Federal Wetlands Law Permits Under §404
| Author | Margaret 'Peggy' Strand/Lowell Rothschild |
| Pages | 67-103 |
Page 67
Chapter 4
Federal Wetlands Law
Permits Under §404
The CWA authorizes the Secretary of
the Army to issue permits under §404.
e Corps has two ty pes of permit pro-
grams. e rst is the General Permit program,
which includes permits issued from headquarters
(Nationwide Permits) as well as Gener al Permits
issued by particular Corps districts. Both types
of General Permits are available for certain activi-
ties that the Corps has allowed as a class subject to
preestablished terms and conditions. e second
permit progr am provide s for an individua l permit
for a proposed activity and is subject to project-
speci c review and terms a nd conditions that are
established for the speci c proposed activities.
Each permit program has its own regulations,
standards, and history.
I. Nationwide Permits
To p r o v id e exibility in administering t he §404
permit program, §404(e) authorizes the Corps to
promulgate general permits on a state, regional,
or nationwide basis.1 Statutory authority for these
permits was added in the 1977 CWA amendments
to eliminate individual review and allow certain
activit ies to proceed with little d elay or paper work.2
e Corps’ nat ionally applic able general per mits
are established af ter notice and an opportu nity for
comment.3 e Corps’ regulations also authorize
the issuance of general permits on a regional or
statewide basis by district or division engineers,
rather than headquarters.4 For ease of reference,
nationwide permits (NWPs) are those general
1. 33 U.S.C. §1344(e), ELR S. FWPCA §404(e).
2. 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.
3. 33 U.S.C. §1344(e)(1), ELR S. FWPCA §404(e)(1).
4. 33 C.F.R. §325.2(e)(2) (2008).
permits promulgated by headquarters for nation-
wide application, while the locally issued general
permits are called “general perm its.” e CWA
provides that nationwide and general permits are
valid only for a period of ve years.5 e Corps
most recently revised a nd reissued the NW Ps in
March 2007.6
Both nationwide and general permits are
designed to apply to categories of lling activities
that “are similar in nature, will cause only mini-
mal adverse environmental e ects when performed
separately, and will have only minimal cumulative
adverse e ect on the environment.”7 Nationwide
and general permits are essentia lly permits by rule;
compliance with the rules set ting forth the N WP
satis es §404.
A. The Current Nationwide Permits and
History
e most recently issued NW Ps were released in
early 2007, providing for 49 NWPs.8 ese per-
mits were, in some cases, modi cations of the
2002 NWPs, which resu lted from a seven-year
process t hat sig ni cantly changed the program.
By 2002, all of the NW Ps were structured to
cover speci c activities, and many NWPs had low
acreage thresholds. In addition, there were new,
detaile d general conditions a ddressi ng issue s such
as mitigation, wetland delineation and other sta n-
dards. 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 wa s
5. 33 U.S.C. §1344(e)(2) ELR S. FWPCA §404(e)(2).
6. 72 Fed. Reg. 11091 (Mar. 12, 2007).
7. 33 U.S.C. §1344(e)(1), ELR S. FWPCA §404(e)(1).
8. 72 Fed. Reg. 11091 (Mar. 12, 2007).
Page 68 Wetlands Deskbook
changed, and some terms that previously appeared
in one NWP were moved to other locations or new
permits. e following brief summary of the 2007
NWPs is not comprehensive.
NWP 3 (Maintenance) was reorga nized
and changed. Whereas previously other NW Ps
addressed maintenance of certain activities (e.g.,
maintenance of outfalls was part of NWP 7), all of
the terms concerning maintenance activities now
appear in NWP 3. Some content was moved out
of NWP 3. For example, new NW P 45 (Repair
of Uplands Damaged by Discrete Events) contains
content that prev iously was included in NWP 3.
NWP 45, like old NWP 3, requires preconstruc-
tion notic ation within 12 months of the date of
the damage a nd authorizes restoring the upla nds
to their prior condition.
NWP 12 (Utility lines) was modied a nd now
includes a limit of 1/2 acre loss and a preconstruc-
tion noti cation requirement for impacts of 1/10
acre or linear impacts over 500 feet. Other con-
ditions apply for temporary impacts from utility
lines. NWP 14 (Linear Transportation Projects)
was modied to authorize temporary lls associ-
ated with such projects, which are not subject to
the acrea ge limitations imposed on permanent
impacts.
Prior to 2007 (in the 2002 NWPs), impacts
associated with residential and commercial con-
struction were addressed i n NW P 29 (Single-
family Housing) and NWP 39 (Residentia l,
Commercial and Institutional Developments). In
2007, the C orps separated certain types of devel-
opment into separate NWPs. In the 2007 permits,
NWP 29 covers Re sidential Development, includ-
ing single units, multiple units or development
projects with a total impact limit of 1/2 acre of
wetland destruction or 300 linear feet of stream.
Preconstruction notic ation is required. NWP
39 covers Commercial and Institutional Develop-
ments. It is also limited to activities that impact no
more than 1/2 acre or 300 linear feet of stream and
requires preconstruction notication.
e history of this progra m shed s lig ht on the
role of these national general permits. e Corps
promulgated its basic post-1977 CWA amend-
ment NW Ps in 1982,9 establishing 26 NWPs. In
1986, these 26 NW Ps were revised and reissued
for a n additional ve years.10 In 1991, the Corps
9. 47 Fed. Reg. 31794 (July 22, 1982) (nal); 45 Fed. Reg. 62732
(Sept. 19, 1980) (proposed).
10. 51 Fed. Reg. 41206 (Nov. 13, 1986).
substantially revised the NW Ps, restructu red the
regulations, and added 10 new N WPs, bringing
the total to 36.11 e 1996 revisions were the rst
not to be published a s reg ulations, that is, to not
be codied. Rat her, since 1996 the NWPs appear
only in the Federal Register on the basis that they
are permits, not rules. e 1996 revisions brought
the number of N WPs to 4012 and, after the 2000
changes, there were 43.13 is number stayed con-
stant throug h revisions which occurred in 2002.14
e CWA authorizes these permits for “any cat-
egory of activity ” wh ich w ill cause only minimal
adverse environmental eects when performed
separately and “will only have minimal cumulative
adverse eect on the environment.”15 NWPs reect
a judgment that lling in accordance with the
associated criteria imposes so minima l an impact
that the full review given ind ividual permits is not
warranted. In keeping with this interpretation,
the nationwide program involved very little indi-
vidualized review until 1991. For the most part,
an activity c onsistent with a NWP could simply
go forward without the need for any lings or the
Corps’ review.
e 1991 program revisions changed this bal-
ance. ose revisions gave District Engineers
greater authority to modify, suspend, or revoke
NWPs in specic instances; broadened the basis
that District Engineers can use to exercise discre-
tionary authority to conduct a “public interest”
review of the lling activity16; and provided t hat
District Engi neers must require a n individual per-
mit whenever a lling activity would have more
than a minimal adverse impact on the aquatic envi-
ronment. In addition, for severa l of the NWPs, a
requirement was added that the perm ittee notif y
the District Engineer prior to commencement of
the permitted activity. is i s now called “precon-
struction notic ation” or PCN.
e 1996 revisions represented a furt her shift
away from the pre-1991 approach. e 1996
program encouraged regionalization of genera l
permits and reduced the acreage limit for NW P
26, the prior “catch-all” permit which originally
applied to lling of up 10 acres of isolate d wet-
lands and t hose in headwaters. By 1996, t he cov-
11. 56 Fed. Reg. 59110, 59117 (Nov. 22, 1991).
12. 61 Fed. Reg. 65874 (Dec. 13, 1996).
13. 65 Fed. Reg. 12818 (Mar. 9, 2000).
14. 67 Fed. Reg. 2020 (Jan. 15, 2002).
15. 33 U.S.C. §1344(e)(1).
16. See infra Section II.A.2, (discussing the public interest review
process followed for individual permit applications).
Federal Wetlands Law Page 69
erage of NWP 26 was down to three acres, with
PCN requirements reduced from a range of 1 to
10 acres (depending on the wetland being lled) to
1 to 3 acres. Moreover, N WP 26 wa s only issued
for two yea rs as at that ti me the Corps envisioned
phasing it out. e 1996 program also increased
the number and complexity of t he general condi-
tions attached to the N WPs. ese trends contin-
ued in 2000 and 2002, with a resultant 27 general
conditions covering ve Federal Register page s. e
2007 NWP revisions continued the general trend
of reducing the maximum acreage of impacts
authorized by an NWP and requiring notication
prior to use of the NWP. e general conditions
were a lso revised and provide extensive details to
qualif y for nationwide authoriz ation.
NWP 26 expired in 2000 and was not reis-
sued. In its place, the Corps issued modied and
new activ ity-specic permits.17 In 20 00-2002, the
Corps replaced NW P 26 with NW P 39, then t he
most genera l of the NWPs, applicable to residen-
tial, com mercial a nd institutional developments.18
As noted above, in 2007 residential developments
were moved from NWP 39 to NWP 29. As of
2007, bet ween NWP 29 and NWP 39, impacts
for a wide range of construction activities may
be aut horized, so long as they are limited to lls
impacting no more than 1/2 acre of wetlands or
300 linear feet of stream, with numerous addi-
tional conditions including preconstruction noti-
cation for impacts, a wetla nd delineation and
mitigation.
e current NWPs are available on the Corps’
website.19
B. General Conditions for Nationwide
Permits
While each NW P includes conditions specic to
that permit, there are important general condi-
tions as well. Moreover, the District Engineer may
impose regional and case-by-case conditions.20
As a general rule, t he extent of the general condi-
tions ha s ex panded each time the Corps ha s reis-
sued the permits. e following is a summar y of
the 2007 general conditions, but their nuances are
not addres sed a nd ma ny have exceptions and sig-
17. 65 Fed. Reg. 12818 (Mar. 9, 2000).
18. 67 Fed. Reg. 2020 (Jan. 15, 2002).
19. Http://www.usac e.army.mil/CECW/Pages/nw _permits.aspx
(last visited Aug. 29, 2009).
20. General Condition 23, 72 Fed. Reg. at 11194.
nicant details. Consequently, the practitioner is
advised to review the conditions in more depth.
Under the general conditions, certain ac tivities
cannot be authorized with an N WP. For exa m-
ple, no authorized activity may cause more than
a minimal adverse eect on nav igation,21 sub-
stantial ly disrupt the necessa ry life-cycle move-
ments of indigenous aquatic life,22 or jeopardize
any endangered or threatened species.23 NW Ps
can not aect tribal rights.24 ey may not be
used for activities in Wild and Scenic Rivers,25
in areas of concentrated shellsh populations,26
near public water supply i ntakes,2 7 or in critical
resource waters.28 Critical resource waters include
“NOAA-designated marine sanctuaries, National
Estuarine Research Reserves, state natural heritage
sites, and outstanding national resource waters or
other waters ocia lly designated by a state as hav-
ing par ticular environmental or ecologica l signi-
cance and identied by the District Eng ineer after
notice and opportunity for public comment.”29
Activities aecting historic properties require
notication and determinations by the District
Engineer.30 Activ ities within 100-year ood-
plains must comply with FEMA-approved state
or local oodplain requirements.31 To the maxi-
mum extent practicable, authorized act ivities must
avoid migrator y bird breeding areas32 and spawn-
ing areas during spaw ning sea son,33 maintain pre-
construction downstrea m ow,34 and minimiz e
impacts of water impoundment.35
e general conditions also provide construc-
tion a nd post-constr uction requirements. During
construction, appropriate soil erosion and sedi-
ment controls are required and soil disturbance
must be minimized.36 Following construction, all
exposed lls a s well as any work below the ordi-
nary high watermark must be permanently stabi-
21. General Condition 1, 72 Fed. Reg. at 11191.
22. General Condition 2, 72 Fed. Reg. at 11191.
23. General Condition 17, 72 Fed. Reg. 11192.
24. General Condition 16, 72 Fed. Reg. 11192.
25. General Condition 15, 72 Fed. Reg. 11192.
26. General Condition 5, 72 Fed. Reg. 11191.
27. General Condition 7, 72 Fed. Reg. 11191.
28. General Condition 19, 72 Fed. Reg. 11193. Certain NWPs
can be used in critical resource waters after notication to the
Corps if the District Engineer determines that the impacts will
be minimal.
29. General Condition 19, 72 Fed. Reg. 11193.
30. General Condition 18, 72 Fed. Reg. 11192.
31. General Condition 10, 72 Fed. Reg. 11192.
32. General Condition 4, 72 Fed. Reg. 11191.
33. General Condition 3, 72 Fed. Reg. 11191.
34. General Condition 9, 72 Fed. Reg. 11192.
35. General Condition 8, 72 Fed. Reg. 11192.
36. General Condition 12, 72 Fed. Reg. 11192.
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