Academic journal article Environmental Law

Nationwide Permit 13, Shoreline Armoring, and the Important Role of the U.S. Army Corps of Engineers in Coastal Climate Change Adaptation

Academic journal article Environmental Law

Nationwide Permit 13, Shoreline Armoring, and the Important Role of the U.S. Army Corps of Engineers in Coastal Climate Change Adaptation

Article excerpt

  I. INTRODUCTION  II. CLEAN WATER ACT SECTION 404 PERMITS: THE STATUTORY AND      REGULATORY FRAMEWORK      A. Individual Permits      B. General Permits III. THE ENVIRONMENTAL IMPACT OF SHORELINE ARMORING      A. The Physical Effects of Coastal Armoring      B. The Ecological Effects of Coastal Armoring      C. The Economic Effects of Coastal Armoring      D. The Impact of Climate Change on Coastal Armoring  IV. THE 2012 REISSUE OF NATIONWIDE PERMIT 13 AND RECENT      LITIGATION      A. The Corps' Findings Regarding Minimal Cumulative         Environmental Impact of Nationwide Permit 13      B. The Legal Challenge to Nation wide Permit 13   V. THE REGULATORY IMPACT OF NATIONWIDE PERMIT 13 ON COASTAL      ARMORING      A. Nation wide Permit 13 Enables Coastal Armoring and         Encourages Coastal Development      B. Neither Nation wide Permit 13 nor the Proposed Nation wide         Permit B Sufficiently Encourage Soft Armoring Approaches         to Shoreline Armoring  VI. REFORMING NATIONWIDE PERMIT 13 TO ENCOURAGE POSITIVE SEA      LEVEL RISE ADAPTATION      A. The Corps Should No Longer Provide a General Permit for         Hard Coastal Armoring Structures      B. The Corps Should Modify Nation wide Permit 13 to Better         Evaluate and Protect Against Cumulative Environmental         Harms VII. CONCLUSION 


The sea is rising at a rate unprecedented in modem history, reshaping the coastline of the United States. (1) With rapid sea level rise comes persistent coastal flooding, devastating storm surges, and increased erosion. (2) In the face of these threats, landowners along the nation's oceans, bays, and estuaries have increasingly begun to install hard coastal armoring, such as seawalls and bulkheads, to protect against erosion. (3) And as the population along the coast continues to grow at an accelerating rate, the pressure to armor the coasts only intensifies. (4)

However, while coastal armoring provides property owners with temporary protection from erosion, it comes at great environmental cost. Numerous studies have shown that the widespread installation of coastal armoring has a significant cumulative effect on coastal environments. (5) Armoring accelerates the rate of erosion seaward of the armoring, resulting in the ultimate destruction of the beach. (6) Moreover, armoring redirects the deflected wave energy to the sides of the sea wall, resulting in exaggerated erosion at the periphery of the armoring, damaging neighboring properties. (7) Finally, seawalls and bulkheads prevent the long term migration of coastal wetlands inwards, leading to the permanent destruction of wetlands that would otherwise adapt to the changing shoreline. (8) Each of these effects will only be exacerbated by the accelerating sea level rise caused by climate change.

Despite these well-documented environmental harms, the United States Army Corps of Engineers (the Corps), has long facilitated the rapid armoring of coastal wetlands by providing expedited permitting for the construction of "bank stabilization" structures through Nationwide Permit 13 (NWP 13), (9) a general permit under section 404(e) of the Clean Water Act (CWA). (10) NWP 13 allows a coastal property owner to construct a bulkhead or seawall up to five-hundred feet in length--nearly the length of two football fields--without having to provide any notification to the Corps, let alone undergo the time consuming and costly process of obtaining an individual permit under section 404. (11) Because many states also provide expedited permitting for armoring, property owners can often build bulkheads and seawalls in the sensitive coastal wetlands of the waters of the United States with little or no environmental review. (12)

This expedited permitting by the Corps is contrary to section 404 of the CWA, which only authorizes the Corps to issue a general permit when the permitted activities result in "minimal adverse environmental effects" either individually or cumulatively. …

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