Dredge and fill three

Evaluating cumulative effects of dredge and fill impacts

The 404(b)(1) guidelines state that cumulative effects “should be predicted to the extent reasonable and practical” by collecting information from other sources and considering it during the evaluation of individual permit applications, the issuance of general permits, and as part of the monitoring and enforcement of existing permits (40CFR230.11(g)(2)). In practice, however, meaningful evaluation of cumulative impacts seldom if ever takes place. Citizens should insist on cumulative water quality impact evaluations in the 404 permit process.

Exemptions to the 404 permit process

The Clean Water Act and the implementing regulations exempt many activities from Section 404 requirements. These activities include ongoing farming, ranching and forestry practices, maintenance activities, construction or maintenance of farm or stock ponds or irrigation ditches, construction of temporary sediment basins on a construction site, and construction or maintenance of farm, forest or temporary roads (CWA, Section 402(f)(1), 40CFR232.3(c)).

These practices do require a permit, however, IF the dredge or fill material contains specific toxic pollutants, or IF dredging or filling will create a new use for the water that will impair the flow or circulation or reduce the reach of the waters of the United States (CWA, Section 404(f)(2), 40CFR232.3(a)-(b)). If agricultural activities do require a permit, they are most likely covered by Nationwide Permit 40, which permits activities including the installation, placement or construction of drainage tiles, ditches or levees; mechanized land clearing; land leveling; the relocation of existing serviceable drainage ditches constructed in waters of the U.S.; and similar activities, provided the permittee complies with the terms and conditions in the permit.

Mitigating damage in the 404 process

Mitigation in the 404 context means to offset the loss of an aquatic site. Mitigation can include:

• preservation: purchasing or otherwise protecting an existing high-quality wetland;
• enhancement: making an existing wetland “better”;
• restoration: restoring a wetland, for instance, by taking out old dikes or levees; or
• creation: making a wetland where there never had been one before.

Preservation and enhancement of wetlands can be important in the context of a larger plan, but if, in choosing one of these forms of mitigation, a wetland loss is allowed, the total wetland acreage in your watershed is reduced. The creation of a new wetland is considered the least desirable form of mitigation, because it is usually difficult or impossible to create the same values that are being lost. Restoration is usually the best bet.