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The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory Developments

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Order Code 97-223 ENR CRS Report for Congress Received through the CRS Web Nationwide Permits for Wetlands Projects: The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory Developments Updated February 2, 2005June 27, 2007 Claudia Copeland Specialist in Resources and Environmental Policy Resources, Science, and Industry Division Congressional Research Service ˜ The Library of Congress Nationwide Permits for Wetlands Projects: The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory Developments Summary General permitsPermits issued by the U.S. Army Corps of Engineers authorize various types of development projects in wetlands and other waters of the United States. These permits authorize activities that are similar in nature and are judged to cause only minimal adverse effect on the environment. The Corps uses general permits to The Corps’ regulatory process involves two types of permits: general permits for actions by private landowners that are similar in nature and will likely have a minor effect on wetlands, and individual permits for more significant actions. The Corps uses general permits to minimize the burden of its regulatory program: they authorize landowners to proceed with a project without having to obtain individual permits in advance. Nationwide permits are one type of general permit. They authorize a number of categories of activities throughout the nation (such as minor dredging projects and bank stabilization projects) and are valid only if the applicable conditions are met. Nationwide permits, which currently number 43, are issued for five-year periods and thereafter must be renewed. They were most recently reissued in total in January 2002, but actions to issue or modify smaller numbers of them also were taken since the previous full reissuance in 1996. The current program has few strong supporters, for differing reasons. Developers say that it is too complex and burdened with arbitrary restrictions. Environmentalists say that it does not adequately protect aquatic resources. At issue is whether the program has become so complex and expansive that it cannot either protect aquatic resources or provide for a fair regulatory system, which are its dual objectives. Coordinating implementation of the nationwide permits between federal and state governments raises a number of issues. Of particular concern to states is tension over their authority to certify that the nationwide permits will not violate water quality standards. If a state denies this certification, the Corps does not necessarily consider the state’s action sufficient cause to deny issuance of the federal permit. This effectively forces states to accept the federal permit or take steps to condition individual projects, a resource-intensive burden that could be avoided if the Corps treated a state denial as a permit veto, states say. Recent congressional interest in wetlands permit regulatory programs has been evident in oversight hearings and in connection with specific provisions of appropriations bills to fund the Corps’ regulatory program. For the last several Congresses, there has been a stalemate over legislation that would comprehensively reform and streamline wetlands regulatory law and which could, if enacted, modify the nationwide permit program. During this time, no consensus has emerged on whether or how to legislatively reform overall wetlands policy. Congressional involvement in these issues could arise again as a result of reissuance of the nationwide permits in 2002 and federal court rulings that invalidated the Corps regulation of excavation activities and affected the Corps’ overall regulatory program. This report will be updated as warranted by developmentsthe time-consuming need to obtain standard individual permits in advance. About 90% of the Corps’ regulatory workload is processed in the form of general permits. Nationwide permits are one type of general permit. Nationwide permits, which currently number 49, are issued for five-year periods and thereafter must be renewed. They were most recently reissued in total in March 2007. The current nationwide permit program has few strong supporters, for differing reasons. Developers and other industry groups say that it is too complex and burdened with arbitrary restrictions that limit opportunities for an efficient permitting process and have little environmental benefit. Environmentalists say that it does not adequately protect aquatic resources, because the review procedures and permit requirements are less rigorous than those for individual or standard permits. At issue is whether the program has become so complex and expansive that it cannot either protect aquatic resources or provide for a fair regulatory system, which are its dual objectives. In addition to general objections, interest groups have a number of specific criticisms of the permits, such as requirements that there must be compensatory mitigation for impacts of some authorized activities, impacts of regional conditioning through which local aquatic considerations are addressed, concern that coal mining activities authorized by these permits have significant adverse environmental impacts, and the need to define “minimal adverse effects” for purposes of implementing the nationwide permit program. Coordinating implementation of the nationwide permits between federal and state governments also raises a number of issues. Of particular concern to states is tension over whether their authority to certify the nationwide permits is sufficient to assure that water quality standards or coastal zone management plans will not be violated. Congressional interest in wetlands permit regulatory programs has been evident in the past in oversight hearings and in connection with specific provisions of bills to fund the Corps’ regulatory programs. For some time, there has been a stalemate over legislation that would revise wetlands regulatory law and that could, if enacted, modify the nationwide permit program. During this time, no consensus has emerged on whether or how to reform overall wetlands policy legislatively. Congressional involvement in these issues could arise again as a result of reissuance of the nationwide permits in 2007. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Permit Reissuance in 1996 . . .Nationwide Permits: 1977-2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Nationwide Permit 26 -: Background and Controversies . . . . . . . . . . . . 4 Reissuance of Nationwide Permit 26: 1996 Modifications and More Controversy. 5 Replacement Permits for NWP 26 in 2000 . . . . . . . . . . . . . . . . . . . . . . 5 Lawsuits Challenging the Replacement Permits . . . . . . . . . . . . . . . . . 5 Replacement Permits for NWP 26 in 2000. 8 Reissuance of All Nationwide Permits in 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Regional Conditioning8 Reissuance of Permits in 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Critiques by Stakeholder Groups . . . . . . . . . . .. . . . . . 8 Comments and Reactions of Stakeholders . . . . . . . . . . . . . . . . . . . . . . . 9 Lawsuits Challenging the Replacement Permits. . . 11 Specific Critiques . . . . . . . . . . . . . . . . . 11 Reissuance of All Nationwide Permits in 2002. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 300 Linear-footFoot Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Mitigation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Surface14 Coal Mining Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. . . 17 Fills withinWithin the 100-yearYear Floodplain . . . . . . . . . . . . . . . . . . . . . . . . . . 15 State Coordination Issues19 Other Issues Concerning Nationwide Permits . . . . . . . . . . . . . . . . . . . . . . . . .20 Regional Conditioning . . . . . . . . . . . . . . 15 Other Issues Concerning Nationwide Permits . . . . . . . . . . . . . . . . . . . . . . . 17 Defining Minimal Effects and Assessing Cumulative Impacts . . . . . . 17 Uncertainty Due to Overturning the Tulloch Rule21 State Coordination Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18. . 22 Defining Minimal Adverse Effects, Assessing Cumulative Impacts . . 24 Congressional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Nationwide Permits for Wetlands Projects26 The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory Developments Introduction Federal laws require government approval prior to beginning any work in or over navigable waters of the United States whichthat affects the course, location, condition or condition, or capacity of such waters, or prior to discharging dredged or fill material into U.S. waters. Regulatory programs whichthat implement these laws are administered through through permits issued by the U.S. Army Corps of Engineers (the Corps), which shares shares responsibility with the Environmental Protection Agency (EPA), under the authority authority of the Clean Water Act, the Rivers and Harbors Act, and the Marine Protection, Research Research, and Sanctuaries Act. The Corps’ regulatory process involves bothtwo types of permits: general permits for actions by private landowners that are similar in nature and will likely have a minor effect on wetlands, and individual permits for more significant action. A nationwide permit is a form of general permit whichthat authorizes a category of activities throughout the nation and is valid only if the conditions applicable to the permit are met. These permits are issued under authority of sectionSection 404(e) of the Clean Water Act. They cover categories of activities that are similar in nature and will cause only minimal adverse effect on the environment, both individually and cumulatively. At issue in this program is the balance of two objectives: providing regulatory protection to ensure minimal impacts on aquatic resources, and providing a fair and efficient regulatory system. For several years, however, interest groups of differing perspectives have criticized the program and increasingly question whether either objective is being achieved, much less both objectives. Nationwide permits, which currently number 43, are issued for five-year periods and thereafter must be renewed. They were most recently reissued in total in January 2002, but actions to issue or modify smaller numbers of them also were taken since the previous full reissuance of the permits in 1996. Controversies about the program are reflected especially in one of the nationwide permits, Permit 26, which authorized discharges in headwaters or isolated waters (but did not cover specific categories of activities, as do other nationwide permits). First issued in 1977, Permit 26 was criticized by environmentalists who contended that it resulted in a significant loss of wetlands acreage. In 1996, the Corps reissued this permit but greatly reduced its scope, leading to criticism by landowner and developer groups who said it would be more burdensome for permit applicants. In 2000, the Corps withdrew Permit 26 and replaced it with five new permits, but criticism of specific nationwide permits, including those that replaced Permit 26, and the program as a whole has not diminished. CRS-2 The nationwide permit regulatory program has drawn Congress’ attention several times in the recent past. In 1997, House and Senate committees held oversight hearings to review several issues and controversies. In 1999 and again in 2000, congressional appropriators directed the Corps to take certain actions concerning its overall regulatory program, and nationwide permits in particular. This report describes and reviews the recent history of the nationwide permit program and discusses several major issues, including program complexity, coordination with states, assessing cumulative impacts of the program, and effects of federal court decisions concerning regulation of excavation activities Act and Section 10 of the Rivers and Harbors Act of 1899. Under Section 404, permits are required for discharges of dredged or fill material into waters of the United States. Under Section 10, permits are required for any structures or other work that affect the course, location, or condition of navigable waters of the United States. Nationwide permits, which currently number 49, are issued for five-year periods and thereafter must be renewed. They were most recently reissued in total in March 2007. At issue in the nationwide permit program is the balance of two objectives: providing regulatory protection to ensure minimal impacts on aquatic resources, and providing a fair and efficient regulatory system. For several years, however, interest groups of differing perspectives have criticized the program and increasingly question whether either objective is being achieved, much less both objectives. Stakeholders involved in this debate include, on the one hand, industry groups (members of building — especially homebuilding — design, realtor, and petroleum and mining organizations) and, on the other, environmental advocacy groups, along with many state water quality, water resources, and environmental agencies. Particularly under the Clean Water Act, the Corps’ regulatory authority is broadly defined. It covers waters of the United States, including the territorial seas, and includes traditionally navigable waterways capable of supporting interstate and foreign commerce, plus their tributaries, and adjacent wetlands and isolated waters CRS-2 where the use, degradation, or destruction of such waters could affect interstate or foreign commerce.1 In fact, much of the public concern about the nationwide permit program — with regard to impacts of authorized activities, and terms and conditions intended to limit impacts — often focuses on permits for projects that affect the nation’s wetlands. Controversies about the permit program are compounded by disputes about the data on which the Corps bases its conclusions that adverse environmental impacts of authorized activities are minimal. Critics, especially environmental advocates, argue that the Corps’ data are dated (the most recent available statistics are from 2003) and inaccurate, because the Corps lacks an effective tracking and monitoring system for evaluating impacts. The nationwide permit regulatory program has drawn Congress’s attention several times in the past. In 1997, House and Senate committees held oversight hearings to review several issues and controversies. In 1999 and again in 2000, congressional appropriators directed the Corps to take certain actions concerning its overall regulatory program, and nationwide permits in particular. This report describes and reviews the nationwide permit program and discusses several major issues that have drawn the attention of stakeholder interest groups, including program complexity, coordination with states, and assessing cumulative impacts of the program. Background General permits, including nationwide permits, are a key means by which the Corps seeks to minimize the burden and delay of its regulatory program: they authorize a landowner or developer to proceed with the covered activity without having to obtain an individual, site-specific permit in advance. They are intended to Individual permits are subject to public notice, public hearing, and case-by-case evaluation which typically involve longer time before the activity is authorized. General permits are intended to allow certain activities to proceed with little delay or paperwork. According to Corps data, from FY1996-99 data, in 2003, general permits entailed average processing time of 14 of 24 days, in contrast with individual permits, which, on average, took 107187 days of processing processing and evaluation, once an application was completecompleted. Approximately 63 74,000 activities per year (representing 8492% of the Corps’ regulatory workload) were authorized by nationwide and other general permits. While some require advance notification to the Corps or state natural resource agencies, manyThe Corps acknowledges that it does not have resources to evaluate all of these activities as individual permits. General permits, including nationwide permits, authorize activities that usually would be authorized through the individual permit process with little or no change in the scope of the work.2 While more than half require advance notification to the 1 Debate about the jurisdictional reach of the Corps’ regulatory program has been a controversial policy and judicial issue for some time. It is beyond the scope of this report, but for additional information see CRS Report RL33483, Wetlands: An Overview of Issues, by Jeffrey Zinn and Claudia Copeland. 2 64 Federal Register 32268, July 21, 1999. CRS-3 Corps for some or all covered activities, others only require after-the-fact notification. The following are examples of nationwide permits:13 ! ! ! ! ! ! ! Placement of aids to navigation approved by, and installed according to, U.S. Coast Guard requirements (nationwide permit 1); Activities related to construction and maintenance of authorized outfall structures and associated intake structures (nationwide permit 7); Stream or river bank stabilization activities necessary to prevent erosion (nationwide permit 13); Minor dredging, that is, dredging of no more than 25 cubic yards as part of a single and complete projectof material (nationwide permit 19); Activities associated with restoration or enhancement of wetlands and creation of wetlands and riparian areas , enhancement, or establishment of wetlands and riparian areas where the activities result in net increase in aquatic resource functions and services (nationwide permit 27); Discharges of dredged or fill material due tofor the construction or expansion of a single-family homeresidential developments (nationwide permit 29); and Discharges for construction or expansion of recreational facilities such as ski areas and golf courses (nationwide permit 42). Many nationwide permits have specific conditions and terms (such as acreage limitations and requirements for advance notification to the Corps or other agencies). maximum acreage limitations). In addition, a number of general conditions apply to some or all nationwide permits. 1 The full text of the current nationwide permits and related general conditions, issued in January 2002 and discussed in this report, are available online at [http://www.usace.army.mil/inet/functions/cw/cecwo/reg/nationwide_permits.htm]. CRS-3 These include, all nationwide permits; for example:, no activity may cause more than a minimal adverse adverse effect on navigation; no activity may jeopardize a threatened or endangered species; discharges into spawning areas and migratory waterfowl breeding areas must be be avoided, to the maximum extent practicable; and discharges of dredged or fill material must be minimized or avoided through mitigation to offset more than minimal impacts on the aquatic environment, to the maximum extent practicable. Permit Reissuance in 1996 The Corps first issued regulations for general permits in the mid-1970s, and Congress codified the concept in amendments to the Clean Water Act in 1977 (P.L. 95-217). Nationwide and other general permits2 are valid only for a period of five years, as is the case with other Clean Water Act permits. They were reissued as a group in November 1991, taking effect in January 1992. In accordance with that renewal schedule, the Corps reissued the existing 37 nationwides and 2 new ones on December 13, 1996, with an effective date of February 11, 1997 (61 Federal Register 65873-65922). With the exception of nationwide permit 26 (discussed below), all were scheduled to expire on February 11, 2002, unless otherwise modified, reissued, or revoked. Of the existing permits, the agency reissued 25 with no change and modified 12. It also modified five of the general conditions (out of 22) which apply to all permits and added two new general conditions. The Corps had several substantive purposes behind modifying the permits. One was the need to better ensure that permits have minimal adverse effects, especially on isolated wetland areas. A second was the need to better regionalize the program, by emphasizing that Corps officials (38 district and 11 division engineers) should condition nationwide permits on a local basis with limitations which reflect differences in aquatic ecosystem functions and values that exist across the nation. A third was the need to conform several existing permits to a broadened definition of “discharge” adopted by the Corps in 1993 related to regulation of excavation activities (see discussion below, “Uncertainty Due to Overturning the Tulloch Rule.”) Prior to the 1991 reissuance, the nationwide program involved little individualized review of these permits, as the guiding criteria was that covered activities impose so minimal an environmental impact that the full review given 2 Section 404(e) of the Act The specific statutory authority for these permits is Section 404(e) of the Clean Water Act. In carrying out the functions relating to the discharge of dredged or fill material under this section, the Secretary [of the Army] may, after notice and opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. Nationwide Permits: 1977-2002 The Corps first issued regulations for general permits in the mid-1970s, and Congress codified the concept in amendments to the Clean Water Act in 1977 (P.L. 3 The full text of the current nationwide permits and related general conditions, issued in March 2007, is available at [http://www.usace.army.mil/inet/functions/cw/cecwo/reg/ nationwide_permits.htm]. CRS-4 95-217). Nationwide and other general permits4 are valid only for a period of five years, as is the case with other Clean Water Act permits. Thus, they were reissued in 1982 and 1987. They were reissued as a group in November 1991, taking effect in January 1992. Prior to 1991, the nationwide program involved little individualized review of these permits, as the guiding criterion was that covered activities impose so minimal an environmental impact that the full review given individual permits was not warranted. In the 1991 revisions, however, district engineers were given greater authority to modify, suspend, or revoke nationwide permits for specific activities, and division engineers were authorized to exercise discretionary authority to revoke applicability of specific nationwide permits in high value aquatic areas and to then require individual permits for the activity. Further, preconstruction notification (PCN) to the Corps was required for several of the nationwide permits,5 and when such notice is required, the applicant must provide a wetlands delineation, as well. Advance notification is intended to give the Corps time to determine that the adverse effects of the discharge or activity will be minimal. The district engineer generally has 45 days to notify the person of approval to proceed or, instead, of the need to obtain an individual permit before the applicant may proceed. Even with those changes, the nationwide permits did not attract significant controversy when they were reissued in 1991. More attention and more controversy focused on the Corps’ process of reissuing the permits in 1996, much of it centering on nationwide permit 26 (NWP 26). The Corps had several substantive purposes behind modifying the permits at that time. One was the need to better ensure that permits have minimal adverse effects, especially on isolated wetland areas. A second was the need to better regionalize the program, by emphasizing that Corps officials (38 district and 11 division engineers) should condition nationwide permits on a local basis with limitations that reflect differences in aquatic ecosystem functions and values that exist across the nation. 4 Section 404(e) of the act authorizes the Corps to promulgate general permits on a regional, state, or nationwide basis. The Corps’ regulations authorize the issuance of general permits on a regional (sub-state) or statewide basis by district or division engineers, rather than headquarters, which issues the nationwide permits. The Corps uses the general permit authority to authorize statewide general permits covering activities in states that are deemed to have sufficient state regulatory authority. These statewide general permits (programmatic general permits, or PGPs) are derived from an existing state, local, or other federal agency program and are designed to avoid duplication with that program. They function as a function as a substitute for full state program authorization to administer the 404 program. Depending on the core state program, state PGPs may encompass all wetlands regulation in a state, certain waters only, or certain types of regulated activities. Once a PGP is approved, the Corps suspends its permit activity in lieu of the authorized state or sub-state entity, although the Corps retains the right to override the PGP and issue a federal permit in individual cases. Thus, in addition to 4349 nationwide permits, the Corps has authorized approximately 400 regional general permits (RGPs) and 50 PGPs. CRS-4 individual permits is not warranted. In the 1991 program revisions, however, district engineers were given greater authority to modify, suspend, or revoke nationwide permits for specific activities, and division engineers were authorized to exercise discretionary authority to revoke applicability of specific nationwide permits in high value aquatic areas and to then require individual permits for the activity. Further, preconstruction notification (PCN) was required for several of the nationwide permits, and when such notice is required, the applicant must provide a wetlands delineation, as well. Advance notification is intended to give the Corps time to determine that the adverse effects of the discharge or activity will be minimal. The district engineer generally has 30 days to notify the person of approval to proceed or, instead, of the need to obtain an individual permit; thereafter, the applicant may proceed. Even with those changes, the nationwide permits did not attract significant controversy when they were reissued in 1991. More attention and more controversy focused on the Corps’ process of reissuing the permits in 1996, much of it centering on nationwide permit 26 (NWP 26), which was added to the program in 1977 and expanded in 1982. Nationwide Permit 26 - Background and Controversies. Nationwide permit 26 authorized discharges of pollutants in headwaters or isolated waters, that is, nontidal waters with a flow rate of less than 5 cubic feet per second, or nontidal waters which are neither part of nor adjacent to a surface water system. Prior to reissuance in 1996, the filling authorized by this nationwide could affect no more than 10 acres of waters, including wetlands, and required preconstruction notification ( PCN) to the Corps if it would affect from 1 to 10 acres. Discharges affecting less than 1 acre required no advance notification or wetland delineation. Headwaters and isolated waters are areas whichseveral hundred regional general permits (RGPs) and more than 50 PGPs. Also, some activities qualify for abbreviated permit processing with authorization by district engineers in the form of Letters of Permission. 5 A PCN is a brief document that is intended to provide the Corps district engineer with enough information to determine whether an activity is authorized by a nationwide permit. Detailed studies or analyses are not required. CRS-5 Nationwide Permit 26: Background and Controversies. Controversies about the program are reflected especially in one of the nationwide permits, nationwide permit 26, which authorized discharges in headwaters or isolated waters. It had been added to the program in 1977 and expanded in 1982. Headwaters and isolated waters are areas that many people have difficulty identifying as wetlands, because they may appear dry for much of the year or lack the types of vegetation commonly associated with wetlands. Yet, they meet criteria developed by scientists and wetland delineators of areas that are, in fact, wetlands (criteria concerning characteristic hydrology, soil, and vegetation), and are increasingly recognized as providing important functions within entire aquatic ecosystems. Permit 26 had been controversial for several reasons. Unlike other nationwide permits, it did not authorize specific activities, such as minor dredging or bank stabilization. Instead, it authorized discharges to certain types of waters, based on acreage and lack of hydrologic connection to navigable waters. Environmental groups had long been concerned that this nationwide permit was overly broad, could be abused by applicants through segmenting of projects, and could result in large amounts of unmonitored wetland losses. Many believed that the permit was illegal, because it violated the Clean Water Act’s requirement that activities covered by nationwide permits are “similar in nature.” Environmental groups and other protection advocates, including federal and state natural resource agencies, pressed for repeal or modification of NWP 26. Industry groups, including developers and landowners, viewed NWP 26 as an important mechanism for minimizing regulatory burdens on small businesses and other permit applicants. According to Corps’ statistics, residential development was the major type of activity authorized by NWP 26, comprising about 25% of all NWP 26 authorizations. Transportation activities were the next largest category, CRS-5 comprising about 20% of all NWP 26 authorizations.3 Without general permits, including NWP 26, landowners would face delays in project development and increases in costs. and transportation activities were the major types of activities authorized by NWP 26.6 From the perspective of these groups, NWP 26 was valuable for much the same reason that the permit was controversial with environmentalists: it authorized discharges to types of waters and was not restricted to specific activities. According to Corps’ statistics, by the mid-1990s, between one-quarter and onethird of all nationwide permits authorized annually were for NWP 26 activities. Corps’ data indicated that 75% of all environmental impacts resulting from all of the nationwide permits were authorized under this one permit.4 Reissuance of Nationwide Permit 26: 1996 Modifications and More Controversy. Prior to reissuance of the nationwide permits in 1996, environmental groups and other protection advocates, including federal and state natural resource agencies, pressed for repeal or modification of NWP 26. They argued that the Corps was unable to fully account for the environmental impact of NWP 26 either individually or cumulatively, because of poor recordkeeping and monitoring, and therefore the Corps could not support a conclusion that the effects of nationwide permits were not significant. The Corps acknowledged criticism that it lacked data with regard to the use of NWP 26 and its impact, yet said that based on available statistics and considering required on-site mitigation, the Corps had received more wetlands acreage than had been lost by use of the permit.5 Nevertheless, in response to such long-standing criticisms and to what Corps officials said was increased understanding of the ecological importance of isolated and headwater wetlands, the Corps modified this permit in 1996 in order to ensure that in the future, no more than minimal adverse effects occur, both individually and cumulatively. The Corps modified NWP 26 in two major respects. First, it reduced the acreage limits to cover discharges to nontidal headwaters and isolated waters no larger than 3 acres and to require advance notification by the applicant if the discharge affects 1/3-acre or more (compared with 10-acre and 1-acre thresholds previously). Discharges affecting more than 3 acres were required to obtain individual project authorization (compared with the previous 10-acre limit). Second, the Corps reissued this permit only for two years, intending to replace NWP 26 with 3 Department of the Army, Corps of Engineers. “Proposal to Issue and Modify Nationwide Permits.” 63 Federal Register 36041. July 1, 1998. 4 Presentation by Michael Davis, Deputy Assistant Secretary of the Army for Civil Works, at the Environmental Law Institute, Feb. 4, 1997. 5 In FY1995, 13,837 activities were authorized by NWP 26, impacting 5,020 acres of wetlands. The Corps says it received approximately 5,909 acres of mitigation for these impacts, yielding a mitigation ratio of 1.15:1. (61 FR 65892). In addition, however, Corps districts estimate that another 20,000 NWP 26 activities were accomplished without a requirement for reporting to the Corps (i.e., they affected areas of less than 1 acre), and the total acreage impacted, as well as whether any mitigation occurred, is unknown (61 FR 65894). Further, these data provide no information about the long-term quality of the mitigation. CRS-6 activity-based permits similar, perhaps, to those authorized in NWP 29 (construction of single-family residences that impact less than ½-acre of wetlands or waters of the United States). The Corps itself summarized the responses by groups who opposed modifying NWP 26 and narrowing its scope. Numerous commenters expressed the view that the NWP has worked well, that there is no evidence to indicate that it is resulting in more than minimal adverse effects and that the loss or further limiting of NWP 26 would result in increased regulatory burdens on the public, less regulatory certainty, unacceptable work load increases for the Corps, increased processing times, project delays, and an overall lessening of the regulatory program’s ability to protect waters of the United States. (61 FR 65890, December 13, 1996) Considering these views, the Corps determined that, “for fair, effective, and efficient implementation of the Corps regulatory program” (61 FR 65893), it was necessary to have a general permit such as NWP 26, yet because of the ecological importance of isolated and headwater wetlands and the potential for adverse impacts by NWP 26, the agency reissued this permit in a “more restrictive and environmentally sensitive form during the two-year phaseout.” (61 FR 65891) On the issue of increased workload, the Corps estimated that the lower acreage limits in the revised permit would require the agency to process approximately 500 additional individual permits per year, a 10% increase over FY1996. Industry sources said that an additional 1,000 individual permit reviews was a more accurate estimate. On the other hand, the Corps further estimated that if NWP 26 were totally eliminated and all such projects were subject to individual project review and verification, the agency’s workload would increase seven-fold, an increase that “would render the program ineffective and would be a disservice to the American public and overall environmental protection.” (61 FR 65894) Industry groups also were concerned that the Corps would not be able to issue replacement permits for NWP 26 within two years. An industry coalition, led by homebuilders, challenged the reissued NWP 26, arguing that it was too restrictive and had not been subject to adequate public review. Complying with a court order in that case, in November 1997, the Corps agreed to reopen the comment period on phasing out NWP 26 (National Association of Home Builders v. U.S. Army Corps of Engineers, 97-464 D.D.C.). In the mean time, however, the Corps was working on activity-specific permits to replace NWP 26, as it had indicated intent to do in December 1996. Replacement Permits for NWP 26 in 2000 As announced in 1996, in March 2000, the Corps issued several new activitybased permits to authorize specific categories of activities, replacing the approach in NWP 26 which was based on acreage and particular geographic types of waters (headwaters and isolated wetlands).6 The final replacement permits published on 6 The Corps went through a lengthy proposal and public comment process before the replacement permits were issued in March 2000. Permits to replace NWP 26 were proposed (continued...) CRS-7 March 9, 2000,7 authorized five specific activity-based permits, modified several existing NWPs and general conditions, and added two new general conditions. They became effective June 7, 2000. The five new permits apply to the following authorized discharges to types of waters and was not restricted to specific activities. Corps data also indicated that 75% of all environmental impacts resulting from all of the nationwide permits were authorized under this one permit.7 In 1996 the Corps re-issued NWP 26 but with modifications in two major respects. First, it reduced the acreage limits to cover discharges to nontidal headwaters and isolated waters no larger than 3 acres and to require advance notification by the applicant if the discharge would affect a acre or more (compared with 10-acre and 1-acre thresholds previously). Second, the Corps reissued this permit only for two years, intending to replace NWP 26 with activity-based permits. The Corps proposed permits to replace NWP 26 in July 1998, but it took until March 2000 for these permits to be finalized. NWP 26 remained in effect during that time. Replacement Permits for NWP 26 in 2000. In March 2000, the Corps issued several new activity-based permits to authorize specific categories of 6 U.S. Department of the Army, Corps of Engineers, “Proposal to Issue and Modify Nationwide Permits,” 63 Federal Register 36041, July 1, 1998. 7 Presentation by Michael Davis, Deputy Assistant Secretary of the Army for Civil Works, at the Environmental Law Institute, February 4, 1997. CRS-6 activities, replacing the approach in NWP 26, which was based on acreage and particular geographic types of waters (headwaters and isolated wetlands). The final permits8 repealed NWP 26 entirely, authorized five specific activity-based permits as replacements, modified several existing NWPs and general conditions, and added two new general conditions. They became effective June 7, 2000. The five new permits cover the following activities: ! ! ! ! ! Residential, commercial, and institutional developments, including construction of building pads, building foundations, and attendant features (NWP 39). Reshaping of existing serviceable drainage ditches constructed in non-tidal waters in a manner that benefits the aquatic environment or improves water quality (NWP 41). Recreational facilities (facilities with low environmental impact such as playgrounds, campgrounds, biking and hiking trails). It may be This permit may be used for the construction or expansion of recreational facilities that are integrated into the existing landscape (NWP 42). Stormwater management facilities (such as stormwater management ponds or detention basins) involving construction or maintenance of such facilities (NWP 43). Aggregate and hard rock mineral/mining activities with minimal adverse effects on the aquatic environment (primarily commercial sand, gravel, stone, and hard rock metals and minerals) (NWP 44). The replacement permits were limited to work in non-tidal waters of the United States and would not authorize work in tidal waters (those subject to the ebb and flow of the tide) or in non-tidal wetlands contiguous to tidal waters (i.e., wetlands connected by surface waters to tidal waters and located landward of the high tide line). Thus, their geographic reach was potentially broader than NWP 26, which was restricted solely to activities in headwaters and isolated wetlands. The Corps believed that removing the headwaters restriction would help reduce confusion by eliminating the need to determine where the median flow of a waterbody is less than 5 cubic feet per second (i.e., the threshold determining areas where NWP 26 could be used). All but the new permit for reshaping of All but the new permit for reshaping existing drainage ditches (NWP 41)8 were limited to activities that do not cause the loss of greater than ½ acre of nontidal watersnon-tidal waters 9 (compared with the previous 3-acre maximum in NWP 26) or more than 300 linear feet of streambed. Even with that size limitation, several of these permits require preconstruction notification to the Corps for impacts of greater than 1/10 acre one-tenth of an acre to ensure that any activity that potentially may have more than minimal adverse adverse effects on the aquatic environment is reviewed on a case — by-case basis. 6 (...continued) July 1, 1998; additional changes were proposed October 14, 1998. Further modifications were proposed July 21, 1999. The Corps received nearly 12,000 public comments on these proposals leading to final action early in 2000. NWP 26 was extended several times in order to remain in effect until final action on the replacement permits occurred. 7 U.S. Department of the Army, Corps of Engineers. “Proposal to Issue and Modify Nationwide Permits; Final Notice.” 65 Federal Register 12818, Mar. 9, 2000. 8-by-case basis. Several of the new permits issued in 2000 (residential, commercial, and institutional activities; recreational facilities; and stormwater management facilities) required compensatory mitigation to offset unavoidable losses of waters of the United States. Compensatory mitigation may be provided through restoration, enhancement, or creation of aquatic habitats; preservation of adjacent open or green space; land trusts; or mitigation banks. A mitigation bank is a site where wetlands or other aquatic resources have been restored, created, enhanced, or preserved to provide compensatory mitigation in advance of the authorized impacts. The entity that developed the mitigation bank provides these aquatic resources in return for payment 8 U.S. Department of the Army, Corps of Engineers, “Proposal to Issue and Modify Nationwide Permits; Final Notice,” 65 Federal Register 12818, March 9, 2000. 9 “We have not imposed a ½ acre limit on NWP 41 because it only authorizes activities that benefit the aquatic environment.” 65 Federal Register 12825. CRS-8 Several of the new permits (residential, commercial, and institutional activities; recreational facilities; and stormwater management facilities) required compensatory mitigation to offset unavoidable losses of waters of the United States. Compensatory mitigation may be provided through restoration, enhancement, or creation of aquatic habitats; preservation of adjacent open or green space; land trusts; or mitigation banks.97 from the permittee.10 Specific compensatory mitigation requirements are determined by district engineers on a case-by-case basis, but the basic Corps concept was that there should be a minimum requirement of an acre-for-acre (1:1) wetland replacement as compensatory mitigation for all activities requiring preconstruction notification. Greater than a 1:1 ratio can be required in some cases to adequately replace aquatic resource functions and values lost as a result of NWP-authorized activities. The new general conditions adopted in March 2000 limit activities. The Corps also modified six existing permits in 2000 to increase the number of activities authorized by them. For example, NWP 40 was expanded to authorize certain discharges associated with agricultural activities which are necessary for increasing agricultural production and constructing farm buildings. One of the goals of NWP 40 is to reduce duplication between the Corps and the Natural Resources Conservation Service (which implements wetlands programs on agricultural lands under federal farm law) and provide some regulatory relief to agricultural producers. However, to ensure that authorized activities will have minimal adverse effects, like other nationwide permits, NWP 40 restricts the types of agricultural activities and sets acreage limits (in terms of discharges into wetlands) allowable under the permit. Further, the Corps lowered the acreage limit for NWP 29, which authorizes single-family housing activities, from ½ acre to ¼ acre in non-tidal waters — i.e., discharges associated with construction or expansion of a single-family home and attendant features may not cause the loss of more than ¼ acre of non-tidal waters or wetlands. This permit must be obtained by the person who will use the house as a personal residence, not by contractors or developers who offer a house for sale upon completion. The new general conditions adopted in 2000 put limits on the use of nationwide permits for projects within critical resource waters, and for permanent above-grade wetland fills within the 100-year floodplain as defined by the Federal Emergency Management Agency (FEMA). Critical resource waters are those designated as having particular environmental or ecological significance (such as designated marine sanctuaries and state natural heritage sites). Regarding the 100-year floodplain, the Corps said it sought to ensure that the nationwide permit program discourages further development that would reduce the flood storage capacity of the floodplain, but not create undue constraints or costs on the regulated public, unless necessary to improve the aquatic environment. Regional Conditioning. As with the previous nationwide permits, Corps officials retained the authority to apply special conditions to use of any of the proposed new permits or even to revoke use of specific permits in aquatic environments of particularly high value or in specific geographic areas. Indeed, the Corps expected that its district and division engineers would utilize a significant amount of regional conditioning to ensure effective protection at the local level of wetlands and other water resources (regional conditioning cannot be used to make an NWP less restrictive). The purpose of regional conditioning is to consider local differences in aquatic resource functions and values to ensure that nationwide permits do not authorize activities with more than minimal adverse effects on the aquatic environment. Regional conditions might include distinct watersheds or waterbodies where certain nationwide permits should be suspended or revoked, thus requiring landowners to obtain individual project-specific permits; reducing the acreage thresholds in certain types of waters; or adding notification requirements for all permitted work in certain watersheds. The permits issued in March 2000 provided a new and somewhat more formal approach than in the past to developing appropriate conditions in each Corps District, providing explicitly for public input and coordination with federal resource agencies. Regional conditioning occurred prior to the date the nationwide permits became effective (i.e., June 7, 2000). 9 “A mitigation bank is a site where wetlands or other aquatic resources are restored, created, enhanced, or preserved to provide compensatory mitigation in advance of the authorized impacts. The entity that developed the mitigation bank provides these aquatic resources in return for payment from the permittee.” 63 Federal Register 36045, July 1, 1998. CRS-9 However, regarding increased use of regional conditioning to strengthen permits, some environmental groups were skeptical that the Corps would be able to attach meaningful conditions, while developers had the opposite concern — that restrictions imposed by Corps regions would be unduly burdensome.10 The Corps also modified six existing permits to increase the number of activities authorized by them. For example, NWP 40 was expanded to authorize certain discharges associated with agricultural activities which are necessary for increasing agricultural production and constructing farm buildings. One of the goals of NWP 40 is to reduce duplication between the Corps and the Natural Resources Conservation Service (which implements wetlands programs under federal farm law) and provide some regulatory relief to agricultural producers. However, to ensure that authorized activities will have minimal adverse effects, like other nationwide permits, NWP 40 restricts the types of agricultural activities and sets acreage limits (in terms of discharges into wetlands) allowable under the permit. Further, the Corps lowered the acreage limit for NWP 29, which authorizes single-family housing activities, from ½ acre to 1/4 acre in non-tidal waters, — i.e., discharges associated with construction or expansion of a single-family home and attendant features may not cause the loss of more than 1/4 acre of non-tidal waters or wetlands. This permit is used by the person who will use the house as a personal residence, not by contractors or developers who offer a house for sale upon completion. The change to this permit was the result of a lawsuit against the Corps which had challenged the issuance of NWP 29 and was intended to assure than NWP 29 authorizes only those single family housing activities with minimal adverse effects on the aquatic environment. (Alaska Center for the Environment v. West, No. A96245 CV (D. Alaska, April 30, 1998)) Comments and Reactions of Stakeholders. The Corps received comments both in support and in opposition to the permits to replace NWP 26, with environmental groups and industry groups criticizing many aspects, generally from opposite perspectives. The Corps summarized these differing views in a July 1999 Notice: Members of environmental groups and development groups were typically in opposition to the proposed new and modified NWPs. The environmental community opposed the proposed NWPs, asserting they would allow too much impact on the aquatic environment. The development community opposed the proposed NWPs, asserting they are too restrictive on the regulated public.11 Throughout the development of the replacement permits, the Corps stated that its goal was to improve protection of aquatic resources, while ensuring that those activities with truly minimal adverse impacts on the aquatic environment are authorized in an efficient manner by a general permit: 10 “Six New Classes of Activities Covered Under Proposed Corps Replacement Permits.” Daily Environment Reporter, June 25, 1998, No. 122, p. AA-1. 11 64 Federal Register 39257, July 21, 1999. CRS-10 To achieve this goal [of fair, flexible and effective federal wetlands protection programs], the Corps regulatory program must continue to provide effective protection of wetlands and other aquatic resources and avoid unnecessary impacts to private property, the regulated public, and the environment. These proposed NWPs will more clearly address individual and cumulative impacts to the aquatic environment, ensure that those impacts are minimal, address specific applicant group needs, and provide more predictability and consistency to the regulated public.12 However, reactions by interest groups and stakeholders to the new and modified permits issued in 2000 suggested that many believed the Corps was far from achieving its intended goal. Developers indicated that the proposal would do little to help groups such as homebuilders, since much of their activity occurs in isolated or headwater wetlands, which were included in NWP 26 but would not be included in the activity-specific permits. In addition, industry said that, by barring use of the permits in tidal waters, many activities that could benefit from simplified procedures of general permits (such as construction or expansion of residential and commercial developments) would, instead, require individual permits. Environmental groups, on the other hand, criticized the permits because they expanded the types of wetlands that could be filled and expanded the types of authorized activities. In the Notice accompanying the final permits, the Corps acknowledged the widespread criticism. Nevertheless, the Corps believed that, through the ½ acre limit and the limitations on the construction of developments in 100-year floodplains, the new and modified NWPs provided substantial additional protection of the aquatic environment. An issue of concern to industry since 1996, when the Corps announced that NWP 26 would be eliminated, was how the agency would manage the increased workload, including potentially greater numbers of individual permits to be processed, and what delay applicants would encounter. In industry’s view, the greater complexity of the NWP program, resulting from the replacement and modified permits, meant that more applicants would be required to seek individual permits, thus increasing applicants’ costs and time delays. The Corps acknowledged that there would be substantial impact on the regulated public and an increase in permit evaluation time. It estimated that the new permits would cost permit applicants about $32 million per year and would result in a 20% increase in the number of applicants requiring individual permits annually.13 The Corps also acknowledged that there would be substantial increases in its own workload and estimated that it would need an additional $6 million in FY2001 to accommodate the added workload.14 The Corps did receive $8 million more in funding in FY2001 for its regulatory program and $2 million more in FY2002, but these increases have mainly been used to maintain services, not meet new programmatic needs. 12 63 Federal Register 36041, July 1, 1998. 13 U.S. Department of the Army, Corps of Engineers. “Final Notice of Issuance and Modification of Nationwide Permits; Correction.” 65 Federal Register 14255, Mar. 16, 2000. 14 U.S. Department of the Army, Corps of Engineers. “Questions and Answers, Nationwide Permits, March 6, 2000.” Text of this fact sheet is available at [http://www.usace.army.mil/inet/functions/cw/cecwo/reg/press/qanda.pdf]. CRS-11 Recognizing that its workload would increase, the final permits increased from 30 to 45 days the period for Corps officials to review those permits for which applicants must submit preconstruction notification (a permit is automatically authorized, if the Corps fails to act within that time period). Lawsuits Challenging the Replacement Permits. On the same day that the final replacement and modified permits were published, an industry group challenged the permits in court (National Association of Home Builders v. U.S. Army Corps of Engineers, Civil Action No. 1:00CV00379 TPJ, D.D.C., filed March 9, 2000). The lawsuit contended that the Corps exceeded its authority by imposing broad restrictions through the NWP program and that the program no longer is the streamlined permitting approach intended by Congress when it authorized general permits in 1977. Lawsuits also were filed by two other groups. A challenge brought by the National Stone Association said the Corps violated the Clean Water Act by asserting jurisdiction over excavation activities (National Stone Association v. U.S. Army Corps of Engineers, Civil Action No. 1:00CU00558 TPJ, D.D.C.). Another brought by the National Federation of Independent Business Legal Foundation said the replacement permits did not consider the impact on small businesses (NFIB v. Corps of Engineers, No. 1:00CV01404, D.D.C.). These cases are still pending. Reissuance of All Nationwide Permits in 2002 In August 2001, with the approaching expiration of the 1996 nationwide permits, the Corps proposed to reissue those and others both issued and modified since 1996 (including the 2000 replacement permits for NWP 26) in order to put all 43 nationwide permits in the program on a unified five-year schedule. According to the Corps, the proposal was intended to simplify permits for activities that have no more than minimal effect on the environment, add additional requirements to enhance aquatic protection, increase flexibility for Corps field staff to target resources where most needed, reduce unnecessary burdens on the regulated public, while retaining the key protections that were added in the March 2000 replacement permits.15 The proposals raised controversies and criticism from environmental advocates and some other federal agencies, including EPA and the U.S. Fish and Wildlife Service. Environmental groups said that the proposal would substantially weaken protection of the nation’s wetlands and streams. On the other hand, industry groups said that the proposal involved only minor changes. These changes offer some benefits, they believe, but any such benefits are more than offset by problems with the 2000 replacement permits, which developers and other groups continue to oppose, saying that the permits impose arbitrary and burdensome restrictions. Following a public comment period, the nationwide permits were reissued in January 2002, essentially as proposed in August, with an effective date of March 18, 2002. The Corps’ action modified nine existing permits and six existing general conditions 15 U.S. Department of the Army, Corps of Engineers. “Proposal to Reissue and Modify Nationwide Permits.” 66 Federal Register 42069, August 9, 2001. CRS-12 and added one general condition.16 The 2002 permits emphasized that, like the 1996 and 2000 permits, the NWP program will rely greatly on regional conditioning to fit the national program to local watersheds. A district engineer can either add special conditions to the NWP authorization or exercise discretionary authority to require an individual permit. This flexibility continues to cause various concerns among stakeholders, with some environmentalists arguing that more restrictive national standards on the NWPs should be imposed instead of relying upon a discretionary authority process. Some in industry believe that the discretionary authority results in greater complexity and less predictability for regulated entities. Four specific issues raised the most critical opposition. Controversies over these issues are likely to persist. 300 Linear-foot Prohibition. One of the most significant changes in the reissued permits affects development activities along streams. Several of the 2000 permits that had replaced NWP 26 included a prohibition limiting the permits to development activities affecting 300 linear feet or less of a streambed; projects affecting larger areas would not qualify for a nationwide permit. The Corps believed that this restriction had resulted in requiring individual permit review for many projects that involve no more than minimal adverse effects on the aquatic environment. In the January 2002 reissuance, the Corps modified this prohibition for nationwide permits 39 (residential and commercial developments), 40 (agricultural activities), 42 (recreational facilities), and 43 (stormwater management facilities) to allow Corps districts to issue case-by-case waivers to the 300 linear-foot limit for discharges affecting intermittent streams (streams that only have flowing water during certain times of the year, when groundwater provides water for stream flow). As reissued, the prohibition remains in effect for perennial streams which have flowing water year-round. The Corps decided that this limitation on perennial streams was necessary to ensure that losses result only in minimal adverse effects, since significant impacts are more likely to occur in perennial than in intermittent streams. The modification concerning the 300 linear-foot prohibition was needed, the Corps said, to add flexibility to the permit process, by allowing district engineers to authorize activities that have minimal adverse effect on the aquatic environment. It is not intended to relax aquatic protection, the Corps said, but is intended to allow the Corps to focus limited resources more intensively on areas where impacts are likely to be more than minimal. Opponents of the modification argued that the waiver would lead to severe stream destruction from construction, agricultural and other activities. Some said that the 300 linear-foot limit gives predictability to the regulated community and state agencies and that the waiver authority would result in decisionmaking variations between Corps districts and even within the same district. The Corps disagreed and said that district engineers will use their knowledge of the local aquatic environment to make case-by-case determinations whether a waiver is applicable. 16 U.S. Department of the Army, Corps of Engineers. “Issuance of Nationwide Permits.” 67 Federal Register 2020, January 15, 2002. CRS-13 Mitigation Requirements. As the Corps stated in August 2001, although minimal adverse effects are anticipated for the nationwide permit program, the use of NWPs may still affect the aquatic environment. Therefore, general condition 19 describes how district engineers will require compensatory mitigation to offset the authorized impacts. Compensatory mitigation can be accomplished through the restoration, creation, enhancement, and/or preservation of aquatic resources, either by the permittee’s individual project, or the use of mitigation banks or other consolidated mitigation efforts. Mitigation requirements incorporated in the nationwide permit program have become more specific over time, especially since 1996, and are viewed by environmental protection advocates as critically important. Before reissuance in 2002, this general condition required one-for-one mitigation of adverse impacts to wetlands with a stated preference for restoration of wetland impacts over preservation (see discussion on page 8).17 In January, the Corps revised the mandate to allow a case-by-case waiver of this requirement in cases where the Corps determines that some other form of mitigation, such as establishment of vegetated buffers, is more appropriate. The intention of the change, the Corps said, was to have a more ecologically and watershed-based approach to mitigation. In the agency’s view, the one-for-one acreage requirement was too restrictive, in that it focused solely on wetlands but did not allow the Corps to mitigate aquatic impacts to streams and other non-wetland aquatic resources. Because the Corps regulates the entire aquatic environment, not just wetlands, it said, mitigation should consider the entire aquatic environment, as well. The Corps said that it will require mitigation for impacts based on a watershed approach, often involving a mix of vegetated buffers and other mitigation in non-wetland areas. Thus, for example, a district engineer might authorize a project with impacts on a particular wetland and require mitigation within the overall aquatic environment of the particular watershed involved but not wetland-acre-for-wetland-acre mitigation. This approach, the Corps said, allows district engineers to require the mitigation for project impacts that best protects the aquatic environment.18 Environmentalists strongly opposed this change, saying that it effectively ignores the principle of “no net loss” of wetlands which has been a goal of national wetlands policy since 1990. In response, Corps officials said that under the revision, project applicants must ensure that wetland functions are replaced and that the “no net loss” goal be met on an acreage basis within a Corps district.19 Environmental groups also argued that the Corps is too quick to look towards mitigation as the answer for development activities affecting wetlands and should focus on avoiding impacts as a first priority. They point out that numerous recent studies, including a 17 The policy preference for restoration derives from the fact that preservation does not provide new acres and thus cannot compensate for wetlands loss on an acreage basis. 18 U.S. Department of the Army, Corps of Engineers. “Issuance of Nationwide Permits.” 67 Federal Register 2063-2067, January 15, 2002. 19 U.S. Department of the Army, Corps of Engineers. “U.S. Army Corps of Engineers clarifies inaccuracies in wetlands permit reporting.” Press release, Jan. 16, 2002. CRS-14 June 2001 report of the National Research Council,20 show that mitigation is not fully successful and does not compensate for wetlands lost to permitted fills. They assert, and the Corps acknowledges, that the Corps’ data collection and assessment of mitigation projects must be improved in order to evaluate impacts. Thus, reducing mitigation requirements that already are recognized as unsuccessful and are poorly tracked is insupportable, according to critics. The Corps has said that it is taking steps to address database and monitoring problems. Surface Mining Activities. Nationwide permit 21 authorizes discharges from surface coal mining activities which result in no more than minimal impacts (site-specifically and cumulatively) to the aquatic environment. There is no acreage limit or threshold for a project to use this permit. The Corps reissued NWP 21 with two changes intended to strengthen environmental protection for projects authorized by the permit. First, the reissued permit requires the Corps to determine appropriate mitigation in accordance with nationwide permit general conditions, rather than relying primarily on less restrictive state-required mitigation established under the Surface Mining Control and Reclamation Act, as had previously been the case. Second, the revised permit requires explicit authorization before the activity can take place, rather than only requiring preconstruction notification, as in the past. Critics were less focused on these changes than on the basic permit itself, because they have long contended that the permit authorizes disposal of coal mining waste material which buries streams with overburden material, thereby disturbing the natural stream processes and water quality in entire watersheds and resulting in permanent loss of habitat. According to that view, mitigation cannot sufficiently compensate for these impacts, and any use of this permit is inconsistent with ensuring “minimal adverse effects” on the aquatic environment. Further contributing to controversy over NWP 21 is the fact that in recent years the Corps has allowed the use of this permit to authorize mountaintop mining activities in several Appalachian states (e.g., West Virginia and Kentucky). This practice involves removing the tops of mountains to expose and remove underlying coal seams. Upon completion of the coal removal, some amount of the waste rock is placed back on the top of the mountain, while the majority is disposed in nearby valleys where streams and wetlands are filled with the excess mining waste. Environmentalists have sought to strengthen regulation of mountaintop mining, if not halt it altogether, in part by arguing that the practice should be regulated under more stringent Clean Water Act provisions than section 404, which authorizes the nationwide permit program. So far, protection advocates have been unsuccessful in their efforts. The Corps continues to assert that use of NWP 21 for surface mining and mountaintop mining activities avoids and minimizes impacts to the extent practicable and that adequate mitigation can be used to determine that a project has minimal effects. These activities, the Corps believes, can result in a “substantial improvement in downstream water quality and aquatic habitat within a watershed.”21 20 National Academy of Science, National Research Council. Compensating for Wetland Losses under the Clean Water Act. Washington, 2001. 267 p. 21 U.S. Department of the Army, Corps of Engineers. “Issuance of Nationwide Permits.” (continued...) CRS-15 Citizen groups recently have filed lawsuits seeking generally to halt the Corps’ use of Nationwide Permit 21 for mountaintop mining operations. In the first such case, a federal district court ruled that NWP 21 violates the Clean Water Act by authorizing activities that have more than minimal adverse environmental effects (Ohio Valley Environmental Coalition v. Bulen, S.D. W.Va., Civ. Action No. 3:03228, 7/8/2004). The court barred the Corps from using NWP 21 to authorize new mountaintop mining in southern West Virginia and ordered the Corps to revoke previous authorization for 11 operations. In January 2005, three Kentucky groups filed a lawsuit to extend the West Virginia decision to Kentucky valley fills.22 Fills within the 100-year Floodplain. As discussed above, in 2000 the Corps established a general condition for the nationwide permit program limiting activities within the 100-year floodplain as defined by FEMA. In the reissued permits, the Corps modified a portion of this general condition to delete a mandate that permittees document that the project meets FEMA approved requirements and delete a requirement for preconstruction notification to the Corps for certain activities occurring in the 100-year floodplain. Environmental critics argue that the modification now will permit development in ecologically sensitive floodplain areas. The Corps said it believed that requiring applicants to comply with FEMA requirements is just as effective as also requiring applicants to document their compliance and that the changes to this general permit condition would not reduce the floodplain restrictions adopted in 2000. State Coordination Issues Implementation of the Corps’ regulatory program, including the nationwide permits, requires considerable coordination between federal and state governments. For one thing, many states (and some localities) administer their own wetlands management and protection programs which vary in the way wetlands are defined and the activities that may or may not take place within or near regulated wetlands, and officials attempt to minimize duplication and overlap. More important, however, is a coordinating responsibility given to states under section 401 of the Clean Water Act. This provision requires states to certify that a proposed project seeking a federal license or permit, such as a section 404 permit, will not violate a state’s water quality standards.23 In addition, states and territories that operate management programs under the Coastal Zone Management Act are required to provide concurrence that the activity is consistent with the state’s coastal zone management (CZM) program. Review under the 401 water quality certification process or CZM concurrence is an important means by which states ensure that their water quality concerns will be considered in federally licensed activities. 21 (...continued) 67 Federal Register 2043, January 15, 2002. 22 For additional information, see CRS Report RS21421, Mountaintop Mining: Background on Current Controversies, by Claudia Copeland. 23 States also may waive 401 certification, which is effectively the same as issuing an unqualified certification. CRS-16 It is Corps practice to allow a period of time following publication of final nationwide permits for states to review them before the permits take effect. This gives states time to determine if they will certify compliance with water quality standards, certify conditional compliance (requiring the applicant to take additional protective steps), or deny certification. Conditions placed as a result of 401 certification or CZM concurrence by a state automatically become part of a nationwide permit in that state. Some of the modifications in the 1996 permits were endorsed by many states (changes to narrow the scope of NWP 26, for example), because they were considered to be more protective than the previous permit. In those cases, states provided 401 certification, and projects authorized by the nationwide permit could proceed without additional state restrictions. However, some states favored modifications to other permits which the Corps did not adopt,24 and in those instances, states declined to provide 401 certifications. Following issuance of permits to replace NWP 26 in March 2000, the Corps gave states a longer period than normal (90 days rather than 60 days) for states to carry out their 401 certification and CZM consistency reviews. Sixteen states denied water quality certification for the replacement permits, and several states revoked the ½-acre limit in the new permits in favor of more restrictive requirements. State review of the 2002 permits is underway. An issue of long-standing concern to states is the fact that, if a state denies 401 certification or CZM concurrence because the project (under either a general or individual permit) would violate water quality standards, the Corps does not necessarily consider the state’s action sufficient cause to deny issuance of the federal permit. When this happens in the case of nationwide permits, the state is forced either to accept the permitted activity, as authorized by the Corps, or to expend its resources to review the project separately and issue a 401 certification with conditions specific to that project. States would like the Corps to treat a 401 denial as a veto. The Corps may deny the permit (withdrawing its applicability in a state), but will not always do so. The Corps’ position is that denial of state water quality certification for a nationwide permit does not necessarily mean that unacceptable adverse effects will occur on a case-by-case basis, and the Corps prefers that the burden of conditioning or restricting the project at that point be with the state. This tension over state and federal responsibilities does not exist under other Clean Water Act permits. For example, under the Act’s discharge permit program for industrial and municipal sources (the National Pollutant Discharge Elimination System program in section 402 of the Act), if a state denies 401 water quality certification, EPA insists on changes to the project until it gains 401 certification. 24 For example, many states have opposed NWP 29, the single-family residence nationwide permit: 17 states denied 401 certification when NWP 29 was issued in 1995, because the permit was inconsistent with state water quality standards or other state wetlands management activities. While the Corps modified this permit in the 1996 revisions (by requiring a “no fill” buffer between the project site and any free-flowing stream), it did retain the permit and did not further modify it in response to requests that the ½-acre limit be reduced or that the permit be withdrawn. Sixteen states denied certification of this permit following its reissuance in 1996. CRS-17 One option is for states to seek approval of a programmatic general permit (PGP; see discussion in footnote 2), if the state is qualified and has sufficient regulatory authority. The Corps would then suspend federal permitting, and there would be less question over state water quality or other requirements. This is the case in Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island, states with PGP programs which replace the federal nationwide permits. Another option is for states to seek authorization for full assumption of the 404 program, a more complicated process than PGP approval, and only Michigan and New Jersey have done so. However, not all states are interested or in a position to seek PGP approval or full program authorization. Thus, even though the Corps has stated its intention to work in partnership with states, most states will continue to conduct 401 certification reviews of nationwide and other wetlands permits, and it is likely that conflicts over water quality certification will persist. Other Issues Concerning Nationwide Permits The nationwide permits issued since 1996 have raised a number of additional issues. For example, the program is intended to balance a desire for administrative simplicity and reduced regulatory burden, on the one hand, with protecting aquatic resources, including wetlands. Yet, some question whether a number of administrative requirements of the permits, such as advance notification to the Corps and other agencies, written verification of permit compliance, and opportunities for regional conditions, are tilted too much in the direction of protecting aquatic resources and not enough in the direction of regulatory relief, while also making the nationwide permit program unduly complicated. As one example, industry groups were particularly concerned that the 1996 permits restricted the use of multiple nationwide permits for a single project (a practice referred to as “stacking”). Previously, many applicants could use nationwide permits in combination to speed authorization of their activities. However, the Corps determined that this often results in unintended cumulative impacts because of increased acreage being affected. Thus, the Corps prohibited stacking of some permits and required prior notification to the Corps for most others, to allow officials to determine whether it is appropriate to combine nationwide permits, or whether the activity should be evaluated under an individual permit. In 2000, the Corps modified the general condition which restricts stacking to clarify that more than one NWP can be used to authorize a single and complete project, provided that the acreage loss of waters does not exceed the highest specified acreage limit for the NWPs. Defining Minimal Effects and Assessing Cumulative Impacts. Other observers have been critical that, while the Corps has made environmentally strengthening improvements to many of the nationwide permits since 1996, it has not addressed a number of outstanding concerns. For example, the Corps declined to define what is “minimal effects.” The agency also declined to require mitigation of wetlands losses, as opposed to expressing a preference for it, and declined to require that mitigation be done on-site. On these points, the Corps’ general position is that it is not appropriate to define or dictate these matters on a nationwide basis, because what constitutes minimal adverse environmental effects or adequate compensatory action for wetlands loss can vary widely from state to state and watershed to watershed. CRS-18 Environmentalists have urged the Corps to conduct a cumulative impact analysis of the nationwide permit program. The agency declined to do so, contending that the permits do not constitute a major federal action having a significant effect on the human environment, since Corps data on the usage of permits suggest that the adverse effects, even cumulatively, are less than minimal. Thus, the agency said it is not required to prepare an Environmental Impact Statement under provisions of the National Environmental Policy Act, nor is a cumulative impact analysis warranted. In February 1998, environmental groups brought suit against the Corps for failure to fully evaluate the effects of the nationwide permit program. The lawsuit contended that the Corps should have examined the effects of the nationwide permits on threatened and endangered species and their habitat before reissuing them in 1996 and should have consulted with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service on the effects on listed species (Natural Resources Defense Council v. West, 98-0560 VR, N.D. Calif., filed February 11, 1998). Partly in response to this litigation, the Corps announced in June 1998 that it would prepare a programmatic environmental impact statement (PEIS) on the nationwide permit program and would consult with the other federal resource agencies, although the Corps continues to hold that the program has no significant impact on the environment or on endangered species.25 The Corps views voluntary preparation of this PEIS as part of its commitment to ensure that the nationwide program authorizes only activities with minimal individual and cumulative environmental effects. A draft PEIS was issued in July 2001,26 and the Corps said at the time that a final PEIS would be issued early in 2002. This has not yet occurred. The approach taken by the Corps in preparing the draft PEIS was to consider several possible regulatory alternatives to the nationwide permit program as a whole, such as replacing the general permit program with standard individual permits or regional general permits. It then compares impacts of these regulatory alternatives on aquatic resources, on permit applicants, and on Corps administration. Some groups had urged the Corps to prepare an environmental impact assessment of individual current nationwide permits including impacts on wetlands functions and values, since some permits may have greater environmental impact than others, but the agency did not do so. This concern was raised in connection with permit reissuance. Before the permits were revised in January 2002, the Association of State Wetland Managers and the Coastal States Organization urged the Corps to delay reissuance pending completion of the PEIS, since it may present information supporting modification of the NWPs.27 Uncertainty Due to Overturning the Tulloch Rule. The status of some existing Corps permits and aspects of its wetlands regulations was made uncertain by a federal court ruling in January 1997. In this case (American Mining Congress v. U.S. Army Corps of Engineers, No. 93-1754 SSH (D.D.C.)), the U.S. District 25 U.S. Department of the Army, Corps of Engineers. “Finding of No Significant Impact for the Nationwide Permit Program.” June 23, 1998. 26 U.S. Department of the Army, Corps of Engineers. “Draft Nationwide Permits Programmatic Environmental Impact Statement,” July 31, 2001. 27 “States Urge Corps to Suspend Plans to Revise Wetlands Permits.” Inside EPA, July 6, 2001: p. 15. CRS-19 Court for the District of Columbia overturned regulations issued by the Corps and EPA in 1993 which had extended the scope of the wetlands regulatory program to include certain landclearing and excavation activities. The Corps and EPA issued these regulations as part of the settlement of a lawsuit brought by environmental groups over the agencies’ failure to regulate discharges associated with excavation (North Carolina Wildlife Federation, et al. v. Tulloch, Civil No. C90-713-CIV-5-BO (E.D.N.C. 1992)). At issue was whether “fallback” from dredging activities constituted pollution, under the Clean Water Act. The federal district court ruled that, in issuing the rules that resolved the Tulloch case, the agencies had exceeded their authority under the Clean Water Act. The 1993 rules revised the definition of “discharge” to clarify that discharges or redeposit associated with mechanized landclearing or excavation are subject to regulation. The federal district court ruled that, in issuing the rules that resolved the Tulloch case, the agencies had exceeded the authority of the Act by requiring permits from persons who engage in wetland excavation activities which result in “incidental fallback” of dredged material, because excavation is not defined as a regulated activity under the Act. The court said that the appropriate remedy for what the agencies now perceive to be an imperfect statute, however, is Congressional action; defendants’ authority is limited to adopting regulations that effect the will of Congress as expressed in the statute...The Court finds that the Tulloch Rule exceeds the scope of the agencies’ statutory authority and, accordingly, declares it invalid and sets it aside. (slip opinion at 25) Following the district court’s ruling in January 1997, the Corps and EPA issued guidance to field staff regarding the federal government’s authority to regulate certain excavation activities in wetlands. Staff were directed not to take administrative or enforcement actions related solely to the “incidental fallback” of dredged or fill material in wetlands. According to the guidance, such activities would include dredged material that falls from a dredge bucket as it is raised up through the water column, but would not include ditching activities where the excavated material is sidecast into U.S. waters; the latter would require a permit. Other activities would require case-by-case examination to determine whether they are affected by the ruling. One example of this type cited in the guidance is channelization and the reconfiguring or straightening of streams.28 Corps officials and environmentalists viewed the ruling as a major setback for the regulatory program. The government argued that the case has important implications for the scope and effectiveness of the entire CWA section 404 permit program, since the Tulloch Rule was adopted to close a significant loophole that had allowed developers to degrade waters without obtaining a 404 permit. However, a government appeal of the ruling was rejected by the U.S. Court of Appeals for the D.C. Circuit (National Mining Association v. U.S. Army Corps of Engineers, 975099, D.C. Cir., June 19, 1998). That court found that the Tulloch Rule’s 28 Army Corps of Engineers, EPA Guidance Regarding Regulation of Activities in Light of American Mining Case, Issued April 11, 1997. Text available at [http://www.wetlands.com/fed/tulloch3.htm]. CRS-20 “overriding purpose appears to be to expand the Corps’ permitting authority to encompass incidental fallback and, as a result, a wide range of activities that cannot remotely be said to ‘add’ to the waters of the United States.” The court said it would give “considerable deference” to an effort by the Corps to draw a line between incidental fallback on the one hand, and re-deposits which are subject to regulation on the other hand, but that the Tulloch Rule drew no such line. The appeals court upheld a nationwide injunction that the district court had issued against enforcement of the Tulloch Rule. Government requests for rehearing of the appeals court’s decision also were rejected, and the government did not seek Supreme Court review. According to the Corps, some excavation activities do come under section 404 jurisdiction, despite the overturning of the Tulloch Rule. While discharges associated with “incidental fallback” are excluded by these court decisions, other excavation activities that result in redeposits of dredged material into U.S. waters, other than incidental fallback, (such as replacement of an aquatic area with dry land) require a section 404 permit. They may be authorized by nationwide permits if they comply with the terms and limits of those permits. On May 10, 1999, the Corps published a final rule to conform the regulatory definition of “discharge of dredged material” with the judicial decisions.29 At the same time, the Corps announced that it would initiate a rulemaking to more clearly delineate the scope of Clean Water Act jurisdiction over redeposits of dredged material into U.S. waters. This occurred in January 2001, when the Corps and EPA issued a rule to clarify the types of activities that are likely to result in a discharge of dredged material subject to CWA section 404.30 The rule states that ditch digging, dredging, and other excavation using heavy equipment typically create more than incidental fallback and result in a discharge of dredged material. In the view of the agencies, the use of heavy equipment for excavation or landclearing disrupts enough material to assume that the activity will cause a discharge of dredged material that would be deposited on surrounding wetlands or downstream areas. Under the rule, unless project-specific evidence shows that the activity results in only incidental fallback, it will be considered a regulable discharge of dredged material. In issuing this rule, EPA and Corps officials were concerned that, since June 1998, large-scale developments had caused water quality degradation and at least 20,000 acres of wetlands loss with no permit review. Environmental groups supported the rule, but industry groups said it conflicts with prior court decisions. 29 U.S. Department of the Army. Corps of Engineers. “Revisions to the Clean Water Act Regulatory Definition of ‘Discharge of Dredged Material.’” 64 Federal Register 25120, May 10, 1999. 30 U.S. Department of the Army, Corps of Engineers, and Environmental Protection Agency. “Further Revision to the Regulatory Definition of ‘Discharged of Dredged Material;’ Final Rule.” 66 Federal Register 4550, Jan. 17, 2001. The rule was issued by the outgoing Clinton Administration. After reviewing the new rule, the Bush Administration announced in April 2002 that it would allow the regulation to take effect without modification. Regulated industries are displeased with the new rule, and two groups filed lawsuits challenging it. CRS-21 Several nationwide permits can be used to authorize certain activities associated with excavation. These include, for example, NWP 31, dealing with maintenance of existing flood control projects; NWP 18, concerning minor discharges of dredged or fill material; and NWP 7, authoring maintenance excavation of outfall structures. In addition, 1996 modifications to several nationwide permits were made to conform to the 1993 regulations (for example, NWP 12, concerning discharges in connection with utility line construction, was modified to authorize mechanized landclearing necessary for installation of utility lines). Under the federal court rulings about the Tulloch Rule, no permit is required if there is only “incidental fallback” from such activities, but if not, these general permits may be used, so long as the activities have minimal adverse environmental effects. Corps officials believed that the rulings which overturned the Tulloch Rule had no direct effect on the nationwide permit program, but they drew more attention to the Corps’ overall regulatory program and debate over the scope of its authority to regulate. One uncertainty concerns which excavation activities remain subject to section 404, based on case-by-case evaluations that are now required, and what role nationwide permits will play in authorizing those activities. Congressional Interest Congressional interest in legislation to revise the wetlands regulatory program has been apparent for several years, as groups have pursued proposals intended to simplify and streamline permitting and revise federal and state roles in permitting. (For additional information, see CRS Issue Brief IB97014, Wetlands Issues.) None has focused specifically on nationwide permits. During the mid-1990s, overall wetlands policy was a major component of debates on the Clean Water Act and was partly the reason that no comprehensive clean water legislation was enacted. Interest groups were unable to reach consensus on whether legislative reform is needed and, if so, how far it should extend. In May 1995, the House passed legislation to reauthorize the Clean Water Act (H.R. 961) that, in part, would have significantly amended the wetlands permit program in section 404, but not the general permit provisions of the law. It would have required that landowners be compensated if a federal agency action under section 404 diminishes the fair market value of property by 20% or more. It also would have established a wetlands classification system nationwide, allowing for differential regulatory procedures; in areas deemed least ecologically valuable, no permit would be required. The changes contained in H.R. 961 were opposed by environmentalists and the Clinton Administration. The Senate did not take up Clean Water Act legislation during the 104th Congress, and no comprehensive legislative activity has occurred since then. The controversies that surrounded debate on H.R. 961 led many observers to believe that future wetlands reform efforts might focus on narrower, strategic revisions, rather than comprehensive proposals. For example, proposals might include exempting categories of activities below a certain threshold (less than 1 or 2 acres, for example) from regulation or clarifying the scope of authorized state general permit programs. Revision of the nationwide permits and the 1997-98 federal court decisions concerning regulation of excavation activities could be impetus for congressional action. So far, no such proposals have been offered. CRS-22 Congress has shown interest in these issues, however. In April 1997, the House Transportation and Infrastructure Subcommittee on Water Resources and Environment held an oversight hearing on the developments concerning nationwide permits and the federal district court ruling concerning the Tulloch Rule. In June 1997, the Senate Environment and Public Works Subcommittee on Clean Air, Wetlands, and Private Property held a similar hearing. At both hearings, witnesses representing developers and other groups subject to wetlands regulation expressed concern about impacts of the overall wetlands regulatory program, and a number were critical of the 1996 changes to the nationwide permit program, saying that the changes would be costly and could result in project delays. Administration witnesses supported the modifications, saying that the changes will allow the Corps to implement a more fair, flexible, and effective program which is appropriately responsive to environmental protection needs. At the Senate hearing, other public witnesses supported the 1996 changes to NWP 26, discussed the need to regulate excavation activities, and criticized the federal district court’s ruling concerning the Tulloch Rule. Interest in these topics recurred in the 106th Congress, focusing on changes to nationwide permit 26. Regulatory issues first were addressed in P.L. 106-60, the FY2000 Energy and Water Development Appropriations bill. As approved by the House in July 1999, this bill (H.R. 2605) included a provision to require the Corps to submit a study on the workload impact and compliance costs of replacement permits for NWP 26 by December 30, 1999. Landowner and developer groups supported the provision, contending that the costs and impacts should be better identified before revised permits were issued, but the Clinton Administration opposed it, saying that the study was unnecessary and, even with a December 30 deadline, would increase wetlands loss in the nation by delaying issuance of replacement permits. The final bill modified the House language by directing the Corps to study the workload impacts and costs of compliance of the proposed replacement permits, but dropped language that would have required submission of a report to Congress before publication of final permits. Congress addressed the issue of the activity-specific permits issued in 2000 in connection with the FY2001 funding bill for the Corps, but it did not attempt to modify or rescind the permits themselves. Congress included legislative language in P.L. 106-377, the FY2001 Energy and Water Development Appropriations Act, directing the Corps to improve the analysis and increase information available to the public regarding the costs of the nationwide permit program and permit processing times. This bill was enacted in October 2000 (after the effective date of the replacement permits that were issued in March 2000). It directed the Corps to revise its cost estimate of the nationwide permits program, based on the final replacement permits; prepare a plan to manage the additional workload of these permits; provide quarterly program performance reports and annual reports on two specific Corps divisions; and provide improved information on permit applications and the functioning of the administrative appeals process. There were no similar provisions in the FY2002 funding bill for the Corps or subsequent appropriations acts. CRS-23 In the future, renewed attention to these issues could occur as part of reauthorization of the Clean Water Act, should it be a legislative priority, or separately, as it did in the FY2000 and FY2001 appropriations process. Congressional interest also could arise as a result of lingering concerns about regulation of excavation activities (specifically, the 2001 revision of the Tulloch Rule) or issues related to the package of nationwide permits revised in 2002 wetlands and other water resources, because aquatic resource functions and values vary considerably across the country and 10 63 Federal Register 36045, July 1, 1998. CRS-8 cannot be imposed through more stringent national limitations (regional conditioning cannot be used to make an NWP less restrictive).11 Lawsuits Challenging the Replacement Permits. Soon after the final replacement and modified permits were published in 2000, several industry groups challenged the permits in court. The lawsuits contended that the Corps exceeded its authority by imposing broad restrictions through the NWP program and that the program no longer is the streamlined permitting approach intended by Congress when it authorized general permits in 1977. They also said that the Corps had not considered impacts on small businesses. Industry petitioners wanted the Corps to reinstate NWP 26. However, the Corps has repeatedly said that, since NWP 26 expired in 2000, this permit will not be reinstated. The consolidated cases were initially dismissed by a federal district court in 2003. The court said it lacked jurisdiction, saying that a final agency action does not take place until a project seeking to be covered by a nationwide permit has exhausted all of its permitting options. However, in 2005, a federal appeals court partly reversed the ruling and remanded the case to the district court. (National Association of Home Builders v. Army Corps of Engineers (417 F.3d 1272 (DC Cir 2005)). The appeals court said that the challenged permits constituted final action subject to judicial review. This court also determined that nationwide permits are regulations for purposes of the Administrative Procedure Act and, thus, are subject to the Regulatory Flexibility Act and other administrative requirements to assess impacts on small businesses and unfunded mandates, as well as to prepare environmental documentation and comply with the Congressional Review Act. Previously, the Corps had taken the position that the nationwide permits do not constitute regulations. Upon remand of the case, the federal district court rejected the lawsuit for a second time in 2006 (National Association of Home Builders v. Army Corps of Engineers, 453 F.Supp. 2d 116 (DDC 2006)). The court ruled that the Corps had not acted arbitrarily, capriciously, or contrary to the law in its issuance and reissuance of nationwide permits, as the Corps had adequately explained its reasoning and had acted within its authority. Reissuance of All Nationwide Permits in 2002 In August 2001, with the approaching expiration of the 1996 nationwide permits, the Corps proposed to reissue those and others that had been issued and modified since 1996 (including the 2000 replacement permits for NWP 26) in order to put all of the nationwide permits in the program on a unified five-year schedule.12 The proposals raised controversies and criticism from environmental advocates and some other federal agencies, including EPA and the U.S. Fish and Wildlife Service. Environmental groups said that the proposal would substantially weaken 11 12 65 Federal Register 12838. U.S. Department of the Army, Corps of Engineers, “Proposal to Reissue and Modify Nationwide Permits,” 66 Federal Register 42069, August 9, 2001. CRS-9 protection of the nation’s wetlands and streams. On the other hand, industry groups said that the proposal involved only minor changes. These changes offered some benefits, they said, but any such benefits are more than offset by problems with the 2000 replacement permits, which developers and other groups continued to oppose, saying that the permits impose arbitrary and burdensome restrictions. Following a public comment period that generated more than 2,100 comments, the nationwide permits were reissued in January 2002, essentially as proposed, with an effective date of March 18, 2002. The Corps’ action modified nine existing permits and six existing general conditions and added one general condition.13 Reissuance of Permits in 2007 Authorization for the 2002 NWPs expired in March 2007. In preparation for that expiration, on September 26, 2006, the Corps published a proposal to reissue the 43 existing NWPs, with some modification, and to issue six new permits.14 Following a public comment period, the permits were reissued in March, essentially as proposed, with an effective date of March 19, 2007.15 The reissued permits also modified some of the general conditions and definitions that apply to nationwide permits. The six new permits are: ! Repair of Uplands Damaged by Discrete Events. This general permit is intended to apply to activities for restoration of upland areas that have been damaged by storms, floods, fire, or other discrete events. The permit only authorizes activities to restore damaged areas to previously existing conditions. (NWP 45) ! Discharges in Ditches. This permit applies to discharges of dredged or fill material into certain types of ditches and canals that are constructed in upland areas, that receive water from another water of the United States, and that divert water to another water of the United States. The Corps argues that, with these limitations, the types of ditches and canals covered by the permit are likely to affect few aquatic resources, thus ensuring that the environmental impact of the discharge is minimal. The permit is limited to discharges that cause the loss of no more than one acre of waters of the United States. (NWP 46) ! Pipeline Safety Program Designated Time-Sensitive Inspections and Repairs. This permit authorizes inspection, repair, rehabilitation, or replacement of any currently serviceable structure or fill for 13 U.S. Department of the Army, Corps of Engineers, “Issuance of Nationwide Permits,” 67 Federal Register 2020, January 15, 2002. 14 U.S. Department of the Army, Corps of Engineers, “Proposal to Reissue and Modify Nationwide Permits; Notice,” 71 Federal Register 56257, September 26, 2006. 15 U.S. Department of the Army, Corps of Engineers, “Reissuance of Nationwide Permits; Notice,” 72 Federal Register 11091, March 12, 2007. A summary table, identifying changes in the 2007 permits, is available at [http://www.saw.usace.army.mil/WETLANDS/ NWP2007/PN-NWP07/NWP%20Table_2007_final.pdf]. CRS-10 pipelines that are time-sensitive, for example, following a pipeline rupture and are done in accordance with Department of Transportation procedures. The new permit would allow rapid response when needed to reduce environmental impacts. No PCN would be required. (NWP 47) ! Existing Commercial Shellfish Aquaculture Activities. This permit authorizes structures or works in navigable waters, as well as discharges into all waters of the United States for the continued operation of existing commercial oyster, clam, geoduck, mussel or scallop aquaculture operations. It does not apply to new projects or expansion of existing ones and would not include operations that raise crustaceans or finfish. (NWP 48) ! Coal Remining Activities. This permit is intended to authorize activities for the restoration of coal mine sites that are causing physical and/or chemical impacts to water; many are likely to be abandoned or closed sites. The permit would allow new mining, either at the site or as part of a reclamation project, or together with adjacent unmined areas, and would authorize related discharges of dredged or fill material into non-tidal waters of the United States. There is no specific acreage limit for this permit, which would apply only to activities already authorized under the Surface Mining Control and Reclamation Act by the federal Office of Surface Mining or qualified states. The applicant must demonstrate to the Corps that the overall project, including the reclamation activity and any new mining, will result in a net increase in aquatic resource functions. (NWP 49) ! Underground Coal Mining Activities. This permit authorizes a number of different activities associated with underground coal mining, such as excavating rock and soil on the surface in order to expose coal seams; providing road access for people and equipment to a site; and constructing acid mine drainage impoundments or sedimentation ponds. It could be used to authorize permanent structures or fills that would remain after reclamation of the site. The permit authorizes discharges to non-tidal waters only. It would not authorize coal preparation and processing activities outside the mine site (but these could be authorized by NWP 21). Like NWP 21 (surface coal mining), no specific acreage limit applies. (NWP 50) The reissued permits include modification of a number of the nationwide permits. For example, previously two NWPs applied to construction of residential developments: NWP 29, which authorized single unit residences (i.e., single family homes; see page 7), and NWP 39, which authorized multiple unit residential developments, as well as commercial and institutional developments. In 2007 the Corps modified these permits so that NWP 39 now authorizes commercial and institutional developments, and NWP 29 authorizes all types of residential developments. The change in effect eliminates the previous NWP 29, which had a ¼-acre limit on authorized discharges. As reissued, the revised NWP 29 has the CRS-11 same conditions as NWP 39: authorized discharges would be limited to impacts affecting ½ acre of non-tidal waters and a 300-foot linear foot limit on the loss of a stream bed. The Corps’ rationale for the changes to these two permits was that it is inappropriate to establish different permits for single and multiple unit residential developments, because impacts to the aquatic environment are determined by permit conditions (such as the ½-acre limit), not the type of residential development. Regarding the changes to NWP 39, the Corps argued that commercial developments (e.g., retail stores, industrial facilities, and shopping centers) and institutional structurets (e.g., schools, fire stations, hospitals, and places of worship) are different from residential developments in a number of ways, such as different state and local requirements concerning planning, zoning, and stormwater management. Therefore, it is appropriate to group them in one permit (NWP 39) and to group residential structures in a separate permit (NWP 29). Both industry groups and environmental advocates criticized the modifications to NWP 29. Industry groups, particularly homebuilders, objected to the fact that new NWP 29 would require preconstruction notification (PCN) for all applications (previously, NWP 29 required PCN for projects with certain impacts over one-tenth of an acre), arguing that it is unclear why a PCN should be required for all activities, regardless of size. Many single-unit projects that previously were not required to submit a PCN would have to do so under the revised permit, they said. Further, they objected to the 300-foot linear limit and the ½-acre threshold under this permit, saying these limits are too stringent (presumably for multiple unit developments) and will exclude many projects with minimal impact from seeking a nationwide permit. Environmental groups, on the other hand, argued that the ¼-acre threshold in NWP 29 should be retained, not increased. Critiques by Stakeholder Groups As noted previously, as the nationwide permit program has become more complex over time, major interest groups are increasingly united in arguing that the program as it has developed fails to meet its overall objectives, although their reasons for this criticism are very different. One view was expressed by an environmental advocacy group in comments on the 2006 draft NWPs. The nationwide permit system was presumably developed in order to balance two somewhat contrary objectives: to ensure that the permits issued result in only minimal impacts on aquatic resources, and to provide a predictable, fair, and simply regulatory system for citizens applying for permits. Given the complexity and confusion surrounding the nationwide permit program, together with the clearly more than minimal environmental impacts, we question whether either of these objectives is being achieved.16 Similar views were expressed by a group representing one set of land developers. 16 Gulf Restoration Network et al., Comments Submitted on Docket number COE-20060005, undated, pp. 1-2. CRS-12 Over time, however, the NWPs have become increasingly restrictive and complex to the point that they faintly resemble the streamlined permitting process Congress envisioned when it enacted Section 404(e).... [T]he program waivers between providing administrative relief and imposing red tape, between a truly streamlined process and one that is so severely limited that few projects can qualify.... The history of the NWP has been a consistent tightening of the eligibility for the program.... Each time the Corps has drawn the line between NWP eligibility and ineligibility, eligibility has been restricted, never relaxed.17 Beyond apparent broad agreement that the program fails to meet its objectives, the views of industry and environmental advocacy groups diverge greatly. Major industry groups support the NWP program, or the type of streamlined program that they believe was originally intended, and agree with the Corps that the use of nationwide permits will result in minimal adverse environmental impacts. Nevertheless, they were highly critical of many aspects of the Corps’ 2006 proposal. The Corps’ attempt to illegally expand its jurisdiction, the stringent and largely inflexible acreage and PCN [preconstruction notification] thresholds, the lack of a proper administrative process and record to support the proposal, the problematic regional conditions and the overall trend toward the elimination of NWPs all contribute to a permit package that is hardly even a semblance of the streamlined process directed by Congress.18 Major environmental groups argue that permitted activities will have more than minimal impacts on the environment and that the Corps has no substantial or scientific evidence to conclude otherwise. They argue that the permits are unlawful because they violate the requirements of Section 404(e) that there may be no more than minimal adverse environmental effects on aquatic resources, both individually and cumulatively. Environmental groups are highly critical of many aspects of the program, such as inconsistent and inadequate PCN requirements, overly vague requirements which will result in weakened regulatory protection, the granting of excessive authority to Corps district engineers to waive permit limits in individual cases, and what they describe as “irrational reliance” on compensatory mitigation to offset the harmful effects of permitted activities.19 Specific Critiques In addition to general objections, a number of specific concerns have been evident since issuance of the 2002 permits and continue with the 2007 permits. 17 National Association of Home Builders, “Advice and Recommendations of the National Association of Home Builders on the Department of the Army, Corps of Engineers’ Proposal to Reissue and Modify Nationwide Permits,” undated, pp. 3, 21, 44. 18 19 Ibid., pp. 3-4. See generally, Comments of the Gulf Restoration Network, et al.; Natural Resources Defense Council, et al., Comments Submitted on Docket # COE-2006-0005; and Ohio Valley Environmental Council, “Re: Proposal to Reissue and Modify Nationwide Permits, Docket No. COE-2006-0005,” November 27, 2006. CRS-13 300 Linear-Foot Prohibition. One of the most significant changes in the permits that were issued in 2002 affected development activities along streams. Several of the 2000 permits that had replaced NWP 26 included a prohibition limiting the permits to development activities affecting 300 linear feet or less of a streambed; projects affecting larger areas would not qualify for a nationwide permit. The Corps believed that this restriction had resulted in requiring individual permit review for many projects that involve no more than minimal adverse effects on the aquatic environment. In the 2002 reissuance, the Corps modified this prohibition for nationwide permits 39 (residential and commercial developments), 40 (agricultural activities), 42 (recreational facilities), and 43 (stormwater management facilities) to allow Corps districts to issue case-by-case waivers to the 300 linear-foot limit for discharges affecting intermittent streams (streams that only have flowing water only during certain times of the year, when groundwater provides water for stream flow). As reissued in 2002, the prohibition remained in effect for perennial streams which have flowing water year-round. The Corps decided at that time that this limitation on perennial streams was necessary to ensure that losses result only in minimal adverse effects, since significant impacts are more likely to occur in perennial than in intermittent streams. The modification concerning the 300 linear-foot prohibition was needed, the Corps said, to add flexibility to the permit process, by allowing district engineers to authorize activities that have minimal adverse effect on the aquatic environment. It was not intended to relax aquatic protection, the Corps said, but was intended to allow the Corps to focus limited resources more intensively on areas where impacts are likely to be more than minimal. Opponents of the modification argued that the waiver would lead to severe stream destruction from construction, agricultural and other activities. Some said that the 300 linear-foot limit gives predictability to the regulated community and state agencies and that the waiver authority would result in decisionmaking variations between Corps districts, and even within the same district. The Corps disagreed and said that district engineers will use their knowledge of the local aquatic environment to make case-by-case determinations whether a waiver is applicable. This topic was addressed again in the 2007 reissued permits. The Corps extended the 300 linear-foot limit under NWPs 39, 40, 42, 43, and revised 29 to include ephemeral streams (streams that have flowing water only during, and for a short time after, a precipitation event), as well as permanent and intermittent streams. However, the Corps also will allow district engineers to waive the 300 linear-foot limit for discharges to ephemeral streams on a case-by-case basis, in addition to caseby-case waivers of discharges to intermittent streams that have been allowed since 2002. Commenters on this change viewed the issue from two very different perspectives. Environmental advocates endorsed extending the 300-linear foot limit to ephemeral streams, so as to protect them as well as permanent and intermittent streams, but they criticized the proposal to allow district engineers to waive the limit. Linear foot limits should be firm, they said, and proposed actions that exceed these limits should be subject to individual permit requirements. The Corps provided no justification for proposing to allow district engineers to waive the limit, they said, nor criteria for how waiver decisions will be made. CRS-14 On the other hand, regulated industry groups said that extending the 300-linear foot limit to ephemeral streams would greatly increase the regulatory burden of the overall program and reduce the utility of permits like NWPs 29 and 39, while serving no environmental purpose. They observed that the only apparent rationale for treating ephemeral streams in the same fashion as other streams is Corps administrative convenience, since the Corps stated that it may be hard to distinguish between intermittent and ephemeral streams in the field (71 Federal Register 56261). Several industry commenters noted that the legal basis for the Corps to assert regulatory jurisdiction over waters that are dry nearly all the time is uncertain, in light of recent court rulings — including the Supreme Court’s June 2006 ruling in Rapanos v. United States — that have narrowed rather than expanded Corps jurisdiction. While the Court’s plurality ruling in that case was split (there was no majority opinion) and left open to many jurisdictional questions,20 these groups argue that ephemeral waters are for the most part not legally jurisdictional or subject to a requirement for a Section 404 permit. The Corps stated that it will assert jurisdiction over ephemeral streams on a case-by-case basis, in accordance with case law as it evolves and with any future agency guidance on recent court cases. Mitigation Requirements. The Corps acknowledges that, although minimal adverse effects are anticipated from the nationwide permit program, the use of NWPs may still affect the aquatic environment. Therefore, the permits include a general condition detailing how district engineers may require compensatory mitigation to offset the authorized impacts. Mitigation is intended to compensate for lost functions and values resulting from permitted activities. Compensatory mitigation can be accomplished through the restoration, creation, enhancement, and/or preservation of aquatic resources, either by the permittee’s individual project, or the use of mitigation banks or other consolidated mitigation efforts. Mitigation requirements incorporated in the nationwide permit program have become more specific over time, especially since 1996, and are viewed by environmental protection advocates as critically important. Before reissuance in 2002, this general condition required one-for-one mitigation of adverse impacts to wetlands with a stated preference for restoration of wetland impacts over preservation (see discussion on page 6).21 In 2002, the Corps revised the mandate to allow a case-by-case waiver of this requirement in cases where the Corps determines that some other form of mitigation, such as establishment of vegetated buffers, is more appropriate. The intention of the change, the Corps said, was to have a more ecologically and watershed-based approach to mitigation. In the agency’s view, the one-for-one acreage requirement was too restrictive, in that it focused solely on wetlands but did not allow the Corps to mitigate aquatic impacts to streams and other non-wetland aquatic resources. Because the Corps regulates the entire aquatic environment, not just wetlands, it said, mitigation should consider the entire aquatic environment, as well. The Corps said 20 For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States, by Robert Meltz and Claudia Copeland. 21 The policy preference for restoration derives from the fact that preservation does not provide new acres and thus cannot compensate for wetlands loss on an acreage basis. CRS-15 that it will require mitigation for impacts based on a watershed approach, often involving a mix of vegetated buffers and other mitigation in non-wetland areas. Thus, for example, a district engineer might authorize a project with impacts on a particular wetland and require mitigation within the overall aquatic environment of the particular watershed involved but not wetland-acre-for-wetland-acre mitigation. This approach, the Corps said, allows district engineers to require the mitigation for project impacts that best protects the aquatic environment.22 Environmentalists strongly opposed this change in 2002, saying that it effectively ignores the principle of “no net loss” of wetlands which has been a goal of national wetlands policy since 1990. In response, Corps officials said that under the revision, project applicants must ensure that wetland functions are replaced and that the “no net loss” goal be met on an acreage basis within a Corps district.23 Environmental groups also argued that the Corps is too quick to look towards mitigation as the answer for development activities affecting wetlands and should focus on avoiding impacts as a first priority. In 2007 the Corps made certain modifications to the general condition for mitigation. Previously, compensatory mitigation was required for all activities requiring a PCN and for permanent losses of U.S. waters, at a minimum one-for-one ratio, unless the district engineer decides that another form of mitigation would be more appropriate. The Corps modified this requirement in 2007 by adding a onetenth of an acre threshold — that is, if a PCN is required, and if the proposed activity is expected to result in the loss of more than one-tenth of an acre of wetlands, the permittee must comply with compensatory mitigation requirements. Mitigation banks and in-lieu fee programs can be used for compensatory mitigation activities authorized by nationwide permits. The Corps also added language stating that district engineers may require mitigation when certain functions and services of waters of the United States would be permanently changed by the permitted activity (such as conversion of a forested wetland to a herbaceous wetland in a permanently maintained utility line right-of-way). In the decision documents accompanying the NWP proposal in 2006, the Corps estimated that in total the permits (including the six new permits) will be used 52,434 times per year and are expected to impact 6,366 acres of wetlands and other waters per year. The Corps also estimated that 19,501 acres will be mitigated to offset the impacts of authorized activities. The data in these estimates was based on reported use of the NWPs during FY2003 and the period of July 1, 2005, to June 30, 2006, as well as a survey of Corps district offices. Environmental groups were skeptical of these data, asserting that it is unclear how the numbers were obtained, due to inconsistencies in the Corps’ permit database. 22 U.S. Department of the Army, Corps of Engineers, “Issuance of Nationwide Permits,” 67 Federal Register 2063-2067, January 15, 2002. 23 U.S. Department of the Army, Corps of Engineers, “U.S. Army Corps of Engineers clarifies inaccuracies in wetlands permit reporting,” press release, January 16, 2002. CRS-16 Even more troubling is the notion that the Corps uses these flawed permit numbers to arrive at the acres of wetlands and waters impacted, and for the presumed use and impact of the proposed NWPs. Again, we can only assume that the Corps has averaged the impacts associated with some subset of known nationwide permit applications. This type of statistical mean does not provide us with the actual impact to waters of the United States, nor can it be used as a basis for predicting the future cumulative impacts of the proposed NWPs.24 In their comments on the 2006 proposal, environmentalists continued to be critical of the Corps’ reliance on mitigation as the basis for concluding that impacts of the nationwide permits will be minimal. They pointed to the incomplete track record of mitigation projects described in a number of reports, including a June 2001 report of the National Research Council25 and a 2005 GAO report, showing that mitigation is not fully successful and does not compensate for wetlands lost to permitted fills.26 In light of the lack of data that mitigation is performed or that it would successfully replace lost functions and values, they asserted that the Corps lacks sufficient evidence to conclude that mitigation will render the impacts of authorized activities minimal. If an activity requires mitigation, these critics said, by definition it has more than minimal adverse effects to begin with, and under the Clean Water Act, activities with more than minimal adverse effects can only be authorized by an individual permit. They noted that the Council on Environmental Quality has said that relying on mitigation to assume impacts are reduced below the threshold of significance violates the National Environmental Policy Act.27 The Corps acknowledges that ecological success of mitigation varies widely, but argues that mitigation is important to ensuring that nationwide permits result in minimal adverse effects. The Corps says that it has increased its compliance efforts to ensure that authorized projects are constructed as authorized, and that mitigation is successful. Under the reissued NWPs, compensatory mitigation would be required for all wetland losses that exceed one-tenth of an acre, unless the district engineer issues a project-specific waiver. Industry was critical that the Corps appears to elevate one form of mitigation (compensation) above all others28 and does not give district 24 Gulf Restoration Network et al., Comments Submitted on Docket number COE-20060005, p. 4. 25 National Academy of Science, National Research Council, Compensating for Wetland Losses under the Clean Water Act, Washington, 2001, 267 p. 26 U.S. Government Accountability Office, “Wetlands Protection: Corps of Engineers Does Not Have an Effective Oversight Approach to Ensure that Compensatory Mitigation is Occurring,” GAO-05-898, September 2005. 27 Council on Environmental Quality, “Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations,” March 23, 1981. 28 Under its regulations and policy, when the Corps evaluates standard permit applications, it first determines that potential impacts to wetlands and other aquatic resources have been avoided to the maximum extent practicable; remaining unavoidable impacts will then be mitigated to the extent appropriate and practicable, in a sequence beginning with avoidance of impacts, followed by minimization of adverse impacts, and then compensatory mitigation (continued...) CRS-17 engineers flexibility to determine the extent to which mitigation is needed, on a caseby-case basis. Environmental groups, on the other hand, strongly objected to allowing waivers from mitigation requirements and giving discretion to district engineers, particularly because the NWPs contain no criteria or performance standards that would govern mitigation. Coal Mining Activities. The use of nationwide permits to authorize coal mining activities has been and continues to be controversial, focusing particularly on NWP 21, which concerns surface coal mining activities. Critics say that the environmental impacts of coal mining are typically far greater than the standard set forth in CWA Section 404(e): that authorized activities will cause only minimal adverse environmental effects, individually and cumulatively. Industry argues that nationwide permit procedures are necessary to minimize regulatory burdens that would threaten the economics of coal mining and to provide the kind of flexibility needed by industry to respond to quickly changing operating requirements. The Corps responds that the terms and conditions of NWP 21 are sufficient to ensure that environmental impacts are minimal. Nationwide permit 21 authorizes discharges from surface coal mining activities which result in no more than minimal impacts (site-specifically and cumulatively) to the aquatic environment. There is no acreage limit or threshold for a project to use this permit. The Corps reissued NWP 21 in 2002 with two changes intended to strengthen environmental protection for projects authorized by the permit. First, the reissued permit requires the Corps to determine appropriate mitigation in accordance with nationwide permit general conditions, rather than relying primarily on less restrictive state-required mitigation established under the Surface Mining Control and Reclamation Act, as had previously been the case. Second, the revised permit requires explicit authorization before the activity can take place, rather than only requiring preconstruction notification, as in the past. Critics were less focused on these 2002 changes than on the basic permit itself, because environmentalists have long contended that the permit authorizes disposal of coal mining waste material which buries streams with overburden material, thereby disturbing the natural stream processes and water quality in entire watersheds and resulting in permanent loss of habitat. According to that view, mitigation cannot sufficiently compensate for these impacts, and any use of this permit is inconsistent with ensuring “minimal adverse effects” on the aquatic environment. Contributing to controversy over NWP 21 is the fact that in recent years the Corps has allowed the use of this permit to authorize mountaintop mining activities in several Appalachian states (e.g., West Virginia and Kentucky).29 This practice involves removing the tops of mountains to expose and remove underlying coal 28 (...continued) for unavoidable impacts which remain. Compensatory mitigation might include restoration of a former wetland, or enhancement for specified purposes such as water quality improvement. 29 For information, see CRS Report RS21421, Mountaintop Mining: Background on Current Controversies, by Claudia Copeland. CRS-18 seams. Upon completion of the coal removal, some amount of the waste rock is placed back on the top of the mountain, while the majority is disposed in nearby valleys where streams and wetlands are filled with the excess mining waste. Environmentalists have sought to strengthen regulation of mountaintop mining, if not halt it altogether, in part by arguing that the practice should be regulated under more stringent Clean Water Act provisions than Section 404, which authorizes the nationwide permit program. So far, protection advocates have been unsuccessful in their efforts. The Corps continues to assert that use of NWP 21 for surface mining and mountaintop mining activities avoids and minimizes impacts to the extent practicable and that adequate mitigation can be used to determine that a project has minimal effects. These activities, the Corps believes, can result in a “substantial improvement in downstream water quality and aquatic habitat within a watershed.”30 Citizen groups have filed lawsuits seeking generally to halt the Corps’ use of nationwide permit 21 for mountaintop mining operations. In the first such case, a federal district court ruled that NWP 21 violates the Clean Water Act by authorizing activities that have more than minimal adverse environmental effects. In 2004, the court enjoined the Corps from using NWP 21 to authorize new mountaintop mining in southern West Virginia and ordered the Corps to revoke previous authorization for 11 operations. On appeal, the judgment of the district court and the injunction against NWP 21 were vacated when the court of appeals found that the Corps had complied with the Clean Water Act when it promulgated NWP21 (Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (CA4 2005)). The case was remanded to the district court to address remaining issues that were never decided: fact-based issues such as when a general permit is appropriate. In January 2005, three groups filed a lawsuit to extend the 2004 West Virginia federal district court decision to Kentucky valley fills (Kentucky RiverKeeper v. Rowlette, Civil No. 05181, E.D.Ky.). Both of these cases are pending. In the September 2006 proposal to reissue the 2002 permits, the Corps noted a number of administrative steps that have been taken to address public concerns about NWP 21, such as adopting a standard operating procedure for review of permit applications. In the proposal, the Corps requested public comment on the need for an acreage limit for this permit, as it previously included none. The mining industry generally supported NWP 21 and two related new permits, 49 and 50. However, they opposed any acreage limit on NWP 21, saying that the permit would be useless to them if it included an acreage limit. Most coal companies would not be able to comply with such a limit and would, therefore, be required to obtain an individual permit, they said. Getting an individual permit imposes costs of time and money to applicants and to government, industry contended, without additional environmental benefits. In the revised permits, issued in March 2007, the Corps did not include an acreage limit for NWP21. Environmental critics cited data on the degrading impacts of current NWP 21 to aquatic life in Appalachian streams, as well as terrestrial resources and wildlife, including data from a programmatic environmental impact statement on mountaintop 30 U.S. Department of the Army, Corps of Engineers, “Issuance of Nationwide Permits,” 67 Federal Register 2043, January 15, 2002. CRS-19 mining prepared by the Corps which acknowledged that fills authorized by this permit have eliminated more than 1,200 miles of streams in the past.31 In the 2006 decision document for NWP 21, the Corps estimated that in total this permit will be used 204 times per year and is expected to impact 81 acres of wetlands and other waters per year. The Corps also estimated that 71 acres will be mitigated to offset the permit’s impacts. Environmental groups argued that there is no support for the Corps’ claim that mitigation will reduce impacts of this permit to a minimal level, and urged that individual permits should be required. In their view, nationwide permits should only be used for mining-related activities with lesser impacts than valley fills, such as road crossings, temporary sediment ponds, or stream diversions. The Corps responds that NWP 21, like the other nationwide permits, requires compliance with general conditions, which address many of these criticisms. Two of the new permits, 49 and 50, also address coal mining activities. The Corps’ intention with the proposed new permits was to provide incentives to coal remining and underground mining activities, arguing that for those permittees that meet specified terms and conditions such as acreage impact limits, it will be faster to gain authorization under an NWP than it would be to obtain an individual permit. It is the Corps’ judgment that the environment will benefit from encouraging coal remining in this manner: by allowing such activities to proceed under a nationwide permit, rather than requiring an individual permit, the environmental benefits of remining (such as removing existing sources of water pollution that harm downstream waters) are more likely to occur. Further, while the Corps acknowledged that permits 21, 49, and 50 have the potential to result in more than minimal adverse effects on water quality, the agency contended that compensatory mitigation, opportunities for division engineers to impose regional conditions, and site-specific evaluation of PCNs will ensure that adverse environmental effects are minimal. In the decision documents accompanying the NWP proposal, the Corps estimated that permits 49 and 50 will be used 204 times per year and are expected to impact 475 acres of wetlands and other waters per year. The Corps also estimated that 404 acres will be mitigated to offset the impacts of authorized activities. Environmental critics said that the Corps has no factual basis for determining that impacts of the new coal mining permits will be minimal, since there are no documented data for estimating future impacts of permits that did not exist before 2007. They point out that coal mining waste contains chemicals that are toxic to aquatic life; there have been cases of spills of impounded wastes, with impacts that are more than minimal. Underground mining is a destructive practice, they said, that results in loss of stream and wetland functions through subsidence and waste disposal. They also argue that the general permit process is inappropriate for such large scale activities. Fills Within the 100-Year Floodplain. As discussed above (see page 7), in 2000 the Corps established a general condition for the nationwide permit program limiting activities within the 100-year floodplain as defined by FEMA. In 2002, the 31 U.S. Environmental Protection Agency, “Mountaintop Mining/Valley Fills Final Programmatic Environmental Impact Statement,” October 2005. Available at [http://www. epa.gov/region3/mtntop/index.htm]. CRS-20 Corps modified a portion of this general condition to delete a mandate that permittees document that the project meets FEMA-approved requirements and delete a requirement for preconstruction notification to the Corps for certain activities occurring in the 100-year floodplain. Environmental critics argued that the modification allows development in ecologically sensitive floodplain areas. The Corps said it believed that requiring applicants to comply with FEMA requirements is just as effective as also requiring applicants to document their compliance and that the changes to this general permit condition would not reduce the floodplain restrictions adopted in 2000. This general condition prohibits the use of certain NWPs (39, 40, 42, and 44) to authorize discharges of dredged of fill material in waters of the United States resulting in permanent above-grade fills within mapped 100-year floodplains located above or below headwaters of streams. It also prohibits the use of NWP 43 (stormwater management) discharges within mapped 100-year floodplains located below headwaters. Activities covered by these permits are subject to PCN requirements, meaning that the permittee must notify the district engineer before beginning the work and cannot proceed sooner than 45 days after filing a complete PCN without written notice from the Corps. In 2007, the Corps modified the general condition related to mitigation to simply require permittees to comply with applicable state or local floodplain management requirements that have been approved by FEMA. Thus, potential impacts to 100-year floodplains will be addressed through case-by-case review resulting from preconstruction notification by the permittee. The Corps argued that modifying this general condition will increase government efficiency by promoting conformity with state and local planning and zoning efforts, and federal programs, since FEMA is the lead federal agency for floodplain management. While industry groups supported this change, environmental groups and others criticized lifting restrictions on activities in the 100-year floodplain, saying that allowing fills in the 100-year floodplain could lead to catastrophic consequences during significant flood events. Restrictions should be retained or even strengthened, some said, so as to prevent cumulative losses of valuable resources which are allowable under FEMA requirements. Without regulatory limits, development can occur in the floodplain, inducing citizens to occupy areas that are at risk of severe flooding. Environmental groups argued that the job of reducing U.S. flood losses by controlling new development should not be left just to state and local governments and that the Corps’ regulatory responsibility under the CWA is not lessened by the involvement of other agencies. In the 2007 reissued permits, the Corps said that the revised general condition will provide protection to floodplain values that is appropriate to the scope of the Corps’ regulatory authority; additional restrictions or prohibitions on development in the 100-year floodplain are more appropriate to land use planning and zoning, not Corps regulations. Other Issues Concerning Nationwide Permits The nationwide permits issued since 1996 have raised a number of additional issues. For example, the program is intended to balance a desire for administrative simplicity and reduced regulatory burden, on the one hand, with protecting aquatic resources, including wetlands. Yet, many industry stakeholders question whether a CRS-21 number of administrative requirements of the permits, such as advance notification to the Corps and other agencies, written verification of permit compliance, and opportunities for regional conditions, are tilted too much in the direction of protecting aquatic resources and not enough in the direction of regulatory relief, while also making the nationwide permit program unduly complicated. Regional Conditioning. The purpose of regional conditioning is to consider local differences in aquatic resource functions and values to ensure that nationwide permits do not authorize activities with more than minimal adverse effects on the aquatic environment. One type of regional conditioning is done by district and division engineers who propose specific conditions if there are concerns for the aquatic environment in a particular district, watershed, or other geographic region. Corps officials also may propose revocation of NWP authorization for all, some, or portions of the nationwide permits. A second type of regional conditions is imposed by state Section 401 water quality certification or for state coastal zone consistency (see discussion below). Regional conditions might include identifying distinct watersheds or waterbodies where certain nationwide permits should be suspended or revoked, thus requiring landowners to obtain individual project-specific permits; reducing the acreage thresholds in certain types of waters; or adding notification requirements for all permitted work in certain watersheds. The permits issued in 2000 provided a new and somewhat more formal approach than in the past to developing appropriate conditional requirements in each Corps District, providing explicitly for public input and coordination with federal resource agencies. The 2002 permits emphasized that, like the 1996 and 2000 permits, the NWP program will rely greatly on regional conditioning to adjust the national program to local watersheds. A district engineer can either add special conditions to the NWP authorization or exercise discretionary authority to require an individual permit. This flexibility continues to cause various concerns among stakeholders, with some environmentalists arguing that more restrictive national standards on the NWPs should be imposed instead of relying upon a discretionary authority process. Some in industry believe that the discretionary authority results in greater complexity and less predictability for regulated entities. However, regarding increased use of regional conditioning to strengthen permits, some environmental groups have been skeptical that the Corps would be able to attach meaningful conditions, while developers have had the opposite concern — that restrictions imposed by Corps regions would be unduly burdensome.32 The 2007 reissued NWPs continue the Corps’ reliance on regional conditioning and review of preconstruction notification of specific projects as a way for regulators to ensure that impacts of activities are minimal. Echoing their concerns about the Corps’ reliance on compensatory mitigation, environmental groups criticized the Corps’ expectation that regional conditioning can assure that impacts are minimal. Industry groups contend that regional conditions make the NWPs more complex and burdensome for both the Corps and permit applicants. “As more conditions are 32 “Six New Classes of Activities Covered Under Proposed Corps Replacement Permits,” Daily Environment Reporter, June 25, 1998, No. 122, p. AA-1. CRS-22 placed on the use of NWPs, fewer permit applicants fall outside of the many restrictions and exclusions, thus fewer will qualify for the efficient NWP process.”33 State Coordination Issues. Implementation of the Corps’ regulatory program, including the nationwide permits, requires considerable coordination between federal and state governments. For one thing, many states (and some localities) administer their own wetlands management and protection programs which vary in the way wetlands are defined and the activities that may or may not take place within or near regulated wetlands, and officials attempt to minimize duplication and overlap. More important, however, is a coordinating responsibility given to states under Section 401 of the Clean Water Act. This provision requires certification by states that a proposed project seeking a federal license or permit, such as a Section 404 permit, will not violate a state’s water quality standards.34 In addition, the 34 states and territories that operate management programs under the Coastal Zone Management Act are required to provide concurrence that the activity is consistent with the state’s coastal zone management (CZM) program. Review under the 401 water quality certification process or CZM concurrence is an important means by which states ensure that their water quality concerns will be considered in federally licensed activities, because a state can use this authority to place its own conditions on the federal permit, or to deny the permit’s use in that state.35 Coordination begins at the time the Corps proposes to issue or reissue the nationwide permit package. However, coordination evidences a number of tensions between the Corps and states, especially when states deny certification or CZM concurrence. NWP Reissuance: Public Review and Coordination; State Responses. Issuance or reissuance of NWPs begins approximately six months in advance of expiration of existing nationwide permits. The process involves publishing the proposal for public comment and coordinating with states. Publication of the proposed permits in the Federal Register initiates a 60-day public comment period on the draft permits and also serves as the Corps’ request to states to issue, deny, or waive certification of the NWPs. Concurrent with the Federal Register Notice, Corps district offices solicit comments on proposed regional conditions and also on their proposals to suspend or revoke some or all of the NWPs, if they have issued or propose to issue regional general permits, programmatic general permits, or letters of permission in lieu of NWPs. The comment period for district public notices is 45 days. After reviewing public comments on the draft NWPs, the Corps prepares final NWPs, which are subject to another round of review by interested federal agencies 33 National Association of Home Builders, “Advice and Recommendations of the National Association of Home Builders on the Department of the Army, Corps of Engineers’ Proposal to Reissue and Modify Nationwide Permits”, p. 19. 34 States also may waive 401 certification, which is effectively the same as issuing an unqualified certification. 35 For additional information, see CRS Report 97-488, Clean Water Act Section 401: Background and Issues, by Claudia Copeland. CRS-23 (but not the public). The Corps then publishes the final NWPs, which become effective 60 days after publication. During the 60-day period, Corps division engineers approve regional conditions for the final NWPs and issue decision documents which address the environmental considerations related to the use of NWPs in specific Corps districts. The decision documents certify that the NWPs, together with any regional conditions or geographic revocations, will only authorize activities that result in minimal individual adverse effects on the aquatic environmental at the regional level. Also during the 60-day post-publication period, states and Indian Tribes complete their 401 water quality certification and CZMA consistency decisions. Water quality certifications and/or CZMA consistency determinations may be issued without conditions, issued with conditions, or denied for specific NWPs. Conditions placed as a result of 401 certification or CZMA concurrent by a state automatically become part of a nationwide permit in that state. Many states have denied blanket water quality certification for certain NWPs. For example, many states have opposed NWP 29 since it was first issued in 1995, and about one-third of states have denied 401 certification, because the permit was determined to be inconsistent with state water quality standards or other state wetlands management activities. Other states have attached additional conditions to the use of NWPs to ensure that water quality impacts are minimal. The Corps believes, in general, that activities authorized by NWPs will not violate state or tribal water quality standards and will be consistent with CZM plans. Thus, if a state denies a water quality certification or disagrees that the activities authorized by the NWPs are consistent with a state CZM program, the Corps will deny authorization for the affected activities within that state, but does so without prejudice. Thus, when applicants request approval of such activities, and the Corps determines that the activities meet the terms and conditions of the NWP, the Corps will issue provisional verification letters, notifying the applicant that NWP authorization is contingent upon obtaining the necessary project-specific water quality certificate or waiver thereof, or CZMA consistency determination, from the state, through a process called “individual certification of NWP use on a case-by-case basis.” An issue of long-standing concern to states is the fact that, if a state denies 401 certification or CZM concurrence, the Corps does not necessarily consider the state’s action sufficient cause to deny issuance of the federal permit. When this happens in the case of nationwide permits, the state is forced either to accept the permitted activity, as authorized by the Corps, or to expend its resources to review the project separately and issue a 401 certification with conditions specific to that project. States object that when the Corps issues provisional verification of NWP authorization, this puts pressure on states to certify projects. Many states take the position that, if a state denies certification, the Corps should evaluate the project under the individual permit process. States would like the Corps to treat a 401 denial of an NWP as a veto. The Corps may deny the permit (withdrawing its applicability in a state), but will not always do so. The Corps does not believe that state denial of 401 certification should be the sole basis for requiring an individual permit. The Corps’ position is that denial of state water quality certification for a nationwide permit does not necessarily mean that unacceptable adverse effects will occur on a case-by-case basis, and the CRS-24 Corps prefers that the burden of conditioning or restricting the project at that point be with the state through issuance of a project-specific 401 certification or CZM consistency determination. This tension over state and federal responsibilities does not exist under other Clean Water Act permits. For example, under the act’s discharge permit program for industrial and municipal sources (the National Pollutant Discharge Elimination System program in Section 402 of the act), if a state denies 401 water quality certification, EPA insists on changes to the project until it gains certification. One option is for states to seek approval of a programmatic general permit (PGP; see discussion in footnote 4), if the state is qualified and has sufficient regulatory authority. The Corps would then suspend federal permitting, and there would be less question over state water quality or other requirements. This is the case in a number of states with PGP programs, which replace some or all of the federal nationwide permits. State PGPs are duplicative of some nationwide permits and offer a more streamlined regulatory process for applicants. Another option is for states to seek authorization for full assumption of the 404 program, a more complicated process than PGP approval, and only Michigan and New Jersey have done so. However, not all states are interested or able to seek PGP approval or full program authorization. Thus, even though the Corps has stated its intention to work in partnership with states, most states will continue to conduct 401 certification reviews of nationwide and other wetlands permits, and it is likely that conflicts over water quality certification will persist. Defining Minimal Adverse Effects, Assessing Cumulative Impacts. Some observers have been critical that, while the Corps has made some environmentally strengthening improvements to many of the nationwide permits since 1996, it has not addressed a number of outstanding concerns. For example, both environmental groups and industry groups have criticized the Corps for declining to define what are “minimal adverse effects.” Industry groups contend that a determination of minimal effects is central to whether an individual permit is required. If the Corps cannot define “minimal effects,” they say, how can it claim that any particular restriction is required to achieve it? Environmental groups argue a different point, that without defining what “minimal” is, the Corps cannot argue that, even with specified restrictions, a given activity will have only minimal environmental impacts. On these points, the Corps’ general position is that it is not appropriate to define or dictate these matters on a nationwide basis, because what constitutes minimal adverse environmental effects can vary widely from state to state and watershed to watershed. Environmentalists have urged the Corps to conduct a cumulative impact analysis of the nationwide permit program. The agency has declined to do so, contending that the permits do not constitute a major federal action having a significant effect on the human environment, since Corps data on the usage of permits suggest that the adverse effects, even cumulatively, are less than minimal. Thus, the agency argues that it is not required to prepare an Environmental Impact Statement under provisions of the National Environmental Policy Act, nor is a cumulative impact analysis warranted. In February 1998, environmental groups brought suit against the Corps for failure to fully evaluate the effects of the nationwide permit program. Partly in CRS-25 response to this litigation, the Corps announced in June 1998 that it would prepare a programmatic environmental impact statement (PEIS) on the nationwide permit program and would consult with the other federal resource agencies, although the Corps continued to hold that the program has no significant impact on the environment or on endangered species.36 The Corps viewed voluntary preparation of this PEIS as part of its commitment to ensure that the nationwide program authorizes only activities with minimal individual and cumulative environmental effects. A draft PEIS was issued in July 2001,37 and the Corps said at the time that a final PEIS would be issued early in 2002. This did not occur, because the Corps determined that it was not necessary to complete the PEIS. For the nationwide permits, the Corps contends that it fulfills the requirements of NEPA through the issuance of environmental assessments.38 Rather than conducting an EIS for any of the nationwide permits individually or a PEIS for the package of permits, the Corps prepares “preliminary decision documents” for each proposed NWP, including an environmental assessment and a Finding of No Significant Impact. These documents consider the environmental effects of each NWP from a national perspective, and thus comply with requirements of NEPA. Environmental groups are strongly critical of these documents, saying that they “consist mostly of rote boilerplate with little actual analysis and no real evaluation of alternatives.”39 Others argue that the documents “are nearly identical in language for each NWP, and merely reiterate the language of section 404(e) of the Clean Water Act, as if repeating the mantra that the impacts are minimal, they magically become minimal.”40 By extracting data from each of the 2006 draft decision documents, environmental groups estimated that the permits proposed by the Corps would impact 31,800 acres over five years, or 49.7 square miles. While these groups argue that the data used by the Corps are flawed and undercount likely impacts, they also argue that it is not reasonable to conclude that impacts of that scope are below the required threshold of minimal, even with the addition of regional conditions and district engineers’ discretionary authority to limit impacts.41 36 U.S. Department of the Army, Corps of Engineers, “Finding of No Significant Impact for the Nationwide Permit Program,” June 23, 1998. 37 U.S. Department of the Army, Corps of Engineers, “Draft Nationwide Permits Programmatic Environmental Impact Statement,” July 31, 2001. 38 David B. Olson, U.S. Army Corps of Engineers, personal communication, November 17, 2006. 39 Natural Resources Defense Council et al., Comments Submitted on Docket #COE-20060005, p. 32. 40 Gulf Restoration Network et al., Comments Submitted on Docket number COE-20060005, p. 13. 41 Ibid., pp. 2-5. CRS-26 Congressional Interest Congressional interest in legislation to revise the federal wetlands regulatory program has been apparent for several years, as groups have pursued proposals intended to simplify and streamline permitting; revise federal and state roles in permitting; or clarify the geographic reach of Clean Water Act programs, in response to court cases that have created jurisdictional uncertainties. (For additional information, see CRS Report RL33483, Wetlands: An Overview of Issues.) None has focused specifically on nationwide permits. For some time, controversy over the direction of overall wetlands policy has been a major component of debates on the Clean Water Act and is partly the reason that no comprehensive clean water legislation has been enacted. Interest groups have been unable to reach consensus on whether legislative reform is needed and, if so, how far it should extend. Congress has shown some interest in permitting issues, however. In April 1997, the House Transportation and Infrastructure Subcommittee on Water Resources and Environment held an oversight hearing on the developments concerning nationwide permits and other issues.42 In June 1997, the Senate Environment and Public Works Subcommittee on Clean Air, Wetlands, and Private Property held a similar hearing.43 At both hearings, witnesses representing developers and other groups subject to wetlands regulation expressed concern about impacts of the overall wetlands regulatory program, and a number were critical of the 1996 changes to the nationwide permit program, saying that the changes would be costly and could result in project delays. Administration witnesses supported the modifications, responding that the changes would allow the Corps to implement a more fair, flexible, and effective program which is appropriately responsive to environmental protection needs. Interest in these topics recurred in the 106th Congress, focusing on changes to nationwide permit 26. Regulatory issues first were addressed in the FY2000 Energy and Water Development Appropriations bill. As approved by the House in July 1999, this bill included a provision to require the Corps to submit a study on the workload impact and compliance costs of replacement permits for NWP 26. Landowner and developer groups supported the provision, contending that the costs and impacts should be better identified before revised permits were issued, but the Clinton Administration opposed it, saying that the study was unnecessary and would increase wetlands loss in the nation by delaying issuance of replacement permits. The final bill, P.L. 106-60, modified the House language by directing the Corps to study the workload impacts and costs of compliance of the proposed replacement permits, but dropped language that would have required submission of a report to Congress before publication of final permits. In March 2000, the Corps reported 42 U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, “Recent Regulatory and Judicial Developments on Wetlands,” Hearing, 105th Cong., 1st sess., April 29, 1997 (105-36), 461 p. 43 U.S. Congress, Senate, Committee on Environment and Public Works, Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety, “Wetlands: Review of Regulatory Changes,” Hearing, 105th Cong., 1st sess., June 26, 1997 (S.Hrg. 105-328), 230 p. CRS-27 estimates of increased permitted workload and compliance costs associated with changes to the nationwide permit program that were proposed in July 1999. In connection with the FY2001 funding bill for the Corps, Congress addressed the issue of the activity-specific permits issued in 2000, but it did not attempt to modify or rescind the permits themselves. Congress included legislative language in the FY2001 Energy and Water Development Appropriations Act, directing the Corps to improve the analysis and increase information available to the public regarding the costs of the nationwide permit program and permit processing times. This bill was enacted in October 2000 as P.L. 106-377 (after the effective date of the replacement permits that were issued in March 2000). It directed the Corps to revise its cost estimate of the nationwide permits program, based on the final replacement permits (which differed in a number of ways from the July 1999 proposal); prepare a plan to manage the additional workload of these permits; provide quarterly program performance reports and annual reports on two specific Corps divisions; and provide improved information on permit applications and the functioning of the administrative appeals process. A revised analysis of the permitting changes and incremental compliance costs for the 2000 permits was issued in August 2001.44 This report concluded that the replacement package would increase by about 25% the number of individual permit applications submitted to the Corps, due to activity restrictions and new general conditions, and that processing time and pending applications would rise steadily each year. In principle, the additional permitting time could be avoided if the Corps’ permitting budget were increased sufficiently, the report said.45 It has been nearly 10 years since Congress examined the nationwide permit program through oversight hearings and nearly eight years since there was legislative consideration, in connection with appropriations bills. As this report has described, the program has continued to evolve and to generate wide-ranging concerns among stakeholder and interest groups. Future congressional attention may address the overall regulatory program, as well as specific issues raised by the Corps’ reissuance of the permits in 2007. 44 U.S. Army Corps of Engineers, Institute for Water Resources, “Cost Analysis for the 2000 Issuance and Modification of Nationwide Permits,” August 2001. 45 Appropriations for the Corps’ regulatory program, which totaled $117 million in FY2000, have increased 35% to $158.4 million in FY2007. The President’s FY2008 budget requests $180 million.