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Effects of Section 404 Permits on Wetlands in North Dakota

Discussion


Magnitude of Wetland Alterations

The estimated magnitude of the total wetland alterations based on permit files is probably not a true reflection of the magnitude of the total alterations during 1987-91. Because notification of the corps is not mandatory for discharges authorized by NWP 13, 14, and 26 (<1 acre), some wetland alterations, including violations, are not detected. Furthermore, many discharges authorized by individual permits are much larger than those reviewed in this study. This suggests that, in spite of the permit holders' high compliance with permit conditions, an unquantified loss of wetlands is being permitted legally through the regulatory process. Further study to determine the extent of this loss and the associated cumulative effects is needed. Additional monitoring by federal, state, and private entities is important for determining the direct and indirect effects of discharges of fill material into wetlands.

Furthermore, the actual sizes of some discharges were larger than the proposed sizes. These differences make monitoring effects of discharges difficult. This is especially true when trying to monitor the cumulative effects of such discharges on wetlands. For the corps to effectively regulate the cumulative effects of discharges into wetlands, it must know the magnitudes of those discharges. One discharge that exceeds the permitted discharge by, for example, only 0.25 ha may seem insignificant. However, the additive effect of these unauthorized discharges may be a serious loss of wetlands in the United States.

Compliance by Permit Holders

The 85% compliance rate determined in this study is also influenced by the fact that notification of the corps of discharges authorized by nationwide permits is not always mandatory. Throughout the nation, the corps has regulatory jurisdiction under Section 404 of over 90,000 discharges of dredged or fill material into wetlands each year. Eighty thousand are authorized by general permits, most of which are nationwide permits, and about half of those are made without the corps' knowledge (J. Studt, U.S. Army Corps of Engineers, Chief of Regulatory, Washington, D.C., personal communication). I could review only discharges reported to the corps, which, based on the above, may constitute only half of all discharges authorized by general permits.

The compliance rate by permit holders in my study was lower than the corps' estimated compliance rates in North Dakota (96-98%) and throughout the nation (94-96%; M. Keller, U.S. Army Corps of Engineers, Senior Program Manager, Omaha, Nebraska, personal communication). My estimation was lower probably because I did not consider discharges as being in full compliance if they differed from what was described in the files, even though the permit holders did not exceed the sizes of the discharges that a specific permit type authorizes and did not fail to comply with the conditions of such permits. These cases are usually not considered violations of the Clean Water Act or noncompliances with regulatory and resource agencies. The compliance rate would have been 94% had I included these cases in my calculations. From a regulatory standpoint, it is important to recognize these categories of discharges because, although they met the permit conditions, they were not consistent with the information in the permit applications.

Nationwide Permits

Nationwide-permit regulations require that discharges of dredged or fill material into waters of the United States "shall be avoided or minimized through the use of other practicable alternatives" (33 CFR 330.6(a)(1)). However, this is difficult to enforce when most NWP discharges are not reviewed by resource agencies and approximately half are not reviewed by the corps. Therefore, mitigation is rarely required for discharges authorized by nationwide permits other than NWP 26 (0.4-4.0 ha), which unlike the other nationwide permits, requires an application and agency review. Under the revised NWP regulations of 1992, the corps can require mitigation for discharges with NWPs when deemed necessary and does solicit agency comments through the predischarge-notification process on 14 of the 36 nationwide permits. However, the sole purpose of nationwide permits is still to authorize discharges for specific purposes with little, if any, delay or paperwork.

Nationwide Permit 13  

The results of this study indicate that bank stabilizations carried out by private landowners on their own properties create few regulatory problems and therefore may not require as much review as other activities. However, development of general design plans by the corps for the various types of bank stabilization in North Dakota could further increase the effectiveness of small stabilizations constructed by private landowners. Most stabilizations in North Dakota involve placement of riprap along river, prairie stream, or lake shorelines. Corps engineers could prepare plans for these three categories of bank stabilization and provide them to applicants. This would be particularly beneficial to property owners who plan to do the construction without the aid of an engineering plan or a professional contractor.

The bank stabilizations that I inspected fully met the conditions of NWP 13. However, some bank stabilizations result in damage to riparian woodlands. Some of this vegetation, such as plains cottonwood trees (Populus deltiodes subsp. monilifera) is associated with some wetland habitats but is not considered part of a wetland as defined under Section 404. This habitat can be damaged from clearing of vegetation for roads and residential development. These impacts are not regulated by Section 404 of the Clean Water Act. One possible solution would be to incorporate information into the general design plans on the value of riparian habitats to encourage landowners to avoid damage of these areas. This would improve protection of riparian areas, which are rare in North Dakota (Rossiter 1979).

Nationwide Permit 14  

In evaluating proposals for road or bridge upgrades and replacements, the corps obtains some information on the physical condition of the existing structures from contacts with the applicants and from visits to selected sites prior to the improvements. However, the corps is not able to do this for every activity. Many times the decision to upgrade or replace a road or bridge is made by the group such as a county or a township that funds the construction. Consulting with these groups and requiring photographs of structures that need to be upgraded or replaced would aid the corps with the evaluation of the need for, potential impacts of, and practicable alternatives to the proposed discharges.

Because of the involvement of engineering firms and state- and county-highway agencies with discharges authorized by NWP 14, communication with these groups is important, especially when regulations are changed or problems arise. This should insure that these groups have the most current information on the Section-404 regulatory program and continue to rigorously follow the Section-404 guidelines.

Nationwide Permit 26  

NWP 26 is the most controversial of all nationwide permits. Because NWP 26 covers such a wide variety of activities, many argue these discharges are not similar in nature as stipulated in the 404(b)(1) Guidelines (Goldman-Carter 1989; Gladwin et al. 1992; Gladwin and Roelle 1992). Furthermore, resource agencies have limited, if any, opportunities to review and comment on proposed discharges of less than 0.4 ha. Considering that most wetland basins in the glacial terrain of central North Dakota are less than 0.4 ha (Cowardin et al. 1981), most prairie wetlands can be filled without any review or notification of the corps. Another consequence of the lack of agency comments is the limited opportunity to develop recommendations for mitigation. Mitigation was not required for any of the reviewed discharges authorized by NWP 26 (<1 acre).

Because of these and other drawbacks, elimination of NWP 26 has been suggested (Goldman-Carter 1989). However, based on my observations, this seems unlikely given the current workloads and limited regulatory budgets of the corps and the commenting agencies. Narrowing the scope of NWP 26 has been tried and seems to be a more feasible approach. For example, in North Dakota in 1992, the corps began investigating the feasibility of transferring regulatory responsibility for livestock watering ponds (regulated under NWT 26) to the Soil Conservation Service. The Soil Conservation Service had been inspecting each site and providing landowners with technical assistance and cost sharing for livestock-watering ponds. Because of this, the corps believed the Soil Conservation Service was in the best position to administer this aspect of the regulatory program, and the agency assumed that responsibility in June 1993. Changes like this, some of which were made by modification of the nationwide permit program in 1992, may reduce the number of different types of discharges authorized under NWP 26 and may ultimately reduce inconsistencies related to this permit type.

Individual Permits

The corps' acceptance of 74% of the recommendations by federal and state resource agencies for individual permits seems low in view of the close coordination between the corps and these agencies in North Dakota. However, 12% of the recommendations that the corps did not accept were addressed by the applicants prior to issuance of the permits.

Implementation rates of special conditions for individual permits were also low. This is more due to my inability to determine implementation than to lack of compliance by permit holders. Implementation of special conditions of individual permits needs to be monitored during and after discharges are made to ensure that all special conditions are met. It is important that the corps and the commenting agencies continue to monitor these authorized discharges at current levels and implement new means to increase monitoring of permitted discharges.

One negative effect of individual permits, like NWP 13, is loss of riparian habitat not regulated under Section 404. This loss occurs from clearing for roads, residential development, and agricultural development. Alterations to riparian habitat are particularly important in a state such as North Dakota where riparian areas comprise less than 1% of the landscape (Rossiter 1979). Although the corps and the resource agencies try to address ancillary alterations (i.e., those not regulated under Section 404) of riparian woodlands that occur during permitted discharges, more emphasis is needed. On a federal level, the Congress should extend wetland protection to riparian areas associated with placement of fill under Section 404 and subsequent development. Statewide regulatory measures to insure this protection could be put into place as well.


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