Under an Army Corps of Engineers program called Nationwide Permit 26 (NWP 26), applicants can fill up to three acres of wetlands without public notice or environmental review. The Corps is now in the process of replacing this permit with a new program that will better protect wetlands and prevent the automatic approval of proposals that place new homes and businesses in the path of flooding. 

However, a provision included in the Fiscal Year 2000 Energy and Water appropriations bill would have prohibited the Corps from phasing out NWP 26 until the agency completed an expensive study of the financial impacts of the phase-out. 

The rider would also have changed the permit process through a "final agency action" provision, which would have allowed landowners to go directly to court to challenge an Army Corps of Engineers determination that a wetland exists on their property. Under current law, landowners cannot go to court to challenge such a determination unless they have first sought a permit to use their land (fewer than five percent of permit applications are denied). Sending landowners directly to court would shut the public out of the decision making process, waste both agency and landowner resources, and encourage land developers and speculators to threaten litigation in hopes of extracting concessions from Corps regulators. 

During House consideration of the Energy and Water appropriations bill, Representative Sherwood Boehlert (R-NY) successfully passed an amendment requiring the Corps to complete its study of the NWP 26 phase-out by December 31, 1999. The Boehlert amendment, however, would still have allowed an indefinite delay of the phase-out and did not remove the "final agency action" provision. 

Representative Peter Visclosky (D-IN) offered an amendment to remove these two provisions entirely. His amendment was defeated 183–245. July 27, 1999. YES is the pro-environment vote. The "final agency action" provision was later eliminated in House/Senate conference, and the NWP 26 study requirement was altered to ensure that it does not delay the phase-out of the permit.