Nationwide Permit 13, shoreline armoring, and the important role of the U.S. Army Corps of Engineers in coastal climate change adaptation.

Author:Brandon, Travis O.
 
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  1. INTRODUCTION II. CLEAN WATER ACT SECTION 404 PERMITS: THE STATUTORY AND REGULATORY FRAMEWORK A. Individual Permits B. General Permits III. THE ENVIRONMENTAL IMPACT OF SHORELINE ARMORING A. The Physical Effects of Coastal Armoring B. The Ecological Effects of Coastal Armoring C. The Economic Effects of Coastal Armoring D. The Impact of Climate Change on Coastal Armoring IV. THE 2012 REISSUE OF NATIONWIDE PERMIT 13 AND RECENT LITIGATION A. The Corps' Findings Regarding Minimal Cumulative Environmental Impact of Nationwide Permit 13 B. The Legal Challenge to Nation wide Permit 13 V. THE REGULATORY IMPACT OF NATIONWIDE PERMIT 13 ON COASTAL ARMORING A. Nation wide Permit 13 Enables Coastal Armoring and Encourages Coastal Development B. Neither Nation wide Permit 13 nor the Proposed Nation wide Permit B Sufficiently Encourage Soft Armoring Approaches to Shoreline Armoring VI. REFORMING NATIONWIDE PERMIT 13 TO ENCOURAGE POSITIVE SEA LEVEL RISE ADAPTATION A. The Corps Should No Longer Provide a General Permit for Hard Coastal Armoring Structures B. The Corps Should Modify Nation wide Permit 13 to Better Evaluate and Protect Against Cumulative Environmental Harms VII. CONCLUSION I. INTRODUCTION

    The sea is rising at a rate unprecedented in modem history, reshaping the coastline of the United States. (1) With rapid sea level rise comes persistent coastal flooding, devastating storm surges, and increased erosion. (2) In the face of these threats, landowners along the nation's oceans, bays, and estuaries have increasingly begun to install hard coastal armoring, such as seawalls and bulkheads, to protect against erosion. (3) And as the population along the coast continues to grow at an accelerating rate, the pressure to armor the coasts only intensifies. (4)

    However, while coastal armoring provides property owners with temporary protection from erosion, it comes at great environmental cost. Numerous studies have shown that the widespread installation of coastal armoring has a significant cumulative effect on coastal environments. (5) Armoring accelerates the rate of erosion seaward of the armoring, resulting in the ultimate destruction of the beach. (6) Moreover, armoring redirects the deflected wave energy to the sides of the sea wall, resulting in exaggerated erosion at the periphery of the armoring, damaging neighboring properties. (7) Finally, seawalls and bulkheads prevent the long term migration of coastal wetlands inwards, leading to the permanent destruction of wetlands that would otherwise adapt to the changing shoreline. (8) Each of these effects will only be exacerbated by the accelerating sea level rise caused by climate change.

    Despite these well-documented environmental harms, the United States Army Corps of Engineers (the Corps), has long facilitated the rapid armoring of coastal wetlands by providing expedited permitting for the construction of "bank stabilization" structures through Nationwide Permit 13 (NWP 13), (9) a general permit under section 404(e) of the Clean Water Act (CWA). (10) NWP 13 allows a coastal property owner to construct a bulkhead or seawall up to five-hundred feet in length--nearly the length of two football fields--without having to provide any notification to the Corps, let alone undergo the time consuming and costly process of obtaining an individual permit under section 404. (11) Because many states also provide expedited permitting for armoring, property owners can often build bulkheads and seawalls in the sensitive coastal wetlands of the waters of the United States with little or no environmental review. (12)

    This expedited permitting by the Corps is contrary to section 404 of the CWA, which only authorizes the Corps to issue a general permit when the permitted activities result in "minimal adverse environmental effects" either individually or cumulatively. (13) Recently, a number of environmental groups challenged the Corps' finding that NWP 13 has minimal cumulative environmental effects in a lawsuit filed in the United States District Court for the District of Columbia. (14) As this Article discusses further in Part III.A-B, the environmental groups convincingly demonstrated that the Corps failed to consider the extensive scientific data showing the negative environmental impact of armoring, and also failed to examine the impact of sea level rise on coastal armoring. However, despite the strong evidence that the issuance of NWP 13 was arbitrary and capricious under the Administrative Procedure Act, (15) the environmental groups' case failed for lack of standing. (16)

    Regardless of the outcome of that litigation, the environmental groups' challenge to NWP 13 highlights the importance of the upcoming reissuance of the Corps' general permits in 2017. (17) Under the general permit program the Corps is required to reissue and update its general permits every five years. (18) The upcoming reissuance of the permits is a crucial opportunity for the Corps to change course, and to avoid the permanent destruction of coastal wetlands that will occur if property owners along the coasts continue to respond to climate change by armoring the coast. As United States Environmental Protection Agency (EPA) sea level rise expert, James Titus, has explained, "[t]he most important step that EPA and Corps of Engineers could take [to protect coastal wetlands from erosion caused by sea level rise] would be to revise the nationwide permit for bulkheads." (19) Unfortunately, however, the Corps' draft proposal to reissue the nationwide permits in 2017 contains no substantive modifications to NWP 13. (20) Unless the Corps changes the permit now, NWP 13 will continue violate the CWA and cause significant environmental harm.

    In its present form, NWP 13 produces two major regulatory effects on land use in coastal wetlands. First, NWP 13 encourages the armoring of coastal properties by greatly reducing the overall permitting cost of constructing a seawall or bulkhead. (21) Even in states that require more extensive review of armoring permits, the fact that applicants do not also have to seek an individual permit from the Corps provides a significant discount on armoring that makes constructing a bulkhead more cost effective than it would be otherwise. Second, by providing a general permit for hard armoring like bulkheads and sea walls, NWP 13 has historically disincentivized the development of soft armoring approaches such as "living shorelines" that help to control coastal erosion while also restoring wetlands and providing coastal habitat. (22) Because permits to construct living shorelines have historically required much more extensive review by the Corps, it is often significantly less expensive and time consuming for property owners to construct bulkheads even when they would prefer to build less environmentally destructive erosion control structures. (23) The Corps has recently taken some steps to remove the regulatory bias in favor of hard armoring in NWP 13, including proposing a new nationwide permit for living shorelines projects, but the general permit still fails to provide an incentive for property owners to choose living shorelines over hard armoring. (24)

    Because the Corps has for decades effectively abdicated any substantive review of most coastal armoring permits, it is easy to overlook the powerful role that the Corps is already authorized by the CWA to play in the implementation of a federal coastal climate change adaptation policy. (25) By strengthening its review of coastal armoring permits, the Corps could preserve valuable coastal wetlands threatened by sea level rise, discourage imprudent development and investment on the coasts, and encourage innovative erosion control measures that protect and enhance the coastal environment. And the Corps has this authority to guide coastal climate change adaptation policy now, without any need for further legislative authorization, which would most likely not be forthcoming in the current political environment. (26)

    The federal guidance on coastal land use policies that the Corps could provide is especially urgent now as states and local governments face the legal and political challenges associated with climate change adaptation. (27) Several states, including California and North Carolina, that have historically restricted the construction of seawalls have recently shown signs of backing down in the face of local pressure to develop and armor the coast. (28) Substantive review of coastal armoring permits by the Corps could provide an important and unifying federal backstop to local decisions that degrade the coast and threaten the waters of the United States. (29)

    Part II of this Article examines the Corps' permitting program under section 404 of the CWA. Part III explains the significant physical, ecological, and economic harms caused by coastal armoring. Part IV analyzes the Corps' findings in regard to the 2012 reissuance of NWP 13, and discusses the recent challenge brought by environmental groups to invalidate the general permit because of its cumulative environmental impacts. Part V considers the regulatory effects caused by NWP 13. Finally, Part VI discusses the Corps' recently proposed modifications to NWP 13 and explains how NWP 13 should be modified in order to make the Corps' permitting program a useful tool to encourage positive climate change adaptation on the nation's coastlines.

  2. CLEAN WATER ACT SECTION 404 PERMITS: THE STATUTORY AND REGULATORY FRAMEWORK

    The goal of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (30) In order to achieve that goal, section 301 of the CWA imposes a broad prohibition on "the discharge of any pollutant by any person." (31) The pollutants prohibited by the CWA encompass a fairly comprehensive list of things that cannot be dumped in water, ranging from the unusual and obviously undesirable, such as "radioactive materials"...

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