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Effects of Section 404 Permits on Wetlands in North Dakota


According to records of the Bismarck Regulatory Office of the corps, 642 permits were authorized in North Dakota by NWP 13, NWP 14, NWP 26 (<1 acre), NWP 26 (1-10 acres), and individual permits from 1987 through 1991 (numbers do not include livestock-watering ponds or wildlife-habitat enhancements; Table 1). I reviewed the files and visited 87 of the 642 authorized discharges. During on-site inspections, I obtained complete information for 70 of the 87 wetland alterations. I reviewed only three discharges authorized under NWP 26 (1-10 acres) because most (83%) were either wetland enhancements or were not yet implemented at the time of my inspection. All private landowners but one granted permission to visit the sites of the discharges.

Magnitude of Wetland Alterations

A total of 118,743 m3 of dredged or fill material were placed into wetlands by 42 discharges, 12.6 ha of wetlands were altered by 13 discharges,and 1,192 m of shoreline were stabilized by 15 discharges. The mean percent difference between the expected and the observed wetland alterations from all permitted discharges except those under NWP 26 (<1 acre) was less than 10% (Table 2). The reason for a high difference of 147% by NWP 26 (<1 acre) was that one observed discharge was substantially larger than stated in the application. When that discharge was removed from the calculations, the mean difference was 6%.

Purposes of Discharges and Affected Wetland Types

Twenty-eight percent of the authorized discharges was for road upgrades or crossings and 20% was for bank stabilizations (Table 3). Discharges for bridge replacements (2,711 m3) or for bridge construction (4.0 ha) accounted for the greatest wetland alterations and were followed by the magnitudes of discharges for road upgrades (2,676 m3 ) and road crossings (1.4 ha). More discharges were made into palustrine wetlands (34%) than into riverine (30%), lacustrine (23%), or unknown (13%) wetland types (Fig. 7).

GIF -- Pie chart of percent unknown, lacustrine, riverine, and palustrine.
Fig. 7. Wetland types affected by the 87 discharges of fill material into wetlands reviewed for this study. Discharges were authorized under Section 404 of the Clean Water Act by nationwide permits 13, 14, and 26 and by individual permits; prairie pothole region of North Dakota, 1987 - 1991.

Compliance by Permit Holders

Eighty-five percent of the 87 permit holders complied with all conditions of their permits, and only 7% failed to comply with at least one condition (Table 4). Compliance was greater by holders of NWP 13 (100%) than by holders of NWP 14 (92%), NWP 26 (<1 acre; 77%), individual permits (75%), and NWP 26 (1-10 acres; 67%). Some discharges (3%) were greater than described in the files, but none of the discharges exceeded the maximum fill under the permit types. Five percent of the permit holders did not follow the implementation plans that appeared in the files but still did not violate the conditions of the permits. These cases were not considered to be in compliance or non-compliance but were placed in separate categories. In four cases, I questioned whether the issued permit types were appropriate for the purposes of the proposed discharges. However, all of these permit holders complied with the conditions of the permits issued and were considered to be in full compliance.


Mitigation was required for three of the 87 discharges I reviewed. Mitigation was a special condition of two individual permits and required for one discharge authorized by NWP 26 (1-10 acres). Required mitigation for the two individual permits included the restoration of part of the original wetland affected by a discharge and the replacement of mature riparian timber that had been cut. Mitigation for two of the three discharges had not been implemented when I visited the sites. Although mitigation was not required for any discharges authorized by NWP 26 (<1 acre), it was offered by two permit applicants. It was also offered by two NWP 26 (1-10 acres) applicants.

Nationwide Permit 13

Nationwide Permit 13 was the least complex of the permit types I reviewed, and compliance with it was 100%. This compliance rate was probably due to the purpose of discharges with this permit in North Dakota. Most applicants requested permission to stabilize banks on their waterfront-home or cottage sites. Each property I visited was well maintained. The property owners used safe, durable, aesthetically pleasing material to protect their residences and properties. Most banks seemed to be well stabilized, although many had not been tested by time or floods.

Nationwide Permit 14

There were no indications of major harm to wetlands from discharges authorized by NWP 14. Most of these discharges were for upgrading or replacing roads where the primary impacts were from the original construction and not from the upgrade or replacement. I was unable to determine whether practicable alternatives existed for the road upgrades and replacements because information on the physical conditions of the original facilities was not available in the files I inspected.

Most placements of fill material with NWP 14 for road crossings or upgrades in North Dakota are made by engineering firms hired by counties or by townships. Four engineering firms were involved in 14 (54%) of the 26 reviewed discharges. Based on my inspections, these firms seemed to have followed the Section 404(b)(1) Guidelines.

Nationwide Permit 26

The discharges authorized by NWP 26 in this study were variable and had only the size of the discharge in common (i.e., <0.4 ha). The discharges were for a variety of purposes in four of eight categories (Table 3): road upgrades or crossings, dam modifications or construction, bridge replacements, and boating.

Because most (83%) discharges under NWP 26 (1-10 acres) were issued for either wetland enhancements or had not been completed at the time of my review, I could review only three. Conclusions cannot be drawn from such a small sample size. In North Dakota, NWP 26 (1-10 acres) is issued primarily for wetland enhancements to increase habitat diversity and to benefit wetlands. I did not conduct on-site inspections of these enhancements, but the permit applications were accompanied by detailed, site-specific development plans.

Individual Permits

Collectively, the U.S. Fish and Wildlife Service, Soil Conservation Service, Environmental Protection Agency, North Dakota Game and Fish Department, and the other state agencies made 50 recommendations for the 16 individual permits (Table 5). The corps incorporated 74% of those recommendations into the special conditions of the permits. Fourteen percent of the recommendations were not accepted by the corps. The reasons for nonacceptance could not be determined. Twelve percent of the recommendations were not accepted by the corps but were addressed by the applicants before the permits were issued, usually in the form of a verbal or written agreement to abide by the recommendation(s).

The 16 reviewed individual permits collectively had 171 special conditions. Seventy-two (42%) of the conditions were implemented, and eight (5%) were not implemented (Table 6). I was unable to determine implementation of 91 (53%) of the special conditions. Many of these conditions applied to precautionary measures during construction to maintain water quality and to appropriately implement the project within the bounds of the permit.

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