Wetland Protection/ Dredge and Fill Permits/404
Protecting Wetlands
If you are concerned about activities affecting wetlands in your area, you need to be familiar with the Section 404 regulatory program of the Clean Water Act. This section explains the different kinds of 404 permits that are required for different types of activities and how you can influence whether a proposed activity is permitted or not.
What does Section 404 require?
Under Section 404, anyone who proposes an activity that would discharge dredged or fill material into waters of the United States is required to apply for a permit from the U.S. Army Corps of Engineers.
That means physical alteration of any aquatic site, including wetlands, should require a 404 permit. “Special aquatic sites” are afforded the strongest protection under the rules. Theoretically, any activity that moves even a small amount of earth (such as mud from the wheels of construction vehicles) into a water body and has an appreciable impact is regulated under Section 404. If the activity is regulated under Section 404, then a federal action (the permit process) is required before the activity can proceed. That federal action triggers the need for Section 401 certification and, in some cases an Endangered Species Act consultation. In some situations, this feature is the most powerful aspect of Section 404 of the Clean Water Act.
Are "isolated" wetlands protected under the Clean Water Act?
In January 2001, the United States Supreme Court issued an important Clean Water Act ruling regarding "isolated" wetlands. The Supreme Court decision in the Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers concluded that Congress had not granted the Corps jurisdictional Clean Water Act authority over "isolated" wetlands used by migratory birds (known informally as the Migratory Bird Rule). Prior to what is now known as the "SWANCC decision", the Corps had promulgated a broad regulatory definition of "waters of the U.S." that afforded federal protection for almost all of the nation's wetlands, including "isolated" wetlands and other intermittent waters.
These waterways provide significant landscape functions such as flood attenuation, water quality maintenance and habitat to wildlife populations, particularly migratory waterfowl, yet the decision may leave many "isolated" wetlands and other water resources unprotected by the CWA.
What are the broader implications of the SWANCC decision?
Since the SWANCC decision, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACOE) have developed guidance and are proceeding with rulemaking to reopen and narrow the definition of "waters of the United States."
The guidance in place for current activities subject to 404 permitting already limits protection to interstate, navigable waters.
The narrower definition of what constitutes "waters of the United States" that is proposed by EPA and the ACOE removes from Clean Water Act protection "isolated" wetlands (such as prairie potholes and pocosins) as well as non-navigable tributaries of traditionally navigable waters, intermittent and ephemeral streams, and waters that pass through human-made conveyances. Wetlands may be defined by the administration as "isolated" if they lack a direct surface connection to other bodies of water -- and yet they are often connected to other waters by groundwater or overflow and contribute to the ecosystem's health by filtering pesticides and other pollutants for downstream waters.
The EPA and ACOE are currently soliciting comments on this proposal - comments that will inform and guide their rulemaking process in the coming months. (see Action Checklist)
Who has the burden of proof?
The law places the burden of proof squarely on a permit applicant to demonstrate that the destruction of any portion of a wetland is necessary. If the proposed activity does not absolutely have to be conducted in or near the water, the permitting agency is to begin with the assumption that practicable alternatives do exist. However, in practice, it is not this burden of proof that most often deters potential applicants from pursuing a 404 permit. More often, it is the cost of mitigating environmental damage that provides the greatest disincentive to filling a wetland or altering a waterway.
How can damage be mitigated in the 404 process?
Mitigation in the 404 context means to minimize the loss of an aquatic site. Mitigation can include:
creation (making a wetland where there never had been one before);
Enhancement and preservation of wetlands can be important in the context of a larger plan, but settling for these forms of mitigation can shrink the total wetland acreage in your watershed. 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.
Does a Section 404 permit require evaluation of cumulative dredge and fill impacts?
Yes, at least in theory. 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.
What types of permits are available under Section 404?
Section 404 regulations allow issuance of individual and general permits. An individual permit is usually required only when an activity is expected to have significant impacts. Otherwise, for discharges expected to have minimal adverse effects, the Army Corps of Engineers often grants general permits. Like general NPDES permits, general 404 permits, once developed, are typically issued to specific applicants with little or no review of site-specific considerations. This underscores the importance of making sure that the conditions of general permits are adequately protective from the start.
Though each activity may be small, the cumulative impacts of “small” disturbances permitted under the general permits system have been severe in many watersheds.
As in the NPDES process, general permits are reviewed and adopted in a generic format to include broad categories of activities (for example, minor road crossings and utility line backfill) as a means of speeding up the permitting process. They may be issued on a nationwide, statewide, or regional basis.
Are there exemptions to Section 404 permits?
Section 404( f) exempts some activities from regulation under Section 404. These activities include many ongoing farming, ranching, and forestry practices. These practices do require a permit, however, if the dredging or filling will create a new use for the water “that will impair the flow, circulation or reach of the navigable waters in question.”
Who issues permits to alter wetlands, and leads enforcement of Section 404?
The Army Corps of Engineers administers the Section 404 program. It makes individual permit decisions and develops policy and guidance. Some states have taken parts of the 404 responsibilities from the Army Corps. In addition, every general permit is essentially implemented and enforced by the state.
What state oversight does the Clean Water Act require?
As discussed above, the Clean Water Act calls for states to review water quality impacts of all federal permits or licenses, including 404 permits, within their boundaries. Under Section 401, states and tribes can review and approve, condition, or deny all federal permits or licenses that might result in a pollution discharge to state or tribal waters. By requiring this review, Section 401 of the Act offers veto authority to states and tribes on any 404 permit.
What is the EPA’s role?
The EPA shares the duty of enforcing Section 404. It develops and interprets environmental criteria used in evaluating permit applications, oversees state actions, identifies activities that are exempt from regulation, and reviews and makes comments on individual permit applications. Section 404( c) of the Clean Water Act also authorizes the EPA to override a Corps decision based on “unacceptable adverse effect” on the aquatic environment.
What happens if the EPA opposes a 404 permit?
If the EPA believes unacceptable adverse effects will occur, it informs the Army Corps that it may veto the permit in question. The EPA says it has issued a veto only 11 times, out of an estimated 150,000 permit applications received since the regulations went into effect in October 1979.
Do other federal agencies oversee dredging or filling operations?
The granting of a permit (including a general permit) is a “federal action” for purposes of the Endangered Species Act. Thus, if a listed species may be affected, a 404 permit request triggers the need for a consultation with the relevant agency (either National Marine Fisheries Service or U. S. Fish and Wildlife Service) under Section 7 of the Endangered Species Act, even on private land.
Does the Clean Water Act provide grant money to the States for wetlands protection?
The State Wetlands Protection Grant Program was initiated in 1990. It provides money to states supporting the development of wetland water quality standards, and the development of Section 401 certification programs. Inquire about how you can influence the application of this money. See the section on federal money set aside in Section 319 of the Clean Water Act for reducing nonpoint source pollution. Section 319 money can also be applied to improve wetland protection.
Influencing the 404 Permitting Process
What is the public’s role?
The public needs to play an active role in the 404 permitting process — commenting on permits, defending important wetland values, and requiring sufficient mitigation if any destruction of wetlands should occur. However, since most 404 activities fall under general permits, there is little or no opportunity for public participation in most specific permit decisions. This underscores the need for the public to be very actively involved when general permits are developed and when individual permits are proposed.
How do I know when mitigation is strong enough?
Most environmentalists consider the record on mitigation to be dismal. Mitigation projects have suffered from ill-conceived plans and insufficient funding. In some cases the projects actually never happened at all, or themselves became the subject of permit applications. You can be involved in the negotiations over mitigation.
Consider the following elements of good mitigation project:
- a comprehensive grading, planting and maintenance plan, including long-term maintenance;
- bonding or some other assurance of long-term maintenance;
- an easement or other conveyance of rights to the property so that it cannot become a site for future development; and
- assurance of adequate water rights (where applicable) to maintain the mitigation site.
Ask the Corps whether it will require the permittee to replace all the functions, values and benefits the wetland provides the community. It is not enough to replace just the lost acreage. In practice, to replace the functions and values fully, the permittee probably 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 it 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) without also successfully completing the various stages of the mitigation. Make sure that is a condition of the permit.
What is 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 Army Corps issues this notice within 15 days of receiving a complete permit application. The notice provides detail about the proposed dredging or filling activity, its location and the potential environmental impact. The notice invites comment within a specified time.
- Public Comment. The comment period is usually open for 15 to 30 days. Comments are reviewed by the Army Corps of Engineers and the state agencies in charge of reviewing water quality impacts and issuing the 404.
- Public Hearing. Hearings are not normally held, but members of the public can ask the Army Corps to conduct one. There is no rule on how many people need to request a hearing.
- Permit Evaluation. The Army Corps evaluates the permit, based on facts in the record.
- Environmental Assessment and Statement of Finding. The Army Corps explains its decision on whether to grant or deny the permit.
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