture activities.

e current N WPs are available on the Corps’ website.15e following brief summary of the 2012

NWPs is not comprehensive; the permits themselves must be reviewed to assure compliance with all spe-

cic requirements.

NWP 21 (Surface Coal Mining Activities) was signicantly changed. e 2007 NW P 21 had autho-

rized unlimited quantities of ll if the activities had already been authorized, or were being processed “as

part of an integrated permit processing procedure, by the DOI, the OSM, or by states with approved pro-

grams under Title V of the Surface Mining Control and Reclamation Act of 1977.”16

e 2012 NWP 21 applies only to lls of less than one-half-acre and does not permit “valley lls”—

those “typically constructed within valleys associated with steep, mountainous terrain.17For lls which had

been authorized under the 2007 NWP, the loss of waters must be veried by the district engineer to be no

greater than that authorized under the 2007 N WP 21 (“i.e., there are no proposed expansions of surface

8. 33 U.S.C. §1344(e)(2), ELR S. FWPCA §404(e)(2).

9. 77 Fed. Reg. 10184 (Feb. 21, 2012).

10. 33 U.S.C. §1344(e)(1), ELR S. FWPCA §404(e)(1).

11. See 33 C.F.R. §330.I.C.

12. 33 C.F.R. §330.1(e).

13. See http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx (last visited Jan 4, 2012).

14. 77 Fed. Reg. 10184 (Feb 21, 2012).

15. See http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx (last visited Jan 4, 2012).

16. 72 Fed. Reg. 11184 (Mar. 12, 2007).

17. 77 Fed. Reg. 10274 (Feb 21, 2012).

Federal Wetlands Law Permits Under §404 Page 85

coal mining activities in waters of the United States”).18 Fills occurring after March 18, 2013 which were

authorized under previously issued 2007 NWP 21 also required verication that there would be no expan-

sion.19 ere has been a fair amount of litigation surrounding NWP 21, which is discussed in Chapter 3,

above, and Subsection G, below.

NWPs 13 (Bank Stabilization), 36 (Boat Ramps) and 42 (Recreational Facilities) were modied so that

any waiver by the district engineer of permit terms authorized under the language of the NWPs must be

accompanied by a nding from the District Engineer that the adverse eects from the resulting discharge

will be minima l.

NWP 43 (Stormwater Management Facilities) was claried to state that facilities that are determined

to be waste treatment systems under 33 C.F.R. §328.3(a)(8) are not waters of the United States and their

maintenance generally does not require a §404 permit.

NWP 45 (Repair of Uplands Damaged by Discrete Events) was claried to state that it does not autho-

rize beach restoration or nourishment.

2007 NWP 47 (Pipeline Safety Program Designated Time Sensitive Inspections and Repairs) was elim-

inated. e Corps stated that the 2007 NW P had been issued “in reliance on the Pipeline and Hazardous

Safety Administration’s (PHMSA’s) implementation of a web-based system” for pipeline repair.20 N WP

47 had required permittees to report their use of the NWP through that system, which was subsequently

abandoned by PHMSA.21 e NWP was correspondingly abandoned by the Corps.

NWP 48 (Commercial Shellsh Aquaculture Activities) was modied to state that it only applies in

areas that the operator is currently authorized to conduct commercial shellsh aquaculture activities as evi-

denced by a permit from a state or local government agency, treaty or other property interest. In addition,

certain restrictions apply in an attempt to limit the introduction of nonindigenous and nuisance species.

NWP 50 (Underground Coal Mining Activities) was modied to limit the maximum discharge to

one-half-acre and 300 linear feet of streambed, although the latter can be waived by the district engineer

for ephemeral or intermittent streams with a written nding that the discharge w ill only have minimal

adverse impact.

New NWPs 51 and 52 apply to land-based renewable energy generation facilities and water-based

renewable energy generation pilot projects, respectively. Impacts from both types of projects are limited to

1/2-acre and 300 linear feet of streambed, although the latter can be waived by the district engineer for

ephemeral or intermittent streams with a written nding that the discharge will only have minimal adverse

impact. PCN is required. Water-based pilot projects are authorized only up to 10 generation units and,

after completion of the pilot project, the structures and other lls must be removed to the maximum extent

practicable. Utility lines associated with transferring the energy to the power grid may be authorized as a

linear project under NWP 12; lines from water-based pilot projects placed on the river bed are considered

structures under §10 of the Rivers and Harbors act and not a loss of waters for purposes of the one-half-

acre/300-foot threshold.

B. History of the NWP Program

e history of this program sheds light on the role of these national general permits. e Corps promul-

gated its basic post-1977 CWA amendment NWPs in 1982,22 establishing 26 NWPs. In 1986, these 26

NWPs were revised and reissued for an additional ve years.23 In 1991, the Corps substantially revised the

NWPs, restructured the regulations, and added 10 new NWPs, bringing the total to 36.24 e 1996 revi-

sions were the rst not to be published as regulations, that is, to not be codied. Rather, since 1996 the

NWPs appear only in the Federal Register on the basis that they are permits, not rules. e 1996 revisions

18. Id.

19. Id.

20. 76 Fed. Reg. 9180 (Feb 16, 2011).

21. Id.

22. 47 Fed. Reg. 31794 (July 22, 1982) (nal); 45 Fed. Reg. 62732 (Sept. 19, 1980) (proposed).

23. 51 Fed. Reg. 41206 (Nov. 13, 1986).

24. 56 Fed. Reg. 59110, 59117 (Nov. 22, 1991).