128 • Wetlands: Their Use and Regulation 



General Permits 



Advantages 



In 1977, Congress authorized the Corps to ex- 

 empt categories of activities "similar in nature" 

 on a nationwide, districtwide, or statewide basis 

 from case-by-case permit reviews. The Corps is re- 

 quired to establish that activities regulated in this 

 way ' 'will cause only minimal adverse environmen- 

 tal effects when performed separately and will have 

 only a minimal cumulative adverse effect on the 

 environment." Regionwide and nationwide general 

 permits provide several positive features for wedand 

 regulation. They provide regulatory consistency, 

 avoid administrative delay and paperwork, and cir- 

 cumvent possible duplication of control by other 

 agencies. Myhrum (34) notes that the nationwide 

 permit program allows the regulatory agencies to 

 focus limited personnel and finances on activities 

 generating greater impacts. Twenty-five nationwide 

 permits for categorical activities, such as shore 

 stabilization and minor road-crossing fills, have 

 been authorized with special conditions attached 

 to each that must be followed in order for the per- 

 mit to be valid. Division engineers of the Corps are 

 authorized, at their discretion, to modify nation- 

 wide permits by adding regional conditions appli- 

 cable to certain activities or geographic areas. Fur- 

 ther, individual permits may be required if general 

 permits are not adequate to protect aquatic ecosys- 

 tems. 



WhUe section 404 authorizes general permits for 

 activities similar in nature, the Corps also has au- 

 thorized two general permits on a nationwide basis 

 for areas rather than activities. The Corps' justifica- 

 tion for this goes back to its history of using general 

 permits on an areawide basis, before the 1977 

 amendments authorized general permits officially. 

 The Corps also argues that the areas granted gen- 

 eral permits (isolated waters and waters above head- 

 waters) have not been regulated in the past and that 

 the geographic scope and distribution of these wa- 

 ters make them impossible to regelate effectively 

 on a case-by-case basis. On the other hand, grant- 

 ing a permit on an areawide basis, rather than on 

 an activity basis, allows activities and projects to 



take place on wetlands, regardless of the scope and 

 magnitude of their impact. 



Disadvantages 



Despite these advantages, Blumm (5) has ex- 

 pressed the view: "Absent reporting requirements, 

 the cumulative impacts of general permits remain 

 largely a matter of speculation." He cites the 

 criticism by the General Accounting Office (GAO) 

 of cumulative impact assessment by the Corps in 

 a GAO 1977 report: "It is not clear that our foun- 

 dation of knowledge about impacts can support the 

 premise that activities or discharges and conditions 

 specified under nationwide permits will necessari- 

 ly ensure minimal adverse impacts, particularly 

 minimal cumulative adverse impacts." For exam- 

 ple, minor road-crossing fills are permitted in non- 

 tidal wetlands if they discharge less than 200 cubic 

 yards below "mean" high water and do not ex- 

 tend beyond 100 ft past the ordinary high water 

 mark. Each such fill is required to be "part of a 

 single and complete project for crossing of a non- 

 tidal waterbody . . ."' However, successive "mi- 

 nor" crossings of a road over many isolated small 

 freshwater wedands in the Great Plains or separated 

 narrow riverine wetlands in a coastal delta cannot 

 always be said to involve only minimal cumulative 

 impacts. While the Corps is required under sec- 

 tion 404(e)(2) to review the status of nationwide per- 

 mits every 5 years to determine if impacts have been 

 minimal, it is almost impossible to assess the im- 

 pacts that have taken place as a result of the per- 

 mit if reporting is absent. In light of this problem 

 some general permits now have reporting require- 

 ments and additionsJ reporting requirements are 

 being considered for others. 



Another difficulty with general permits is that 

 it is difficult for some developers and landowners 

 to determine if they meet the conditions of the per- 

 mit. To meet the general-permit conditions, for ex- 

 ample, that a discharge of fill in an isolated wedand 

 does not adversely modify the critical habitat of a 

 threatened wildlife species requires a high level of 



"Federal Register, vol. 45, No. 184, pp. 62, 776. 



