DESIGNING REGULATORY PERMITS
REPORT AND CASE STUDIES
Eric Biber* & J.B. Ruhl**

OUTLINE
Introduction .......................................................................................................2
I. The Practical Dimensions of Regulatory Permits..........................................3
A. What Are Permits? ................................................................................3
B. Types of Permits–From General to Specific .........................................5
C. Design Options ......................................................................................5
1. Permitting Systems ......................................................................6
2. Permit Administration .................................................................7
3. Intermediates and Transitions......................................................8
D. Hybrids and other Variations ................................................................9
II. Permit-Design Tradeoffs: General Versus Specific .....................................10
A. Permits as Barriers to Entry ..................................................................10
B. Permits as a Tool for Revealing or Developing Information ................11
C. Permits as Tools to Tailor Regulation to Specific Circumstances ........12
D. Permits as Political Tools .....................................................................13
E. Permits as Enforcement Tools...............................................................14
F. Permits as Constraints on Administrative Discretion ............................15
G. Permits as Easing Administrative Burdens for Agencies and Regulated
Parties .................................................................................................15
Conclusion & Recommendations .....................................................................16

*

Professor of Law, University of California, Berkeley.
David Daniels Allen Distinguished Chair of Law, Vanderbilt University Law School.

**

INTRODUCTION
Regulatory permits are ubiquitous in modern society. Thousands of local, state, and federal
agencies have a hand in administering a vast system of permits ranging from mundane building
permits to permits covering the operation of sprawling industrial facilities. Yet there has been little
attention given in legal and policy commentary to regulatory permit design.
This report is a substantially condensed version of a comprehensive study of regulatory
permitting we published in 2014.1 We have retained and edited what we consider to be the practical
dimensions of our study to concisely describe the core attributes, design options, and tradeoffs
inherent in any permitting program. Our objective is to give legislatures and agencies a framework
for thinking about how to approach permitting for defined classes of regulated actions.
Broadly speaking, there are two contrasting approaches to permitting. Some permitting
programs are designed around the agency engaging in extensive fact gathering and deliberation
particular to the individual circumstances of an applicant’s proposed action, after which the agency
issues a detailed permit tailored just to that applicant’s situation. These are referred to herein as
“specific permits” and are also known in agency practice as “individual permits.” Other programs
have the agency issue a permit on its own initiative, with no particular applicant before it, that
defines a broad category of activity and allows the entities engaging in that activity to take
advantage of the permit with little or no effort on their part and limited agency review of specific
facts in any particular case unless the agency finds good cause to condition or withdraw the general
approval. These are referred to herein, and widely throughout agency practice, as “general
permits.”
Across the hundreds of permitting programs in federal, state, and local regulatory authorities,
we would expect to find a spectrum of approaches from extreme specific-permit design to extreme
general-permit design. The question of interest is where on this spectrum a particular permitting
program should fall given its policy goals, practical implementation context, and background
concerns with agency exercise of permitting authority. This report takes on that question in two
stages. Part I outlines the nuts and bolts of permitting as a matter of administrative law and
describes the permitting program attributes that define the spectrum of general permits, specific
permits, and intermediates, as well as hybrids. Part II examines the tradeoffs inherent in shifting
the design of a permitting program along the spectrum between general permits and specific
permits. The report closes with a summary of permitting design choices and a set of
recommendations for agencies to use when designing a permitting program.
To demonstrate the utility of our permitting design framework, we have supplemented the
report with four case studies of established and emerging federal agency permitting programs. The
primary case study applies our framework to the general permitting program the U.S. Army Corps
of Engineers has for several decades administered under Section 404 of the Clean Water Act. The
second case study of an established permitting program covers the Federal Communications
Commission’s radio spectrum licensing program. Our case study of an emerging permitting
program examines the Federal Aviation Administration’s recent proposed rule for small unmanned
aircraft systems. Finally, we provide a case study of permitting under the Migratory Bird Treaty
Act, which the U.S. Fish and Wildlife Service recently announced it is considering overhauling
and for which it has sought public input on several broadly described design options.
1

See Eric Biber & J.B. Ruhl, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the
Administrative State, 64 DUKE L.J. 133 (2014).

2

I. THE PRACTICAL DIMENSIONS OF REGULATORY PERMITS
To reach an informed assessment of the nature, scope, and impact of the use of permits as a
regulatory instrument, one should have a robust account of what distinguishes permits from other
government regulatory instruments, such as fines, inspections, and taxes. In this Part we first
describe the nature of permits as a matter of administrative law. The discussion then turns to
defining the “spectrum” of permits and what differentiates general permits from specific permits.
This Part closes with a deeper examination of design attributes essential to any permitting system
and a discussion of the administrative law consequences of adjusting these attributes between their
general and specific settings to achieve strongly general permitting, strongly specific permitting,
and intermediates.
A. What Are Permits?
Exactly what constitutes a regulatory permit in the administrative state is not self-evident. For
example, the Administrative Procedure Act (APA)2 refers to permits only once—including the
term “permit” in the definition of a “license.”3 A license is just one form of “agency action,” which
is defined as “the whole or a part of any agency rule, order, license, sanction, [or] relief.”4 But
what is a permit? All that can be extracted from the APA on that score is from the definition of
license, which, in addition to agency permits, includes “the whole or part of an agency . . .
certificate, approval, registration, charter, membership, statutory exemption or other form of
permission.”5
The APA’s structure of agency actions, although convoluted, thus provides several core
concepts for further articulation of regulatory permits consistent with this catch-all “form of
permission” concept. First, permits are a type of statutorily authorized discretionary agency action.
Which type of agency action they are is not entirely clear from the APA—it seems that permits
can take several forms. But there is no room for doubt that, however issued, permits are
administrative actions rather than actions of legislatures or courts, and that there is some degree of
discretion involved in how the agency acts. Second, permits are a “form of permission.”6 The APA
does not specify how permits differ from the other forms of permission included in the definition
of license. It is clear, however, that a permit must involve some process and standards for an agency
2

Administrative Procedure Act, 5 U.S.C. §§ 551–559 (2012). Our focus is on federal agency permitting and
administrative law; however, most of the analysis herein is directly applicable to state administrative law and practice.
3
5 U.S.C. § 551(8).
4
Id. § 551(13). One might reasonably conclude that because permits are included only under the definition of
licenses, they are thus not a part of or the result of a rule, order, sanction, or relief. But this conclusion turns out not
to be accurate, as the term “order” is defined in the APA to include the act of licensing, id. § 551(6); the term “sanction”
includes the “requirement, revocation, or suspension of a license, id. § 551(10)(F); the term “relief” includes the “grant
of…[a] license,” id. § 551(11)(A); and the term “rule” includes certain kinds of “approval.” Id. § 551(4). Agencies
issue orders through “adjudication,” id. § 551(7), and issue rules through “rule making.” Id. § 551(5). Hence, given
that permits are one form of licenses, in theory an agency could engage in adjudication to issue an order to grant a
permit, issue a sanction to revoke or suspend a permit, or grant relief to issue a permit; or an agency could engage in
a rule making to issue a rule establishing an approval of a permit. All of these actions could be described as acts of
permitting.
5
Id. § 551(8).
6
Id.

3

to grant (or deny) permission to a regulated entity to engage in what would otherwise be a
statutorily restricted activity. Third, permits must fit into a broader range of agency and legislative
regulatory measures spanning from unconditional exemption from regulation, in which case no
permission is needed, to unconditional prohibition of approval, in which case no permission can
be obtained. Finally, permits, as a form of administrative rule making or adjudication under the
APA, are subject to the APA’s rules of judicial review.7
These four features allow us to situate permits in a broader spectrum of form of permission
models represented in the following table comparing five combinations of: the baseline rules
regarding whether permission is needed and available, the institutional modes for implementing
the baseline rules, the forms the permission (or nonpermission) can take, and the availability of
judicial review.
Table 1: Permits as a Form of Permission
Rule
Mode
Form
Review

No Permission Needed
Legislative

Permission
Required

No Permission Allowed

Administrative

Legislative

Statutory
Exemption

Regulatory
Exemption

PERMITS

Regulatory
Prohibition

Statutory
Prohibition

Non-APA

APA

APA

APA

Non-APA

The entire category of form of permission regulatory instruments fits within a larger universe
of regulatory options including fines, taxes, standards, subsidies, inspections, monitoring,
reporting, and a host of others. Many times a combination of instruments, including or not
including one of the forms of permission, is deployed. Hence there is something to be learned
about permits by comparing them to, say, taxes. But an appropriate starting point for learning about
permits comes from first comparing them to their closest cousins, exemptions and prohibitions,
and then comparing the variations that fit within the permits sub-category itself.
Taking the form of permissions comparison first, at one end of the spectrum shown in Table 1
is the statutory exemption: a legislatively-specified activity that is excluded from the need to obtain
permission from the agency under the statutory regime. A statutory exemption could be explicit or
implied, and its scope could be subject to agency and judicial interpretation. Once defined, a
statutory exemption serves as the form of permission and thus removes the specified activity from
the need to take any additional steps to establish compliance with the law. A regulatory exemption
accomplishes the same outcome, but it is specified by the agency pursuant to a legislative
delegation of authority. At the other end of the spectrum lie prohibitions: the statutory prohibition
is a legislatively-specified activity not eligible for permission, and a regulatory prohibition is an
activity the agency has, pursuant to legislatively-delegated authority, excluded from eligibility for
permission. This leaves permits occupying the middle ground, where a statute authorizes an agency
to grant permission to a proposed activity—an activity that would otherwise be prohibited—and
some degree of discretion over the process and standards used to grant that form of permission.
Distilled to its essence, therefore, a permit can be defined as: an administrative agency’s
statutorily authorized, discretionary, judicially reviewable, granting of permission to do that which
would otherwise be statutorily prohibited. The definition demands that the act of permitting (1) be
7

Id. §§ 701–706 (2012).

4

explicitly delegated or implied by statute, (2) administrative, (3) discretionary, and (4) judicially
reviewable, and that (5) it provide an affirmative grant of permission (6) allowing an act that would
be otherwise statutorily prohibited. Regardless of what a form of permission is called—permit,
license, certificate, exemption, or something similar—all six elements must be satisfied for it to be
a permit, and if all six elements are satisfied, it is a permit.
B. Types of Permits–From General to Specific
In our typology of forms of permission, permits are situated between regulatory exemptions
and regulatory prohibitions. As such, the universe of possible configurations of permits defines a
continuum that stretches between those two opposing models. At the extreme boundaries of
permitting, permits do not look much different from either exemptions on one end or prohibitions
on the other. The permit power’s differences from exemptions and prohibitions at its edges,
however, are significant nonetheless.
The differences between exemptions and general permits at the one end of the permit spectrum,
and between prohibitions and specific permits at the other end, are by no means inconsequential.
Ironically, however, they are dwarfed by the differences between general permits and specific
permits. General permits at the far end of the spectrum look like exemptions, and special permits
at the other end look like prohibitions. Thus, the distance between general permits and specific
permits is almost the same as the distance between exemptions and prohibitions. In other words,
just as exemptions and prohibitions are diametric opposites, so too are general permits and specific
permits. Yet both are permits that represent agency exercise of the permit power.
Figure 1. The Spectrum of Permits

exemptions
no permit
needed

general

PERMITS

permitted
until prohibited

specific

prohibitions

prohibited
until permitted

no permit
allowed

transition

C.

Design Options

There are three levels of analysis across which to compare general and specific permits as
alternative design options. The first level focuses on the permitting system, which consists of the
regulatory apparatus and process the agency constructs in order to issue the permit. The second
level of analysis focuses on permit administration, which pertains to how a particular project,
subject to the regulatory prohibition, avails itself of the permitting system to obtain permit
approval. At a macro scale, from the agency’s perspective the fundamental distinction between
general permitting and specific permitting is that general permits are issued at the permittingsystem stage, whereas specific permits are issued at the permit-administration stage. That is, most
of an agency’s work in general permitting is in establishing the permitting system, whereas in
specific permitting, most of the agency’s work is in permit administration.
The third level of analysis concerns how the agency manages the transition between general

5

and specific permitting as it searches for the appropriate balance among the general and specific
permitting characteristics. There are two modes of transition—a “continuum mode,” in which the
agency can more or less move incrementally between the two extremes as it chooses, and a
“discontinuity mode,” in which moving between the extremes at some point triggers sharp
thresholds regarding the features of one or more of the characteristics of the permitting system or
permit administration.
Table 2 shows how these three levels of analysis fit together, detailing each of the key features
of permitting systems and permit administration, describing how they vary between the extremes,
and showing the transition mode for each. As explained above, at the extreme, a general permit is
kept distinct from an exemption by its regulatory orientation and the discretion an agency retains
under the terms of the permit to build more into the process for issuing a permit on a case-specific
basis. For the first distinction, a general permit, even if minimally burdensome, communicates that
the action is subject to the agency’s active regulatory supervision, whereas the point of a legislative
or regulatory exemption is to convey the opposite. For the second distinction, in the case of
permits, but not exemptions, the agency might include in the permit's terms demands for
information, closer scrutiny of the proposed project, and performance conditions, among other
things. Exemptions thus are better thought of as safe harbors—the agency cannot identify a specific
project or action that meets an exemption and pull it back into the regulatory program on a casespecific basis—whereas general permits can expand in regulatory scope.
Because general permits have the flexibility of being more or less general, an agency can adjust
many parameters along a continuum to move away from the quasi-exemption effect of general
permits at the extreme. In doing so, however, the agency runs the risk that as more parameters
move in the direction of specific permitting attributes, at some point there will be sufficiently
particularized agency action such that some features of the permitting system and permit
administration must flip into what are distinctly specific-permitting procedures.
1. Permitting Systems
We propose five essential characteristics of permitting systems across which general and
specific permitting differ. The first characteristic is the determination of which party initiates the
permitting-approval process—agency or applicant. In general permitting at its extreme, the agency
issues a general permit available for all qualifying projects, whereas in specific permitting,
applicants must approach the agency to request a permit.
A second factor is the substantive assessment burden the agency assumes when establishing
the system. In general-permitting systems, to issue a general permit, the agency usually must make
substantive findings about the merits of a general permit it intends to issue, such as whether the
permitted activities are likely to cause significant harm to protected interests. Setting up a specificpermitting system, by contrast, involves no agency substantive findings at the extreme—those are
all saved for later during permit administration.
On the other hand, the reverse is true for the third factor—regulatory infrastructure. Once a
general-permitting system is established, it requires relatively little procedural and substantive
infrastructure to move to the permit-administration phase. Once the general permit is issued,
minimal additional agency involvement is required for permit administration. Again, the opposite
is true of specific permitting—which backloads the substantive work to the permit-administration
phase, and thus mostly involves erecting an extensive regulatory infrastructure to support permit
administration.

6

The fourth differing characteristic involves promulgation requirements of the two permit types.
Given all that is bundled into a general permit, the general-permitting system must incorporate
extensive promulgation requirements, such as environmental and other impact-assessment steps,
public notice and comment, and judicial review. Because specific-permitting systems are
principally focused on setting up procedures and standards for later permit administration, they
impose far less of this promulgation burden.
The fifth characteristic is the administrative action by which the permits are issued. Because
general permitting packages much of the agency’s work at the permitting-system stage, the
prototypical general-permitting system relies on agency rulemaking. In other words, general
permitting involves establishing a rulemaking system for issuing permits in the form of general
promulgations. Specific-permitting systems, because they defer the heavy lifting of permit
issuance to the permit-administration stage, use particularized agency orders as the permit-delivery
mechanism. The point of the specific-permitting system, therefore, is to set up the procedures and
standards for running permit administration to issue permits.
2. Permit Administration
Once one grasps the differences between general and specific permitting systems, the manner
in which general permit and specific permit administrations differ is fairly straightforward. Ideally,
administration of a general permit in its purest form should (1) not require submissions from the
regulated entity seeking the permit authorization; (2) not require further substantive assessment by
the agency; (3) not involve further negotiation between a regulated entity and the agency; (4) not
involve further exercise of discretion by the agency; (5) not involve further public participation;
(6) not require an agency order; and (7) not be subject to further judicial review. In essence, the
permit has already been issued as part of the permitting system, with assessment, negotiation,
discretion, public participation, and judicial review applied at the macro level, so all that is left is
for the regulated entity to use the permit at the micro level. Administration of specific permits, by
contrast, is the opposite: the regulated entity submits a voluminous set of application materials, the
agency engages in a rigorous assessment, the parties negotiate toward mutually acceptable terms,
the agency makes discretionary decisions about what is acceptable under the statutory regime, the
agency seeks public input at various stages, the agency issues an order setting out its final decision,
and the order may be the subject of judicial review. In essence, all that the specific permitting
system accomplishes is setting the administration process in motion with governing procedures
and standards, so that all the work is in the permit-administration stage.8

8

Permit administration might also vary with respect to the need for periodic renewal or revision of the permits.
Permit issuance might be a one-time decision by the agency, permanently authorizing the relevant activity.
Alternatively, a permit might only be for a limited period of time, requiring renewal by the permit holder and possible
revisions by the agency. The nature of the regulated activity might also, in practice, determine whether a permit is
perpetual or temporary. For instance, wetland permits under Section 404 authorize the disposal of dredge or fill
material in wetland areas. Once the disposal has occurred, the area may no longer be considered a wetland and no
further Section 404 regulation applies. The permit is therefore only needed once by the regulated party. On the other
hand, emissions of wastes into waters from a point source are often an ongoing activity. So long as the emitter wishes
to continue the regulated activity, it needs a permit on an ongoing basis, and renewals or revisions may be required.
The distinction between one-time and ongoing permits might make a difference in whether parties face barriers to
enter into a regulated activity and how significant those barriers are. See infra Part II.A.

7

3. Intermediates and Transitions
A pure general permitting program frontloads all substantive decisions to the permitting system
stage, whereas a pure specific permitting system backloads them to the permit administration stage.
Flexibility exists, however, for agencies to move across the permits spectrum by increasing
information and other parameters required for a general permit, but not so far as to impose the
rigors of a specific permit. For example, as detailed in our Clean Water Act case study (Appendix
A), the Corps has built intermediate mechanisms into its permitting program for Section 404.
Under that program, the Corps requires parties seeking to use certain general permits to provide
pre-construction notice of their activities and wait a certain amount of time for an agency response
before proceeding. This allows the agency to collect substantial information and make case-bycase decisions about whether certain activities are better covered by individual permits. The
practical effect of doing so is to shift more of the general-permitting process from the permittingsystem phase to the permit-administration phase, creating something of a hybrid between puregeneral and pure-specific permitting.
This raises the question of transition. For example, if the amount of information required, the
intensity of agency review, and the opportunity for negotiation between the parties can be tweaked
incrementally in either direction, one can easily see how a general permit could begin to blur into
a specific-permitting system. To put it another way, a general permit relying on extensive and
burdensome requirements at some point simply would not be a general permit, given its onerous
case-specific requirements. As a practical matter, users of the general permit would not know their
status until after an extensive submittal process and intensive agency review process, possibly with
extensive negotiation between the parties over conditions. The agency would likely want to
establish more extensive procedural and substantive regulations for review and require reviewing
officers to issue decisions with extensive findings and justifications. There are tradeoffs, in other
words, as the agency moves across the permit-design spectrum.9
Moreover, as a matter of law, at some points such a process might cross a threshold from
general to specific permitting for other permitting features not amenable to a smooth continuum,
such as the availability of judicial review and public participation. For example, courts might
perceive the agency action as an agency order under the APA, and thus require the process to
undergo adjudicatory processes not required of rulemakings. Precisely where that discontinuity
would occur is difficult to say,10 but its possibility does impose some drag on the ease with which
an agency can craft intermediate solutions between pure general-permitting systems and pure
specific-permitting systems. Table 2 below summarizes our permitting system and administration
characteristics and their transition regimes.

9

We discuss this effect in more detail in the Section 404 case study with respect to Nationwide Permit 21.
See Jennifer Seidenberg, Texas Independent Producers & Royalty Owners Ass’n v. Environmental Protection
Agency: Redefining the Role of Public Participation in the Clean Water Act, 33 ECOLOGY L.Q. 699, 718 (2006)
(discussing a split among the courts as to when public notice and comment is required for project-specific use of a
CWA pollution general permit the EPA issued for certain oil- and gas-operation activities).
10

8

Table 2: Permitting Systems, Permit Administration, and Transitions
General Permits

Transition
Specific Permits
Permitting System
discontinuities Applicant requests permit
continuum
No agency assessment burden

Agency initiates permit
High agency assessment
burden
Low regulatory infrastructure
continuum
High regulatory infrastructure
High promulgation
discontinuities Low promulgation
requirements
requirements
Permit by regulation
discontinuities Permit by order
Permit Administration
No factual-submission burden
continuum
High factual-submission
burden
No agency-assessment burden
continuum
High agency-assessment
burden
No negotiation of terms
continuum
High negotiation of terms
Low agency discretion
continuum
High agency discretion
No public participation
continuum
High public participation
No agency order
discontinuities Requires agency order
No judicial review
discontinuities Judicial review available

D. Hybrids and other Variations
Some agencies have experimented with innovative ways of configuring permits that do not
neatly fit onto the permit spectrum described above. Perhaps the best example of how important
innovative permitting design can be to the success of a regulatory program is the Endangered
Species Act (ESA) permitting program administered by the U.S. Fish & Wildlife Service (FWS).11
Through the use of regional permits, beginning in the 1990s large metropolitan areas and states
began to solve their ESA compliance problems through large-scale permits, some of which
covered up to hundreds of thousands of acres.12 The nature of these regional permits is often
hybrid-like, in that the FWS uses the specific permitting model to issue a permit to the state or
local entity, but the terms of the specific permit include provisions establishing a generalpermitting regime authorizing the state or local government to administer a general permit under
which public and private entities can receive permission to engage in otherwise prohibited land
uses in some cases simply by filing a form and paying a fee.13 The FWS has continued to develop
innovative hybrids of general and specific permitting, including a permit that would authorize a
variety of activities along Florida’s beaches,14 a permit to facilitate utility-scale wind-power
11

Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
See Robert D. Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning under
the Endangered Species Act of 1973, 21 ENVTL. L. 605 (1991).
13
J. B. Ruhl, Regional Habitat Conservation Planning under the Endangered Species Act: Pushing the Legal and
Practical Limits of Species Protection, 44 SW. L. J. 1393 (1991).
14
See Florida Beaches Habitat Conservation Plan, FLA. DEP’T ENVTL. PROT., http://www.flbeacheshcp.com (last
visited Sept. 24, 2014).
12

9

generation across large regions of the nation,15 and guidance on the design of large-scale hybrid
“master permits.”16
Examples like the FWS’s permit innovations demonstrate that there is considerable space for
moving between the extremes of general and specific permits and inventing new combinations of
permit attributes.17 The question thus becomes how to navigate this space in a way that most
effectively achieves the goals of the relevant statute and other public policy objectives.
II. PERMIT-DESIGN TRADEOFFS: GENERAL VERSUS SPECIFIC
Why would a regulatory program use general or specific permits, or grant a complete
exemption from permit requirements? At heart, these questions come down to two factors: the risk
of harm the permitted activity poses, and the level of burden the transaction costs of a general- or
specific-permit program imposes on the regulated parties and the agency. Higher risk of harm
generally justifies more specific-permit requirements. Conversely, more burdensome transaction
costs generally support more general permit requirements. General permits are perhaps most useful
when they allow for reduced burdens on regulated parties or for reduced political resistance for a
regulatory program, without changing the underlying substantive regulatory standards, and when
the harm posed by the actions covered by the general permit is minimal.
We examine these two factors through the following specific permit design policy goals and
attributes: permits as barriers to entry into economic or other activity; permits as tools to gather
information for the regulatory agency; permits as tools to tailor regulation to the specific
circumstances of the permitted activity; permits as enforcement tools; and the political constraints
on permitting and regulatory systems.
A. Permits as Barriers to Entry
Permits are generally pre-conditions to undertaking a regulated activity. As such, they
effectively act as barriers to entry for that activity. These barriers to entry can be significant.
Permitting can impose substantial costs in the form of paperwork, information gathering, legal
fees, and administrative charges.
Permitting costs often provide a substantial advantage to incumbents in an economic field.
There will often be substantial fixed costs and investments in a permitting system. For instance,
there will be a learning curve as an organization determines what aspects of its operations require
permitting, as it confronts how it needs to adjust its existing or planned operations to comply with
the relevant regulatory standards, and as it collects information to complete the permit applications
and fills out and submits the permits.18 Once the first permit has been obtained, it is likely to be
15

See Draft Environmental Impact Statement and Habitat Conservation Plan for Commercial Wind Energy
Developments Within Nine States, 76 Fed. Reg. 41,510, 42,512 (July 14, 2011).
16
See U.S. FISH & WILDLIFE SERV., GUIDANCE FOR INCIDENTAL TAKE PERMITS COVERING MULTIPLE PROJECTS
OR PROJECT OWNERS (Apr. 30, 2013) (on file with authors).
17
See also David Markell, States as Innovators: It’s Time for a New Look to Our “Laboratories of Democracy”
in the Effort to Improve Our Approach to Environmental Regulation, 58 ALB. L. REV. 347, 376–80, 393–401 (1994)
(discussing efforts by state agencies to improve permitting through design innovations).
18
See Thomas J. Dean & Robert L. Brown, Environmental Regulation as a Barrier to the Formation of Small
Manufacturing Establishments: A Longitudinal Examination, 40 J. ENVTL. ECON. & MGMT. 56, 71 (2000) (finding
that firms in industrial areas with higher regulatory burdens on average had larger size, and noting importance of “firm
learning, past experience in solving environmental problems” in determining costs of regulatory compliance).

10

much simpler and easier to renew a permit because most of the information has already been
collected and developed, and the organization has learned how to manage the permitting process.
At the extreme, if a permit is only required to enter into an economic activity, but then has an
indefinite duration, existing participants will never need to apply for a new permit, and the
permitting system will operate as a significant barrier to entry.
Not all regulated parties will be equally able to bear permitting costs. The more that permitting
costs are fixed, the more they are a burden on small actors. This is often the case, for the reasons
indicated above: the costs of determining what permits are required and how most effectively to
secure them will often have a high fixed component, and the difficulty of filling out forms and
compiling the relevant information will also often have a high fixed component. These fixed costs
may impose a significant economic burden on small firms.19 To the extent that we are concerned
about deterring or reducing economic activity by small businesses, this is a significant concern.
General permits are a way of reducing the fixed costs of permitting by making those costs less
significant without necessarily relaxing the underlying substantive regulatory standards. 20 They
can do that directly by reducing information requirements (for example, by making permit
applications simpler and shorter). They can also do that indirectly by eliminating the need for
agency approval before the regulated activity commences (for instance, in the context of notices
of intent).21 General permits can even eliminate any need for a permit application—such as when
the regulated party may proceed without any application or notice to the regulatory agency so long
as its activities do not exceed certain thresholds.22 Reducing barriers to entry was cited by both
the FCC and the Army Corps as the basis for using general permits in our case studies.
B. Permits as a Tool for Revealing or Developing Information
Essential to the concept of specific permits is the detailed level of applicant-specific
information required for the completion of the permit application. This allows for the tailoring of
the permit to the circumstances of the particular applicant—either in determining whether the
permit should be issued, or in determining the scope and parameters of the permit itself. Specific
permits allow the agency to obtain information about the activities being permitted, the parties
seeking permits, and the harms and benefits that the permitted activities might be producing. The
regulator might be able to cumulate the information collected from the full universe of permit
applications to get a sense of the overall shape of the regulatory program, and of the activities the
program regulates. Aggregation of data in this way can allow for an understanding of how
widespread particular impacts from permitted programs are (for example, how many wetlands
have been developed in a geographic area over the past ten years) and where those impacts are
located (for example, a map of where the development of wetlands has occurred and whether
19

See Dean & Brown, supra note 18, at 56 (finding that firms in industrial areas with higher regulatory burdens
on average had larger size).
20
Id. at 72 (“Efforts to streamline environmental requirements at the federal, state and local level would . . . reduce
unit cost disparities created by administrative economies of scale that appear to be inherent in environmental
regulation.”).
21
In a notice-of-intent system, such as the PCN system described in our case study for Section 404 general
permits, a general-permit applicant need only provide notice to the agency of the proposed activity, and can proceed
with the activity unless the agency moves to halt it.
22
As we discussed earlier, this last situation is for practical purposes more or less the same as a complete
exemption from regulation.

11

certain watersheds are particularly impacted by the development). Aggregation can give a sense
of the net costs and benefits of an overall regulatory program. Data aggregation can also allow
regulators to get a sense of which parties are seeking permits and which parties are being granted
or denied permits. This might allow for an understanding of the distributional impacts of a
regulatory program on regulated parties (for example, are small permit applicants
disproportionately having their permits denied). As noted above, distributional impacts may be a
significant issue for a regulatory program.
General permits, on the other hand, by definition require less information from the applicant
than specific permits. On average then, general permits will provide less information to the agency
than a specific permit. However, general permits can allow agencies to focus their energies, and
the energies of permit applicants, on the information that is most useful to the regulatory program,
rather than waste energy on collecting information that is unnecessary or redundant. For instance,
generic drugs have a streamlined permitting process; unlike new drugs, which must provide
clinical data on the drug’s safety and efficacy, generic drug applications must only demonstrate
that the generic is “bioequivalent (i.e., performs in the same manner as the innovator drug).”23
Because the original name-brand drug has already shown its safety and efficacy, requiring that
information would be redundant and would impose needless obstacles on the provision of cheaper
generic drugs. Alternatively, information may already have been collected and assessed under a
different regulatory permit program, on which a general-permit program could piggyback.24
Another reason we may not need as much information is if the harm from the regulated activity
is relatively fungible – i.e., its location in time and space is not particularly important. In that case,
we do not need information about the location or timing of the proposed action, which reduces the
need for individual permits.
C. Permits as Tools to Tailor Regulation to Specific Circumstances
By definition, more specific permits allow for more tailoring of the permit to the specific
circumstances of the applicant, the particular activity being approved, or the particular location of
the regulated activity.25 Tailoring might involve: specific findings about the applicant or the
activity before an approval is granted; constraints on the activity as conditions of the granted
permit; or requirements for mitigation of the harms caused by the activity, among others.
The question thus becomes at what point does the ability to tailor a specific permit make a
specific permit more useful than a general permit. Tailoring through specific permits necessarily
imposes costs—informational costs, administrative costs, transaction costs, and potentially even
litigation costs—and, therefore, tailoring will only be worthwhile if the costs of tailoring are
outweighed by the benefits of tailoring.26
23

See 21 C.F.R. § 314.94(a)(7) (2013) (requiring a showing of bioequivalence in abbreviated new drug
applications (ANDAs)); 21 C.F.R. § 320 (bioavailability and bioequivalence requirements).
24
Many of the Section 404 general permits are justified by the Corps as avoiding duplication with other regulatory
programs that have already assessed the environmental harms of a regulated action. See, e.g., U.S. ARMY CORPS OF
ENG’RS,
Decision
Document:
Nationwide
Permit
8,
at
2
(2012),
available
at
http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP_08_2012.pdf (oil and gas structures on the
Outer Continental Shelf, justified on the basis that the Bureau of Ocean Energy Management already regulates
environmental impacts).
25
This is one of the more important benefits of adjudication in general. See, e.g., NLRB v. Wyman-Gordon Co.,
394 U.S. 759, 774–75 (1969) (Black, J., concurring); SEC v. Chenery (Chenery II), 332 U.S. 194, 202–03 (1947);
26
See C. Steven Bradford, The Cost of Regulatory Exemptions, 72 U. MO. KANSAS CITY L. REV. 857 (2004)

12

The benefits of tailoring stem from being able to reduce harms and increase benefits by
carefully deciding whether an activity should proceed and, if so, under what terms. This means
that the risks of harms must be high and can be decreased through tailoring, or the potential of
benefits from a proposed activity must be high, and those benefits can be increased through
tailoring. In those circumstances, decreasing risks or increasing benefits through careful permit
design can be socially worthwhile. On the other hand, if activities will individually have relatively
small risks of harm or potential for benefits, the impacts on those risks or benefits through careful
tailoring will be relatively small. Thus, general permits make a lot more sense when either the risks
of harm or the potential benefit from an activity are relatively small; or the risks of harm or the
potential benefit are invariant no matter what tailoring is undertaken. In both situations, tailoring
will generally not be beneficial.27
The FCC license-by-rule system is an example where the risks of interference from many of
the regulated transmissions were relatively small, and could be managed through uniform
technology or operating rules. Many of the transmissions in that system – such as citizens band
radios or wireless transmissions for medical devices—involve low-power devices that are unlikely
to cause the kinds of widescale interference that (for instance) a television broadcast can cause.
Instead, any interference or conflict is managed by rules about how transmitters should operate
(e.g., rules about how citizens band operators transmit) or requirements that the transmission
technology be constructed and used in ways that minimize interference. Thus, case-by-case
permitting was unnecessary.
D. Permits as Political Tools
The way in which a permitting system is structured might help to address political constraints
or reduce resistance to a regulatory scheme.28 General permits might provoke less political
resistance from regulated parties because they are less burdensome in terms of paperwork and
transaction costs. Indeed, some permits that do not even require notice to the agency might impose
essentially no costs on the regulated party—and from that party’s perspective, the permits might
equal a full-blown exemption from regulation. Avoiding regulatory burdens might be important
even if the use of the permits is not limited to situations in which reduced regulatory burdens are
economically justified, such as for small parties or when tailoring is not appropriate. To the extent
that particular interest groups have substantial political power or influence, reducing regulatory
burdens on those groups might make the regulatory system politically possible.
An important source of political resistance due to regulatory burdens is the regulation of
widespread, common activities pursued by many individual members of the public. The fixed costs
of permitting might simply be politically impossible to impose on frequently pursued activities,

(noting that one cost of varying regulatory levels among different parties will be creating costs for regulated parties,
agencies, and third parties to determine what level of regulation properly applies to a particular regulated party).
27
Rulemaking is generally identified as more efficient relative to adjudication when the issues that are in common
for most regulatory decisions dominate over the issues that vary across decisions. See E. Donald Elliott, Re-inventing
Rulemaking, 41 DUKE L.J. 1490, 1492 (1992) (rulemaking better for addressing issues that will be raised repeatedly
and are similar).
28
See Peter H. Schuck, When the Exception Becomes the Rule: Regulatory Equity and the Formulation of Energy
Policy Through an Exceptions Process, 1984 DUKE L.J. 163, 284-85 (1984) (noting the importance of exemptions
from rules that can mollify powerful political interests).

13

especially if there is a general expectation that the activity should be allowed.29 General permits
can allow for regulation with an especially light touch, even allowing ex post approval of projects
under the permitting system and avoiding potential backlash against the regulatory system. This is
how Section 404 permits have been used on occasion, allowing developers who might not have
even been aware that their activities were covered by the regulatory program to receive after-thefact permits.30 In so doing, the regulators may avoid a major political fight over applying a
regulatory program to “everyday activities”—albeit at a potentially high cost to the deterrent effect
of the regulatory program.
There is a flip-side to using general permits to address political resistance to regulation.
Political resistance might result in the use of general permits to effectively reduce the substantive
standards of the overall regulatory program. Arguably, this has been the outcome with the use of
the Section 404 general permit program for surface coal mining activities. These activities in
general would not appear suitable for general permits, given the nature of the harms they cause,
the specific nature of regulatory review of the projects, and the size of the entities that conduct
mining projects. The primary reason for using general permits in this context may well have been
because of political pressure, which raises a warning that the ultimate outcome has been the use of
political pressure to reduce a substantive regulatory standard in an indirect way.31
E. Permits as Enforcement Tools
Permits are, of course, an important component of the enforcement of regulatory standards.
Permits can allow a regulatory agency to know who might be violating the law, what standards
regulated parties need to be complying with, and where regulated activities are supposed to be
occurring. The value of increased enforcement would be determined, at least in part, by the level
of harms or benefits that the regulatory program is trying to prevent or provide; higher harms or
benefits mean more payoff from enforcement. Compared to a complete exemption, general permits
on average should make agency enforcement easier—though general permits may not facilitate
enforcement as much as an individualized specific permit. One of the criticisms of the broad use
of general permits in the Section 404 program, for example, has been that the use of general permits
has made it too difficult for the agency to identify and prosecute violations of the law, and that
more detailed specific-permitting requirements would allow the agency to keep better tabs on who
is engaging in regulated activities and whether those parties are complying with the law.32
There is another enforcement alternative for an agency with a broad regulatory mandate
besides general or specific permits—it can choose not to issue any permits (or it may not be
empowered to issue permits) that authorize certain activities, and instead it may use its discretion
to not prosecute violations of an otherwise applicable regulatory mandate. In some circumstances,
large numbers of people might be violating the law, but the agency prosecutes only a tiny fraction
of violators. These kinds of overbroad statutes might allow for relatively simple prosecution of
otherwise hard-to-detect regulatory violations, as regulatory agencies can use the frequent but
small violations as proxies for more serious, but more difficult-to-prove, violations.
29

See Eric Biber, Climate Change and Backlash, 17 N.Y.U. ENVTL. L.J. 1295, 1317–28 (2009).
See Thomas Addison and Timothy Burns, The Army Corps of Engineers and Nationwide Permit 26: Wetlands
Protection or Swamp Reclamation? 18 ECOLOGY L.Q. 619, 621, 647–49 (1991).
31
We note that recent changes to the relevant general permit appear to reduce these concerns substantially, at
least for future projects.
32
See id. at 645–46.
30

14

As discussed in our Migratory Bird Treaty Act case study, the problem is that this sweeping
use of prosecutorial discretion creates tremendous uncertainty for regulated parties. Especially if
the regulated activity requires significant investment, that uncertainty might be undesirable. A
general permit might balance the need for having broad underlying statutory authority to allow for
enforcement with the need to provide some assurance to regulated parties.
F. Permits as Constraints on Administrative Discretion
Specific permits are also more likely to have significant public-participation requirements and
to face more in-depth judicial review than are general permits. Public-participation requirements
tend to be greater for specific permits in part because many general permits do not have a structure
that allows for notice to the public and an opportunity to be heard: if a general permit does not
require notice to the agency, members of the public will not receive notice either. Agencies might
apply the statutory mandates for public participation in permitting only during the stage at which
they create the general permit, not when applying the permit to individual actors. And, even if
there is a theoretical system by which members of the public might be involved in the permit’s
actual application, there is little reason to expect it will actually occur. For instance, Clean Water
Act NPDES general permits allow for any “interested person” to request that the agency issue an
individualized permit for a particular project.33 However, unless members of the public are
regularly sifting through the notices of intent that are submitted to the EPA or to state agencies,
there is no way that they would be aware of whether a project is even occurring, let alone whether
there are any permit applications pending. Of course, the relative lack of public participation does
reduce the burdens on regulated parties, which might be desirable for economic or political
reasons.
Although general permits might reduce the ability of nonregulated parties to control or
constrain agency discretion, they also may have the effect of constraining or reducing agency
discretion with respect to regulated parties. General permits are, in effect, an open invitation by
the agency for regulated parties to undertake their activities without legal liability. Of course,
agencies can revise or revoke general permits, either in general or in specific applications.34
Complete revocation of a general permit may require various administrative procedures, such as
compliance with notice-and-comment-rulemaking requirements.35 If the agency singles out
individual regulated parties for revision or revocation of their general permits, it can avoid or
reduce the political problem. At the extreme, a general permit without any reporting or notice
requirements leaves the agency with no information about who is engaging in the regulated
activity, and therefore who can be singled out for enforcement.
G. Permits as Easing Administrative Burdens for Agencies and Regulated Parties
33

40 C.F.R. § 122.28(b)(3)(i).
See, e.g., 33 U.S.C. § 1344(e)(2) (stating that general permits under the Section 404 program must be revocable
by the agency). For instance, there are general permits that require certification by the agency that the proposed activity
would comply with the terms of the general permit. The agency can refuse to grant certification. And there are general
permits that require notice to the agency of the regulated activity, in which the agency retains the right to step in and
require a specific-permit application.
35
See, e.g., 33 U.S.C. § 1344(e)(2) (stating that a general permit revocation requires a public hearing). If the
general permit has a sunset provision, such as the five-year limit for CWA permits, then no procedures need be
followed by the agency to let the permit expire.
34

15

One of the reasons agencies most commonly cite when they develop general-permit programs
is that once a general permit is issued—which is not necessarily a small feat in the administrative
state—it serves to reduce administrative burdens on the agencies themselves, for all regulated
parties, or for both.
These cost savings may be particularly important in three circumstances. First, where the
regulated activity is undertaken by a large number of entities, reducing compliance burdens will
have a major impact on both the agency and the public, as demonstrated by the case study of FCC’s
license-by-rule system, and by a number of the Section 404 general permits that applied to very
widespread activities.
Second, where the impacts of the regulated activity are relatively fungible and invariant (i.e.,
where tailoring is not very important), then the analysis of those impacts can be done at a general
level and spread across the entire program, rather than being repeated for each permit application.
This can create significant economies of scale in terms of a permitting system. Again, this was
evident in the case study of the FCC’s license-by-rule and for Section 404 general permits that
covered activities with minimal adverse impacts.
Finally, where there is an overlap between multiple regulatory systems, it may make sense for
one regulatory system to “piggy-back” on the other by using a general permit system – for instance,
if most or all of the harmful impacts of the regulated activity can be managed through permits
issued under one regulatory system, the other regulatory system can take a very general approach,
authorizing all activities that have already been permitted. A number of examples of this situation
existed in the Section 404 general permit program.
CONCLUSION & RECOMMENDATIONS
As Table 3 summarizes below, general and specific permits each have their advantages and

16

disadvantages.
Table 3: Factors Relevant to Deciding Between General and Specific Permits
Factor
Barriers To Entry

General Permits
Reduce barriers to entry to perform
regulated activities, encourage entry
by new actors into economic activity,
and reduce fixed costs that burden
small business actors.

Information

Relative to exemptions, provide more
information about regulated activities
and actors.
More appropriate when regulating
low-harm or low-benefit activities, or
when harms and benefits are relatively
uniform across regulated activities or
actors.
May allow for regulation that is
socially desirable but specific permits
are politically infeasible (such as for
regulating politically powerful actors
or everyday activities). Relative to
exemptions, may allow more flexible
and increased regulation over time.
May also allow for the collection of
mitigation fees.
Relative to exemptions, provides more
information that allows for effective
enforcement. Relative to overbroad
prohibitions that are sporadically
enforced, may be fairer and more
predictable.
Relative to specific permits, harder for
public to monitor permitting and hold
agency and regulated parties
accountable. Relative to specific
permits, may be harder for agency to
control regulated parties’ activity.
Fewer administrative burdens
compared to specific permits.

Tailoring

Politics

Enforcement

Constraint on
Agency Discretion

Administrative
Burdens

Specific Permits
Impose barriers to entry that might
deter new entrants in economic activity
or harm small business actors. Can
provide screens that deter activities
with low social benefits and high social
costs.
Relative to general permits, provide
more information about regulated
activities and actors.
More appropriate when harms and
benefits are highly variable across
regulated activities or actors.

May satisfy public demand to punish
bad actors through punitive regulatory
burdens.

Relative to general permits, provides
more information that allows for
effective enforcement.

Relative to general permits, easier for
public to monitor permitting and hold
agency and regulated parties
accountable.

Greater administrative burdens
compared to general permits.

Based on our analysis we also propose a set of default rules and exceptions based on a harmvariance continuum. The continuum captures the essence of the Section 404 general-permit
provision discussed in our case study, which conditions that general permits be used only when
(1) the risk of harm from a defined activity, both in individual instances and from the cumulative
impact of many instances, is low, and (2) the variance expected across instances of the defined

17

activity is low. As Table 4 below shows, the strongest case for general permits exists when both
factors are very low, and the strongest case for specific permits exists when both factors are very
high. Intermediate models, such as the Corps’ PCN mechanism described in more detail in our
case study, can be used to respond to contexts between the extremes.
Table 4. The Harm/Variance Continuum Default Rules
Low Variance

High Variance

Low Risk Profile

General Permits

Intermediates

High Risk Profile

Intermediates

Specific Permits

Exceptions to these default rules may be justified, however, when any or a combination of the
design tradeoff factors identified in Part II point against using them. For example, if the harmvariance analysis pointed toward using specific permitting as the default rule, any of the following
conditions would counsel toward using more of the general permit characteristics than the default
rule otherwise suggests:








When using the specific permit model would place undesirably disproportionate entry
barriers on small businesses and other interests deemed worthy of protection.
When there is no substantial need for new information about instances of the activity.
When tailoring to specific circumstances of different instances of the activity is not
necessary or practicable.
When using the specific permit model for the class of activity presents political
obstacles that could undermine implementation of any regulatory response.
When the enforcement advantages of specific permitting are either unnecessary or too
costly.
When public participation and other mechanisms for constraining agency discretion
are either unnecessary or impracticable.
When using the specific permit model would impose undue administrative burdens on
the agency or regulated entities.

The more of these factors that are present, the more appropriate it would be to move further
toward a general permits approach. If only one factor leans in the direction of the use of a general
permit, but other factors lean in the other direction, a specific permit is probably more appropriate.
This might be especially true if the only factor that leans in favor of a general permit is political
resistance.
Once these factors have been assessed, the agency can select from the permitting system and
permitting administration attributes discussed in Part I, within the extent of its discretion under the
applicable statutory authorities, to design the permitting program to achieve whatever balance
between general and specific provides the best fit to the class of regulated actions.
To summarize, we recommend the following protocol as a step-wise process for an agency to
explore where on the general-to-specific spectrum provides the best platform for a particular
permitting context.

18

1. Conduct the harm/variance analysis for the class of regulated actions in question and
determine the default position within the broad categories of general, intermediate, and
specific permitting. This defines the starting point for permit design.
2. Evaluate whether any of the seven design tradeoff factors warrants adjusting from the
default position determined in Step 1 towards general or specific permitting. The
presence of multiple factors in favor of general permitting is a stronger indication that
general permits are appropriate. Reliance on only one factor should be avoided,
especially if that factor is politics. This defines the optimal permitting program design
goal.
3. Design the permitting system and permitting administration attributes to achieve the
optimal design goal. This defines the optimal permitting program design.
4. Determine the latitude the relevant statutory authority provides for implementing the
optimal permitting program and adjust any attribute as needed to conform to the statute.
This defines the permitting program that is within the agency’s statutory authority to
implement and which best balances general and specific permitting for the class of
actions in question.
For a legislature creating a new regulatory system, we recommend considering whether general
permits are a useful option to allow the implementing agency to use. In particular if the regulatory
program might sweep in a range of high-volume, low-harm activities, general permits may be
essential. However, we also recommend that the legislature provide specific criteria for the use of
general permits by the agency to reduce the risk that general permits might be overused in response
to political pressure (as may be the case with some of the Section 404 general permits). For
instance, the legislature might want to consider requiring the agency to make formal findings as to
the factors we have identified in this report.

19