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Effects of Section 404 Permits on Wetlands in North Dakota

Section 404 Regulations

The U.S. Environmental Protection Agency administers the Clean Water Act and authorizes the Department of the Army to regulate discharges of dredged or fill material into waters of the United States, including many wetlands. Since 1972, the corps has regulated these discharges following the Section 404(b)(1) Guidelines of the Clean Water Act, Specification of Disposal Sites for Dredged or Fill Material (40 C.F.R. 230). These discharges require permits from the corps.

In accordance with these guidelines and with the Fish and Wildlife Coordination Act (16 U.S.C. 661-667e), the corps must solicit comments about the feasibility and desirability of a proposed discharge from the U.S. Fish and Wildlife Service (service), the Soil Conservation Service, the National Marine Fisheries Service, the Bureau of Reclamation, some state agencies, and the public before issuing a permit. Water-quality certification under Section 401 of the Clean Water Act is also required. In North Dakota, the state resource agencies include the Game and Fish Department, the State Historical Society, and the Division of Water Quality of the North Dakota Department of Health and Consolidated Laboratories.

The corps must determine whether the proposed discharge complies with the 404(b)(1) Guidelines and is in the best interest of the public. Based on this determination, the corps either authorizes the proposal, modifies the proposal by including special conditions as part of the permit, or denies the request for the discharge.

Section 404 authorizes two types of permits: general and individual permits. General permits are for discharges that are considered to be similar in nature and to cause only minimal adverse environmental effects when performed separately or cumulatively (40 CFR 230.7). A nationwide permit (NWP) is a form of general permit designed to authorize a discharge for a specific purpose with little, if any, delay or paperwork by the corps. A nationwide permit is valid only if the proposed discharge meets the conditions of a specific nationwide-permit category. The corps authorizes 36 categories of discharges under nationwide permits, including 10 new categories that were added when the regulations were revised in January 1992 (33 C.F.R. 330). Many discharges authorized under nationwide permits do not require notification of the corps before or after they are made, and therefore there is little oversight by the corps or by other resource agencies. Nationwide permits cover discharges for a wide variety of purposes including backfill for utility lines, bank stabilization, installation of water intake structures, and minor road construction.

Most Section-404 permits issued by the corps in North Dakota are nationwide permits. Five NWPs account for 95% of the Section-404 permits (U.S. Fish and Wildlife Service, unpublished report). Although the regulations for nationwide permits were last revised in 1992, the following descriptions of nationwide permits that I reviewed are based on the 1986 regulations (33 C.F.R. 330).

JPG -- Photo of a bank stabilization
Fig.2 A bank stabilization authorized under Section 404 of the Clean Water Act by Nationwide Permit 13 in North Dakota, 1987 - 1991.

Nationwide Permit 13 authorizes stabilization of river, stream, and lake banks to prevent erosion (Fig. 2). Stabilization material must be less than 152.5 m* in length and not more than 0.8 m3/0.3 m** may be placed below the ordinary high water mark. Stabilization material must be free of waste-metal products, organic materials, asphalt, unsightly debris, and other deleterious material. In North Dakota, most banks are stabilized with riprap.

Nationwide Permit 14 authorizes placement or replacement of fill for minor road crossings of waters of the United States, including upgrades (Fig. 3). This permit allows placement of as many as 153 m3† of fill material below the ordinary high water mark. The crossing must be made with a culvert or with a bridge or must otherwise be designed to maintain the normal circulation and flow of water. In addition, discharges into adjacent wetlands must not extend beyond 30.5 m on either side of the crossed waterbody.

JPG -- Photo of a bridge replacement
Fig. 3. A bridge replacement authorized under Section 404 of the Clean Water Act by Nationwide Permit 14 in North Dakota, 1987-1991.

Nationwide Permit 26 (1-10 acres) [sic] is for discharges into 0.4-4.0 ha of nontidal isolated wetlands (i.e., not part of a surface tributary system to interstate waters or navigable waters of the United States) or wetlands above the headwaters of a stream where the average annual flow is less than 142 cm3/s§ . Applicants must notify the corps of such activities. The corps explains the purpose of the proposed discharge to regulatory and resource agencies by issuing a predischarge notification. Agencies have a brief period (usually 5 to 15 days) to review the notification, develop recommendations, and submit comments to the corps. The corps must respond to the applicant within 20 days (the period was changed to 30 days in the 1992 modifications), or the applicant may proceed with construction.

Nationwide Permit 26 (<1 acre) [sic] allows discharges into less than 0.4 ha of nontidal wetlands that are isolated or above the headwaters of a stream (Fig. 4). NWP 26 is unique because it regulates an amount of fill irrespective of the purpose of the fill. Therefore, the types of discharges permitted under NWP 26 are highly variable. This subset of NWP 26 does not require a predischarge notification.

JPG -- Photo of discharge of fill into wetland
Fig. 4. A discharge of fill material into a wetland authorized under Section 404 by Nationwide Permit 26 (<1 acre) [sic] in North Dakota, 1987 - 1991.

Discharges of dredged or fill material authorized by NWP 26 (<1 acre), NWP 14, and NWP 13 may be made without notifying the corps. Therefore, natural-resource and regulatory agencies may not have an opportunity to review the potential effects of those discharges on the environment. However, applicants are encouraged to notify the corps to ensure that the intended discharges comply with the terms and conditions of a nationwide permit and that the Clean Water Act is not violated.

JPG -- Photo of discharge from boating activity
Fig. 5. A discharge of fill material into a wetland for a boating activity (development of a marina) authorized under Section 404 of the Clean Water Act by an individual permit in North Dakota, 1987 - 1991.

Individual permits authorize discharges that are usually larger and more complex than permitted under nationwide permits and are thought to have significant effects on the environment (Fig. 5). Issuance or denial of a permit often takes 4-6 months and involves a detailed evaluation of the proposed discharge. Before an application is submitted, the prospective applicant meets with representatives of the corps and of other federal and state agencies to discuss the proposed discharge, to review potential environmental effects, and, if applicable, to develop practicable alternatives that are less damaging to the environment than the proposed discharge. When an application is accepted, the corps issues a public notice that describes the proposed discharge to solicit written comments from federal and state agencies and from the public about the possible effects of the discharge. After expiration of the 30-day comment period, the corps considers all comments and reviews the proposed discharge for compliance with the 404(b)(1) Guidelines. The corps also determines the need for mitigation of wetland loss if a permit is issued. Mitigation is specified by special conditions of the permit.

* 500 ft.
** 1 yd3/running ft.
200 yd3.
100 ft.
§ 5 ft3/s.
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