Nationwide Permits for Wetlands Projects: Issues and Regulatory Developments Page: 2 of 26
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Nationwide Permits for Wetlands Projects:
Issues and Regulatory Developments
General permits 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
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 developments.
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Nationwide Permits for Wetlands Projects: Issues and Regulatory Developments, report, February 2, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc809296/m1/2/: accessed March 23, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.