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 types of permit pro-

grams.  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 activi-

ties 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 activity and is subject to project-

speci c review and terms and conditions that are

established for the specic proposed activities.

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

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 permits.”  e CWA

provides that nationwide and general permits are

valid only for a period of  ve years.5  e Corps

most recently revised and reissued the NWPs 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 setting forth the NWP

satis es §404.

A. The Current Nationwide Permits and

History

e most recently issued NWPs were released in

early 2007, providing for 49 NWPs.8  ese per-

mits were, in some cases, modications of the

2002 NWPs, which 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 addressing issues such

as mitigation, wetland delineation and other stan-

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 was

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 reorganized

and changed. Whereas previously other NWPs

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 previously was included in NWP 3.

NWP 45, like old NWP 3, requires preconstruc-

tion notication within 12 months of the date of

the damage and authorizes restoring the uplands

to their prior condition.

NWP 12 (Utility lines) was modied and 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 modied to authorize temporary lls associ-

ated with such projects, which are not subject to

the acreage limitations imposed on permanent

impacts.

Prior to 2007 (in the 2002 NWPs), impacts

associated with residential and commercial con-

struction were addressed in NW P 29 (Single-

family Housing) and NWP 39 (Residential,

Commercial and Institutional Developments). In

2007, the Corps separated certain types of devel-

opment into separate NWPs. In the 2007 permits,

NWP 29 covers Residential 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 notication 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 notication.

e history of this program sheds light 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, restructured the

regulations, and added 10 new N WPs, bringing

the total to 36.11 e 1996 revisions 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 brought

the number of NWPs to 4012 and, after the 2000

changes, there were 43.13 is number stayed con-

stant through revisions which occurred in 2002.14

e CWA authorizes these permits for “any cat-

egory of activity” which will cause only minimal

adverse environmental eects when performed

separately and “will only have minimal cumulative

adverse eect on the environment.”15 NWPs reect

a judgment that lling in accordance with the

associated criteria imposes so minima l an impact

that the full review given individual 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 consistent 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 specic 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 that

District Engineers 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 several of the NWPs, a

requirement was added that the permittee notify

the District Engineer prior to commencement of

the permitted activity. is is now called “precon-

struction notic ation” or PCN.

e 1996 revisions represented a further 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 isolated wet-

lands and t hose in headwaters. By 1996, the 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, NWP 26 was only issued

for two yea rs as at that time 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 pages. e

2007 NWP revisions continued the general trend

of reducing the maximum acreage of impacts

authorized by an NWP and requiring notication

prior to use of the NWP. e general conditions

were also revised and provide extensive details to

qualify for nationwide authorization.

NWP 26 expired in 2000 and was not reis-

sued. In its place, the Corps issued modied and

new activity-specic permits.17 In 2000-2002, the

Corps replaced NWP 26 with NW P 39, then t he

most general of the NWPs, applicable to residen-

tial, commercial and institutional developments.18

As noted above, in 2007 residential developments

were moved from NWP 39 to NWP 29. As of

2007, between NWP 29 and NWP 39, impacts

for a wide range of construction activities may

be authorized, 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 wetland 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 specic 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, the extent of the general condi-

tions has expanded each time the Corps has reis-

sued the permits. e following is a summary of

the 2007 general conditions, but their nuances are

not addressed and many 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.

nicant details. Consequently, the practitioner is

advised to review the conditions in more depth.

Under the general conditions, certain activities

cannot be authorized with an N WP. For exa m-

ple, no authorized activity may cause more than

a minimal adverse eect on navigation,21 sub-

stantially 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 aect tribal rights.24 ey may not be

used for activities in Wild and Scenic Rivers,25

in areas of concentrated shellsh populations,26

near public water supply intakes,27 or in critical

resource waters.28Critical resource waters include

“NOAA-designated marine sanctuaries, National

Estuarine Research Reserves, state natural heritage

sites, and outstanding national resource waters or

other waters ocially designated by a state as hav-

ing particular environmental or ecological signi-

cance and identied by the District Engineer after

notice and opportunity for public comment.”29

Activities aecting historic properties require

notication and determinations by the District

Engineer.30Activities within100-year ood-

plains must comply with FEMA-approved state

or local oodplain requirements.31 To the maxi-

mum extent practicable, authorized activities must

avoid migrator y bird breeding areas32 and spawn-

ing areas during spawning sea son,33 maintain pre-

construction downstream ow,34 and minimize

impacts of water impoundment.35

e general conditions also provide construc-

tion a nd post-construction requirements. During

construction, appropriate soil erosion and sedi-

ment controls are required and soil disturbance

must be minimized.36Following construction, all

exposed lls as 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 notication 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.