My last blog entry discussed New York’s regulation of wetlands.  I was going to discuss permit application process with this entry, but after some feedback, I thought I should discuss federal regulation of wetlands instead.

As I mentioned earlier, wetlands are protected under Section 404 of the Clean Water Act (“CWA”), which was implemented more than 45 years ago.  It regulates discharges of dredged or fill material into waters of the United States, including wetlands.  As a general rule, Section 404 prohibits discharges of dredged or fill material if:

• a practicable alternative exists that is less damaging to the aquatic environment; or
• the nation’s waters would be significantly degraded.

In certain circumstances, discharges of dredged material or fill may be allowed under the CWA.  To address this issue, Section 404 sets up a permit requirement and review process.  If a developer reasonably needs to discharge dredged or fill material into waters of the United States, then that developer may be able to get a permit under Section 404 permitting it to do so under certain defined conditions.

Many kinds of projects might require a Section 404 permit.  The most common might be water infrastructure projects, like dams, docks and levees, as well as other infrastructure projects, like bridges and roads.

There are two kinds of permits under Section 404: individual and general.  These are very different kinds of permits with very different purposes.  An individual permit has the ability to hold up a project for some time while its merits are reviewed.  A general permit, on the other hand, can help expedite a project.  So what’s the difference between the two?

Individual permits are site specific.  They cover activities that have potentially significant impacts at a site.  U.S. Army Corps of Engineers (“ACOE”) reviews and evaluates these permits under the criteria set forth in the Section 404(b)(1) guidelines, which are created by the U.S. Environmental Protection Agency (“EPA”).  This review process can take time.

General permits, on the other hand, are not site specific.  They are issued on a national, regional, or state basis and cover certain categories of activities that are pre-determined to have only minimal adverse effects.  A general permit expedites the process because it eliminates the need for individual review.  It will be granted as long as conditions for the general permit are met.

Several federal agencies play a role in wetland regulation and protection and the roles they play are different.  The most active are ACOE, EPA and U.S. Fish and Wildlife Service (“FWS”).  Let me end this entry by describing what role each agency plays.

• ACOE oversees wetlands with regard to navigation and water supply. It administers most of the wetlands protections program.  It reviews and issues determinations on Section 404 permit applications, develops wetlands policy and guidance documents and enforces permit provisions.

• EPA generally protects wetlands from pollution. Among other things, it develops and interprets policy, guidance, and environmental criteria used in evaluating permit applications and reviews comments made on these applications.

• FWS manages fish and wildlife, including residing in wetlands. It evaluates impacts on fish and wildlife from federal projects, including ones subject to the requirements of Section 404.

Let’s discuss the permit application process in my next entry.

 

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