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The U.S. Army Corps of Engineers
Proposal to Reissue and Modify Nationwide Permits
Docket Number COE-2006-0005
71 Fed. Reg. 56,258 (Sep. 26, 2006)
COMMENTS OF THE AMERICAN SOCIETY OF CIVIL ENGINEERS∗
The U.S. Army Corps of Engineers (the Corps) proposes to reissue and modify the existing nationwide permits under the authority of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. In addition, the Corps is proposing to issue six new nationwide permits and one new general condition. 71 Fed. Reg. 56,258 (Sep. 26, 2006).
The American Society of Civil Engineers (ASCE) is pleased to comment on the following aspects of the proposed permit rule: (1) the combination of multiple family housing construction now in Nationwide Permit 39 with the permit for single-family home construction regulated under Nationwide Permit 29 and (2) the absence of an engineering standard for the proposed acreage increase for the new residential permit.
• We conclude that the proposal to merge the requirements of Nationwide Permit 29 and Nationwide Permit 39 into a single permit for all residential construction activities reverses a seven-year-old federal policy of segregating the two types of permits to minimize environmental harms. That policy was recently upheld by the U.S. District Court for the District of Columbia. We recommend that the Corps explain in some detail in the final nationwide permit rule whether, and how, the combined permit will be more protective of the environment than the separate permits.
• The Corps position on the new acreage limit in NWP 29 appears to lack a scientific or engineering basis for the increase in unpermitted discharges from residential developments.
A. Clean Water Act
Under section 404 of the Clean Water Act, the Corps limits the addition of pollutants and other materials into the waters of the United States. 33 U.S.C. § 1344. Section 404 tolerates the controlled destruction of the environment from industrial activity through a system of discharge permits. The permitting system has been characterized as the best way to save wetlands and other aquatic resources from total ruin due to development. “This  permitting program . . . is the most important regulatory mechanism the Federal Government has to curb the unnecessary destruction of the [n]ation's rapidly disappearing wetlands.” 131 CONG. REC. S16, 864 (daily ed. Dec. 4, 1985) (statement of Sen. Chafee) (emphasis added).
Although the Act does not entirely eradicate pollution, its 404 permitting program does function as a brake on industrial activity. “The burden of federal regulation on those who would deposit fill material in locations denominated ‘waters of the United States’ is not trivial.” Rapanos v. U.S., ___ S.Ct. ___, 2006 WL 1667087 (U.S.).
Not every discharge into waters of the U.S. requires a permit, however. See 33 C.F.R. § 323.4 (a) (1) (i) (2006) (exempting “[n]ormal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices” from the Act’s permitting requirements).
Congress amended the Act in 1977 to require a section 404 permit for discharges of dredged or fill material into navigable waters, including wetlands.1 Discharges may be authorized by the Corps through an individual permit issued under section 404(a) or a general permit authorized by section 404(e). S. REP. NO. 103-257, at *117 (1994).2
Nationwide permits (NWPs) are general permits that govern classes of industrial activity. Congress authorized the Corps to issue general permits on a nationwide basis for activities that the Corps “determines . . . 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.” 33 U.S.C. § 1344(e) (1); H.R. CONF. REP. 95-830 (1977), at *101, reprinted in 1977 U.S.C.C.A.N. 4424, **4475.
The Act does not define minimal adverse effects; the Corps establishes them in individual permits on a case-by case basis. See 65 Fed. Reg. 12,818, *12,884 (Mar. 9, 2000); Ohio Valley Envtl. Coalition v. Bulen, 429 F.3d 493, *500 (4th Cir. 2005).
The Corps construes the 1977 Act to allow the agency to balance measures necessary for the protection of the aquatic environment with the need to reduce the regulatory burden of the program. Thus, under Corps regulations, nationwide permits “are a type of general permit issued by the Chief of Engineers and are designed to regulate with little, if any, delay or paperwork certain activities having minimal [environmental] impacts.” 33 C.F.R. § 330.1(b) (2006); see also 33 C.F.R. 323.2 (h) (2) (2006) (defining a general permit as one that prevents “unnecessary duplication of regulatory control exercised by another Federal, state, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal”).
Nationwide permits govern more than the initial construction phase of a development activity. “As with individual permits, the NWPs authorize not only construction, but also continued maintenance and operation of any structure or fill completed under such authorization.” 59 Fed. Reg. 59,110, *59,117 (Nov. 22, 1991). In addition, the rules typically specify the area (in acres) that may be destroyed by each regulated activity before requiring the developer to file a preconstruction notification (PCN) for a nationwide permit. Below the stated acreage limit, no permit is required.
Since the general permit program was created by Congress in 1977, the Corps has issued 43 nationwide permits. They are good for five years; the current NWPs were issued in 2002 and expire in March 2007.
B. Nationwide Permit 29 (Residential Developments)
It is a well-established engineering principle that residential construction can have a harmful effect on an ecosystem, resulting in flooding and the loss of habitat for species. Increased runoff (from paved areas and other impervious surface due to land-use changes and development in the watershed) has significant impacts on local waters.
Residential land development . . . will typically replace naturally pervious landscapes with impervious rooftops, driveways, sidewalks, and roads, and less pervious lawns and fields. This increase in impervious land reduces infiltration of stormwater to the groundwater causing reductions in base flows, while increasing
the amount of runoff during a storm event. The increased runoff during a storm event causes increased hydrograph peaks with shorter response periods. The resultant increased waterpower can induce both overland and channel erosion.
Brendan Lockard et al., Ecological Implications of Watershed Development, in ASCE World Water Congress 2003 (2004) (internal citations omitted).
The problem is exacerbated by the trend toward the construction of larger homes on bigger lots. “Because of high lawn and impervious surface per capita, large lots can increase surface runoff and decrease subsurface flow and groundwater recharge [,] potentially damaging water quality and stream habitat.” Darrell J. Bosch et al., Hydrological and Fiscal Impacts of Residential Development: Virginia Case Study, 129 J. OF WATER RES. PLAN. AND MGMT. 107 (2003).3
The construction of single-family homes and subdivisions was not specifically regulated by the NWP program initially. These developments were included in Nationwide Permit 26, adopted in 1995 and since repealed. It governed discharges into of dredged or fill material from all construction activities into headwaters and isolated waters, provided the discharge did not result in the loss of more than 10 acres (later three acres) of waters of the United States or 500 linear feet of stream bed. See 64 Fed. Reg. 39,252 (Jul. 21, 1999).4
In 1995, Nationwide Permit 29 replaced NWP 26. It regulated residential construction as a separate activity for the first time and required a permit for any single-family housing construction disturbing more than one-half acre of wetlands or other waters. 60 Fed. Reg. 38,650, *38,651 (Jul. 27, 1995).
Initially, NWP 29 governed large developments as well as individual home sites. “The term of this NWP which is applicable to subdivisions states that the discharge must be part of a single and complete project and that for any subdivision created on or after November 22, 1991, the discharges authorized under this NWP may not exceed an aggregate total loss of waters of the United States of 0.5 acre for the entire subdivision.” Id. at *38,656.
In 1999, however, the Corps lowered the acreage limit to a quarter-acre for single-family housing activities “so that there will be no more than minimal adverse effects on the aquatic environment.” 64 Fed. Reg. 47,175 (Aug. 30, 1999). The Corps said that the lower limit was justified because the average acreage loss from the construction of a single-family home was less than a quarter-acre. Id. at *47,176.
Moreover, the Corps limited the modified NWP 29 to cover only to the construction of “a single-family home” built by “an individual permittee.” Id. at *47,178 (emphasis added). This was consistent with the approach taken in the rule proposed a year earlier. See 63 Fed. Reg. 36,040, *36,051 (Jul. 1, 1998) (“NWP 29 . . . authorizes the construction of a single family residence to be used only by the person who will use the house as a personal residence”).
In March 2000, the Corps issued new final nationwide permits. Again, NWP 29 included conditions requiring an applicant to state that the permit was for a single-family home “for a personal residence of the permittee.” 65 Fed. Reg. 12,818, *12,895 (Mar. 9, 2000). Nationwide Permit 39 was issued at the same time. It governed the discharge of fill material from subdivisions consisting of more than a single home as well as commercial and industrial activities.
The Corps now proposes to reinstate the combined permit for the construction of singlefamily and multiple-family residential developments. The change effectively would abolish NWP 29 and bring its regulated activities within NWP 39, which now controls the construction of subdivisions, condominiums, apartment buildings and commercial and industrial developments. A permit is required for each NWP 39 activity that disturbs more than one-half acre, regardless of the overall size of the development.
The modified permit would incorporate the half-acre requirement for all residential construction activities and also would require home builders to file a PCN for the construction of
new residential structures that disturb more than a half-acre of regulated waters, an increase from the quarter-acre exemption in the current permit.
The revised NWP 29 will have a half-acre limit, but will only authorize discharges into non-tidal waters, and this NWP could not be used to authorize discharges in non-tidal wetlands that are adjacent to tidal waters. All residential projects impacting non-tidal wetlands adjacent to tidal waters, including single unit residences, will now require authorization by individual permit or regional general permit.
71 Fed. Reg. at 56,260.
In addition, a PCN would be required for the first time for residential construction activities that disturb more than 300 linear feet of any stream or river, including those that record water flows intermittently.
Approximately 11,355 activities could be authorized under NWP 29 between 2007 and 2012, resulting in adverse impacts to approximately 1,220 acres of waters of the United States, including jurisdictional wetlands. An estimated 6,325 acres of compensatory mitigation would be required to offset those impacts. Corps of Eng’rs, Draft Decision Document, Nationwide Permit 29, 12 (2006), at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/nwp/nwp.htm (last visited Sep. 26, 2006).
In contrast, the agency estimated in 2002 that NWP 29 as applied to personal residences would regulate merely 500 activities in five years, “resulting in impacts to approximately 75 acres of waters of the United States.” Corps of Eng’rs, Draft Decision Document, Nationwide Permit 29, 21 (2002), at http://www.usace.army.mil/cw/cecwo/reg/nw2002dd/index.htm (last visited Nov. 1, 2006). This equals four percent of the regulated activities and 16 percent of the acreage lost under the NWP 29 proposed in 2006.
In 2002, the Corps’ analysis of NWP 39 stated: “[A]pproximately 7,500 NWP 39 activities could be authorized over a five[-]year period until this NWP expires, resulting in the loss of approximately 1,250 acres of wetlands. Approximately 7,500 acres of compensatory mitigation would be required to offset those losses of waters of the United States.” Corps of Eng’rs, Draft Decision Document, Nationwide Permit 39, 25 (2002), at http://www.usace.army.mil/cw/cecwo/reg/nw2002dd/index.htm (last visited Nov. 1, 2006).
In other words, the combined permits would result in the regulation of 3,355 fewer activities over five years and the destruction of 105 fewer acres, according to the Corps’ analysis. This equals a 30 percent reduction in the agency’s permitting workload to attain an eight percent increase in wetlands protections—nationally over five years.
C. Wetlands Conservation
Wetlands are a class of waters of the United States. They encompass those areas “that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. They generally include swamps, marshes, bogs and similar areas.” 40 C.F.R. § 230.3(t) (2006).
Wetlands serve a number of critical ecological and economic purposes. They recharge groundwater, store floodwaters, retain sediment, improve water quality through the removal of toxic chemicals and nutrients, provide a general habitat for many animal species, and provide economically important recreational activities for people. Wetland flora plays an essential role in the water cycle by aiding in the return of water to the ambient environment through transpiration. Their loss decreases the overall capacity of the aquatic environment to carry out its various functions.5 See L. M. Vasilas and B. L. Vasilas, Wetland Restoration and Creation Design to Restore Wetland Functions, in ASCE Watershed 2005 (2005).
There were an estimated 107.7 million acres of wetlands in the United States in 2004. U.S. Fish & Wildlife Service, Status and Trends of Wetlands in the Conterminous United States 1998 to 2004, 16 (2006). In 2004, the Bush administration pledged “to restore or create, improve, and protect at least three million wetland acres between Earth Day 2004 and 2009” through the Wetlands Reserve Program. Council on Environmental Quality, Conserving America’s Wetlands 2006: Two Years of Progress Implementing the Presidents Goal 3 (2006) [hereinafter CEQ 2006 Report].
Although the United States has steadily lost wetlands since the first European settlers arrived, the Fish and Wildlife Service reported this year that, for the first time since statistics began being kept 50 years ago, the nation experienced a net gain of 191,750 acres of wetlands between 1998 and 2004. Status and Trends at 93.
The Wetlands Reserve Program (WRP) administered by the Agriculture Department is the nation’s largest wetlands conservation effort. The program was created in 1990, 16 U.S.C. § 3837, and it provides private landowners with money to restore cropland to wetlands status, and subsequently protects them with long-term or permanent conservation easements. The federal government shares 50 to 100 percent of the costs of restoration, depending on the length of the easement. The landowner agrees to the easement in exchange for certain use rights for compensation that does not exceed the fair market value of the land. S. REP. NO. 101-357, reprinted in 1990 U.S.C.C.A.N. 4656, *4870.
The program currently authorizes the department to enroll a maximum 2,275,000 acres between 1990 and December 31, 2007. 16 U.S.C. §3837 (b) (1). The administration has requested $403 million for the WRP in fiscal year 2007 to enroll 250,000 acres.
The North American Wetlands Conservation Act (NAWCA), enacted December 13, 1989, funds the North American Waterfowl Management Plan and the Tripartite Agreement on wetlands between Canada, the United States, and Mexico. NAWCA's matching grants are awarded to organizations and individuals who have developed partnerships to carry out wetlands conservation projects in the United States, Canada, and Mexico for the benefit of wetlandsassociated migratory birds and other wildlife. S. REP. NO. 109-340 (2006). Congress appropriated $39,412,000 for NAWCA in fiscal year 2006.6
In its inventory, the Fish and Wildlife Service reported that all of the gains in wetlands between 1998 and 2004 were due entirely to federal and state restoration and creation projects. Status and Trends at 17. Nevertheless, the Service found that some wetlands persisted in losing ground to new manmade development. “[H]uman[-]induced wetland losses continued to affect the trends of freshwater vegetated wetlands—especially freshwater emergent marshes[,] which declined by an estimated 142,570 acres.” Id.
Meanwhile, the Service declined to speculate on the quality of the nation’s restored or existing wetlands, and, because the two reports cover different periods and use different wetland accounting methods, it is not possible to compare the two sets of data exactly.
II. ASCE POLICY
ASCE supports regulatory approaches in the Clean Water Act that maximize, to the extent possible, the protection of our nation's waters and the beneficial use of those waters. Additionally, we support the development of federal, state, and local policies and programs that balance protection of wetlands and their inherent benefits with other important economic and social needs of the country.
The Corps needs to advance scientifically derived definitions of wetlands categories prepared by an interdisciplinary technical group of professionals to reflect regional differences, functional values and variations across a wetland.
A national goal of "no net loss" of wetlands has been articulated, suggesting a significant commitment to public and private efforts to halt and eventually reverse the trend of wetland's loss. The consequences of implementing actions supporting this goal, as well as the numerous associated policy, programmatic, and legislative initiatives accompanying this effort, significantly affect the nature and cost of public and private improvements in wetland areas.
A clear set of national wetlands policies and criteria must originate from Congress and the Corps. Finally, a clear national wetlands policy and criteria are needed to ensure that wetlands' preservation issues are addressed during the project-development process.
III. ASCE COMMENTS
A. The Proposal To Merge The Requirements Of Nationwide Permit 29 And Nationwide Permit 39 Into A Single Permit For All Residential Construction Activities Reverses The Seven-Year-Old Federal Policy Of Segregating The Two Types Of Permits In Order To Minimize Environmental Harms
ASCE is at a loss to understand a key conclusion of the September 26 proposal, which states that it is wrong to separate out nationwide permits for single-family home construction intended as a personal residence of the builder from larger residential construction projects, including subdivisions.
We are . . . proposing to eliminate the condition restricting the use of NWP 29 to those individuals constructing single family homes for personal use, as well as the definitions for "individual" and "parcel of land." We believe that it is inappropriate to establish different permits for single and multiple residential
development[s] because the impacts to the aquatic environment are determined by the permit conditions themselves (e.g., 1/2 acre limit) and not the type of residential development or the type of permittee.
71 Fed. Reg. at *56,270 (emphasis added).
In other words, the agency accepts as true something entirely different than it did in 1999. Without any obvious scientific basis and founded only on a generalized perception, the Corps concludes that the construction of a single-family home, garage, driveway, or other “attendant features” by one homeowner for his personal use is no more likely to cause negligible environmental harm than the construction of a 500-home subdivision so long as the discharge of fill material from either type of activity affects less than one-half acre of wetlands or other waters.
The government, however, took precisely the opposite approach in defending the Corps against a lawsuit filed by a trade association representing homebuilders that challenged the validity of the 2000 final NWP rule. During the six-year course of that litigation, the Justice Department argued that NWP 29 applies solely to homeowners who are building a personal residence precisely because (1) such a scheme is necessary to ensure protection of the aquatic environment and (2) a joint permit potentially would increase the agency’s workload while causing greater harm to the environment, two effects contrary to the Corps’ longstanding
interpretation of the intent of the 1977 Act. In a motion seeking dismissal of the lawsuit, the Justice Department said
[w]ere the Corps to have extended NWP 29 to non-residential landowners such as corporations and partnerships, the number of parties qualifying for the NWP would have increased along with the cumulative impacts on the environment. The Corps drew the line at individual property owners. Such line-drawing, which
considers the agency’s workload while focusing on environmental considerations, is well within the Corps[’] discretion.
Memorandum of Points and Authorities in Support of [Corps’] Cross-Motion for Summary Judgment and in Opposition to [NAHB’s] Motions for Summary Judgment at 70, NAHB v. U.S. Army Corps of Engineers, Civ. No. 00-379 (Jun. 14, 2001) (emphasis added).
In dismissing the lawsuit, the U.S. District Court for the District of Columbia agreed. The court held that the Corps has the discretion to split the two types of residential construction activities in order to ensure maximum protection for the environment. NAHB v. Corps of Engineers, ___ F. Supp.2d ___ (D.D.C. Sep. 29, 2006), slip op. at 32 (“In determining that NWP 29 should only apply to residential home owners [sic] and not to contractors or developers, the Corps was ensuring that the cumulative effect of the permit would not cause more than minimal adverse environmental effects”).
Combining the two permits now does not appear to be based on clear scientific or engineering evidence. The Corps accepts that activities regulated under NWP 29 may well result in some destruction of wetlands. Does the Corps now believe—contrary to what it told the court in NAHB—that the activities to be combined in NWP 29 and NWP 39 have become so similar in nature that they will now result in fewer cumulative adverse impacts on the environment? Or does the Corps at this point suppose that uniting the two permits allows the agency to reduce its workload and the permit applicant’s regulatory burden and still protect the aquatic environment from further “unnecessary destruction”? The agency offers no technical proof to sustain either conclusion.
Because the September 26 notice does not adduce any engineering standard for suddenly altering the Corps’ 1999 policy, we recommend that the Corps describe in some detail whether, and how, the present state of the Corps’ scientific and engineering knowledge supports the combining of NWP 29 and NWP 39—which would reduce the permitting work of the Corps by 30 percent—in such a way as to draw the line more protectively for the environment.
B. The Corps’ Position On The New Acreage Limit In NWP 29 Appears To Lack A Scientific or Engineering Basis For The Increase In Unpermitted Discharges From Residential Developments
The Corps should revisit the decision to increase the PCN exemption for single home construction activities from a quarter-acre to a half-acre. The judgment to increase the acreage limit does not appear to reflect a science-based approach to the protection of wetlands and other waters of the U.S. The reasoning behind the proposed change is not clear. In 1999, the Corps said
[w]e believe that, in most cases, residential, commercial, and institutional development activities that result in the loss of less than 1/4 acre of wetlands have minimal adverse effects on the aquatic environment. In watersheds or water bodies where losses of less than 1/4 acre of waters of the United States may result in more than minimal adverse effects, division engineers can regionally condition this NWP to lower the notification threshold or require notification for all activities.
64 Fed. Reg. 39,252, *39,302 (Jul. 21, 1999) (emphasis added).
This uncorroborated belief—that it is the size of the activity in acres, not its type, that determines the impact on the environment—is suddenly discarded for the contrary position: the September 26 proposal contends—once more unsupported by any substantial scientific or engineering evidence—that it is the type of development, not the acreage potentially lost, that establishes whether there are minimal adverse impacts to the aquatic environment. The notice does not provide a clear and coherent standard by which to judge whether the aquatic environment is better served by the varying acreage limits.
In fact, the Corps has not followed a consistent line of reasoning on the issue of residential construction acreage limits since 1977. It has randomly established limits of 10 acres, three acres, one-half acre, and one-quarter acre for various residential construction activities at different times, with each limit predicated on the unsupported belief that it would cause the least damage to the environment. This constantly shifting approach to the acreage limits appears arbitrary and capricious. It seems to give at least as much weight to the administrative convenience of the agency as it does to the statutory mandate to protect the aquatic environment. Such a subjective balancing test is not in the Act, and the September 26 notice does not convey the agency’s support for departing from the Act based on any discernible scientific, engineering, or legal principles. Rather it appears to derive from the Corps’ longstanding reliance on confusing language in a 29-year-old congressional committee report.7
The meaning of the 1977 committee report is vague. Whose burden needs to be reduced? The agency’s? The applicant’s? Or is it the environment that is burdened by an unwieldy regulatory process within the Corps? In any event, the language of the Act is not equivocal: it does not explicitly require or authorize the agency to adopt permitting requirements solely (or even largely) on the basis of their supposed burden to administer; on the contrary, the whole thrust of the Act is on employing general permits in such a way as to cause the least damage to the aquatic environment from human activity. There is no need here to divine congressional intent through reliance on so-called legislative history. To do so merely substitutes what the Corps thinks Congress intended to legislate for what Congress actually legislated, which could not be clearer.
We note that Congress dealt with the precise issue of burden-reduction in the section 404 program when it rejected efforts to conform the scope of the 404(e) program to the Corps’ constricted reading of the Act in the name of administrative convenience.
In 1995, the House passed a bill that would have limited the use of general permits solely to those activities affecting ecologically significant waters. See H.R. REP. NO. 104-112, at *73 (1995) (authorizing general permits for activities that, “when performed separately and cumulatively, will not result in the significant loss of ecologically significant wetlands values and functions.”)
The bill would have clearly adopted a burden-reduction standard by authorizing “fast track permits” for “minor activities” disturbing less than one acre of wetlands. H.R. 961, § 810, 104th Cong. (1995). The Senate declined to take up the legislation, and it was never enacted. “Nonaction by Congress is not often a useful guide, but the nonaction here is significant.” Bob Jones Univ. v. U.S., 461 U.S. 574, 600 (1983) (Rehnquist, J., dissenting).
Thank you for your attention to these comments. If you have any questions, please contact Michael Charles, Senior Manager of Government Relations, at (202) 789-7844 or by email at firstname.lastname@example.org .