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

Environmental Issues
Published

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tribes have long complained the Corps’ Appendix C does not comply with existing regulations under the NHPA and must be withdrawn.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. 

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Environmental Issues

May 30, 2025

NAHB Members Provide Final Recommendations for New WOTUS Rule

NAHB members concluded their participation in multiple “waters of the United States” (WOTUS) listening sessions with strong showings in Washington, D.C., and Salt Lake City. In total, 12 NAHB members and four staff members from NAHB and state home builder associations (HBAs), representing 11 states, provided oral statements at listening sessions.

Workforce Development

May 30, 2025

Statement from NAHB Chairman Buddy Hughes on DOL Decision to Pause Job Corps Center Operations

NAHB Chairman Buddy Hughes issued the following statement after the Department of Labor announced it was pausing Job Corps center operations nationwide.

View all

Latest Economic News

Economics

May 30, 2025

Multifamily Absorption Moves Lower for New Apartments

The percentage of new apartment units that were absorbed within three months after completion continued to trend lower, according to the Census Bureau’s latest release of the Survey of Market Absorption of New Multifamily Units (SOMA).

Economics

May 29, 2025

Treasury Yield Increase Drives Mortgage Rates Higher in May

Mortgage rates continued their upward trend in May due to market volatility triggered by fiscal concerns and weaker U.S. Treasury demand. According to Freddie Mac, the average 30-year fixed-rate mortgage rose to 6.82% — a 9-basis-point (bps) increase from April. The 15-year fixed-rate mortgage increased by 5 bps to 5.95%.

Economics

May 28, 2025

Aging-in-Place Remodeling Work Fell While Familiarity and Receptiveness Remain High

Only 56% of professional remodelers undertake projects designed to allow homeowners to Age-in-Place (AIP), according to results from NAHB’s Q1 2025 Remodeling Market Index (RMI) survey.