Corps Announces Efforts to Repeal Use of Appendix C Under Clean Water Act Permits

On Feb. 9, 2024, the Army Corps of Engineers (Corps) announced a proposed rule in the Federal Register to repeal existing regulations the agency relies upon (Appendix C) to evaluate, screen and mitigate potential impacts to historic properties and tribal/cultural resources during the Clean Water Act (CWA) Section 404 wetland permitting process.

The National Historic Preservation Act (NHPA) requires all federal agencies to consider the effects on historic properties resulting from federal actions, permits, approvals, funds or assistance. In addition, President Biden has enacted several executive orders and presidential directives focused on increasing the influence and involvement of tribes during the federal permitting process. According to the Biden administration, tribes have long complained the Corps’ Appendix C does not comply with existing regulations under the NHPA and must be withdrawn.

When builders request a CWA Section 404 permit — a dredge-and-fill permit — NHPA Section 106 requirements are triggered to protect historic or cultural significant properties. Under the Corps’ Appendix C procedures, when a builder seeks an individual permit under CWA Section 404, a public notice seeking input on potential impacts to historic/cultural resources is provided to:

• State Historic Preservation Officer,
• Appropriate state agencies,
• Appropriate tribes or tribal representatives,
• Native Hawaiian organizations,
• Concerned federal agencies,
• Appropriate city and county officials, and
• Interested public.

The Corps acknowledges it only issues approximately 3,000 individual permits annually. By comparison, approximately 35,000 nationwide wetlands permits (NWPs) are issued annually. The Appendix C process for screening NWPs is for district staff to perform the required screening during the NWP’s required preconstruction notification (PCN) process.

Under NHPA Section 106, federal agencies must submit their regulations and processes for screening impacts of their activities upon historic or cultural resources to the Advisory Council on Historic Preservation (ACHP) for “consultation.” The Corps’ current procedures (i.e., Appendix C) to comply with NHPA’s Section 106 were finalized back in 1990 but did not go through the required consultation with the ACHP, as required under the NHPA. However, Appendix C does include important procedural deadlines and clarifications on the scope of the Corps’ review of procedures for:

• Potential certain coordination,
• Assessing effects on historic properties, and
• Providing the ACHP the opportunity to review and comment on undertakings that require Corps permits.

With Appendix C removed, the Corps will need to perform additional rulemaking to comply with NHPA’s Section 106 implementing regulations at 36 CFR 800, including its requirements regarding consultation with tribes and Native Hawaiian organizations.

Public comments must be submitted by April 9, 2024.