General Permits: An Environmental Minefield

• Date: 01 August 2016
• Author: William W. Sapp, April S. Lipscomb, and M. Allison Burdette

46 ELR 10668 ENVIRONMENTAL LAW REPORTER 8-2016

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

10,269–70.

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

(D.D.C. Dec. 29, 2014).

5. 33 U.S.C. § 1344(e).

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

(2014).

7. 33 U.S.C. § 1344(e).

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.

C O M M E N T

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®, http://www.eli.org, 1-800-433-5120.