Article by Travis O. Brandon
The coastline of the United States is armoring at an increasing rate in response to the erosion and inundation caused by sea level rise and the pressures produced by growing coastal populations. Already, fourteen percent of the nation’s coasts are armored with bulkheads and seawalls, and it is estimated that nearly one-third of the coast will be armored by 2100. This hard armoring comes at a devastating environmental cost: bulkheads and seawalls increase the rate of shoreline erosion beneath the bulkhead and dramatically reduce biodiversity and species density in sensitive intertidal habitats. Despite increasing scientific evidence of the destructive effects of shoreline armoring, in 2017 the U.S. Army Corps of Engineers reissued Nationwide Permit 13 (NWP 13), a general permit that allows coastal landowners to build seawalls and bulkheads up to 500 feet in length without notifying the agency. At the same time, the Corps introduced a new general permit for “living shorelines,” bio-engineered erosion control structures that protect coastal properties while also providing habitat for shoreline species. Even though living shorelines are environmentally superior to hard armoring in many coastal areas, the Corps’s new permit places tighter restrictions on the construction of living shorelines than it does for the installation of bulkheads under NWP 13. The first part of this Article closely examines the record of the 2017 reissuance of NWP 13 and explains why the permit is arbitrary and capricious under the Clean Water Act, which only authorizes general permits for projects that have “minimal adverse environmental effects.” The second part of the Article uses the example of NWP 13 to explain why general permits, once issued, are so often impervious to change or challenge even when they are no longer supported by facts and are contrary to law. Considering several features unique to general permits that make them unusually resistant to change, the Article suggests regulatory approaches that can minimize the risk of developing future ineffective general permits similar to NWP 13.
About the Author
Travis O. Brandon: Associate Professor of Law, Belmont University College of Law.
Citation
93 Tul. L. Rev. 557 (2019)