I’ve discussed the regulation of wetlands in my past blog entries. With this one, let’s talk about the application process for a permit under Section 404 of the Clean Water Act (“CWA”).
As discussed before, the CWA authorizes the U.S. Army Corps of Engineers (“ACOE”) to regulate the discharge of dredged or fill material into waters of the United States. Consequently, the ACOE requires a permit for the discharge of dredged or fill material in these waters under Section 404. Keep in mind that waters of the United States is a fairly broad term. It includes navigable waters and all their tributaries, adjacent wetlands and other waters or wetlands where degradation or destruction could affect interstate or foreign commerce.
The ACOE encourages permit applicants to contact it early in the project planning stage for wetland delineation requirements. It also encourages applicants to work on the 404 permit application concurrently with any other required state or local permit applications to avoid unnecessary duplication of effort and unforeseen time delays and that’s pretty sage advice.
I discussed the difference between individual and general permits previously. Let’s assume that an applicant needs an individual permit from the ACOE under Section 404. Let’s assume that the applicant has the ACOE ENG Form 4345 application, that is has a consultant to help fill out that form and that it had its pre-application meeting with the ACOE. As a practical matter, how does the applicant begin the application?
The first thing it needs to do is delineate any potentially affected wetlands on its application. To do that, the applicant should prepare a detailed surveyed site plan of property with existing contours. It should stake out a field delineation of waters and wetlands and plot the limits of these waters and wetlands on surveyed site plan. Once that is done, it should request the ACOE to verify these jurisdictional limits. Once verified and the wetlands are in place, the applicant can draw the footprint of its project and limits of all fill to be placed in waters and wetlands.
When the applicant is doing its field delineation, it should gather preliminary data to support an estimate of the functions and values of any waters and wetlands that are likely to be impacted by its project. For instance, the applicant will look at whether the project will affect shoreline stabilization, wildlife habitat or recreational activities. It will look at whether any endangered species might be affected and consider other wetland functions and values, including:
- Flood flow alteration
- Fish and shellfish habitat
- Sediment/toxicant retention
- Nutrient removal
- Production export
- Educational scientific value
- Visual Quality/Aesthetics
A proper analysis addresses at least these wetland functions and values and others may be included based on professional judgement.
The ACOE determines the “basic project purpose,” after which the applicant must analyze practicable alternatives—if any exist—to avoid discharging fill or dredges to any recognized wetlands. The ACOE generally analyzes potential off-site alternatives first that could completely avoid any impact on the delineated wetlands. If none are practical, it next looks at whether any on-site project modification could avoid and minimize wetland impacts. Finally, if neither of those options works and the impact is deemed unavoidable, the ACOE considers what compensatory mitigation could replace the functions identified in the values assessment. As the ACOE explains it, it prioritizes avoiding impacts altogether where possible, minimizing them when that is not an option, and finally compensating when the impacts are unavoidable.
Project modifications to avoid unnecessary wetland filling can be difficult to implement or costly. The silver lining is that sometimes the modification may result in enough of a reduced wetland impact that it may qualify the project for a general permit (e.g., nationwide or regional). When that happens, the ACOE can expedite its permit review because the impact expected is minimal.
The ACOE begins evaluating an application when it receives all the information it requires. It acknowledges receipt and assigns a number to the applicant’s project. The decision whether to grant or deny a permit is based, in part, on a public interest review of the probable impact of the proposed activity and its intended use. When a public notice is required, the ACOE’s review considers any comments received and any other relevant factors. It then makes what is called a section 404(b)(1) guidelines determination, which is designed to avoid unnecessary filling of waters and wetlands.
In evaluating the application, the ACOE conducts a cost-benefit analysis, which considers impacts the project might have on items like conservation, navigation, economics, shore erosion and accretion, aesthetics and recreation, among others factors. It will look at the balance between considerations of private ownership versus general environmental concerns, and so forth. Sometimes, where a project requires dredging and disposal of marine sediment, the ACOE may require sediment sampling. When it has enough information, and following any public hearing, it reaches a determination on the permit application.
Reducing it to its basics, the application process includes these steps:
- There is a pre-application meeting between the ACOE and the applicant.
- The Applicant submits an ENG Form 4345 or equivalent joint state/federal application to the appropriate regional ACOE office.
- The ACOE receives the application and assigns the applicant a unique identification number.
- If the ACOE needs more information with the application, it notifies the applicant.
- The ACOE issues a public notice issued within 15 days of receiving all of the required information. This notice seeks comments from the general public, adjacent property owners, interested groups and individuals, local agencies, state agencies, and federal agencies.
- There is a comment period, typically consisting of 30 days, depending upon the nature of activity at issue.
- The ACOE conducts its 404(b)(1) determination.
- The ACOE conducts a Public Interest Review, after which is allows the applicant to respond to public comments.
- Depending how the review goes, the ACOE may ask the applicant to provide additional information.
- The ACOE considers all comments and the applicant’s responses.
- If the ACOE determines a public hearing is necessary, it is held.
- Finally, the ACOE makes its decision on the application.
The simpler the project and the less of an impact it presents, the more likely that the applicant will get a favorable and timely determination. Not surprisingly, though, this process can take time with more involved permits. It can be a back and forth process with the ACOE requiring negotiations and additional documentation. For these kinds of permits, you might consider legal counsel.