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tribes have long complained the Corps’ Appendix C does not comply with existing regulations under the NHPA and must be withdrawn.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.
Latest from NAHBNow
Apr 30, 2025
NAHB Mourns Passing of Member Kim ShanahanNAHB mourns the passing of Kim Shanahan, who played an integral role in the Sustainability & Green Building Subcommittee and Healthier Homes and Communities Subcommittee.
Apr 30, 2025
Global Innovation Home of the Year Brings Wellness to Production Home DesignERTH360, a home design and architecture firm based in Ontario, has spent years focused on bringing wellness concepts to production home design. Its design won the Gold award for GIA Global Innovation Home of Year at NAHB’s The Nationals for 2024.
Latest Economic News
Apr 30, 2025
U.S. Economy Contracted in First Quarter of 2025The U.S. economy contracted in the first quarter of 2025 for the first time in three years, driven by a sharp surge in pre-tariff imports, softening consumer spending, and a decline in government spending.
Apr 30, 2025
House Sharing is Not Just for Young AdultsA record-high 6.8 million households shared their housing with unrelated housemates, roommates or boarders in 2023. While college-age and young adults make up the largest subset of house sharers (close to 41%), this type of living arrangement is gaining popularity among older householders fastest, with the 55+ segment accounting for 30% of all house-sharing households in 2023.
Apr 29, 2025
Jobs Openings Fall as Economy SlowsConsistent with soft sentiment data, the count of job openings for the overall economy and construction fell in March as employers slowed hiring plans amid a broader economic slowdown, per the March Bureau of Labor Statistics Job Openings and Labor Turnover Survey (JOLTS).