Regulatory programs that implement these laws are administered through permits issued by the U.S. Army Corps of Engineers (the Corps), which shares responsibility with the Environmental Protection Agency (EPA), under the authority of the Clean Water Act; the Rivers and Harbors Act; and the Marine Protection, Research, and Sanctuaries Act. 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 waters and wetlands, and individual permits for more significant action. Nationwide permits, which number 52 and cover a range of activities, can be issued for a period of no more than five years and cannot be extended. They were last reissued in total in 2012. In advance of their scheduled expiration in 2017, the Corps issued a proposal to reissue and modify the existing nationwide permits on June 1, 2016, and issued final permits on January 6, 2017. At issue in the 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. 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. The Corps believes that the likely result would be greater annual acreages of authorized impacts to aquatic resources, because standard individual permits have no acreage limits. Issues Concerning the NWP Program

As the nationwide permit program has grown (from 15 permits in 1977 to 52 currently) and become more complex over time, interest groups have increasingly united to argue that the program as it has developed fails to meet its overall objectives, although their reasons for this criticism are very different. Nationwide Permit 12

One of the current nationwide permits, NWP 12, is used to authorize utility line activities, including the construction, maintenance, or repair of utility lines in waters of the United States. Tribal Rights and Endangered Species and Historic Properties Consultation

As noted previously, activities that may be authorized by the nationwide permit program are subject to a number of general conditions, in addition to permit-specific restrictions. They also argue that the general permit process is inappropriate for such large-scale activities. Yet, many industry stakeholders 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. Echoing their concerns about the Corps' reliance on compensatory mitigation, environmental groups have criticized the Corps' expectation that regional conditioning can assure that impacts are minimal. State Coordination Issues

Implementation of the Corps' regulatory program, including the nationwide permits, requires considerable coordination between federal and state governments. It has been more than 15 years since Congress examined the nationwide permit program through oversight hearings or legislation (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. While the Obama Administration's initiatives concerning some activities that are authorized by nationwide permits have drawn congressional attention and criticism—such as surface coal mining activities in Appalachia —that attention has not extended to oversight of the Corps' regulatory program generally. Whether recent controversies about NWP 12 and its use in siting of pipeline and utility line projects, or other issues, will lead to greater congressional interest in the program is unknown for now. Surface Coal Mining Operations
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Permits issued by the U.S. Army Corps of Engineers (the Corps) authorize various types of development projects in wetlands and other waters of the United States. 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 jurisdictional waters and wetlands, and individual permits for more significant actions. The Corps uses general permits to minimize the burden of its regulatory program: general permits authorize landowners to proceed with a project without the more time-consuming need to obtain standard individual permits in advance. More than 97% of the Corps' regulatory workload is processed in the form of general permits.
Nationwide permits are one type of general permit. Nationwide permits, which number 52, are issued for five-year periods and thereafter must be renewed. They were previously reissued in total in March 2012. In advance of their scheduled expiration in March 2017, the Corps reissued the 2012 permits, with some revisions and modifications, in January 2017.
The current nationwide permit program has received criticism from multiple stakeholders and 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 permits and because the Corps fails to adequately track impacts on 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. Controversies also exist about the use of specific nationwide permits for authorizing particular types of activities, such as pipeline and utility line projects and surface coal mining operations.
In addition to general objections, interest groups have a number of specific criticisms of the permit program, such as requirements that there must be compensatory mitigation for impacts of some authorized activities and impacts of regional conditioning through which local aquatic considerations are addressed. Coordinating implementation of the nationwide permits between federal, state, and tribal 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 state water quality standards or coastal zone management plans will not be violated. Whether the Corps adequately ensures protection of endangered or threatened species and critical habitat is an issue of concern to some stakeholders.
It has been more than 15 years since Congress examined the nationwide permit program in oversight hearings or in connection with bills to fund the Corps' regulatory program. While the Obama Administration's initiatives concerning some activities that are authorized by nationwide permits drew congressional attention and criticism—such as initiatives concerning surface coal mining activities in Appalachia—that attention has not extended to oversight of the Corps' regulatory program generally. The nationwide permit program has continued to evolve and to generate wide-ranging concerns among stakeholder and interest groups. Recent controversies about the Corps' use of nationwide permits to authorize large pipeline and utility line projects could lead to greater congressional interest in the program.