Gulf Restoration Network

 

 

Coastal Wetland Fill

In order to grant a permit, the Corps is supposed to consider:

• Whether an alternative(s) to the project exists that would not negatively affect wetlands.  If there are practical alternatives, the permit should not be issued.
• Whether the project is water-dependent. If it is not, the permit should not be issued.
• Whether the project has been designed in a way that avoids and reduces the impacts to the environment. If wetlands must be destroyed, the Corps must reqire the developer to "mitigate" for the destruction by building or restoring similar wetlands.
• Whether the project will cause a violation of state water quality standards.  In order to ensure this the State must also certify that there will be no harmful effects on water quality due to the wetland destruction.

While the intended purpose of the permitting process is to "avoid, reduce, and mitigate" damage to wetlands, the permits that are granted still destroy acres of wetlands that should not be destroyed. Luckily the 404 process also requires a public participation process. Through this process, permit requests must be noticed on Corps websites, as well in local newspapers. Since you may not read the newspaper every day, you can stay informed of projects that destroy wetlands by placing your name on a public notice mailing list that is maintained by state and federal regulatory agencies that are involved in wetland-related projects.

GRN fights Corps-authorized wetland destruction by:

• Reviewing hundreds of wetland destruction permit requests every year, and commenting on the most egregious.
• Helping members fight wetland destruction in their communities.
• Monitoring the mitigation for wetland destruction required by the Corps.

 

Laws That Protect Wetlands

The use of wetlands is regulated by federal, state, and local governments. There are four general types of laws, including those specifically directed at:

• wetlands [administered by the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA)];
• water quality (administered by EPA and the states);
• the protection of our nation's coasts [administered by EPA, the National Oceanic and Atmospheric Administration (NOAA), and the states]; and
• local land uses (administered by state or local governments).

Each area of the law has its own permitting process, government administrators, and opportunity for public input. Therefore, it is important to have a general knowledge of each of these four areas of the law when dealing with any specific project or development.

 

Federal Laws and Regulations

The Clean Water Act (33 U.S.C. Section 1251 et seq.)

In 1972, Congress passed the Water Pollution Prevention and Control Act— commonly known as the Clean Water Act— to protect the quality of the nation's surface and ground waters, including oceans, lakes, rivers, streams, aquifers, coastal areas, and wetlands. The Clean Water Act sets out broad rules for protecting the waters of the United States and gives the Corps and EPA the power to write more specific rules governing activity in or on water and wetlands. These more specific rules are known as 'regulations' and can be found in the Code of Federal Regulations. Sections 404 and 401 are two parts of the Clean Water Act that apply directly to wetlands protection. While Section 404 regulates activities that affect the filling of wetlands, Section 401 is concerned with maintaining good water quality in wetlands. More information on the Clean Water Act can be obtained at your local law library or at http://www4.law.cornell.edu/uscode/33/ch26.html.

Section 404 of the Clean Water Act

Section 404 of the Clean Water Act (often referred to as 'Section 404' or simply '404') forbids the unpermitted "discharge of dredge or fill material" into waters of the United States. Section 404 does not regulate every activity in wetlands, but requires anyone seeking to 'fill' a wetland to first obtain a permit from the Corps. For example, if a person wishes to construct a building or other development and wetlands need to be filled to complete the project, Section 404 requires that the person first obtain a permit from the Corps.

There are four main federal agencies involved in the Section 404 permitting process and the primary responsibilities of each are described in the Wetlands Manual.