Dredge and fill six

Influencing the 404 permitting process

The public needs to play an active role in the 404 permitting process. For individual permits, citizens can comment on permits, defend important wetland values, offer alternatives to the regulators and permit applicants on how wetland impacts can be avoided or minimized, and insist on sufficient mitigation if any destruction of wetlands will occur.

However, since most 404 activities fall under general permits, there is little or no opportunity for public participation in most site-specific permit decisions. For this reason, the public must be very actively involved when general and individual permits are developed or renewed every five years (in theory). If significant adverse effects on water quality or the aquatic environment may result from any proposed activity, the public can request that the Corps, the EPA or the state require an individual 404 permit rather than a general nationwide permit.

The official process for public input

For individual permits, members of the public can participate in the permit process. This process includes the following steps:

• Public Notice. The Corps issues this notice within 15 days of receiving a complete individual permit application. The notice provides detail about the proposed dredging or filling activity, its location and its potential environmental impact. The notice invites comment within a specified time. Citizens can call the regional office of the Corps to get on the mailing list for permit notices.

• Public Comment. The comment period is usually open for 15 to 30 days. Comments are reviewed by the Corps.

• Public Hearing. A hearing is not typically held, but members of the public can ask the Corps to conduct one. Members of the public can also request a public hearing of the state water quality agency to review the same project under the Section 401 process.

• Permit Evaluation. The Corps evaluates the permit, based on facts in the record.

• Environmental Assessment and Statement of Finding. The Corps explains its decision on whether to grant or deny the permit.

• Notification. The Corps is required to notify potentially interested parties such as adjacent landowners, but often does not. (40CFR233)

Ensuring mitigation requirements are strong enough

Studies show that the record for mitigation success is dismal. Mitigation projects have suffered from ill-conceived plans, inadequate maintenance and insufficient funding. In some cases, the projects have never actually happened or the mitigation site has been destroyed by subsequent development.

To prevent such failures, get involved in the negotiations for mitigation requirements, and insist on the following elements to ensure a good mitigation project:

• a comprehensive grading, planting and maintenance plan, including long-term maintenance;
• on-site mitigation that is adjacent to or near the impacted wetland;
• a site that has the conditions (wetland soils and appropriate hydrology) necessary for the
  project to succeed;
• an easement or other protection of the property so that it cannot become a site for future development;
• assurance of adequate water rights (where applicable) to maintain the mitigation site;
• a long-term monitoring and reporting plan with measurable performance standards; and
• bonding or some other assurance of long-term maintenance.

Ask the Corps whether it will require the permittee to replace all the functions, values and benefits that the soon-to-be impacted wetland provides to the community. It is not enough to replace just the lost acreage. For example, a duck pond has different functions and values than a bog. In practice, to replace the functions and values fully, the permittee should restore more acres than are proposed for impact. After all, the chances of mitigation failure are high, and even if the mitigation is successful, it may take decades before the new site is fully functional. A good tactic is to make sure the developer cannot proceed to new stages of a development project (grading, laying the foundation, occupancy) until the various stages of the mitigation are complete. Make sure this is a condition of the permit.