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10-03-03
The Permitting Process. The Corps' regulatory process involves both 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. According to
program data compiled by the Corps, the agency receives an average of 81,000 permit
requests annually. Of those, more than 90% are authorized under a general permit. A
general permit, which can apply regionally or nationwide, is essentially a permit by rule for
activities with minor impact; most do not require pre-notification or prior approval. About
9% are required to go through the more detailed evaluation for an individual permit, which
may involve complex proposals or sensitive environmental issues and can take 120 days or
longer for a decision. Less than 0.2% of permits are denied; most other individual permits
are modified or conditioned before issuance. In FY2002, Corps-issued permits authorized
activities having a total of 24,650 acres of wetland impact, while those permits required that
57,820 acres of wetlands be restored, created, or enhanced as mitigation for the losses
authorized.
Regulatory procedures on individual permits allow for interagency review and
comment, a coordination process that can generate delays and an uncertain outcome,
especially for environmentally controversial projects. EPA is the only federal agency having
veto power over a proposed Corps permit; EPA has used its veto authority 11 times in the
30 years since the program began. Critics have charged that implied threats of delay by the
FWS and others practically amount to the same thing. Reforms during the Reagan, earlier
Bush, and Clinton Administrations streamlined certain of these procedures, with the intent
of speeding up and clarifying the Corps' full regulatory program, but concerns continue over
both process and program goals.
Controversy also surrounds revised regulations issued by EPA and the Corps in May
2002, which redefine two key terms in the 404 program, "fill material" and "discharge of fill
material." The agencies say that the revisions are intended to clarify certain confusion in
their joint administration of the program due to previous differences in how the two agencies
defined those terms, but environmental groups contend that the changes allow for less
restrictive and inadequate regulation of certain disposal activities, including disposal of coal
mining waste, which could be harmful to aquatic life in streams. The Senate Environment
and Public Works Committee held a hearing in June 2002 to review these issues, and
legislation to reverse the agencies' action was introduced in the 107th Congress (H.R. 4683),
but no further action occurred. (For additional information, see CRS Report RL31411,
Controversies over Redefining "Fill Material" Under the Clean Water Act.) Similar
legislation has been introduced in the 108th Congress (H.R. 738).Nationwide Permits. Nationwide permits are a key means by which the Corps
minimizes the burden of its regulatory program. These general permits authorize activities
that are similar in nature and are judged to cause only minimal adverse effect on the
environment. General permits minimize the burden of the Corps' regulatory program by
authorizing landowners to proceed without having to obtain individual permits in advance.
They are issued for 5-year periods and thereafter must be renewed by the Corps.
In December 1996 the Corps reissued the 37 existing nationwide permits and two new
permits. The Corps made changes to strengthen the environmental restrictions of nationwide
permit 26 (NWP 26), which has been particularly controversial because of concern that it
results in significant cumulative unmonitored wetlands losses. The changes to NWP 26CRS-5
IB97014
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Zinn, Jeffrey A. & Copeland, Claudia. Wetland Issues, report, October 3, 2003; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metacrs5645/m1/8/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.