General Permits: An Environmental Minefield

Date01 August 2016
AuthorWilliam W. Sapp, April S. Lipscomb, and M. Allison Burdette
At bottom, Eric Biber a nd J.B. Ruhl argue in their
recent article that general permits a re a panacea
for many of the dicult permitting issues that
modern administrat ive agencies face. We have no quarrel
with their conclusion in theory; however, in practice —at
least in the environmental arena—agenc ies such as the
U.S. Army Corps of Engineers (“Corps”) often abuse
general permits.
In fact, in the case of the Corps’ wetlands regulatory
program, which Biber and Ruhl zero in on, the Corps has
every incentive to exceed the bounds of its general permit-
ting authority. General permits dramatically reduce the
resources needed to run t he Corps’ regulatory program,
as well as help quell the political heat generated from that
program. Furthermore, because environmental groups can
bring only so many cha llenges to the Corps’ nationwide
permits—af ter a ll t here are 52 of them1—the Corps has
little incentive to dial back its abuse of these general per-
mits. Until Biber and Ruhl c an devise a plan to stave o
such abuses, they should be wary of touting the advantages
of general permits too much.
In this Comment, we focus on one general permit
the Corps cu rrently is abusi ng, Nationwide Permit 13,
which the Corps uses to authorize shoreline armament
structures such as bulkhead s, sea walls, and revetments.2
We could have chosen another Corps g eneral permit,3
but since th ree environmental groups a re currently chal-
lenging NWP 13 in the District Cou rt for the District
1. 77 Fed. Reg. 10,184, 10,270 (Feb. 21, 2012).
2. A bulkhead is a wooden, steel, or concrete wall erected along a shoreline. A
sea wall is a bigger and stronger bulkhead. And a revetment is a sloped bank
covered in rock or construction debris. All of these structures are designed to
stem erosion of the shoreline. In this comment, we use the term “bulkhead”
to refer to all of these structures.
3. Two top contenders would be NWP 21 (which covers mountain top min-
ing) and NWP 12 (which covers utility crossings). See 77 Fed. Reg. at
of Columbia,4 a nd since a decision by that cou rt is
expected any day, we thought it wou ld be interesting to
look closely at some of t he ways the Corps is misusi ng
NWP 13.
As Biber and Ruhl point out in their article, Section
404(e)5 authorizes the Corps to develop (through notice
and comment rulemaking) general permits for categories
of activities involving discharges of dredged or ll materi-
al.6 e activities, however, must be similar in nature and
have minimal adverse eects on the environment both indi-
vidually and cumulatively.7 Unfortunately, Congress failed
to dene the term “minimal” in Section 404(e). As we dis-
cuss below, this oversight has left the window open for the
Corps to escape the congressionally intended connes of
this provision.
I. Nationwide Permit 13 and How the
Corps Uses It to Authorize Shoreline
Armament Structures
For the most part, N WP 13 c an be used only for bulk-
heads that are less tha n 500 feet in length, are less than
about t hree feet in width,8 and do not disturb wetlands
or marsh.9 However, dist rict engineers are free under
4. On behalf of the National Wildlife Federation, the Savannah Riverkeeper,
and the Ogeechee Riverkeeper, the Southern Environmental Law Center is
currently challenging the validity of NWP 13. Amended Complaint, Nat’l
Wildlife Fed. v. U.S. Army Corps of Eng’rs, Case No. 1:14-CV-01701-JDB
6. Eric Biber & J.B. Ruhl, e Permit Power Revisited: e eory and Practice
of Regulatory Permits in the Administrative State, 64 D L.J. 133, 138
8. e actual requirement provides as follows: “e activity will not exceed
an average of one cubic yard per running foot placed along the bank below
the plane of the ordinary high water mark or the high tide line, unless the
district engineer waives this criterion by making a written determination
concluding that the discharge will result in minimal adverse eects.” 77 Fed.
Reg. at 10,272.
9. Id.
*e authors would like to thank the following individuals for their
contributions to this Comment: Stacy Grolimund, Todd Miller, and
Dianne Hoskins.
General Permits:
An Environmental Minef‌ield
by William W. Sapp, April S. Lipscomb, and M. Allison Burdette*
Bill Sapp is a Senior Attorney with the Southern Environmental Law Center. April Lipscomb is an
Associate Attorney at the Southern Environmental Law Center. Allison Burdette is an Associate
Professor in the Practice of Business Law at Emory University’s Goizueta Business School.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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