Comment letter to U.S. Army Corps of Engineers Headquarters

The North Carolina Coastal Federation submitted comments regarding Nationwide Permit 13 (NWP 13) for Bank Stabilization and Nationwide Permit B (NWP B) for Living Shorelines to the U.S. Army Corps of Engineers headquarters.

The comments to the Corps headquarters recommends the retirement of NWP 13, similar to the comments submitted on behalf of the federation by the Southern Environmental Law Center (SELC). As the permits stand now, NWP 13 and NWP B make it more difficult to obtain a permit to build a living shoreline.

NWP 13, as it currently stands, eases the permitting process for bulkheads, “thus fostering the use of hardened bank stabilization techniques without adequate consideration of alternatives that might be less environmentally damaging.” The current permitting system is inconsistent with Section 404(b)(1) of the Clean Water Act, which requires that general permits issued under the CWA “will have only minimal cumulative adverse effect on the environment.” NWP 13 makes it more difficult to get a permit for living shorelines over bulkheads, which fails to meet this criteria and is in violation of the Section 404(b)(1) requirement.

Furthermore, NWP B requires a “Pre-Construction Notification” before the construction of a living shoreline, but there is no such requirement in NWP 13. This may prolong the process of permitting a living shoreline, making interested parties more inclined to resort to shoreline armoring such as bulkheads, since there is no requirement in NWP 13 for this process. The federation requests that the Corps add this requirement for NWP 13, if the permit is not retired altogether.

As NWP 13 currently reads, its regulations combined with those of NWP B do not make living shorelines the default stabilization method. “The federation proposes that the NWPs address the well-evidenced…preference for living shorelines over bulkheads by removing NWP 13 or alternatively, by establishing a hierarchical system that emphasizes the selection of the least environmentally damaging, practicable alternative.”

Ultimately, the federation requests that living shorelines be considered prior to bulkheads, which the retirement of NWP 13 allows.

Comment letter to U.S. Army Corps of Engineers Wilmington District

Regions can tailor the language of nationwide permits to fit the specific conditions of the area, called the regional conditions. The federation submitted comments the Corps’ regional district office in Wilmington regarding the district’s regional conditions for nationwide permits.

The letter to the regional office is in response to regional conditions for all nationwide permits, but specifically addresses conditions that coincide with NWP B and NWP 13.

In the letter to the Corps’ regional office in Wilmington, the federation suggests that “NWP 13 should be removed from the Nationwide Permits, and the Regional Conditions should be modified accordingly.”

The regional conditions for the nationwide permit would require a pre-construction notification process when applying for a living shoreline under NWP B, but no condition applies for bulkheads and other stabilization methods in NWP 13. “This requirement…can take 30-45 days or more for the Corps to review….The added difficulty as compared to the ease of receiving NWP 13 implies that the Corps supports the implementation of bulkheads over living shorelines and consequently has failed to comply with the Clean Water Act.”

The regional conditions also say a structure that does not restore marsh must be removed. The federation suggests that this requirement is too strict and that living shorelines can succeed in ways other than restoring marsh, such as when a living shoreline creates fish habitat. Living shorelines should not be removed if they have created a significant amount of estuarine habitat.

The regional conditions also say that a pre-construction notification process must be provided if submerged aquatic vegetation (SAV) is affected, but the federation requests that the conditions allow for one-tenth of an acre of SAV to be adversely impacted before requiring a notification process. The federation requests this change because, depending on the project, the vegetation may be positively or negatively affected, and the condition should reflect the degree in which a project may affect SAV. In the case of shellfish mariculture, for instance, the adverse effects are only temporary. The sites where SAV may initially be harmed may actually enhance the growth of SAV in the long run.

Other conditions that the federation requested changes for, which are outlined in the letter, focused on language, oyster sill heights and distances of sills from the shoreline.

Finally, the regional conditions contain standards that aren’t in the N.C. Division of Coastal Management’s CAMA general permit for bulkheads, and state agency has no authority to enforce these conditions. The inconsistencies between the state and federal regulations need to be resolved.

For more information about living shorelines advocacy, please visit our website at or contact Ana Zivanovic-Nenadovic, senior policy analyst for the federation, at (252) 393-8183.