GUIDE TO WETLANDS PROTECTIONS · Audubon Guide to Wetlands Protections 1 INTRODUCTION Wetlands...

GUIDE TO WETLANDS PROTECTIONS

A Resource for Audubon State Offices, Chapters, and Wetlands Advocates

Fall 2008

AUDUBON GUIDE TO WETLANDS PROTECTIONS

A Resource for Audubon State Offices,

Chapters, and Wetlands Advocates

National Audubon Society Public Policy Office

1150 Connecticut Avenue NW, Suite 600 Washington, D.C. 20036

[email protected]

Fall 2008

Table of Contents INTRODUCTION ..................................................................................................................................... 1

Chapter 1: WHAT ARE WETLANDS AND WHY SHOULD WE PROTECT THEM? .................... 2 I. Chapter Overview.................................................................................................................................................2 II. Wetland Definition................................................................................................................................................2 III. Types of Wetlands ................................................................................................................................................3 IV. Functions and Values of Wetlands ....................................................................................................................4

Wetlands Functions .............................................................................................................................................................. 4 Wetlands Values ................................................................................................................................................................... 5

V. Methods of Altering Wetlands ...........................................................................................................................7 Physical Methods of Altering Wetlands .......................................................................................................................... 7 Chemical Methods of Altering Wetlands ....................................................................................................................... 8 Other Methods of Altering Wetlands.............................................................................................................................. 8

Chapter 2: LAUNCHING A WETLANDS CAMPAIGN .................................................................... 10 I. Chapter Overview.............................................................................................................................................. 10 II. Locate Your Wetlands ...................................................................................................................................... 10 III. Wetland Campaign Ideas and Strategies ....................................................................................................... 10

Publish and Distribute General Wetland Brochures or Fact Sheets .....................................................................10 Help Conserve Wetlands through Land Trusts ..........................................................................................................11 Work in Concert with Landowners to Protect Wetlands.........................................................................................11 Inform the Local Media ....................................................................................................................................................12 Establish Wetland Trails ...................................................................................................................................................12 Influence Public Policy ........................................................................................................................................................12 Fundraising for Your Cause ..............................................................................................................................................13

Chapter 3: FEDERAL WETLANDS REGULATION .......................................................................... 15 I. Chapter Overview.............................................................................................................................................. 15 II. Clean Water Act ................................................................................................................................................ 15

CWA Regulatory Program Overview..............................................................................................................................16 Program Guidelines.............................................................................................................................................................17 General Permits ...................................................................................................................................................................17 Individual Permits ................................................................................................................................................................18

III. Other Federal Authorities................................................................................................................................ 20 Rivers and Harbors Appropriations Act of 1899 (RHA)..........................................................................................20 National Environmental Policy Act of 1969 (NEPA).................................................................................................21 Endangered Species Act (ESA)........................................................................................................................................21 Water Resources Development Act (WRDA).............................................................................................................21 Coastal Zone Management Act (CZMA).....................................................................................................................21 North American Wetlands Conservation Act (NAWCA) .........................................................................................22 Transportation Equity Act for the 21st Century (TEA-21) .......................................................................................22 Migratory Bird Treaty Act (MBTA).................................................................................................................................22 Wetlands Reserve Program (WRP) ...............................................................................................................................22 Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA) ............................................................22 Wetland Conservation Provisions (Swampbuster) ...................................................................................................23 Conservation Reserve Program (CRP) ...........................................................................................................................23 Wildlife Habitat Incentives Program (WHIP) .............................................................................................................23 Migratory Bird Hunting Stamp Act (Duck Stamp Act).................................................................................................23 Emergency Wetlands Resources Act of 1986............................................................................................................24 Migratory Bird Conservation Act.....................................................................................................................................24

Chapter 4: PARTICIPATING IN CLEAN WATER ACT REGULATORY PROCEEDINGS ...................... 26 I. Chapter Overview.............................................................................................................................................. 26 II. Public Review and Comment Period for Individual Permits .................................................................... 26

Locating a Public Notice of Pending Permitting Applications..................................................................................26 Submitting Public Comments ...........................................................................................................................................27 Commenting on Wetland Impacts of a Proposed Project .......................................................................................27 Commenting on Compensatory Mitigation Plans.......................................................................................................28 Requesting and Attending a Public Hearing................................................................................................................30 Responding to After-the-Fact Permit Applications......................................................................................................31 The Appeals Process ..........................................................................................................................................................31

III. Commenting on General Permits................................................................................................................... 32 IV. Case Study of How Public Involvement Can Make a Difference ............................................................ 32

Chapter 5: STATE WETLANDS PROTECTIONS............................................................................. 33 I. Chapter Overview.............................................................................................................................................. 33 II. Section 401 State Water Quality Certification Program (WQCP)........................................................ 33 III. State Assumption of § 404 Program .............................................................................................................. 33 IV. State Wetlands Programs Separate from CWA § 404 Program............................................................. 33 V. State Wetlands Conservation Plans ............................................................................................................... 34 VI. Coastal Zone Management Plan (CZMP) ..................................................................................................... 35 VII. State Wetlands Outreach and Education Programs................................................................................... 36

Chapter 6: JUDICIAL, REGULATORY, AND CONGRESSIONAL DEVELOPMENTS ON FEDERAL PROTECTIONS OF WETLANDS................................................................... 37

I. Chapter Overview.............................................................................................................................................. 37 II. Judicial Developments........................................................................................................................................ 37

Supreme Court Decisions .................................................................................................................................................37 Lower Courts Decisions .....................................................................................................................................................39

III. Regulatory Wetlands Manual and Regulatory Guidance ........................................................................... 45 The Federal Wetlands Delineation Manual ................................................................................................................45 U.S. Environmental Protection Agency/U.S. Army Corps of Engineers Guidance .............................................46 U.S. Army Corps of Engineers Regulatory Guidance Letters ..................................................................................48

IV. Legislative Proposals .......................................................................................................................................... 49 Clean Water Restoration Act...........................................................................................................................................49 Clean Water Protection Act .............................................................................................................................................49

REFERENCES .......................................................................................................................................... 50

APPENDICES .......................................................................................................................................... 52 Appendix 1: State Environmental Agencies................................................................................................................. 52 Appendix 2: U.S. Army Corps of Engineers District Offices .................................................................................. 54 Appendix 3: National Wetlands Inventory Map Distribution Centers and U.S. Fish and Wildlife Contacts...... 57 Appendix 4: Wetland Information Websites .............................................................................................................. 59 Appendix 5: U.S. Environmental Protection Agency Regional Offices ................................................................. 60 Appendix 6: U.S. Corps of Engineers Regulatory Jurisdiction ................................................................................ 61 Appendix 7: Sample Corps Public Notice.................................................................................................................... 62 Appendix 8: Sample Public Notice 2............................................................................................................................. 65 Appendix 9: Sample Public Comment Letter regarding Public Notice in Appendix 8...................................... 70

Audubon Guide to Wetlands Protections 1

INTRODUCTION Wetlands perform a vital role in the United States. They provide critical habitats for thousands of unique plant and animal species, control flooding, filter pollutants from entering streams and rivers, store 20 percent of the earth’s carbon,1 and provide incalculable educational and recreational benefits for us and for future generations. Wetlands, however, are increasingly vulnerable to loss or degradation. In the last two centuries, the lower 48 states have lost an estimated 53 percent of their original wetlands. 2 While some wetlands losses are due to natural causes, most are due to agriculture, mining, forestry, oil and gas extraction, and urbanization. Furthermore, two major Supreme Court decisions addressing the reach of federal authority under the Clean Water Act have eroded some of the protections for wetlands. A central part of Audubon’s mission is to conserve and restore natural ecosystems, such as wetlands. Dedicated Audubon members and staff are working to protect wetlands at the federal, state, and local levels. Consequently, Audubon is eager to increase understanding of wetlands and advocates for their protection. Whether one is a long-time wetlands advocate or an individual beginning to take action to protect wetlands, this guide will provide current information, including the latest developments concerning wetlands, and offer the practical know-how to help protect wetlands. This guide discusses several key strategies to protect wetlands. These strategies include:

1. Educating yourself, friends, neighbors, legislators, local media, and wetland landowners about the value of wetlands and why they are worth preserving;

2. Advocating for wetlands by forging alliances with local communities and landowners, influencing local or state planning efforts, and encouraging federal and state legislatures to provide protections beyond those vested under existing laws and to support funding for wetlands conservation programs;

3. Monitoring wetlands and commenting on permits that affect the wetlands in your community by contacting your local Corps of Engineers District Office or state environmental agency;

4. Documenting your wetlands, noting the physical, biological, and chemical relationships of the wetlands to traditional navigable waters and to endangered or threatened species, and

5. Acquiring, enhancing, restoring, preserving, or creating a wetland through a land trust.

1 http://www.reuters.com/article/newsOne/idUSN1745905120080720 2 http://www.nrcs.usda.gov/programs/compliance/WCindex.html


Chapter 1: WHAT ARE WETLANDS AND WHY SHOULD WE PROTECT THEM? I. Chapter Overview This chapter describes the general types, functions, and values of wetlands. We hope you can use this information to better understand and convey the value of your local wetlands to your community. Does your wetland provide a critical habitat for plants and wildlife, especially endangered or threatened species? Does it provide valuable recreational benefits for your community or stimulate your local economy by attracting tourists? Does it provide flood protection benefits that make the wetlands invaluable to the public interest? For example, in the aftermath of Hurricanes Katrina and Wilma, many experts, including those from government agencies such as the National Oceanic and Atmospheric Administration, have attributed the devastating effects of the hurricanes to a loss of protective coastal wetlands. By focusing on the benefits provided by viable wetlands to the public, your community leaders will make better planning and development decisions that affect wetlands. You may even want to join your local community planning board and advocate for the protection and restoration of wetlands to planning board members. This chapter will help you to better monitor activities that may alter the physical, biological, and chemical integrity of your wetlands. Is there a construction activity on or near a local wetland that may significantly affect it? Have you noticed non-native species of plants or wildlife flourishing in your local wetlands? Do you see a marked change in the water levels of your wetlands compared to the same period last year? If you notice any of these changes, you should take immediate steps to protect wetlands by determining the cause of the changes, and notifying the appropriate local, state, or federal agencies. (See Chapters 3 and 5 for information regarding federal and state regulations and programs that protect wetlands.) II. Wetland Definition Before we can talk to people about protecting wetlands, we have to first know what is and what isn’t a wetland. When people hear the term wetland, they most commonly think of a marsh. Marsh is a term that represents a broad array of wetlands that are dominated by soft-stemmed vegetation and most often located adjacent to large water bodies, such as ponds and lakes. Wetlands, however, have a broader definition; they are transitional zones between water and land environments where the flow of water (hydrology), cycling of nutrients, and energy of the sun meet to produce a unique ecosystem with a special combination of soils (hydric soils) and plant life (hydrophytes). It is also important to note that lands, which appear dry, but are saturated with water throughout part of the year, may be wetlands.


III. Types of Wetlands Below are the descriptions of several common types of wetlands.

Aquatic Bed. Areas of shallow permanent water that are dominated by plants that grow on or below the water surface. Bog. Freshwater wetlands with no significant inflow or outflow of water that supports acidophilic (acid tolerant) vegetation. Often formed in old glacial lakes, bogs are characterized by spongy peat deposits, evergreen trees and shrubs, and a floor covered by a thick carpet of sphagnum moss. Bottom land. Lowlands (usually forested) along streams and rivers that are periodically flooded. Coastal wetland. Wetlands adapted to saline instead of fresh water and to the daily, monthly, and seasonal tide cycles. Fen. Freshwater, peat-forming wetlands that receive some drainage from surrounding mineral soils and are covered mostly by grasses, sedges, trees, and wildflowers. Interdunal swale wetland. A wetland dominated by grass-like vegetation that occurs in the low areas between sand dunes or beach ridges. Marsh. Wet areas which can be periodically covered by standing or slow-moving water and are usually associated with ponds, rivers, streams, and inland lakes. They are characterized by grass-like and other emergent vegetation, such as rushes, reeds, sedges, and cattails, adapted to saturated soil conditions. Although some marshes have sandy soils, marshes usually have finer textured, nutrient rich soils with large amounts of organic matter. Muskeg. Large expanses of peatlands. Peatland. A generic term for any peat-accumulating wetland. Pothole. A shallow pond dominated by grass-like vegetation. Swamp. A wetland with mostly woody plants. The soils in swamps are usually rich in nutrients and organic matter due to silt deposited by floods and the accumulation of organic matter (dead trees and other vegetation) over time. Swamps may be found in depressions, on slopes, and on the edges of lakes. Vernal pools. Small, shallow depressions usually located under a forest canopy, but may also be found in more open settings like shrub swamps, wet meadows, and pastures. They only hold water for a short period of time during the spring and dry up by midsummer. When dry, vernal pools may be recognizable in the field by such signs as waterstained leaves, water marks on trees, and fingernail clam shells. After snowmelt, vernal pools become the primary breeding grounds for frogs, toads, salamanders, and other amphibians.


Wet meadow. Grassland with saturated soil near the surface but without standing water for most of the year. They are distinguished by the presence of characteristic plants such as certain sedges and grasses, beak rush, and ironweed. Wet prairie. Intermediate between a marsh and a wet meadow. IV. Functions and Values of Wetlands When people get together and discuss wetlands, the conversation inevitably turns to identifying the functions of wetlands and placing a value on those functions and on the wetlands themselves. While wetland functions, such as sediment control and flood storage, are natural processes of wetlands that continue regardless of their perceived value to humans, the value people place on those functions in many cases is the primary factor determining whether a wetland remains intact or is converted for some other use. An important thing to remember is that while wetland functions are not necessarily the same as wetland values (although the line between the two is somewhat arbitrary), focusing on the benefits provided by viable wetlands to the public may be one of the most important tools you have for saving them. Wetlands Functions Fish and Wildlife Habitat. Both coastal and inland wetlands provide essential breeding, nesting, feeding, and refuge habitats for wildlife. Wetlands serve as the preferred habitat for many furbearing animals such as muskrat, beaver, otter, mink, and raccoon. In addition, most fish and shellfish are dependent on wetlands for food since wetlands are among the most productive ecosystems in the world, forming the base of an aquatic food web that supports higher consumers. When wetland plants die, bacteria and fungi transform the plant tissues into minute fragments of food and vitamin rich detritus, which are carried into creeks, bays, and offshore waters, or retained in ponds and seasonal wetlands. Wetlands also serve as nursery grounds for many species whose young take cover there. Many important sport fishes spawn in or near wetlands. Like fish, many bird species are dependent on wetlands for either migratory resting places, breeding or feeding grounds, or cover from predators. It is estimated that over one third of all bird species in North America rely on wetlands for at least one of these purposes. Flood Storage and Conveyance. Wetlands act as a hydrologic sponge, temporarily storing flood waters and releasing them slowly, thus reducing flood peaks and protecting downstream property owners from flood damage. An acre of wetland can store 1 to 1.5 million gallons of floodwater. Riverine wetlands and adjacent floodplain lands often form natural floodways that convey flood waters from upstream to downstream points. These functions become increasingly important in urban areas where development has increased the rate and volume of runoff. Water Pollution Control. Wetland vegetation protects bodies of water from sediments, nutrients, and other natural and man-made pollutants by filtering these pollutants from the water, while microorganisms consume dissolved nutrients and break down organic matter. Consequently, wetlands are vital in preserving water quality, particularly in watersheds that are connected to municipal water supplies. Sediment Control. Wetland vegetation and topography serve to slow sediment-laden water flows, reducing erosion and causing flood waters to release their sediment, which would


otherwise enter lakes and streams, destroy fish habitat, and cause a rapid filling of these water bodies. There is a strong tendency for heavy metals and other toxic chemicals to attach to the sediment particles found in surface water runoff. Wetlands can trap these human-induced pollutants and remove them from the water. Groundwater Discharge/Recharge. Wetlands are usually found where the ground water table intersects with, or is close to, the land surface. They are usually sites of ground water discharge and are important for providing high quality water for our lakes and streams. Some wetlands are important sources of ground water recharge. The recharge potential of a wetland varies according to a variety of factors, including wetland type, geographic location, season, subsurface geology, soil type, and precipitation. Barriers to Waves and Erosion. Coastal and inland wetlands adjoining larger lakes and rivers reduce the impact of storm tides and waves before they reach upland areas. Waves break on beach and wetland areas, dissipating much of their energy. Mats of wetland vegetation and their root systems bind and protect soil against erosion, stabilizing the shoreline and enhancing the soil accumulation. Threatened and Endangered Species Habitat. Even though wetlands comprise only about five percent of the nation's lands, almost 35 percent of all threatened and endangered animal species, and many endangered and threatened plant species, are partially or entirely dependent on wetland habitats for survival. Endangered species are those that are in danger of becoming extinct. Threatened species are those that are in danger of becoming endangered. Global Biogeochemical Cycles and Atmospheric Processes. Wetlands may play a significant role in regulating global cycles of weather and nutrient and water cycling. For example, wetlands return excess nitrogen to the atmosphere through dentrification, reduction, and recycling of atmospheric sulfates, as well as absorbing airborne pollutants. Carbon Reservoir and Sequestration. Globally, wetlands account for six percent of Earth's land surface and store 20 percent of its carbon. Carbon is contained in wetland vegetation and sediments. Wetlands also sequester carbon from the atmosphere through photosynthesis by wetland vegetation and through the trapping of carbon-rich sediments from watershed sources. Wetlands Values (Source: Michigan Wetlands - Yours to Protect, 3rd ed) Recreation. Wetlands are valued as recreation areas for hunting, fishing, boating, hiking, photography and wildlife observation. Since nearly all sport fish, many popular game animals, and most fur-bearing animals depend on wetlands for their survival, healthy and functioning wetland ecosystems are necessary to maintain the resource base for this economy. Water Quality Maintenance. Wetlands are important for water quality. Debris and suspended solids from surface and groundwater flows are filtered by wetlands soils, vegetation, and natural sedimentation. The filtering capacity of wetlands protects vulnerable aquifers, and it is for this reason, the federal Safe Drinking Water Act contains a provision to encourage local governments to protect wetlands and watersheds determined to be important to municipal water supplies. In addition, wetlands serve as wastewater treatment systems. They remove, break down, or degrade


nutrients, dissolved solids, and pollutants, so that they turn into inactive substances or are incorporated into biomass, which are biological materials used as fuel or energy source. Water Supply. Wetlands are very important for water storage, especially during droughts. Because wetlands store water and slowly release it, they are often very important for maintaining base flow in streams. This is very important to many high quality fisheries. Timber Production. When managed properly, forested wetlands can provide an important source of timber. Historical and Archaeological Values. Some wetlands are valued for historic, archaeological, and even paleontological reasons. Well-preserved remains of prehistoric mammals and Native Americans have been found in wetlands. Early Native American settlements were located in coastal and inland wetlands, which served as sources of fish and shellfish. Food and Fiber Production. Wetlands provide a variety of natural products including blueberries, cranberries, and wild rice. Wetland grasses are hayed in many places for winter livestock feed. Forested wetlands, such as cedar swamps, can provide sustained yields of valuable timber if harvested with careful management and planning. Flood Protection. Each year, many communities experience severe flooding and millions of dollars in damage caused by flooding across the United States. The flood storage and conveyance functions of wetlands can help to prevent flooding, resulting in substantial savings to landowners and reduced expenditures by governmental authorities that provide disaster assistance. In the late 1970s, the New England District of the U.S. Army Corps of Engineers concluded that natural wetland protection was the most cost effective means of floodwater control for the Charles River near Boston. As a result, the government acquired 8,500 acres of wetlands in the Charles River watershed. In 2003, it was estimated that the wetlands in the Charles River watershed prevented nearly $40 million in flood damages.3 Erosion Control. Many riparian landowners experience erosion along the shore of their lake or stream. Often, activities by the landowner result in making the shoreline more susceptible to erosion (e.g., vegetation removal) or other human-caused circumstances (e.g., excessive boat waves). Vegetative erosion control, such as the preservation or establishment of wetland vegetation in the water and on the shoreline adjacent to the water can help protect the properties from erosion. Given the high market value of shoreline property, this wetland function is very valuable to riparian wetland property landowners. Considering the negative impact of erosion on water resources and fish populations, this wetland function is also very valuable to local communities. Education and Research. Wetlands serve as wonderful outdoor classrooms, providing excellent living examples of nearly all components of ecology. Boardwalks and observation platforms

3 “The Economic Values of the World’s Wetlands,” World Wide Fund For Nature International, (Gland/Amsterdam: January 2004). 25 June 2008 http://www.panda.org.za/get_publication.php?ID=31&SectionID=2.


have been constructed in many wetlands to facilitate educational activities. Many local governments have purchased wetlands to be used as parks or permanent open space. Aesthetic Values. The richness of plant and animal communities found in wetlands makes them some of the most beautiful natural environments. Rare, threatened, and endangered plant and animal species provide added interest for naturalists. In many cases, protected wetlands have been shown to enhance the value of neighboring properties due to these factors. Another valued benefit of wetlands is the space they provide for introspection and quiet reflection. Global Warming Mitigation. Wetlands mitigate the impacts of human-induced global warming by acting as carbon sinks. Wetlands trees and other plants reduce the amount of carbon dioxide in the atmosphere through photosynthesis. Peats, organic-rich soils, and other sediments in wetlands provide long-term storage of carbons. Extensive coal deposits throughout the world demonstrate the long-term effectiveness of some wetlands in storing carbon. Drainage of peatlands, tundra, and other wetlands acting as carbon reservoirs results in the oxidation of organic matter, releasing it into the atmosphere as carbon dioxide, methane, and other greenhouse gases, which contribute to global warming. V. Methods of Altering Wetlands Wetlands are one of the most critical yet fragile ecosystems. Often they are lost due to human activities that are carried out without regard for, and often without knowledge of, the relationship of each part of the wetlands ecosystem to the whole. For these reasons, the following section describes the many ways wetlands have been altered and destroyed. As a wetlands advocate, you should look out for any of the following activities occurring in your local wetlands. Physical Methods of Altering Wetlands Filling. Adding any material that changes the depth of a wetland or that replaces the wetland with dry land. Draining. Removing the water from a wetland by ditching, tiling, pumping, or other similar techniques. Dredging or excavating: Removing soil and vegetation from a wetland. Diverting water. Preventing the flow of water into a wetland by diverting the upstream watercourse, lowering lake levels, or lowering groundwater tables. Clearing. Removing vegetation by burning, digging, applying herbicides, scraping, mowing, disking, or otherwise cutting. Flooding. Raising water levels, either behind dams or by pumping or otherwise channeling water into a wetland, so that water levels are too high for wetland vegetation and wildlife to survive (e.g., converting a wetland to a lake or pond).


Diverting or withholding sediment. Trapping sediment by the construction of dams, stream channelization, diking, or other such projects that inhibit the regeneration of wetlands in natural areas of deposition, such as deltas and coastal marshes. Shading. Placing pile-supported platforms or bridges over wetlands, causing vegetation to die. Conducting activities in adjacent areas. Separating wetlands from adjacent land areas, or indirectly impacting wetlands through activities at adjoining sites. Modifying fire regime. Increasing or decreasing fire frequency, or disrupting the seasonality of natural fires, so that wetland communities are adversely impacted. Chemical Methods of Altering Wetlands Adding nutrients. Increasing a wetland's natural nutrient level by pumping nutrient-laden water from agricultural areas and urban centers into the wetland water supply. Excess inputs of nutrients such as phosphorus and nitrogen can put a strain on and disrupt normal functioning of wetlands by causing undesirable increases in algae and aquatic plant growth. Algal blooms limit the sunlight available to bottom-dwelling organisms and deplete dissolved oxygen levels in wetlands. Treating sewage. Pumping untreated or partially treated urban waste water into a wetland for disposal or sewage treatment purposes. (Wetlands can be used successfully as treatment sites, with careful planning.) Introducing toxins. Releasing toxic chemicals, heavy metals, and other toxins into a wetland through activities such as applying herbicides and pesticides, draining and pumping chemical-laden water from farms and urban storm runoff, dumping chemical toxins, improperly disposing of chemical toxins in nearby landfills, drilling, and mining. Acid precipitation, caused when airborne pollutants combine with rainwater, can also have a negative impact on wetlands. Other Methods of Altering Wetlands Grazing of domestic animals. Animals such as horses, cows, sheep and goats can adversely affect wetlands. For example, their grazing reduces the vegetation in the buffer zone, allowing higher flow rates that lead to higher erosion rates and greater movement of nutrients. Grazing animals also process large amounts of nutrients and deposit it in the form of manure on or around wetlands. This increases the amount of nutrient that is included in the wetland system, increasing the likelihood of weeds and changing the composition of micro-organisms in soil and water. Their manure may contain weed seeds that could be introduced to the wetland. Grazing animals are also selective browsers or grass eaters, but they choose what they prefer to eat, giving the most palatable vegetation the most attention. Young plants are often more palatable and, as a result, there may be an imbalance in the age structure of the vegetation in a grazed wetland. There may be many mature plants but no seedlings or immature individuals to replace the older plants as they die. In the long term, this can mean the whole wetland will change.


Removal of existing wetland species. Removing existing wetland species will destroy the natural predator-prey equilibrium of wetlands. As a result, others species, now without a natural predator, may flourish in the wetland habitat. Introduction of invasive or exotic species. Introducing invasive or exotic species interferes with the natural functions of the wetland by overcrowding or outcompeting native species for food sources and habitats. Endnotes

“Managing Wetlands: Hawkesbury-Nepean Wetland Series.” Hawkesbury-Nepean Catchment Management Authority. 25 June 2008 http://www.hn.cma.nsw.gov.au/multiversions/3976/FileName/MANAGING%20WETLANDS%20FACT%20SHEET_Web.pdf. Michigan Wetlands - Yours to Protect, 3rd ed. Tip of the Mitt Watershed Council. 25 June 2008 http://www.michiganwetlands.org/citguide.html.

“Wetlands Overview”. U.S. Environmental Protection Agency. 25 June 2008 http://www.epa.gov/owow/wetlands/pdf/overview_pr.pdf. Saving Wetlands: A Citizen’s Guide for Action in California. (California: National Audubon Society, 1992).


Chapter 2: LAUNCHING A WETLANDS OUTREACH CAMPAIGN I. Chapter Overview Launching a wetlands outreach campaign can save money and time that might otherwise be spent in litigation against developers and regulatory agencies over the fate of wetlands. A wetlands outreach campaign can save wetlands that might otherwise be developed. It not only encourages a broad community understanding of the fragility and value of our wetland resources, but it also opens a dialogue with landowners before development plans are finalized so that alternatives can be considered. Even if an outreach campaign should fail to induce a landowner to protect a wetland resource, information gained from evaluating the wetland site can be used to scientifically demonstrate its importance when challenging proposed projects. In addition, a network of public and political support may help protect other wetlands down the road. Not every wetlands battle is winnable, but raising public awareness of the importance of wetlands can set the stage for better policies to protect these valuable community resources. The public outreach strategies suggested in this chapter are not meant to be exhaustive. Indeed, you may find more ways to effectively inform your local community about the value of saving and preserving wetlands. II. Locate Your Wetlands Knowing where wetlands are located in your community is important to properly and effectively monitor them and educate the community about their many values. The U.S. Fish and Wildlife Service has National Wetland Inventory (NWI) maps available at http://www.fws.gov/nwi/ and hard-copy maps of wetlands can be obtained through Cooperator-Run Distribution Centers in your area (See Appendix 3). While the NWI is invaluable in locating mapped or designated wetlands, there are still many more wetlands that are not mapped, such as some of the wetlands in the arid West. In this case, contact your county or municipal office, which may have local zoning information that may indicate properties containing wetlands. In addition, the state natural resource or fish and game agencies, the Natural Resources Conservation Service (NCRS), 4 the state university natural resource departments, watershed associations, and hunting clubs can be indispensable resources for local wetlands knowledge. III. Wetland Campaign Ideas and Strategies

Publish and Distribute General Wetland Brochures or Fact Sheets A major reason for losing wetlands is that no one comes forward with specific information about the values of a wetland before its disappearance or damage, and no one notices when an activity disrupts or destroys a small but valuable local wetland. When informed citizens intervene to provide crucial information about a wetland's values, early plans for destruction can often be averted or, at least, reduced. Therefore, publishing and distributing general wetland brochures or fact sheets can help to inform the public about local wetlands.

4 Natural Resources Conservation Service State Offices: http://offices.sc.egov.usda.gov/locator/app?agency=nrcs


Information needed to print general brochures or fact sheets may include the types of wetlands, wildlife and plants, soil types, water levels and quality, benefits provided by the wetlands, man-made impacts on the wetlands (e.g., development, degradation of water quality), zoning, ownership, and protection status. Help Conserve Wetlands through Land Trusts Land trusts are local, regional, or statewide not-for-profit corporations organized by members of the public and landowners under the laws of particular states to work with landowners to protect open spaces—natural, recreational, agricultural, historic, archaeological, and cultural sites. There are over 1600 land trusts nationally with approximately 1.5 million people who are supporters or members of land trusts. A census of land trusts in 2000 by the Land Trust Alliance indicated that wetlands constituted 52% of lands protected by land trusts.5 Land trusts serve many functions in a community. They provide information on private, voluntary action landowners can take to protect their land while meeting their financial needs. Land trusts often perform natural and cultural resource inventories of individual properties. In addition, they may accept donations of land or conservation easements, typically holding the land ‘in perpetuity.’ Larger land trusts may broker purchases on behalf of differing interests, such as buying and then selling private land to a city or county for a local park, pooling funds from public and private entities for land purchases, or ensuring that private property is purchased by a conservation-oriented buyer. A local land trust provides an effective partner when protecting significant community resources. Although not a substitute for local land-use planning and regulation, land trusts can provide the leadership, commitment, and flexibility that are essential to effective community stewardship. Land trusts have been formed in every state. As of the end of 2003, local and regional land trusts had protected 9,361,600 acres of natural areas.6 National land trusts have protected an additional 25 million acres. Land trust members are often motivated and influential members of a community. They are in a position to not only lobby for government funds for acquisition of wetlands and related ecosystems, but also may persuade their neighbors and other members of the community to protect and restore wetlands. They can map and assess wetlands, prepare community land and water plans, and encourage adoption of regulations and other protective measures. If you want to search for a local, state, or national land trusts that may help conserve your local wetlands, you can check online at Land Trust Alliance: www.ltanet.org/findlandtrust/ Work in Concert with Landowners to Protect Wetlands Understanding that property owners have certain rights, wetland regulations attempt to navigate the sometimes tricky waters of determining where an individual’s property rights end and where the public’s interest in resource protection begins. With that in mind, it is far easier to enlist the help of landowners in protecting wetlands by informing them of their importance and the many 5 http://www.caledonia.org.uk/socialland/land_trusts.htm 6 http://www.lta.org/about-us


ways they can prevent wetlands loss. For example, you can send letters or brochures to private owners of wetland property. Let them know the value of their wetlands and how apparently minor infrastructural changes to the wetland habitat can significantly damage its ability to function effectively. Invite them to learn more about wetlands by providing your contact information or referring them to a local wetlands conservation organization. Inform the Local Media Submit articles or write letters to the editors to local newspapers informing them of any new developments on local wetlands. Take and submit a scenic nature photograph depicting the activities on wetlands to local newspapers. Alert the local newspapers about wetland events held every May during American Wetlands Month7 or during World Wetlands Day8 on February 2nd of each year. Invite media, elected officials to a local wetland where you can demonstrate its values―wildlife, water quality, recreation—and press for protection. The opportunities to quickly and easily reach out to masses of audiences through the local media will be a powerful tool to help educate your community about the importance of wetlands. In order to make a successful pitch to your local media, it may be helpful to contact reporters or radio hosts who have reported on wetlands or have been assigned to cover environmental or local news. Look through archived news article at your local library or call the general information line of your local news outlet. Establish Wetland Trails You should also consider raising funds with the help of chapter members, friends, and local environmental organizations to establish wetland trails and boardwalks. This will allow your community to discover the many wonders of a wetlands habitat and prompt them to become a wetlands advocate. Influence Public Policy Influencing public policy is another way you can help protect wetlands. The Clean Water Act and associated regulations is the main piece of federal legislation that governs the protection of wetlands. (See chapter 3 for more details on how this legislation works to protect wetlands.) Lawmakers consider legislation every year that impacts wetlands protection. Educating your federal, state and local decisionmakers on the values of wetlands is of utmost importance. You can start this process at the federal level by meeting with your House member and Senators when they are home in your district or state. Developing a relationship with their district staff is also important for ensuring that public policies recognize the importance of wetlands.

Vote You can influence public policy by simply exercising your right to vote! Vote for local, state, and federal legislators, including governors, who will support funding and protection for wetlands. Urge family, friends, and others to do the same.

7 A list of American Wetlands Month related events organized by the EPA is available at: www.epa.gov/owow/wetlands/awm/ 8 Information regarding World Wetlands Day is available at: www.ramsar.org/wwd/wwd_index.htm.


Work to Increase Conservation Funding In addition, you can influence public policy by generating political support for wetlands conservation at the federal level. Many of the wetlands conservation programs such as the Wetlands Reserve Program (WRP) are authorized and funded for a five or ten year period. (See Chapter 3 for more information about federal conservation programs.) Federal conservation programs have been critical in preserving and restoring wetland habitats. As of fiscal year 2006, 9,951 projects had been enrolled in WRP, leading to the restoration of nearly two million acres of wetlands.9

Advocate Effectively It is essential that wetlands advocates track important conservation funding deadlines and urge their Congressional representatives to fund wetlands protection programs. Learn about the status of important environmental bills affecting wetlands before Congress and state legislatures by signing up to the Audubon Action Center at www.audubonaction.org. The Center will put you in touch with your lawmakers, local media, and give you access to inside information on issues affecting wetlands and wildlife habitats.

To reach your Congressional representatives about a bill, call the Capitol Switchboard at (202) 224-3121 and ask for your Representative or Senator or go to www.congress.org/congressorg/home to identify your representatives. When you call, you will speak with an aide rather than the lawmaker, but your call is still important. Identify yourself as a constituent. Lawmakers are most concerned and interested in the thoughts and opinions of their constituents – people who live and vote in their state or district. State why you are calling and the action you would like the lawmaker to take. Give a bill number if possible. Be courteous and ask for a response. If the lawmaker does not support your bill, let her/him know you’re disappointed. In addition, you can write a letter or make a personal visit to your lawmaker’s office. Contact information is available on the websites of your respective House members and senators.

Fundraising for Your Cause As you are putting together the pieces of your wetland protection plan, keep in mind your financial resources. Your objectives may require that you conduct some fundraising in order for them to be achieved. The following questions should be considered when thinking about your fundraising activities:

• How much money do you need to successfully complete your objectives? • What activities can you do to raise the amount you need? • Who will be responsible for coordinating the activities and seeing that they run

smoothly? • When will the fundraising start and when will it end?

9 http://www.nrcs.usda.gov/Programs/WRP/State_Maps_Stats/progstat.html


The more thoroughly you plan before you begin to actually raise money, the less time you'll have to spend on this aspect of the program. The bulleted items below will give you some specific pointers on fundraising and how to seek donations.

• Plan to publicize your fundraising campaign well in advance of asking for money. Make people aware of your program and why you need their donations. Remember, you are selling the benefits of your program, so let people know how their donations will be helping.

• Ask for a specific amount. It's a well-known fact in fundraising that people give more if you suggest an amount.

• Make requests for money as personal as possible. Ask in person whenever you can. If you write letters, use the individual's name in the greeting rather than something like "Dear Friend."

• People give for a variety of reasons. If you understand the donor's motivation for giving and can appeal to that motivation, you will have more success. Fundraisers say that people give for a variety of reasons, such as a sense of self-worth, belonging, appreciation, self-esteem, and recognition, in addition to believing in your cause.

While direct mail appeals are one way to raise money, you can also get contributions through outings (e.g., swamp stomps, canoe trips), fundraising dinners (featuring foods provided by wetlands; e.g., shellfish), and by selling books, posters, t-shirts, and other items. Several Audubon chapters in Kansas, in their successful attempt to gain protection for the Cheyenne Bottoms wetlands, sold bright yellow seat cushions printed with the message "Save Our Bottoms." Financial assistance is also available through private foundations, institutional or corporate grants, and some state and federal programs. Endnotes

Saving Wetlands: A Citizen’s Guide for Action in California. (California: National Audubon Society, 1992).

Kusler, Jon A. “Protecting and Restoring Wetlands: Strengthening the Role of Land Trusts”. Association of State Wetland Managers. 15 June 2007 www.aswm.org/propub/jon_kusler/land_trust_051507.pdf.


Chapter 3: FEDERAL WETLANDS REGULATION I. Chapter Overview This chapter discusses the existing federal laws and conservation programs that have been traditionally used to protect our wetlands. Once a wetland has been significantly damaged or destroyed, any recourse is limited, expensive, or nonexistent. However, by becoming familiar with the regulatory procedures intended to preserve wetlands and using them appropriately, you will be utilizing one of the most powerful tools at your disposal to avert wetland destruction. Some federal provisions protect wetlands by controlling when, how, and for what purpose a wetland may be filled, while others lay out penalties for noncompliance and delegate authority over wetland issues among regulatory agencies. We encourage you to learn more about the laws and regulations that pertain to your situation and follow their implementation closely. Public involvement can have a tremendous effect in supporting the regulatory preservation of wetlands. In addition, the conservation programs discussed in this chapter provide incentives for landowners to preserve wetlands. You can inform landowners about the Wetlands Reserve Program, the Conservation Reserve Program, and the Wildlife Habitat Incentives Program. Moreover, you can help protect wetlands simply by asking friends and families to purchase duck stamps from any U.S. Post Office. II. Clean Water Act In 1948, Congress enacted the Federal Water Pollution Control Act (FWPCA), in order to “enhance the quality and value of our water resources and to establish a national policy for the prevention, control and abatement of water pollution.” Despite the original FWPCA and amendments following the Act’s passage, water quality remained well below applicable standards. For example, the Cuyahoga River in Ohio became so polluted that oil resting on top of the river burst into flames from the spark of a passing train in 1969. As people became increasingly concerned about the health of the nation’s waters, Congress passed sweeping amendments to the FWPCA in 1977 that became commonly known as the Clean Water Act (CWA). The CWA has become the primary expression of the federal authority governing the protection of wetlands, which are intrinsically connected to the health of the nation’s waters. The CWA sets a federal floor of water protections for states to meet, yet it leaves the option for states to set more, but not less stringent protections. Under the CWA, the federal agencies principally responsible for wetlands protection are the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). The Corps administers the day-to-day management of the program, while the EPA sets standards and ensures that permits and the permitting program comply with Clean Water Act provisions. For all aspects of federal regulation, the widely recognized definition of “wetlands” used by the Corps and the EPA is “those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal


circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”10 CWA Regulatory Program Overview The heart of the Clean Water Act is founded upon the prohibition contained in § 301(a): it is illegal to discharge pollutants except in compliance with the Act. The federal authority to enforce such prohibitions in wetlands is contained in § 404 of the Act, which regulates the discharge of dredge and fill material into jurisdictional “waters of the United States,” including wetlands, through a structured permitting process.11 Under the § 404 program, the discharge of pollutants is prohibited without a permit, and no permit should be issued if a practicable alternative exists that is less damaging to the aquatic environment or if the nation's waters could be significantly degraded.12 However, a permit may allow some discharge of pollutants into regulated waters if the permittee shows need, agrees to a certain degree of mitigation, and meets other permit-specific requirements. Section 404 is administered by the federal government, unless a state or tribe has assumed administration of the program. If a state or tribe desires to administer the program, it needs to develop a wetlands permit program similar to the federal program and have it approved by the EPA. Many states, however, have chosen not to assume the responsibilities of the § 404 program. These states may lack the financial and human resources to implement the program, or they may want to leave the power to regulate water resources under the CWA to federal authorities. To date, only Michigan and New Jersey have fully assumed the § 404 program, while other states have relied on the Corps and the EPA to implement all or part of the program. (States may adopt their own programs to protect wetlands, as discussed in Chapter 5.) States or tribes, however, can play an important role in § 404 decisions even if they have not assumed all or part of the § 404 program. In § 401 of the Act, all permit applications administered by the Corps and EPA must also meet the state’s water quality certification. This authority allows states and tribes to prohibit or put additional conditions on § 404 permits before they can be finally approved. (See Chapter 5 for information about the water quality certification process.)

10 40 CFR 232.2 11 The statutory term “navigable waters” prescribes the geographic scope of federal jurisdiction under the CWA. The statute defines “navigable waters” as “waters of the United States, including the territorial seas”. 33 U.S.C. § 1362(7). The agencies have defined waters of the United States to include tidal waters, ponds, lakes, and wetlands, that are, or could be, navigable and/or which are, or could affect interstate commerce. You can find the regulatory text at: http://www.usace.army.mil/cw/cecwo/reg/33cfr329.htm. For more information on “navigable waters,” see Title 33 of the U.S. Code at: http://www4.law.cornell.edu/uscode/uscode33/usc_sup_01_33.html 12 Section 404 of the Clean Water Act, 33 U.S.C. § 1344, can be found at: http://www4.law.cornell.edu/uscode/33/1344.html).


Program Guidelines To implement the § 404 permitting program, the EPA and the Corps published guidelines under § 404 (b)(1) containing substantive environmental criteria to be used in evaluating discharges of dredge and fill material and detailing requirements at the disposal sites. These guidelines and standards were created out of the Corps’ (along with the EPA’s) interpretation of the Clean Water Act’s language, and contain a number of the specifics regarding what must be done to allow a proposed discharge to receive one of two types of permits. General Permits The two types of permits available under § 404 are the general permit and the individual permit. A general permit recognizes generally allowed categories of activities because of a finding that such activity will only cause minimal environmental effects, both individually and cumulatively, upon discharge (e.g., minor road crossings, utility line backfill and bedding).13 The Corps reassesses the activities covered by general permits every five years. In order to reissue a general permit, the agency must go through the entire rulemaking process, including a period for public notice and comment.14 However, this public notice and comment requirement applies only during this reassessment process, not for each discharge under a general permit. General permits may be issued on a nationwide, regional, or statewide basis, and Corps district commanders may add additional conditions to the general permit. General permits fall into the following categories: Nationwide Permits (NWP). These are general permits developed for categories of activities and apply to the entire country. On March 2007, the Corps reissued 43 NWPs, but also issued six new NWPs, and added new general conditions and definitions applicable to NWPs. Current NWPs will expire March 2012 when there will be an opportunity to provide public comment during the reevaluation process. Regional Permits. These are general permits developed for categories of activities and apply to specified regions as a response to specific regional conditions. For example, on November, 2006, the district engineers for the Albuquerque, Omaha, and Sacramento Corps districts re-issued Regional General Permit 96-07, which authorizes certain flood-related fill or excavation activities for flood-damaged areas performed in waters of the U.S. within the state of Colorado, which has overlapping Corps districts. State Permits. These are general permits developed for categories of activities and apply to a specified state.

13 Section 404 (e) of the Clean Water Act, 33 U.S.C. § 1344 (e) 14 The list of 2007 Nationwide Permits can be found at: http://www.usace.army.mil/cw/cecwo/reg/nwp/nwp_2007_final.pdf For state and regional permit information, see the U.S. Army Corps of Engineers’ website, at: http://www.usace.army.mil/


Programmatic General Permits (PGP). These are general permits that authorize certain projects that are also regulated by another federal, tribal, state, or local regulatory authority. PGPs were developed to avoid duplicative regulatory measures and are administered by state, local, or other agencies, but are subject to federal oversight. PGPs operating on a state level are known as state programmatic general permits (SPGP) and like all general permits, they can be issued only for activities that will cause minimal adverse environmental effects. In the absence of an SPGP, a person seeking authority to fill wetlands might be required to obtain separate state and federal individual permits. Currently, there are ten states that have comprehensive SPGPs: Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, Pennsylvania, Rhode Island, Vermont, and Wisconsin. Five additional states—Delaware, Florida, Hawaii, Louisiana, and Virginia—have SPGPs that pertain to specific activities and/or specific geographical areas. If an activity is permitted on a national, regional, or statewide basis, instead of going through the full permitting process (detailed below), the applicant may be required to notify the Corps of its intent to do an action allowable under a general permit, and for most permits, the applicant may proceed so long as all permit conditions are met. Individual Permits If an activity does not fit into a general permit category, the developer must obtain an individual authorization to discharge dredge and fill materials. The individual authorization comes in two forms: standard individual permits and letters of permission (LOP). Standard individual permits are only valid for a single, specific project, and the authorization process is more involved than the general permitting procedure.15 LOPs are abbreviated forms of individual permits issued by some Corps districts. Standard Individual Permits When evaluating standard individual permit applications, the Corps must conduct a public interest evaluation that considers the “probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.”16 For example, projects that unnecessarily alter or destroy important wetlands functions do not serve the public interest and should be rejected by the Corps. The Corps and EPA have also established a “sequencing” (avoid-minimize-mitigate) policy for evaluating an application for a § 404 permit. Under sequencing, the party must first demonstrate that steps have been taken to avoid impacts on protected waters, and especially to wetlands or other special aquatic sites where practicable. Then, for those impacts that cannot be avoided, the applicant must demonstrate that steps have been taken to minimize impacts to the greatest extent practicable. Finally, the applicant must propose a mitigation plan that compensates for the harm to waters that cannot be avoided or minimized. (See Chapter 5, Section D, for further information about mitigation policies that a wetlands advocate should look into when evaluating permits during the public comment and review period.)

15 Section 404 (a) of the Clean Water Act, at 33 U.S.C. § 1344 (a) 16 33 C.F.R. Section 320.4 (a)


The steps to obtaining a standard individual federal permit are as follows:

1. The applicant must submit a completed permit application.17 The application typically requires information regarding the amount of fill to be placed, the amount of excavation proposed, and the purpose of the construction.

2. The Corps determines whether the project is within its jurisdiction. In addition, the Corps must determine whether the permit application is complete. If it is not, the Corps must request additional information from the applicant. The Corps encourages pre-application conferences to address many of these issues.

3. Once the Corps determines that the permit is complete, it must issue a public notice within 15 days that describes the permit application, the proposed activity and its location, and the potential environmental impacts. The items that must be included in a public notice are set forth at 33 C.F.R. § 325.3. The notice must invite the public, including all interested federal and state agencies, organizations, and individuals, to review and submit comments within a specified period of time, usually 15-30 days. It is at this stage that the environmental review takes place. If threatened or endangered species may be affected by the proposed activity, the Corps will consult with the appropriate Federal agency (e.g., U.S. Fish and Wildlife Service) to obtain a biological opinion on the effects to the species. If the proposed activity may have significant impacts on the human environment, an Environmental Assessment (EA) will be prepared, after which an Environmental Impact Statement (EIS) may be required by the Corps. If cultural resources are within the permit area and will be impacted by the proposed activity, the Army Corps must comply with § 106 of the National Historic Preservation Act and the applicant may be required to obtain cultural resource surveys.

4. The Corps may hold a public hearing on the permit application. 5. The Corps reviews the application and comments. During the review, the Corps will

determine whether a permit application complies with the CWA § 404(b)(1) Guidelines, and whether the project activity is in the public’s interest. A Corps District Office may evaluate the benefits and adverse impacts of the project, focusing on:

a. Conservation and environmental concerns b. Aesthetics c. Fish and wildlife values d. Welfare of the general public e. Recreation f. Water supply and quality g. Navigation and safety h. Economics i. Flood damage prevention j. Historic values k. Land use l. Energy needs m. Food production

17 A copy of the application can be found at: http://www.usace.army.mil/cw/cecwo/reg/eng4345a.pdf


n. Compensatory mitigation plans, as appropriate 6. Applicant reviews comments and may have opportunity to respond. 7. The permit application and supporting documentation are submitted for State/Tribal

Water Quality Certification Review. (See Chapter 5.) 8. Either the application is denied or the application is approved and a permit is issued

by the Corps, which will include conditions. However, EPA can veto a § 404 permit if the activity would have unacceptable impacts, but such vetoes are extremely rare. The Corps may not issue a permit if the EPA regional administrator has notified the district engineer and the applicant in writing that she/he intends to prohibit, deny, restrict or withdraw the use of the area as a disposal site under Clean Water Act § 404(c); 33 U.S.C. § 1344(c); 33 C.F.R. § 323.6(b). In making its veto determination, EPA will consider the effects of both the permitted activity (for example, filling wetlands to build a dam) and the resulting impacts of the project (for example, the impacts of the reservoir created by the dam). Public notice, public comment, and hearings are required before a veto can be issued. Regulations governing the veto process are found at 40 C.F.R § 231.

Letters of Permission In lieu of an individual permit, some Corps districts are issuing administrative letters of permission (LOP) for projects with relatively minor impacts that do not qualify for a general permit. While LOPs are abbreviated individual permits, they share some of the same procedures of the general permitting process. Before LOPs are issued by the Corps, they undergo a public interest evaluation which includes coordination with federal and state fish and wildlife agencies, EPA, the state water quality certifying agency, and if appropriate, the state Coastal Zone Management Agency. LOPs also require a public notice advertising the proposed categories and the LOP procedures, request comments, and offer an opportunity for public hearings. LOPs may also include conditions and appropriate case-specific provisions necessary to protect the environment, including natural and cultural resources. Unlike general permits, LOPs do not require a reassessment by the Corps every five years. Once a process for their evaluation is established and published, LOPs do not need to be changed unless conditions warrant it. In addition, activities authorized by the LOP require application to and response from the Corps before activities can begin. Although the Corps does not issue a public notice of each instance where the individual applies for a LOP, the Corps will notify adjacent property owners who are given the opportunity to request a public hearing before an LOP application is finally approved. III. Other Federal Authorities While the CWA plays a decisive and powerful role in regulating activities on wetlands, other federal laws also address wetlands protection. The following section contains an overview of the other significant federal authorities for regulating and protecting wetlands in the United States. While none of these programs are as inclusive as the CWA § 404 permitting program, they all contain a piece of the federal protection puzzle. Rivers and Harbors Appropriations Act of 1899 The Rivers and Harbors Act preceded the Clean Water Act. It gives the Corps Authority to regulate activities in “navigable” waters. Specifically, § 10 of the Rivers and Harbors Act


establishes a program to regulate activities affecting navigation in United States waters, including wetlands, because of activities such as the alteration or obstruction of such waterways through diking, deepening, filling, or excavating.18 National Environmental Policy Act of 1969 (NEPA) The National Environmental Policy Act has been described as the basic national charter for environmental protection. It establishes policy, sets goals, and provides means for carrying out the policy for major federal actions significantly affecting the quality of the human environment. Protection of wetlands is not a specific purpose of NEPA, however, impacts on wetlands are listed among the environmental parameters to be evaluated in an environmental assessment (EA) and environmental impact statement (EIS). An EA and EIS are used by an agency to assess the environmental impact of major federal actions. The EIS is to be done before construction of any federally funded, authorized, or permitted activities that would have a significant effect on the human environment.19 Endangered Species Act (ESA) The Endangered Species Act provides for the conservation of threatened and endangered plants and animals and the critical habitats on which they depend. The ESA is important to the protection of wetlands because of the large number of endangered species known to live in, and make use of, wetlands.20 Water Resources Development Act (WRDA) The Water Resources Development Act provides for the conservation and development of water and related resources with the core mission of inland navigation, flood damage reduction and environmental protection. It also authorizes the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States, as well as ecosystem restoration (e.g., Everglades, Coastal Louisiana, Upper Mississippi River Basin). Wetlands are incorporated into this Act to meet the interim goal of no net loss of the nation’s last remaining wetlands through restoration and mitigation as part of an authorized project.21 Coastal Zone Management Act (CZMA) Enacted on October 27, 1972, the Coastal Zone Management Act encourages coastal states, Great Lake States, and U.S. Territories and Commonwealths (collectively referred to as “coastal states” or “states”) to preserve, protect, develop, and where possible, to restore or enhance the natural resources of the coastal zone. The Act provides funding assistance to state coastal wetland resource planning programs. This Act is partially regulatory in that any federal activity, or any activity requiring a federal license or permit, within the designated coastal zone must be consistent with the state’s coastal zone management plan. In 1980, the scope of the CZMA was expanded to include funds for restoration and education. (See Chapter 5, Section IV, for more information.)

18 The text of section 10 of the Rivers and Harbors Act can be found at: http://www.usace.army.mil/cw/cecwo/reg/rhsec10.htm 19 The text of NEPA can be found at: http://ceq.eh.doe.gov/nepa/regs/nepa/nepaeqia.htm 20 The text of the ESA can be found at: http://www4.law.cornell.edu/uscode/16/ch35.html 21 The text of WRDA can be found at: http://www.gpoaccess.gov/uscode/index.html


North American Wetlands Conservation Act (NAWCA) The North American Wetlands Conservation Act (NAWCA) is designed to protect, enhance, restore, and manage ecosystems and other habitats for migratory birds, fish, and other wildlife in the United States, Canada, and Mexico. It provides funding and administrative direction through the Department of the Interior for implementation of the North American Waterfowl Management Plan and the Tripartite Agreement on wetlands between the United States, Canada, and Mexico. It also establishes a North American Wetlands Conservation Council, the purpose of which is to recommend wetlands conservation projects to the Migratory Bird Conservation Commission (established under the Migratory Bird Conservation Act).22 Transportation Equity Act for the 21st Century (TEA-21) The Transportation Equity Act for the 21st Century authorizes funding to improve the nation’s transportation infrastructure, enhance economic growth, protect the environment, provide opportunities to improve water quality and restore wetlands.23 Migratory Bird Treaty Act The Migratory Bird Treaty Act of 1918 was enacted to put an end to the commercial trade in birds and their feathers. The Act decreed that all migratory birds and their parts (including eggs, nests, and feathers) were fully protected. The Act was amended in 1998 and 2004 to restrict its application to only migratory bird species that are native to the United States or its territories. In addition, the amendments made it unlawful to take migratory bird by the aid of bait.24 The law provides that the U.S. Fish & Wildlife Service must promulgate a list of migratory species excluded from the MBTA. Wetlands Reserve Program (WRP) The Wetlands Reserve Program is a program administered by the U.S. Department of Agriculture (USDA) to provide payments and cost sharing to farmers in exchange for restoring farmed wetlands. The WRP can compensate farmers if they place restored wetlands in a WRP easement (either permanently or for 30 years), and it can provide assistance for restoration work on the wetland. Land is eligible for the program if, prior to the enactment of the 1985 Farm Bill, it was farmed or converted wetland. If the land is eligible, the program will compensate the farmer for the difference in the fair market value of the land before and after a WRP easement is put into place.25 Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA) The Coastal Wetlands Planning, Protection, and Restoration Act (also known as the “Breaux Act”) “engages the Fish and Wildlife Service in interagency wetlands restoration and

22 The text for the NAWCA can be accessed at: http://ipl.unm.edu/cwl/fedbook/nawca.html 23 The text of TEA-21 can be found at: http://www.fhwa.dot.gov/tea21/legis.htm 24 The text of the Migratory Bird Treaty Reform Act can be found at: http://www.animallaw.info/statutes/stusfdpl108_447.htm and the text of the Migratory Bird Treaty Act can be found at: http://www.law.cornell.edu/uscode/16/usc_sup_01_16_10_7_20_II.html 25 For more information on this program, you may go to: http://www.nrcs.usda.gov/programs/wrp/


conservation planning in Louisiana. It also expands the administration of federal grants to acquire, restore, and enhance wetlands of coastal States and the Trust Territories.”26 Wetland Conservation Provisions (Swampbuster) Swampbuster was introduced in the 1985 Farm Bill, with amendments in 1990, 1996, and 2002. It penalizes producers who plant commodities on wetlands that have been drained, filled, or otherwise altered, by removing their eligibility for all government price and income support programs. Persons who plant an agricultural commodity on wetlands that were converted between December 23, 1985, and November 28, 1990, will be ineligible for program benefits in any year an agricultural commodity is planted unless an exemption applies. Persons who convert a wetland making production of an agricultural commodity possible after November 28, 1990, will be ineligible for program benefits until the functional loss of the wetland that was converted is mitigated. In order to determine compliance with the Swampbuster provisions, the USDA’s Natural Resources Conservation Service (NRCS) determines if a producer's land has wetlands that are subject to the provisions. These determinations stay in effect as long as the land is used for agricultural purposes or until the producer requests a review. Conservation Reserve Program (CRP) The Conservation Reserve Program pays landowners to take highly erodible land out of crop production and plant vegetation that controls soil erosion and helps wildlife. Farmers receive an annual rental payment for the term of the multi-year contract. Cost sharing is provided to establish the vegetative cover practices.27 Wildlife Habitat Incentives Program (WHIP) The Wildlife Habitat Incentives Program is a voluntary program for people who want to develop and improve wildlife habitat primarily on private land. Through WHIP, NRCS provides both technical assistance and up to 75 percent cost-share assistance to establish and improve fish and wildlife habitat. WHIP agreements between NRCS and the participant generally last from five to ten years from the date the agreement is signed. The Farm Security and Rural Investment Act of 2002 reauthorized WHIP as a voluntary approach to improving wildlife habitat in the United States.28 Migratory Bird Hunting Stamp Act (Duck Stamp Act) In 1934, President Franklin D. Roosevelt appointed Jay N. (Ding) Darling, a nationally known political cartoonist for the Des Moines Register and noted hunter and wildlife conservationist, as chief of the Bureau of Biological Survey, the predecessor of the U.S. Fish and Wildlife Service. In that position, Darling conceived the idea of a stamp to be bought by all waterfowl hunters that would generate funds to pay for acquiring and preserving

26 The text of CWPPRA, Chapter 59A: Wetlands can be found at: http://www4.law.cornell.edu/uscode/16/ch59A.html 27 For more information on this program, go to: http://www.nrcs.usda.gov/programs/crp/ 28 For more information on this program, go to: http://www.nrcs.usda.gov/programs/whip/


habitat for ducks, geese and swans. On March 16, 1934, Congress passed and President Roosevelt signed the Migratory Bird Hunting Stamp Act, known as the Duck Stamp Act. It requires all waterfowl hunters 16 years or older to buy a stamp annually. The first stamp cost $1.00 and 635,000 people bought the first issues. Approximately 98 cents of every duck stamp dollar goes directly into the Migratory Bird Conservation Fund to purchase wetlands and wildlife habitat for inclusion into the National Wildlife Refuge System. As the number of hunters dwindled, three groups of Americans have assumed an increasing role in filling the gap in the purchase of federal duck stamps—collectors, art enthusiasts and other conservationists. Possession of the most recent federal duck stamp provides free admission into all National Wildlife Refuges. Since 1934, the sales of federal duck stamps have generated more than $670 million, which have been used to help purchase or lease over 5.2 million acres of waterfowl habitat in the United States. These lands are now protected under the U.S. Fish & Wildlife Service’s National Wildlife Refuge System. An estimated one-third of the Nation's endangered and threatened species find food or shelter in refuges established using federal duck stamp funds.29 Furthermore, in 1984, Congress enacted an amendment to the 1934 Act authorizing the Secretary of the Interior to license reproductions of the federal duck stamp on products manufactured and sold by private sector enterprises. Royalties from the sale of these products are also deposited into the Migratory Bird Conservation Fund for wetlands acquisition.30 Emergency Wetlands Resources Act of 1986 The Emergency Wetlands Resources Act authorizes the purchase of wetlands with the Land and Water Conservation Fund.31 The monies can only be accessed if the Director of the Fish and Wildlife Service establishes a National Wetlands Priority Conservation Plan.32 Furthermore, the state requesting the funds must include the wetlands in their Comprehensive Outdoor Recreation Plans and transfer funds from import duties on arms and ammunition into the Migratory Bird Conservation Fund. Migratory Bird Conservation Act The Migratory Bird Conservation Act establishes a Migratory Bird Conservation Commission to approve areas of land and water for acquisition as reservations for migratory birds. Since the Commission's establishment in 1929, over 4 million acres of critical bird habitat have been acquired by the Fish and Wildlife Service by fee purchase, easement, or lease with monies from the Migratory Bird Conservation Fund. The money for the fund comes from several sources, including duck stamps and receipts from the sale of refuge admission permits as provided for by the Emergency Wetlands Resources Act of 1986. Many of the lands acquired are small natural wetlands located in the Prairie Pothole region of the Upper Midwest and northern Great Plains

29 http://www.fws.gov/duckstamps/Info/Stamps/stampinfo.htm 30 For a list of Federal Duck Stamp product licensees, visit: http://duckstamps.fws.gov 31 The text of the Emergency Wetlands Resources Act can be found at: http://www.law.cornell.edu/uscode/16/3901.shtml 32 The National Wetlands Priority Conservation Plan can be found at: http://www.fws.gov/policy/ or http://law.justia.com/us/codes/title16/16usc3921.html


portion of the Central Flyway. Wetlands and migratory bird habitats located within the Atlantic, Mississippi, and Pacific Flyways have also been acquired.33

33 http://www.fws.gov/realty/mbcc.html


Chapter 4: PARTICIPATING IN CLEAN WATER ACT REGULATORY PROCEEDINGS I. Chapter Overview This chapter provides a step-by-step guide on participating in Clean Water Act regulatory proceedings to protect and restore wetlands. The chapter begins with a description of the process for pubic involvement in the permitting process: locating the public notice, procedures for submitting comments, comments on wetland impacts of the proposed project, comments on proposed compensatory mitigation, requesting a public hearing and testifying, responding to after-the-fact permits, and appeals of permit decisions. Next, the chapter discusses public involvement in the issuance of general permits and ends with an illustration of an instance in which the public brought about the restoration of a wetland through participation in the CWA regulatory proceedings. II. Public Review of Individual Permits Section 404 of the Clean Water Act requires the permitting agency to issue a public notice within 15 days of receiving a completed application that describes the permit application, the proposed activity and its location, the potential environmental impacts, and the compensatory mitigation schemes. The items that must be included in a public notice are set forth at 33 C.F.R. § 325.3. The notice must invite the public, including all interested federal and state agencies, organizations, and individuals to review and submit comments within a specified period of time, usually 15-30 days, which may be extended upon request. A wetlands activist’s best chance to influence a permit's conditions and its approval or dismissal is before the individual permit is issued. Respond to any public notice that concerns you, request a hearing if the conditions of the individual permit request are controversial, and make full, detailed, and substantive comments. Never assume that because you think a project is important, agencies will as well. The Corps, EPA, Fish and Wildlife Service, and state environmental agencies receive hundreds of applications each year - often more than their offices are capable of responding to fully. The public comment period allows the public to address concerns about a project that may be overlooked by the Corps or by state agencies that have assumed the § 404 program. Locating a Public Notice of Pending Permitting Applications Public notices can be found online at your regional Corps of Engineers District website.34 In Michigan and New Jersey, in both of which the state has assumed administration of the § 404 program, public notices are available on the websites of the Michigan Department of Environmental Quality and the New Jersey Department of Environmental Protection, respectively. There often will be an immediate link to the “Permits” or “Public Notices” section, which lists all the permit applications currently open to public comments and review. In addition, public notices are generally published in the largest newspaper of general circulation (usually in the legal notices section) for the county in which the facility is, or is proposed to be, located. If no newspaper of general circulation is published in the county, the notice will be published in a newspaper of general circulation in an adjoining county. Finally, public notices

34 Corps of Engineers Districts, listed by state, can be found at: http://www.usace.army.mil/howdoi/where.html#divisions


may be obtained by written request to your regional Corps of Engineers District office or, if appropriate, to your state environmental agency. The typical Corps public notice, however, provides only minimal information, and often does not provide the specific facts needed to generate meaningful public comment. If you want to know more about a particular permit application, contact the Corps project manager listed on the public notice or the state water quality certification project manager. It is strongly recommended that you attempt to obtain additional information before submitting your comments. (See Appendix 2 for the contact information of your Corps of Engineers Office. See Appendix 7 and 8 for general samples of Corps Public Notices.) Submitting Public Comments Once you have located the public notice, you should then follow these procedures for submitting comments:

1. Note which Corps District or other agency is handling this permit application and address your questions and comments to the person handling the permit application.

2. Submit your comments in writing to create a public record for the file, even if you also provided the comments verbally at a public hearing. Remember to provide your contact information, including your name, address, and telephone number with your area code.

3. When submitting comments, always identify the subject of your comments by stating the application and process/file number and immediately state your position and concern about the project.

4. Written comments must be delivered no later than the expiration date of the comment period (this is generally 15 to 30 days from the date the public notice is issued). If you need more time, call the Corps and request an extension.

5. Base your comments on the detail of the project. (See Section C for more information.) 6. Ask the applicable agency to notify you of the final decision. (See Appendix 9 for a

sample of a public comment letter.) Commenting on Wetland Impacts of a Proposed Project When commenting on the public notice, it is important to determine the facts relating to the need to locate the project on or near wetlands. Some issues regarding adverse impacts, including loss of important wetlands functions, include:

1. Practicable alternatives to the design and site 2. Cumulative impacts of the project, taking into account foreseeable future projects 3. Ecological impacts 4. Loss of flood storage 5. Degradation of water quality 6. Toxic contamination of fill 7. Loss of sediment trapping 8. Loss of groundwater recharge 9. Loss of shoreline stabilization 10. Reduced aquatic food chain contribution 11. Loss of habitat for fish, birds, and other wildlife


12. Loss of use of the site by threatened or endangered species 13. Loss of public uses, including recreation and education 14. Loss of carbon sequestration capacity

In addition, you may want to include any personal observations of the site, such as photographs of bird sightings with the date and location taken. If you know that other resource or governmental agencies, such as the Department of Fish and Game or the U.S. Fish and Wildlife Service, oppose the project, refer to their official position. You may want to contact them, if they have not commented, to request that they review the permit application and comment on concerns you identify. Commenting on Compensatory Mitigation Plans Compensatory mitigation signifies activities that are used to compensate for the unavoidable impacts on the wetland because of dredge or fill activities. To satisfy the requirements of the Clean Water Act and the no-net-loss of wetlands goal first established by the George H.W. Bush administration, compensatory mitigation plans have been the primary instrument to replace the lost functions, values, and spatial extent of aquatic habitats damaged or destroyed by activities permitted by § 404. During the permitting process, permit applicants are required to take all practicable steps to avoid and minimize adverse impacts to waters of the United States, including wetlands. For unavoidable but permitted impacts, the permit applicant must propose an appropriate compensatory mitigation option to offset the loss of wetlands caused by such impacts. In April 2008, the EPA and the Corps published a new set of rules establishing certain standards and a hierarchy for the use of all types of compensatory mitigation. Wetlands advocates should carefully consider all mitigation plans when reviewing a public notice or permit application affecting wetlands. Compensatory mitigation should not be used unless all practicable alternatives to avoid or minimize wetlands loss are exhausted. In order to adequately comment on the mitigation plans, the following section will describe the various compensatory mitigation schemes in detail and offer several suggestions for commenting on wetlands permits. Compensatory Mitigation Types Under the new rule, there are four general types of compensatory mitigation that differ in their ability to replace lost functions and values. a. Restoration. Re-establishment or rehabilitation of a wetland or other aquatic resource with the goal of returning natural or historic functions and characteristics to a former or degraded wetland. Restoration may result in a gain in wetland function, wetland acres, or both. b. Establishment (Creation). The development of a wetland or other aquatic resource where a wetland did not previously exist. While successful establishment results in a net gain in wetland acres and function, it is often hard to replicate the soil and hydrological conditions that will support and sustain wetlands through this method.


c. Enhancement. Activities conducted within existing wetlands that heighten, intensify, or improve one or more wetland functions. Enhancement is often undertaken for a specific purpose such as to improve water quality, flood water retention, or wildlife habitat. Enhancement results in a gain in wetland function, but does not result in a net gain in wetland acres. d. Preservation. The permanent protection of ecologically important wetlands or other aquatic resources through the implementation of appropriate legal and physical mechanisms (i.e., conservation easements, title transfers). Preservation may include protection of upland areas adjacent to wetlands as necessary to ensure protection or enhancement of the aquatic ecosystem. Preservation does not result in a net gain of wetland acres and may be used as the only form of compensatory mitigation, at the discretion of the district commander, when the resources to be preserved contribute significantly to the ecological sustainability of the watershed.35 Mechanisms for Compensatory Mitigation The four types of compensatory mitigation can be implemented through three mechanisms. The new rule ranked these options in order of preference, as shown below: a. Mitigation banks are completed, large-scale wetland mitigation projects usually operated by private entities that attempt to create, restore, enhance, and preserve wetlands so that the bank can sell mitigation credits to others who are developing in wetlands. In effect, mitigation banks shift the responsibility for ensuring that required compensation is completed and successful from the permit applicant to the bank. The Corps argues that approved mitigation banks usually undergo more rigorous scientific and technical analysis, planning, and implementation than in-lieu fee mitigation and permittee-responsible mitigation. Mitigation banks also cannot sell their credits unless the physical development of compensation sites has begun. As a result, the new rule stipulates a preference for the use of mitigation bank credits, but district commanders may override this preference if they find other options to be more relevant or have more potential for success on a case-by-case basis. b. In-lieu fee mitigation involves payment of a fee into a pooled mitigation fund managed by a government agency or non-profit groups rather than for-profit entities. Like mitigation banks, in-lieu fee mitigation shifts the responsibility for ensuring that required compensatory mitigation is completed and successful from the permit applicant to the in-lieu fee program administrator. In-lieu-fee mitigation sells a certain number of credits to permit applicants before compensatory mitigation sites are secured or developed. As a result, in-lieu fee mitigation may be less preferable to mitigation banks, but more preferable than permittee-responsible mitigation since the new rule by the EPA and Corps adds measurable standards that require a compensation-planning framework, which details how the in-lieu fee program will select, secure sites, and implement mitigation projects in a watershed context. c. Permittee-responsible mitigation requires the permit applicant to compensate for lost wetlands by providing compensatory mitigation through restoration, establishment, enhancement, and preservation of wetlands. The permittee retains responsibility for the implementation and success of the mitigation project. Permittee-responsible mitigation may be 35 40 CFR § 230.93(h)


completed at, or adjacent to the impact site (on-site), or at another location (off-site). In addition, the mitigation may have similar (in-kind) or different (out-of-kind) structural and functional qualities as compared to the impacted resource. Because of this flexibility, this mitigation mechanism may not consistently replace lost wetlands and achieve the no-net-loss goals. As a result, the Corps has ranked it last in order of preference. Suggestions for Commenting on Mitigation Plans Despite the additional standards and criteria set by the new rule, compensatory mitigation has significant drawbacks. One such drawback is that the Corps may grant mitigation credits for upland buffers around existing or restored wetlands. While creating upland buffers may help protect wetlands in the long-run, it does not compensate for the acreage of wetlands lost to development, and it does not replace lost wetland functions. In addition, although restoration provides a good chance of replacing both lost functions and acres, its likelihood of success remains uncertain. When commenting on mitigation plans, you may want to address whenever the project would result in unacceptable impacts to protected waters because there is a strong likelihood that mitigation would not offset those impacts. Consider whether the mitigation plan would likely replace lost functions and services in wetland habitats, taking into account such watershed scale features as aquatic habitat diversity, habitat connectivity, relationships to hydrologic sources (including the availability of water rights), trends in land use, ecological benefits, and compatibility with adjacent land uses. Requesting and Attending a Public Hearing If you are interested in requesting a public hearing, the request must be submitted in writing to the project manager within the comment period and must state the specific reasons for requesting a hearing. The Corps and state environmental agencies are not required to hold public hearings for § 404 permitting decisions, so merely asking for a public hearing does not guarantee that one will be held. The Corps holds hearings for permit applications only when deemed necessary. A public hearing can help bring out otherwise unavailable information about the need for the project and its environmental impacts and can also help rally support for your position. If you make a persuasive argument for a hearing or can show significant interest for a hearing through a petition, the chances of having a public hearing will be better. If the Corps decides to hold a public hearing or meeting to obtain additional information and comments, the time, place and date will be announced several weeks in advance. During the hearing, the project manager will take testimony from all interested parties and if you decide to testify at a public hearing, here are a few simple guidelines that will help you prepare and present your testimony:

• Be polite and professional. Show up to the hearing on time. • In order to comply with legal requirements, hearings are usually formal. Be sure to learn

and follow rules of the hearing. • Prepare your formal statement in advance, and bring copies to the hearing. One copy

should be presented for the official record. Other copies are handy to give to


interested people and individuals from the media who may be covering the hearing. Include a succinct one or two sentence summary of your position on the permit application at the beginning of the statement.

• When you are called upon to speak, state your name, address, title, and group affiliation (if any), and mention any other groups that support your position on the application.

• Present only the major points of your statement and ask that the full text be made a part of the record. Explain simply and directly why you support or oppose the permit application. Provide facts to justify your position. Do not make charges or statements that you cannot back up. The official record is kept open for at least ten days after the hearing, so you can submit further comments or information, if needed.

• Finally, don't be disheartened if the Corps' appears likely to grant the permit. The hearing gives you an additional opportunity to present your point of view or to add information to the official record. The hearing is often most important for getting your concerns across to a larger audience, including the media, and to involve more people in the process. Send opinion letters to local papers and mention in them the upcoming public hearing to help attract an audience. Try to get people who support your position to come to the hearing: simply showing pertinent authorities that citizens are concerned about their local environment can have an impact!

Responding to After-the-Fact Permit Applications If the application is for a project already undertaken where someone has carried out a fill project without first getting a permit, investigate the circumstances. Did the applicant know, or should the applicant have known of the need to obtain a permit before the unauthorized fill occurred? Under § 309 of the Clean Water Act, the EPA has primary authority to impose fines and civil penalties, as well as pursue criminal prosecution where a party knowingly violates the requirement to get a permit. The Corps can also order an injunction, removal of the fill, and immediate restoration of the site to its previous condition. Section 314 also allows the Corps and EPA to impose administrative penalties under certain circumstances. If you have pictures before or after an unauthorized fill, notify the EPA and Corps immediately. The Appeals Process For individuals or organizations that oppose the issuance of a Corps permit, there is a process to follow if the Corps district commander approves an individual permit application that may harm wetlands. If the circumstances or conditions of any permit change or if the permitting decision was based on incomplete or inaccurate information, you may alert the district engineer of the new information. If the information is deemed very significant and very persuasive, the district commander may modify, suspend, or revoke the issued permit, but the authority remains at the discretion of the district commander. An example could be the discovery of an endangered species, which would be threatened by the project as permitted. If the district commander does not act on the new information, any further challenges filed by individuals or organizations that oppose the issuance of a Corps permit must be filed in federal district court. For permit applicants who are denied an individual permit, they may seek administrative appeal before challenging the denial in court. The administrative appeal process is informal, and the


Corps must make a final decision on the appeal within 90 days after receiving a complete request for appeal from the permit applicant.36 III. Commenting on General Permits, Including Nationwide and Regional Permits It is important that general permits are adequately protective, because activities covered under the general permits undergo little or no review. The public can help improve general permits by submitting comments when the general permits are being developed and reauthorized every five years. The public can also request that states or tribes impose conditions on the use of general permits or revoke their use in the state or on tribal lands. IV. Case Study of How Public Involvement Can Make a Difference In Ohio, a group of citizens became suspicious when a tree nursery began digging a deep channel in a high quality coastal marsh on Lake Erie. Though the project was proceeding under Nationwide Permit 27, which authorizes wetland and stream restoration projects, the deep channel was obviously designed to deliver water to the nursery and not to improve conditions in the marsh. When the citizens complained to the Corps’ Buffalo District, permission to discharge under the general permit was revoked and the nursery was ordered to either restore the site or seek an after-the-fact individual permit. While the district was prepared to grant an after-the-fact permit, the citizens, now organized as “Friends of Sheldon Marsh,” continued to fight at the state level to challenge the certification that water quality was not impaired. Eventually, after public hearings, letters, and additional site visits, the Ohio Environmental Protection Agency denied certification. The Corps was then forced to order complete restoration of the marsh.

36 Connolly, Kim D., Johnson, Stephen and Williams, Douglas R.. Wetlands Law and Policy: Understanding Section 404. (Chicago: American Bar Association, 2005), 203-205.


Chapter 5: STATE WETLANDS PROTECTIONS I. Chapter Overview Every state regulates activities that affect wetlands to some degree. The knowledge of your state’s authority in regulating wetlands can help you find additional ways to protect wetlands beyond the federal regulations and programs discussed in Chapters 3 and 4. Does your state solely defer many wetland protections to the federal authority in § 404 of the Clean Water Act, or do they have additional regulatory programs that cover activities impacting wetlands? Are there wetlands outreach and education programs sponsored by environmental agencies in your state? This chapter will provide a starting point for you to seek out the existing state regulations and programs that may provide additional protections to your local wetlands. II. State Water Quality Certification Program (WQCP) Under § 401 of the Clean Water Act, state certification is required for any permit or license issued by a federal agency for any activity that may result in a discharge into waters of the state. Section 401 is important for addressing state water quality concerns because it empowers each state to have input regarding projects that may affect its water quality, thereby ensuring that state-specific concerns are addressed before projects are permitted. The § 401 Water Quality Certification Program (WQCP) allows states to take an active role in wetlands decisions by authorizing state review of proposed federally licensed or permitted activities that may result in a “discharge” into the waters of that state. Generally, the state may deny, certify, or condition its certification for permits or licenses so as to decrease adverse impacts to the chemical, physical, and biological integrity of their waters.37 If a state denies certification, the permit or license cannot be issued. Under this provision, the state will grant, deny, or waive certification (either expressly or by taking no action).38 Tribes, the District of Columbia, and the territories are considered states for these purposes as discussed below.39 III. State Assumption of § 404 Program In addition to the WQCP program, a state can assume administration for all or part of the Clean Water Act § 404 permitting program where state regulations equal or exceed federal regulations. Pursuant to such assumption, the state rather than the Corps issues wetland regulatory permits under its own statutes. Only two states―Michigan and New Jersey―have been authorized to assume the § 404 program. The EPA reviews these programs annually to ensure the state is operating its program in compliance with requirements of the law and regulations. For some activities, which generally include larger discharges with serious impacts, the EPA and other federal agencies review the permit application and provide comments to the state. States cannot issue a permit over the EPA’s objection. IV. State Wetlands Programs Separate from CWA § 404 Program While 22 states rely on § 401 WQCP to provide the regulatory mechanism by which they regulate wetlands, other states have coupled § 401 WQCP with a state regulatory program. The 37 See the EPA: Section 401 Certification and Wetlands, at: http://www.epa.gov/owow/wetlands/facts/fact24.html (December 10, 2007). 38 Section 401 of the Clean Water Act can be found at: http://www.law.cornell.edu/uscode/33/1341.html 39 CWA § 502(3)


state may also regulate its wetlands under a statewide water protection program. For example, Washington State provides wetland protection under numerous state laws, none of which specifies wetland protection as its primary purpose. States such as North Carolina and Wisconsin have adopted rules requiring water quality permits for “isolated” wetlands. It is important to note that for states that administer wetlands regulatory programs, agency oversight may be divided between various agencies within the state. In this case, usually one state agency assumes the regulatory role and the other assumes the non-regulatory role. For example, in Kentucky, the Department of Environmental Protection administers the state’s § 401 WQCP and is also responsible for monitoring state waters, while the Department of Fish and Wildlife Resources conducts non-regulatory activities, such as wetlands restoration and protection. Because permitting and wetland protection programs vary among states, it is important to investigate the specific programs in your state. The Environmental Law Institute provides an invaluable breakdown of the regulatory programs in each state on their website at: http://www.eli.org/Program_Areas/state_wetlands.cfm. State and tribal regulations over aquatic resources such as wetlands can be an important supplement to the federal regulations that protect wetlands. Knowledge of your state’s wetlands program is essential in protecting your local wetlands. V. State Wetlands Conservation Plans Authorized Under State Law Beyond CWA § 401 certification, one tool that states, territories, and tribes are using to protect wetlands is a State Wetlands Conservation Plan (SWCP).40 A SWCP is meant to improve government and private sector effectiveness and efficiency by identifying gaps in wetland protection programs and finding opportunities to make wetlands programs work better. Each SWCP is state specific; however, a guidebook, developed by both the World Wildlife Fund and the EPA, has been released to aid states in creating their own SWCPs. The guide suggests that each SWCP should include the following elements: 1. Statement of need, goals, and objectives 2. Inventory and assessment of wetlands resources 3. Evaluation of existing and needed protection mechanisms 4. Strategy development and implementation plans 5. Plan approval 6. Monitoring progress Examples of SWCPs include the following:

• The Texas SWCP focuses on non-regulatory and voluntary approaches to wetlands protection to complement its regulatory program. The plan encourages development of

40 For more information, see: The Statewide Wetlands Strategies Guidebook, which is available from Island Press (1-800-828-1302).


economic incentives for private landowners to protect wetlands and educational outreach for state and local officials.

• Tennessee's plan focuses on a strategy to collect wetland information for outreach and education to private owners of wetlands as well as to regional and local decision-makers. Current implementation efforts include identification of critical functions of major wetland types, priority sites for acquisition and/or restoration, as well as maintenance and restoration of natural floodplain hydrology through digitization and the use of remote sensing.

• Maine's SWCP focuses on ways to establish better coordination between state and federal regulatory programs, as well as new non-regulatory mechanisms to foster voluntary stewardship. In addition, the state uses an ecosystem framework to guide the prioritization of wetlands for comprehensive protection and review and to improve compensatory mitigation banking policies. 41

VI. Coastal Zone Management Plan (CZMP) Under the Coastal Zone Management Act, coastal states may voluntarily participate in the federal coastal zone management program by developing and implementing a Coastal Zone Management Plan (CZMP) pursuant to federal requirements. State CZMPs usually describe the uses subject to the management program, the authorities and enforceable policies of the management program, the boundaries of the state’s coastal zone, the organization of the management program, and other related state coastal management concerns. Thirty-five coastal states are eligible to participate in the federal coastal management program, and, as of June, 2008, all but one coastal state (Illinois) have approved CZMPs. Under the Act, states may regulate activities on coastal zones through consistency requirements.42 Under these requirements, applications for federal licenses or permits, including § 404 permits, to conduct an activity in the coastal zone of a state with an approved CZMP must demonstrate that the activity is consistent with the CZMP. Through consistency reviews of § 404 permits, a state may reject permits that the Corps would otherwise have issued, or may refuse to certify permits as consistent, unless the applicant makes design changes or modifies the application to meet the state’s consistency requirements. If the § 404 permit applicant is a federal agency, the consistency requirement may be waived at the discretion of the district commander even if the activity is not fully consistent with a state’s CZMP policy. The Act only encourages federal agencies seeking § 404 permits that have coastal effects to meet the consistency requirement to the “maximum extent practicable” with approved policies of a state’s CZMP. Like the state’s water quality certification program, the consistency requirement of the CZMP allows states to have input into activities that may affect wetlands before a § 404 permit decision is made. For example, a number of states have found nationwide general § 404 permits to be inconsistent with their CZMPs. South Carolina, for example, has no direct permitting authority in nontidal wetlands, but its CZMP contains comprehensive freshwater wetlands policies that are

41 “What is a State Wetland Conservation Plan?” U.S. Environmental Protection Agency. 10 December 2007 <http://www.epa.gov/owow/wetlands/facts/fact27.html>. 42 33 C.F.R. § 325(b)(2).


more stringent than those of the Corps. Using its consistency authority, the state reviews all § 404 permit applications in its coastal counties and denies some applications to fill wetlands.

VII. State Wetlands Outreach and Education Programs Currently, all states except for Arizona, Colorado, North Dakota, Tennessee, and Wyoming have one or more agencies that carry out education and outreach activities related to wetlands. For example, Montana has been carrying out a wetland outreach and education program since the 1990s. Outreach has included: public service television and radio spots about the importance and value of wetlands; targeted outreach material for landowners, local government planning officials, wetland pond owners, developers, and the regulated community; and numerous community meetings addressing local wetland issues (e.g., wetlands and water rights, West Nile virus, and threatened and endangered species). The state has partnered with local governments experiencing rapid growth and land use changes to conduct wetland mapping and classification and capacity building. The state also runs the Montana Wetlands Information Clearinghouse, a website that provides information on Montana’s wetlands, including maps, brochures, photos, and links to wetland information throughout the country. Finally, the Montana Watercourse is a statewide education and outreach program that provides information, tools, and resources on water resources, including the important role of wetlands within watersheds, to local governments, developers, landowners, and citizens.43 As a wetlands advocate, you can build on your state’s outreach and education program to foster a public education initiative on wetlands protection.

43 “State Wetland Protection: Status, Trends & Model Approaches.” Environmental Law Institute, March 2008.


Chapter 6: JUDICIAL, REGULATORY, AND CONGRESSIONAL DEVELOPMENTS ON FEDERAL PROTECTIONS OF WETLANDS I. Chapter Overview This chapter describes how the parameters of the § 404 permitting program have been interpreted by the Supreme Court and the lower courts. Judicial decisions serve as a benchmark for understanding how agencies interpret their authority over wetlands and how they apply their interpretation to wetlands protections. As new cases are brought and decided, those rulings will shape the future of Clean Water Act protections. The discussion below is not intended to be an exhaustive review of the case law, but rather as illustrative of the types of issues the courts have addressed. Those interested in finding out the applicable case law in a particular jurisdiction should contact the applicable office of the Corps or EPA. Finally, this chapter briefly summarizes current legislative proposals that are intended to ensure strong protections for wetlands. II. Judicial Developments Supreme Court Decisions Three main Supreme Court cases address federal jurisdiction over wetlands under the CWA. These cases are United States v. Riverside Bayview Homes (Riverside Bayview Homes), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos). Each of these cases addresses the issue of “what are waters of the United States,” thereby determining the scope of wetlands and other waters that can be regulated under the CWA. United States v. Riverside Bayview Homes (1985) 44 Riverside Bayview Homes was the first Supreme Court case on this issue. In it, the Supreme Court addressed the scope of CWA jurisdiction afforded to the Corps in requiring landowners to obtain CWA § 404 permits before discharging fill materials into wetlands. The Corps had issued a regulation which defined “waters of the United States” to include wetlands adjacent to navigable or interstate waters and their tributaries. This regulation defined “wetlands” as lands saturated by surface or groundwater in an amount sufficient to support aquatic or semi-aquatic vegetation. The court of appeals held that frequent flooding from the adjacent water was necessary for a wetland to qualify as a “water of the United States,” but the Supreme Court reversed and upheld the Corps’ broad interpretation of the CWA. The Court so held because it was reasonable for the Corps to conclude that wetlands are inseparably bound up with adjacent navigable or interstate waters, and because Congressional history indicated that the term “navigable waters” was not meant to be construed narrowly. The Court allowed CWA jurisdiction to extend to adjacent wetlands as defined by the Corps.

44 The Riverside Bayview Decision can be found at: http://supreme.justia.com/us/474/121/case.html.


Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) 45 In 2001, the Supreme Court revisited the issue of which waters are jurisdictionally covered by the CWA in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). In this case, the Corps had asserted jurisdiction over an abandoned gravel pit site in Illinois that was wholly intra-state and that contained a number of permanent and seasonal ponds of varying sizes. These ponds were isolated from any other waters. The Court found that, despite the fact that meeting a navigability standard is not a prerequisite to protection, the statutory term “navigable” is not to be read completely out of the statute. While the Court did not fully define the extent of waters covered by the CWA, it did find that CWA jurisdiction does not extend to isolated, non-navigable ponds that are wholly intrastate, where the sole basis for jurisdiction is that the site is habitat for migratory birds. Rapanos v. United States (2006) 46 In 2006, the Supreme Court decided Rapanos v. United States, the most divisive case on this issue to date. There, the landowner claimed that the Corps had improperly asserted jurisdiction over wetlands on his property. The case resulted in a deeply divided court with no majority of justices agreeing on a standard. With no majority, two potentially applicable standards have been articulated: one from the plurality opinion and the other from the concurring opinion. One standard, coming from the Justice Scalia plurality opinion, rejected the assertion that only actually navigable waters can be regulated by the CWA, but found that the word “navigable” remains important in determining jurisdictional protection. He reasoned that since the word “navigable” is in the statute, the term “waters of the United States” can only refer to “relatively permanent, standing or flowing bodies of water.” This would mean that CWA protections do not extend to “occasional,” “intermittent,” or “ephemeral” flows for only a few months of a year, consequently severely curtailing the protections afforded by the CWA. Justice Scalia further stated that, for wetlands, a hydrologic connection can only be found if there exits a continuous surface connection between a wetland and a “water of the United States.” In sum, his test would limit the Act’s coverage to “navigable waters,” and to non-navigable tributaries if the tributary is a relatively permanent water body (flowing for at least three months) as well as to the wetlands that are adjacent or have a surface connection with the navigable water or a tributary.47 The other standard, coming from the Justice Kennedy concurring opinion, created an alternative test. In describing this “significant nexus test,” Justice Kennedy rejected most of the above reasoning by disagreeing with the assertion that federal jurisdiction over waters should be asserted only if there is a surface connection between a wetland and a navigable-in-fact water. Instead, he said that a wetland can be protected under the CWA if it, either individually or collectively with similar regional wetlands, has a “significant nexus” to otherwise jurisdictional water.48 A significant nexus can be found, for example, if the wetland has a significant effect on

45 The SWANCC Decision can be found at: http://www.oyez.org/cases/2000-2009/2000/2000_99_1178. 46 The Rapanos Decision can be found at: http://www.epa.gov/owow/wetlands/pdf/Rapanos_SupremeCourt.pdf. 47 Rapanos, 126 S.Ct 2208, 2235 (2006). 48 Rapanos, 126 S.Ct. at 2248.


the water quality of navigable-in-fact waters. Justice Kennedy’s test does not allow the degree of jurisdiction that was previously asserted without proof of a significant nexus. However, it is not as limiting as the Justice Scalia test in most circumstances. Lower Court Decisons This section contains a survey of post-Rapanos federal court decisions on the question of “what are waters of the United States?” While this survey is not comprehensive, it does categorize how federal courts have interpreted the decision and which standards those courts are using.49 The cases are categorized according to the circuit courts of appeal. Where there is no circuit court decision as of September 2008, a description of relevant district court decisions is provided. First Circuit – ME, NH, MA, RI Appellate

United States v. Johnson, 467 F.3d 56 (1st Cir. 2006) In this Massachusetts case, the United States brought an action against cranberry farmers alleging violations of the CWA in connection with farmers’ alleged discharge of dredged and fill materials into wetlands without a permit. The appellate court held that the United States could assert jurisdiction over the sites in question if it could show these sites met the Justice Kennedy (Kennedy) standard from Rapanos v. United States (Rapanos) or the plurality/Justice Scalia standard. The Supreme Court declined to review the case. The circuit noted its alignment with the district court case United States v. Evans (11th Cir.) and distinguished itself from the appellate case United States v. Gerke Excavating (7th Cir.), discussed below. Second Circuit – VT, NY, CT District Court

Simsbury-Avon Preservation Society, LLC v. Metacon Gun Club, Inc., 427 F.Supp.2d 219 (D. Conn. 2007); appeal pending.

In this Connecticut case, homeowners sued a gun club alleging violations of the CWA because of the clubs’ discharge of lead shot into the waters of the United States. While the court leaned toward the Kennedy standard, it determined that both the plurality standard and Kennedy standard should be considered when analyzing Corps jurisdiction. Therefore, if the court is able to find jurisdiction under either test, then jurisdiction is appropriate. Ultimately, based on a finding that there was no conclusive evidence to show that pollutants were being discharged into navigable waterways, the court found that the plaintiff had 49 Most of these cases base their reasoning on Marks v. United States, 430 U.S. 188 (1977), a Supreme Court case describing how lower federal courts should interpret the fractured decision.


not shown an adequate connection to exist and dismissed the case. The plaintiff has appealed the case to the Second Circuit. Third Circuit – PA, NJ, DE District Court

United States v. Pozsgai, No. 88-6545 (E.D. Pa. Mar. 8, 2007); appeal pending.

Defendants were charged with being in contempt of an injunction from filling wetlands with dredge and fill. They argued that Rapanos changed the jurisdictional status of their wetlands such that they no longer needed to comply with the CWA and the restoration plan. The court noted that the First Circuit in United States v. Johnson held that jurisdiction under Rapanos if either Justice Kennedy’s concurrence or the plurality’s test is met. However, he concluded without explanation: “[f]or purposes of this litigation, I will apply Justice Kennedy’s test.” Slip Op. at 3.

Based on evidence that the stream between the property and a canal was flowing “continuously for most of the year, except during summer and early fall,” the court found that fairly regular flow between waters alone satisfied this interpretation of Justice Kennedy’s test. The court concluded that the wetlands in question were jurisdictional under Kennedy’s test, and even if they were not, the defendants had exhausted their appeals and “a change in the law does not absolve them of contempt.” Id. Defendants have appealed the case. Fourth Circuit – WV, VA, MD, NC, SC District Court

United States v. Sea Bay Development Corp., No. 2:06cv624, 2007 WL 1169188 (E.D. Va. April 18, 2007)

In this Virginia case, the court stated that “[g]iven the Court's holding that a decision regarding the breadth of the Corps' jurisdiction over the property in question does not implicate the Court's subject matter jurisdiction, the Court is not presently required to reach the issue of which Rapanos test or tests to apply” (at footnote 1). Therefore, it is unclear which test the court would apply in this situation or in this circuit. Fifth Circuit – MS, LA, TX Appellate

United States v. Lucas, 516 F.3d 316 (5th Cir. 2008) In this Mississippi case, the United States sued the defendants for waste discharges to wetlands caused by septic system failure. The defendants argued that the government had not established a significant nexus with navigable waters under Justice Kennedy’s concurrence in Rapanos. The court discussed both the plurality test and the Kennedy test of Rapanos, but did not specify that it would always apply only one or both. Rather, the court noted that the evidence was adequate to meet both tests. The defendants sought Supreme Court review, which was denied.


District Court

United States v. Chevron Pipe Line Co., 437 F.Supp.2d 605 (N.D.Tex. 2006) In this Texas case, the United States filed an action against an oil pipeline company seeking to impose civil fines under the CWA and the Oil Pollution Act for the discharge of oil from a pipeline leak when a Chevron pipe spilled approximately 3,000 barrels of crude oil that migrated into an unnamed channel/tributary. The court determined that it would rely on its own precedent because of the lack of a clear legal standard in Rapanos. Therefore, the court looked to the prior reasoning of the Fifth Circuit, which has interpreted “the waters of the United States” narrowly. The court found that “as a matter of law in this circuit, the connection of generally dry channels and creek beds will not suffice to create a ‘significant nexus’ to a navigable water simply because one feeds into the next during the rare times of actual flow” (at 613). Thus, the court found no coverage to exist over intermittent flows, and no jurisdiction to exist in this situation because the discharge of oil did not reach navigable waters of the United States. Sixth Circuit – MI, OH, KY, TN District Court

United States v. Cundiff, 480 F.Supp.2d 940 (W.D.Ky. 2007); appeal pending. In this Kentucky action, plaintiffs claimed that defendants violated the CWA based on discharges of dredge and fill material. Defendants lost the case and appealed to the Sixth Circuit. While the appeal was pending, Rapanos was decided, and this case was sent back to the district court to apply the Rapanos decision. In deciding which Rapanos standard to apply, the court looked to the interpretations of other circuits and concluded that because the governing standard was unclear, the Corps may establish jurisdiction over the site if either the Kennedy standard or the plurality’s standard is met. Ultimately, the court determined that the wetlands at issue were jurisdictional “waters of the United States” because the wetlands possessed a significant nexus to known jurisdictional waters. Defendants have again appealed.

United States v. Marion Kincaid Trust, 463 F.Supp.2d 680 (E.D. Mich. 2006) In this Michigan case, the plaintiff claimed that the defendant violated the CWA and the Rivers and Harbors Act through unauthorized grading and dozing activities in wetlands. The court specifically noted that Rapanos requires continuous surface connection, which is the plurality rule, but applied the law as it existed when the case commenced before Rapanos was decided.

United States v. Parker, No. 3:91CV7482, 2007 WL 1467546 (N.D. Ohio May 18, 2007)

In this Ohio case, defendants filed a motion for dismissal claiming that the Rapanos decision changed the federal definition of “wetlands,” making the suit improper. The court found that while the Rapanos decision may invalidate claims brought under the CWA, it has no impact on


the claims under Ohio law. Therefore, since this case was brought in part under Ohio law, the court denied the motion. Seventh Circuit – WI, IL, IN Appellate

United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006) In this Wisconsin case, the United States brought action against Gerke Excavating alleging that Gerke violated the CWA by discharging pollutants into navigable waters without a permit. The court of appeals, following the Kennedy standard, remanded the case back to the district court for finding that there must be a determination as to whether the wetlands possessed a significant nexus with navigable waters. It found the Kennedy standard to be the narrowest ground to which a majority of the justices would have assented if forced to choose (based on an earlier Supreme Court decision). The Supreme Court declined to review the case. District Court

United States v. Lippold, No. 06-30002, 2007 WL 3232483 (C.D. Ill. Oct. 31, 2007) In this Illinois case, the court determined that even though the Rapanos decision was deeply divided, all justices agreed that the CWA clearly applies to permanently flowing streams connected to navigable waters. Secondly, in determining whether intermittently flowing streams constitute waters of the United States, the court found that the Kennedy standard controls because it is the narrowest ground to which a majority of the justices would have assented if forced to choose. Eighth Circuit – ND, SD, NE, MN, IA, MO, AR District Court

United States v. Bailey, 516 F.Supp.2d 998 (D.Minn. 2007) In this Minnesota case, the court held that wetlands jurisdiction can be found as long as the United States can show that either the plurality standard or the Kennedy standard is met. Ninth Circuit – WA, OR, ID, MT, CA, NV, AZ Appellate

Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2006) In this California case, an environmental group brought suit under the CWA alleging that the city illegally discharged pollutants from its waste treatment facility into pond waters covered by the CWA. The district court, following Riverside Bayview Homes, found that the pond was covered under the CWA because the pond water drained into an aquifer and seeped into the nearby Russian River, a navigable waterway of the United States. The appellate court affirmed the decision following the Kennedy standard by requiring a “significant nexus” to be present. The


court held that while a “significant nexus” must exist, this nexus need not come from a continuously flowing waterway. The court held that a “significant nexus” existed because the chemicals in the pond ended up in the Russian River by way of the aquifer, and because of the significant ecological connection through support of substantial bird, mammal, and fish populations, which are an integral part of the Russian River ecosystem. The Supreme Court declined to review the case.

San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 2007) In this California private-party case, the plaintiffs brought suit under the CWA alleging that the defendant discharged pollutants into “waters of the United States,” referring to a pond, without a permit. The district court found that the pond in question was covered under the CWA because it was “adjacent to” the Mowry Slough, a “water of the United States.” The Ninth Circuit reversed the decision because it concluded that the wetland must both fit into the regulatory definition of wetlands and it must meet the Kennedy “significant nexus” standard. The appellate court concluded that the Kennedy standard was only meant to protect “wetlands,” not to protect non-wetland adjacent water bodies (such as ponds). Therefore, since the standard only concerned the Corps’ authority to regulate adjacent wetlands, the court decided that there was no reciprocal requirement that the Corps also regulate any other body of water with a significant nexus to navigable waters. Instead, the court left it up to the Corps to determine the extent of navigable waters for non-wetlands. Based on this interpretation, the court held that the pond was a non-navigable, intrastate waterbody that was not determined to be a wetland or to have a hydrologic connection to the navigable waterway. Part of the court’s determination was based on the fact that Baykeeper never argued or presented evidence that the pond qualified as a wetland. Further, the court discussed how mere adjacency to a navigable water is insufficient to provide a basis for CWA coverage. Therefore, no CWA jurisdiction was found to exist.

United States v. Moses, 496 F.3d 984 (9th Cir. 2007) In this Idaho criminal case, defendant Moses altered the channels of Teton Creek for the purpose of rerouting, reshaping, and otherwise controlling the creek’s flow of the water. Defendant claimed that there was no discharge of pollutants into the waters of the United States. The district court found for the United States, stating that the defendant knowingly discharged pollution into waters of the United States without a permit, in violation of the CWA. The appellate court affirmed, holding that: (1) a body of water (including a wetland) need not, itself, be navigable in order to be one of the waters of the United States; (2) Justice Kennedy’s standard in Rapanos presents the controlling rule of law; (3) intermittent flows are not, necessarily, beyond jurisdictional control as long as they meet the Kennedy test; and (4) in this case, Teton Creek does constitute a water of the United States regardless of the fact that it is dry during some periods of the year. The Supreme Court declined to review the case. Tenth Circuit – WY, UT, CO, NM, KS, OK The Tenth Circuit has yet to decide a case addressing this issue, nor has a district court in this circuit, as of September 2008.


Eleventh Circuit – AL, GA, FL Appellate

United States v. McWane, 505 F.3d 1208 (11th Cir. 2007) This Alabama case involved discharge of toxic pollutants by defendant McWane into Avondate Creek, which is a perennial creek and flows eventually after more than twenty-eight miles into a navigable waterway. The court of appeals held that water can only be covered under the CWA if it possesses a significant nexus to waters that are or were navigable in fact, adopting the Kennedy standard. A “mere hydrologic connection” will not necessarily be enough to satisfy the “significant nexus” test. While the court recognized the likelihood that the creek would be found jurisdictional under the plurality test, since the Kennedy standard controls, the case was sent back to the district court because the government presented no evidence of the chemical, physical, or biological effect that Avondale Creek’s waters may have on a navigable-in-fact waterway. The United States has petitioned for Supreme Court review. District Court

United States v. Evans, No. 3:05 CR 159 J 32HTS, 2006 WL 2221629 (M.D.Fla. Aug. 2, 2006)

In this Florida case, the district court agreed to apply either the plurality or Justice Kennedy standard because each articulated a different standard for application and it was unclear which would control. D.C. Circuit The D.C. Circuit has yet to decide a case addressing this issue, nor has the district court in this circuit as of September 2008.


Summary of the lower courts’ application of Rapanos regarding: What are “waters of the United States” as of 09/08

Circuit Court Apply

Kennedy Test

Apply Plurality Test

Apply Both; CWA jurisdiction if either is met

Other Awaiting appeal as of 9/08

1 Appellate X 2 District X X 3 District X X 4 District. No decision yet on

this issue

5 District. Applied 5th Cir. precedent., not

Rapanos

Appellate Unclear – appeared to require both tests met

6 District (KY) X X District (MI) X 7 Appellate X 8 District. X 9 Appellate X 10 N/A No decision yet on

this issue

11 Appellate X District X DC N/A No decision yet on

this issue

III. Regulatory Wetlands Manual and Regulatory Guidance The Federal Wetlands Delineation Manual50 The Corps created a wetlands delineation manual to explain the technical basis for defining a wetland and delineating the boundaries of that wetland. The manual was approved by the Corps for use in 1987, and while the manual has undergone a few revisions and clarifications over its twenty years of use, it still stands as the most commonly used guide to delineation under the § 404 regulatory program. In using this manual, however, the Corps must also comply with its regulations and the courts’ interpretations of wetlands jurisdiction.

50 The US Army Corps of Engineers 1987 Wetlands Delineations Manual can be found at: http://www.wetlands.com/regs/tlpge02e.htm.


The Corps recently issued a draft regional supplement to the 1987 manual for the arid West region. The supplement is intended to provide specific wetland indicators for the arid West as well as to provide a delineation guide for that region. U.S. Environmental Protection Agency/U.S. Army Corps of Engineers Guidance A guidance is legally a non-binding document, and it is not a rule; however, it does provide a useful insight on how the agency will exercise both its power and its jurisdictional enforcement discretion. For example, the agencies say that the guidance following Rapanos v. United States, described below, will be used by the agencies to ensure that “jurisdictional determinations, administrative enforcement actions, and other relevant agency actions being conducted under the CWA are consistent with the Rapanos decision and provide effective protection for public health and the environment.”51 The following sections discuss EPA’s and Corps’ guidances on CWA jurisdiction over wetlands and the other waters, thus indicating how those agencies plan to implement and enforce the CWA. Post-SWANCC Guidance After the Supreme Court Case of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), the EPA and the Corps released a guidance describing the agencies’ view on jurisdiction over wetlands and other waters. While the guidance was not meant to address the exact factual predicates for establishing jurisdiction in individual cases, it does attempt to broadly define jurisdictional limitations in light of the SWANCC case, especially in regard to isolated wetlands. First, the agencies recognized that SWANCC eliminates CWA jurisdiction over isolated waters that are intrastate and non-navigable where the only basis for asserting CWA jurisdiction is the actual or potential use of waters as habitat for migratory birds. It further states that the Corps cannot use any of the other factors of the “Migratory Bird Rule” as the sole basis for asserting jurisdiction unless the decision to assert jurisdiction on this basis is approved by the Corps’ headquarters. The guidance does recognize jurisdiction under the CWA for “traditional navigable waters,” defining “traditional navigable waters,” based on the regulations, to mean waters that are subject to the ebb and flow of the tide, or waters that are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. This means that isolated, intrastate waters that are capable of supporting navigation by watercraft remain subject to CWA jurisdiction if they are “traditional navigable waters.” Further, jurisdiction would extend to wetlands that are “adjacent” to traditional navigable waters and, usually, to tributaries and their wetlands. This would be true even if those tributaries are intermittent.52

51 Found in the guidance at: http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf. 52 A link to the post-SWANCC guidance can be found at: http://www.epa.gov/owow/wetlands/pdf/Joint_Memo.pdf.


Post-Rapanos Guidance53 After the Supreme Court case Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, the EPA and the Corps released a new guidance further defining how the agencies will determine their jurisdiction over non-navigable tributaries and their wetlands. The guidance was issued in June 2007 with a six-month comment period that was later extended to January 21, 2008. The guidance may be revised from the description below based on public comments. The guidance divides the analysis into three tiers or steps, described below. Each tier represents a different analysis that the Corps and EPA undertake to decide whether the tributary or wetland in question falls within its CWA jurisdiction. The three tiers are:

1. Tier One – Waters and Wetlands Presumed to be Jurisdictional 2. Tier Two – The Significant Nexus Test 3. Tier Three – Waters Presumed to be non-jurisdictional

In discussing this guidance, it is important to note that the guidance specifically states that it is not meant to address “isolated waters.” Tier One – Waters and Wetlands Presumed to Be Jurisdictional Tier one is split into two categories: The first category includes traditional navigable waters and wetlands “adjacent to” these waters, which were unaffected by the Rapanos decision and guidance. A “traditional navigable water” is defined under the regulations as “all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.” “Adjacent to” means “bordering, contiguous or neighboring,” as set forth in the regulations.

The second category includes non-navigable tributaries that are relatively permanent and wetlands with continuous surface connections with such tributaries, based on the plurality opinion by Justice Scalia. A “non-navigable tributary” is defined as a non-navigable water body whose water flows into a traditional navigable water either directly or indirectly. As noted in the guidance, a tributary can include natural, man-altered, or man-made water bodies that carry flow directly or indirectly into a traditional navigable water. “Relatively permanent” describes tributaries with typically (except due to drought) year-round flow or seasonally continuous flow (typically at least three months out of the year). A “continuous surface connection” is a connection that cannot be separated by uplands, a berm, a dike, or any other similar feature. This may be viewed as a “physical connection” requirement.

53 The guidance can be found at: http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf.


Tier Two – The Significant Nexus Test If the wetland does not fit into either of the categories in tier one, then it may be deemed jurisdictional through a case-by-case analysis. Under the guidance, each wetland will be analyzed individually to determine if it meets a “significant nexus” test (based on Justice Kennedy’s concurring opinion), although it is a more restrictive test than Justice Kennedy described. Examples of the types of wetlands that fall into this category are:

(1) non-navigable tributaries that are not relatively permanent; (2) wetlands “adjacent to” non-navigable tributaries that are not relatively permanent, and (3) wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary.

The “significant nexus” analysis requires two steps. The first step assesses the flow characteristics and functions of the tributary and its “adjacent” wetlands to determine if they significantly affect the chemical, physical, and biological integrity of traditional navigable waters. To determine that such a significant nexus exists, the Corps will look to the flow and function of the tributary and its adjacent wetland and will analyze applicable hydrologic and ecological factors to determine if a connection exists that affects the chemical, physical, and biological integrity of the nation’s traditional navigable waters.

In the second step, even if a “significant nexus” is found to exist between the wetland and a navigable waterway, the guidance suggests that the Corps must take a second look at the analysis done in step one and to determine if that connection is “speculative or insubstantial.” This determination is left up to the Corps’ discretion. Tier Three – Waters Presumed to Be Non-Jurisdictional Finally, the third tier contains natural features that the guidance describes as generally non-jurisdiction and, therefore, are not protected. These are: swales and erosion features including gullies, small washes characterized by low volume or infrequent durational flow; ditches including roadside ditches, as long as they do not carry a relatively permanent flow of water; and ephemeral waters (except ephemeral waters of the “arid West” which are distinguished as being potentially jurisdictional). The guidance does not state that such features will never be jurisdictional; it instead states the Corps’ supposition against these features meeting the “significant nexus” test. U.S. Army Corps of Engineers Regulatory Guidance Letters From time to time, the Corps of Engineers issues Regulatory Guidance Letters (RGL) regarding the § 404 program, among others. Recent RGL No. 08-02 concerning jurisdictional determinations (JDs) explains when an approved JD is required and when a permit applicant can obtain a preliminary JD and concede jurisdiction and, thereby, expedite the permitting process. A copy of this and other RGLs are available on the Corps’ website.54 54 Corps Regulatory Guidance Letters can be found at: http://www.usace.army.mil/cw/cecwo/reg/rglsindx.htm.


IV. Legislative Proposals Clean Water Restoration Act The Supreme Court’s SWANCC and Rapanos rulings have curtailed the Clean Water Act’s authority to protect important wetlands, prairie potholes, playa lakes, and rainwater basins. Legislation has been introduced to restore the Act’s longstanding protections originally intended by Congress. For instance, the Clean Water Restoration Act (H.R. 2421 and S. 1870) was introduced to clarify the scope of jurisdictionally protected waters under the Clean Water Act by:

1. Adopting a statutory definition of “waters of the United States” based on the longstanding definition in EPA’s regulations (40 CFR 122.2) and the Corps’ regulations (33 CFR 328.3);

2. Deleting the word “navigable” from the Act to clarify that the Clean Water Act is principally intended to protect the nation’s waters from pollution, and not just maintain navigability, and

3. Making findings that provide the basis for Congress’ assertion of constitutional authority over the nation’s waters, as defined in the Act.

Introduced in March 2007 by Congressman Jim Oberstar (D-MN), the bill has received broad, bi-partisan support in the House and Senate, but passage is not assured. If this legislation is passed, it will restore the regulatory status to the CWA prior to the Supreme Court’s SWANCC and Rapanos rulings, and it will do so without creating “new” Clean Water Act requirements. It will merely reaffirm the Act’s longstanding jurisdictional reach and assure the federal government’s authority to protect wetlands and other waters. The National Audubon Society strongly supports this legislation. Clean Water Protection Act On May 3, 2002, the U.S. Army Corps of Engineers and the Environmental Protection Agency finalized a rule that changed the long-standing definition of “fill material” used by both agencies to specifically allow waste to be used to fill streams, lakes, wetlands, and other waters. The rule change allows coal mine operators to fill and bury Appalachian streams with wastes from mountaintop removal coal mining. A federal district court in West Virginia found that the rule change violated the Clean Water Act and is therefore illegal. But the court of appeals reversed the lower-court ruling. Introduced into the 110th Congress by Representative Frank Pallone, Jr. (D-NJ), the Clean Water Protection Act (H.R. 2169) has the sole purpose of clarifying the definition of “fill material” to exclude waste. As of June 19, 2008, the bill had 141 co-sponsors.


REFERENCES A Citizen’s Guide to the Corps of Engineers 2005 (Draft). American Rivers and National Wildlife Federation. 2005. 25 June 2008 http://www.americanrivers.org/site/DocServer/3.Regulatory_Corps_Guide_Draft.pdf?docID=1641. “America’s Wetlands: Our vital link between land and water.” U.S. Environmental Protection Agency. www.epa.gov/owow/wetlands/vital/toc.html. “Common Questions Pertaining to Establishing a Wetland and Watershed Management Plan”. Association of State Wetland Managers. 2001. 25 June 2008 http://www.aswm.org/lwp/nys/cqb-ewwmp.htm. Connolly, Kim D., Johnson, Stephen and Williams, Douglas R.. Wetlands Law and Policy: Understanding Section 404. (Chicago: American Bar Association, 2005). EPA: Laws, Regulations and Treaties Overview, http://www.epa.gov/owow/wetlands/laws/ (December 11, 2007).

EPA: Section 401 Certification and Wetlands, http://www.epa.gov/owow/wetlands/facts/fact24.html (December 10, 2007). EPA: State or Tribal Assumption of the Section 404 Permit Program , http://www.epa.gov/OWOW/wetlands/facts/fact23.html (January 14, 2008). EPA: What is a State Wetland Conservation Plan?, http://www.epa.gov/owow/wetlands/facts/fact27.html (December 10, 2007). Environmental Law Institute publications, can be found at: http://www.elistore.org/. Federal Interagency Committee for Wetland Delineation. 1989. Federal Manual for Identifying and Delineating Jurisdictional Wetlands. US Army Corps of Engineers, US Environmental Protection Agency, US Fish and Wildlife Services, US Soil Conservation Service Cooperative Technical Publication, Government Printing Office, Washington, D.C. “Functions and Values of Wetlands,” U.S. Environmental Protection Agency. Sept. 2001. 25 June 2008 http://www.epa.gov/owow/wetlands/pdf/fun_val_pr.pdf. Kusler, Jon A. “Protecting and Restoring Wetlands: Strengthening the Role of Land Trusts”. Association of State Wetland Managers. 15 June 2007 www.aswm.org/propub/jon_kusler/land_trust_051507.pdf. “Managing Wetlands: Hawkesbury-Nepean Wetland Series.” Hawkesbury-Nepean Catchment Management Authority. 12 February 2008. 25 June 2008 http://www.hn.cma.nsw.gov.au/multiversions/3976/FileName/MANAGING%20WETLANDS%20FACT%20SHEET_Web.pdf. Michigan Wetlands - Yours to Protect, 3rd ed. Tip of the Mitt Watershed Council. 25 June 2008 http://www.michiganwetlands.org/citguide.html. National Research Council, Wetlands: Characteristics and Boundaries. National Academy Press: Washington, D.C. 1995. Public Involvement Handbook: A Citizen’s Guide. Michigan Department of Environmental Quality (DEQ). 25 June 2008 http://www.deq.state.mi.us/documents/deq-ess-p2tas-publicinvolvementhandbook.pdf. Rapanos v. United States, --- U.S. ---, 126 S.Ct.2208 (2006). Saving Wetlands: A Citizen’s Guide for Action in California. (California: National Audubon Society, 1992).


Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers, 531 U.S. 159 (2001). “State Wetland Protection: Status, Trends & Model Approaches.” Environmental Law Institute. March 2008. June 25, 2008 http://www.elistore.org – d18_06.pdf. Strand, Margaret, The Environmental Law Reporter: The Wetlands Deskbook (2nd). Environmental Law Institute: Washington, D.C. 1997. “The Economic Values of the World’s Wetlands,” World Wide Fund For Nature International, (Gland/Amsterdam: January 2004). 25 June 2008 http://www.panda.org.za/get_publication.php?ID=31&SectionID=2. The Regulatory Debate Over Wetland Limits: Wetlands Definition/Delineation Controversy, http://www.water.ncsu.edu/watershedss/info/wetlands/contro3.html. (December 10, 2007). The Wetland Protection Guide. (Seattle: Wetnet of Audubon ~ Washington, 1999) 25 June 2008 http://www.audubon.org/chapter/wa/wa/PDFs/ConsPolicyBulldozerGuide_web.pdf. United States v. Riverside Bayview Homes, 474 U.S 121 (1985). US Army Corps of Engineers. 1987. Corps of Engineers Wetlands Delineation Manual. US Army Corps of Engineers, Washington, D.C. Wetland Factsheets. The Izaak Walton League of America. June 25, 2008 http://www.iwla.org/index.php?id=400. “Wetlands Overview”. U.S. Environmental Protection Agency. 25 June 2008 http://www.epa.gov/owow/wetlands/pdf/overview_pr.pdf. “Wetland Regulatory Authority Fact Sheet,” U.S. Environmental Protection Agency. 25 June 2008 http://www.epa.gov/owow/wetlands/pdf/reg_authority_pr.pdf.


APPENDICES Appendix 1: State Environmental Agencies Alabama Alabama Department of Environmental Management Alabama Department of Conservation and Natural Resources Alaska Alaska Department of Environmental Conservation Arizona Arizona Department of Environmental Quality Arizona Fish & Game Department Arkansas Arkansas Department of Environmental Quality California California Air Resources Board California Department of Conservation California Department of Toxic Substances Control California Department of Water Resources California Environmental Protection Agency California Integrated Waste Management Board Colorado Colorado Revised Statutes Online Colorado Department of Public Health and Environment Connecticut Connecticut Department of Environmental Protection Delaware Delaware Dept. of Natural Resources & Environmental Control District of Columbia DC Department of Health's Environmental Health Administration Florida Florida Department of Environmental Protection Georgia Georgia Department of Natural Resources Georgia Environmental Protection Division Hawaii Hawaii Department of Land and Natural Resources Hawaii State Department of Health Idaho Idaho Department of Environmental Quality Idaho Department of Water Resources Illinois Illinois Environmental Protection Agency Illinois Pollution Control Board Indiana Indiana Department of Environmental Management Indiana Department of Natural Resources Iowa Iowa Department of Natural Resources Kansas Kansas Department of Health and Environment Kentucky Kentucky Environmental Quality Commission

Kentucky Department for Natural Resources Kentucky Department for Environmental Protection Louisiana Louisiana Department of Environmental Quality Maine Maine Department of Environmental Protection Maryland Maryland Department of the Environment Maryland Department of Natural Resources Massachusetts Massachusetts Department of Environmental Protection Michigan Michigan Department of Environmental Quality Minnesota Minnesota Department of Natural Resources Minnesota Pollution Control Agency Mississippi Mississippi Department of Environmental Quality Missouri Missouri Department of Natural Resources Missouri Department of Conservation Montana Montana Department of Environmental Quality Montana Natural Resource Information System Montana GIS Data Library Nebraska Nebraska Department of Environmental Quality Nevada Nevada Division of Forestry Nevada Department of Conservation and Natural Resources Nevada Division of Environmental Protection New Hampshire New Hampshire Department of Environmental Services New Jersey New Jersey Department of Environmental Protection New Mexico New Mexico Environment Department New York New York State Department of Environmental Conservation North Carolina NC Department of Environment and Natural Resources NC Division of Pollution Prevention and Environmental Assistance North Carolina GIS Database North Dakota North Dakota State Water Commission North Dakota Geological Survey Division ND Department of Health - Environmental Health Section


Ohio Ohio Department of Natural Resources (ODNR) Ohio Environmental Protection Agency Ohio Air Quality Development Authority Oklahoma Oklahoma Conservation Commission Oklahoma Department of Environmental Quality Oregon Oregon Department of Environmental Quality Oregon Department of Fish and Wildlife Pennsylvania Pennsylvania Department of Environmental Protection Pennsylvania Department of Conservation and Natural Resources Rhode Island Rhode Island Department of Environmental Management South Carolina South Carolina Department of Health & Environmental Control South Carolina Department of Natural Resources South Dakota South Dakota Department of Environment & Natural Resources

Tennessee Tennessee Department of Environment and Conservation Texas Texas Commission on Environmental Quality (TCEQ) City of Dallas Air Pollution Control Utah Utah Department of Environmental Quality Utah Automated Geographic Reference Center (AGRC) Vermont Vermont Agency of Natural Resources Virginia Virginia Department of Environmental Quality Washington Washington State Department of Ecology Washington State Department of Natural Resources Washington Department of Transportation's Environmental Services West Virginia West Virginia Division of Environmental Protection Wisconsin Wisconsin Department of Natural Resources Wisconsin DNR Environmental Protection Wyoming Department of Environmental Quality


Appendix 2: U.S. Army Corps of Engineers District Offices (38 Districts) Please contact the relevant district office to determine the specific requirements associated with Corps regulatory evaluation of your proposed project. Please Note: Most districts boundaries are based in whole or in part upon state boundaries; however, because Corps districts cover wide geographic areas, the district office that will evaluate your activity may not be located in the state in which your project is proposed to be sited. District field units are numerous, however, and you may be further directed to a field office geographically closer to your project site. ALASKA U.S. Army Corps of Engineers, Alaska District Attention: CEPOA-CO-R P.O. Box 898 Anchorage, AK 99506-0898 Phone: 907-753-2712 FAX: 907-753-5567 NEW ENGLAND U.S. Army Corps of Engineers, New England District Attention: CENAE-R-PT 696 Virginia Road Concord, MA 01742-2751 Phone: 978-318-8338 FAX: 978-318-8303 ALBUQUERQUE U.S. Army Corps of Engineers, Albuquerque District Attention: CESPA-OD-R 4101 Jefferson Plaza NE Albuquerque, NM 87109-3435 Phone: 505-342-3283 FAX: 505-342-3498 NEW ORLEANS U.S. Army Corps of Engineers, New Orleans District Attention: CEMVN-OD-S P.O. Box 60267 New Orleans, LA 70160-0267 Phone: 504-862-2255 FAX: 504-862-2289

BALTIMORE U.S. Army Corps of Engineers, Baltimore District Attention: CENAB-OP-R P.O. Box 1715 Baltimore, MD 21203-1715 Phone: 410-962-3670 FAX: 410-962-8024 NEW YORK U.S. Army Corps of Engineers, New York District Attention: CENAN-OP-R 26 Federal Plaza New York, NY 10278-0090 Phone: 971-790-8411 FAX: 212-264-4260 BUFFALO U.S. Army Corps of Engineers, Buffalo District Attention: CELRB-TD-R 1776 Niagara Street Buffalo, NY 14207-3199 Phone: 716-879-4313 FAX: 716-879-4310 NORFOLK U.S. Army Corps of Engineers, Norfolk District Attention: CENAO-TS-G 803 Front Street Norfolk, VA 23510-1096 Phone: 757-201-7652 FAX: 757-201-7678

CHARLESTON U.S. Army Corps of Engineers, Charleston District Attention: CESAC-RD P.O. Box 919 Charleston, SC 29402-0919 Phone: 843-329-8044 FAX: 843-329-2332 OMAHA U.S. Army Corps of Engineers, Omaha District Attention: CENWO-OP-NR P.O. Box 5 Omaha, NE 68101-0005 Phone: 402-221-4211 FAX: 402-221-4939 CHICAGO U.S. Army Corps of Engineers, Chicago District Attention: CELRC-TS-R 111 North Canal Street Suite 600 Chicago, IL 60606-7206 Phone: 312-846-5525 FAX: 312-353-4110 PHILADELPHIA U.S. Army Corps of Engineers, Philadelphia District Attention: CENAP-OP-R 100 Penn Square East 2nd and Chestnut Street Philadelphia, PA 19107-3390 Phone: 215-656-6725 FAX: 215-656-6724


DETROIT U.S. Army Corps of Engineers, Detroit District Attention: CELRE-CO-L P.O. Box 1027 Detroit, MI 48231-1027 Phone: 313-226-2432 FAX: 313-226-6763 DISTRICT OF COLUMBIA United States Army Corps of Engineers 441 G Street, NW Washington, DC 20314 Phone: 202-761-0008 PITTSBURGH U.S. Army Corps of Engineers, Pittsburgh District Attention: CELRP-OP-F Federal Building 1000 Liberty Avenue Pittsburgh, PA 15222-4186 Phone: 412-395-7155 FAX: 412-644-4211 FT. WORTH U.S. Army Corps of Engineers, Ft. Worth District Attention: CESWF-PER-R P.O. Box 17300 Ft. Worth, TX 76102-0300 Phone: 817-886-1731 FAX: 817-886-6493 PORTLAND U.S. Army Corps of Engineers, Portland District Attention: CENWP-OP-G P.O. Box 2946 Portland, OR 97208-2946 Phone: 503-808-4371 FAX: 503-808-4375 GALVESTON U.S. Army Corps of Engineers, Galveston District Attention: CESWG-PE-R P.O. Box 1229 Galveston, TX 77553-1229 Phone: 409-766-3930 FAX: 409-766-3931

ROCK ISLAND U.S. Army Corps of Engineers, Rock Island District Attention: CEMVR-OD-P Clock Tower Building Rock Island, IL 61201-2004 Phone: 309-794-5370 FAX: 309-794-5191 HUNTINGTON U.S. Army Corps of Engineers, Huntington District Attention: CELRH-OR-F 502 8th Street Huntington, WV 25701-2070 Phone: 304-399-5389 FAX: 304-399-5085 SACRAMENTO U.S. Army Corps of Engineers, Sacramento District Attention: CESPK-CO-R 1325 J Street Sacramento, CA 95814-2922 Phone: 916-557-5250 FAX: 916-557-6877 HONOLULU U.S. Army Corps of Engineers, Honolulu District Attention: CEPOH-EC-R Building 230, Fort Safter Honolulu, HI 96858-5440 Phone: 808-438-9258 FAX: 808-438-4060 ST. LOUIS U.S. Army Corps of Engineers, St. Louis District Attention: CEMVS-CO-F 1222 Spruce Street St. Louis, MO 63103-2833 Phone: 314-331-8575 FAX: 314-331-8741 JACKSONVILLE U.S. Army Corps of Engineers, Jacksonville District Attention: CESAJ-RD P.O. Box 4970 701 San Marco Boulevard Jacksonville, FL 32207 Phone: 904-232-1666 FAX: 904-232-1684

ST. PAUL U.S. Army Corps of Engineers, St. Paul District Attention: CEMVP-CO-R Army Corps of Engineers Centre 190 Fifth Street East St. Paul, MN 55101-1638 Phone: 651-290-5354 FAX: 651-290-5330 KANSAS CITY U.S. Army Corps of Engineers, Kansas City District Attention: CENWK-OD-R 700 Federal Building 601 East 12th Street Kansas City, MO 64106-2896 Phone: 816-983-3990 FAX: 816-426-2321 SAN FRANCISCO U.S. Army Corps of Engineers, San Francisco District Attention: CESPN-OR-R 1455 Market Street San Francisco, CA 94103-1398 Phone: 415-503-6771 FAX: 415-503-6693 LITTLE ROCK U.S. Army Corps of Engineers, Little Rock District Attention: CESWL-PR-R P.O. Box 867 Little Rock, AR 72203-0867 Phone: 501-324-5296 FAX: 501-324-6013 SAVANNAH U.S. Army Corps of Engineers, Savannah District Attention: CESAS-OP-F P.O. Box 889 Savannah, GA 31402-0889 Phone: 912-652-5768 FAX: 912-652-5995 LOS ANGELES U.S. Army Corps of Engineers, Los Angeles District Attention: CESPL-CO-R 911 Wilshire Boulevard P.O. Box 2711 Los Angeles, CA 90053-2325 Phone: 213-452-3406 FAX: 213-452-4196


SEATTLE U.S. Army Corps of Engineers, Seattle District Attention: CENWS-OD-RG P.O. Box 3755 (4735 East Marginal Way South) Seattle, WA 98124-3755 Phone: 206-764-3495 FAX: 206-764-6602 LOUISVILLE U.S. Army Corps of Engineers, Louisville District Attention: CELRL-OP-F P.O. Box 59 Louisville, KY 40401-0059 Phone: 502-315-6733 FAX: 502-315-6677 TULSA U.S. Army Corps of Engineers, Tulsa District Attention: CESWT-PE-R 1645 S. 101st East Avenue Tulsa, OK 74128-4609 Phone: 918-669-7401 FAX: 918-669-4306

MEMPHIS U.S. Army Corps of Engineers, Memphis District Attention: CEMVM-CO-R Clifford Davis Federal Building Room B-202 Memphis, TN 38103-1894 Phone: 901-544-3471 FAX: 901-544-0211 VICKSBURG U.S. Army Corps of Engineers, Vicksburg District Attention: CEMVK-OD-F 4155 Clay Street Vicksburg, MS 39183-3435 Phone: 601-631-5276 FAX: 601-631-5459 MOBILE U.S. Army Corps of Engineers, Mobile District Regulatory Division 109 Saint Joseph Street Mobile, AL 36602 Phone: 334-690-2658 FAX: 334-690-2660

WALLA WALLA U.S. Army Corps of Engineers, Walla Walla District Attention: CENWW-OD-RF 201 North 3rd Street Walla Walla, WA 99362 Phone: 509-527-7151 FAX: 509-527-7820 NASHVILLE U.S. Army Corps of Engineers, Nashville District Attention: CELRN-OP-F 3701 Bell Road Nashville, TN 37214-2660 Phone: 615-369-7500 FAX: 615-369-7501 WILMINGTON U.S. Army Corps of Engineers, Wilmington District Attention: CESAW-RG P.O. Box 1890 Wilmington, NC 28402-1890 Phone: 910-251-4944 FAX: 910-251-4025 DISTRICT OF COLUMBIA U. S. Army Corps of Engineers 441 G Street, NW Washington, DC 20314 Phone: 202-761-0008


Appendix 3: National Wetlands Inventory Map Distribution Centers and U.S. Fish and Wildlife Contacts

Alabama Geological Survey of Alabama Publications Sales Office P.O. Box 869999 Tuscaloosa, AL 35486-6999 Phone: 205-349-2852 Alaska – contact South Dakota office Arizona – contact Massachusetts office Arkansas – contact Massachusetts office California – contact Massachusetts office Colorado – contact South Dakota office Connecticut Maps and Publication Sales Department of Environmental Protection 79 Elm Street Hartford, CT 06106 Phone: 860-424-3555 Delaware Gerald A. Donovan Associates Inc. 429 South Governors Avenue Dover, DE 19904 Phone: 302-674-2903 Florida Peter Krafft FL Resources and Environmental Analysis Center UCC 2200 Florida State University Tallahassee, FL 32306-2641 Phone: 850-644-5447 Georgia GA DNR/EPD/WR Regulatory Support, Suite 400 - Attn: Maps 19 Martin Luther King Jr. Drive, SW Atlanta, GA 30334-9004 Phone: 404-656-3214

Guam Evangeline D. Lugan, GIS Manager Bureau of Planning P.O. Box 2950 Haganta, GU 96932 Phone: 671-472-4201 (Ext. 4203) FAX: 671-477-1812 Email: [email protected] Hawaii Division of Forestry and Wildlife P.O. Box 621 1151 Punchbowl St., Rm 325 Honolulu, HI 96813 Phone: 808-587-0166 (Includes Islands of Tinian, Rota and Saipan) Idaho – contact Massachusetts office Illinois Wetland Map Sales Coordinator Center for Governmental Studies Northern Illinois University DeKalb, IL 60115 Phone: 815-753-0914 Indiana Customer Service Center Indiana Department of Natural Resources - Map Sales Division 402 West Washington St., Rm. W160 Indianapolis, IN 46204-2742 Phone: 317-232-4180 or 877-463-6367 (toll free) Iowa – contact Massachusetts office Kansas – contact South Dakota office Kentucky Richard Smath Kentucky Geological Survey 228 Mining and Mineral Resources Bldg. University of Kentucky Lexington, KY 40506-0107 Phone: 859-257-5500 (Ext. 119) FAX: 859-257-1004 Website: http://www.uky.edu/kgs Louisiana – contact Massachusetts office

Maine Maine Geological Survey 22 State House Station Augusta, ME 04333 Phone: 207-287-2801 Maryland Dale Shelton, Publications Maryland Geological Survey 2300 St. Paul Street Baltimore, MD 21218 Phone: 410-554-5500 FAX: 410-554-5502 Massachusetts Dennis Swartwout Earth Science Information Office Blaisdell House University of Massachusetts Amherst, MA 01003 Phone: 413-545-0359 Email: [email protected] Michigan – contact Massachusetts office Minnesota Minnesota's Bookstore 660 Olive Street St. Paul, MN 55155 Phone: 651-297-3000 or 1-800-657-3757 Mississippi – contact Massachusetts office Missouri – contact Massachusetts office Montana – contact South Dakota office Nebraska Conservation and Survey Division University of Nebraska 113 Nebraska Hall 901 N. 17th Street Lincoln, NE 68588-0517 Phone: 402-472-3471 Nevada – contact Massachusetts office


New Hampshire Office of State Planning State of New Hampshire 2½ Beacon Street Concord, NH 03301 Phone: 603-271-2155

New Jersey Maps and Publications NJ Dept. of Environmental Protection 4280 State Street Trenton, NJ 08625 Phone: 609-777-1039

New Mexico – contact Massachusetts office

New York Institute for Resource Information Systems (IRIS) Cornell University, 302 Rice Hall Ithaca, NY 14853-5601 Phone: 607-255-6520

North Carolina Division of Soil & Water Conservation NC Department of Environment and Natural Resources 1614 Mail Service Center Raleigh, NC 27699-1614 Phone: 919-733-2302

North Dakota – contact South Dakota office

Ohio Division of Geological Survey Ohio Department of Natural Resources 4383 Fountain Square Drive, Building B-2 Columbus, OH 43224 Phone: 614-265-6576

Oklahoma Oklahoma Water Resources Board 3800 North Classon Oklahoma City, OK 73118 Phone: 405-530-8800

Oregon Oregon Division of State Lands 775 Summer Street NE, Suite 100 Salem, OR 97301-1279 Phone: 503-378-3805

Pennsylvania – contact Massachusetts office

Puerto Rico – contact Massachusetts office

Rhode Island Wetlands Division Department of Environmental Management 235 Promenade Street, Room 260 Providence, RI 02908 Phone: 401-222-6820

South Carolina – contact South Dakota office

South Dakota Wildlife and Fisheries Department South Dakota State University P.O. Box 2140-B Brookings, SD 57007 Phone: 605-688-5890 (If there is no response, leave message at: 605-688-6121) Email: [email protected]

Tennessee Tennessee Wildlife Resources Agency P.O. Box 40747 Nashville, TN 37204 Phone: 615-781-6599

Texas Texas Natural Resource Information System P.O. Box 13231 Austin, TX 78711-3231 Phone: 512-463-8337

Utah – contact South Dakota office

Vermont State Wetlands Coordinator Dept. of Environmental Conservation Water Quality Division 103 So. Main St., Bldg. 10-N Waterbury, VT 05671-0408 Phone: 802-241-3770

Virginia - contact Massachusetts office

Virgin Islands - contact Massachusetts office

District of Columbia - contact Massachusetts office

West Virginia – contact Massachusetts office

Wyoming Reg Rothwell Wyoming Game and Fish Department 5400 Bishop Blvd. Cheyenne, WY 82006 Phone: 307-777-4588

U.S. Fish and Wildlife Service Regional Wetlands Coordinator Contacts Region 1 (Pacific - CA, ID, NV, OR, WA, HW, Pacific Islands) William Kirchner Eastside Federal Complex 911 NE 11th Avenue Portland, OR 97232-4181 Phone: 503-231-2070 Region 2 (Southwest - AZ, NM, OK, TX) Jim Dick 500 Gold Ave., SW - Rm. 4012 P.O. Box 1306 Albuquerque, NM 87103 Phone: 505-248-6660 Region 3 (Great Lakes - IL, IN, IA, MI, MO, MN, OH, WI) Brian Huberty Ecological Services 1 Federal Drive, BHW Bldg, Mail Stop 4056 Fort Snelling, MN 55111-4056 Phone: 612-713-5332 Region 4 (Southeast - AR, LA, FL, MS, AL, GA, SC, NC, TN, KY, PR, VI) John Swords 300 Westgate Center Drive Hadley, MA 01035 Phone: 413-253-8623 Region 5 (Northeast - CT, DE, ME, MD, MA, NH, NJ, NY, PA, RI, VT, VA, WV) Ralph Tiner 300 Westgate Center Drive Hadley, MA 01035 Phone: 413-253-8620 Region 6 (Mountain Prairie Region - CO, KS, MT, ND, NE, SD, UT, WY) Kevin Bon / P.O. Box 25486 Denver, CO 80225 Phone: 303-236-4263 Region 7 (Alaska) Jerry Tande 1011 East Tudor Road Anchorage, AK 99503 Phone: 907-786-3488


Appendix 4: Wetland Information Websites Publications on Wetland Topics • USDA Plants Database: http://plants.usda.gov • Threatened and Endangered Species List: http://www.fws.gov/endangered/wildlife.html#Species •ELI Study of State Wetland Programs: http://www.eli.org/Program_Areas/state_wetlands.cfm Federal Agency Websites • U.S. Environmental Protection Agency: www.epa.gov/owow/wetlands

o State, tribal, and local initiatives: http://www.epa.gov/owow/wetlands/initiative/;

o Landowner assistance and stewardship: http://www.epa.gov/owow/wetlands/landasst.cfml;

o Water quality and 401 certification: http://www.epa.gov/owow/wetlands/waterquality/;

o Monitoring and assessment: http://www.epa.gov/owow/wetlands/monitor/, and

o Wetland programs across the country: http://www.epa.gov/owow/wetlands/regions.cfml.

• U.S. Fish & Wildlife Service: www.nwi.fws.gov • U.S. Department of Agriculture - Natural Resources Conservation Service: www.nrcs.usda.gov/programs • U.S. Army Corps of Engineers: www.wes.army.mil/el/wetlands and www.spk.usace.army.mil/cespk-co/regulatory/RW-bro.html Organizations Focusing on Wetlands • Audubon: www.audubon.org • Clean Water Network: www.cwn.org • Ducks Unlimited: www.ducks.org/conservation/wetland_functions.asp • National Wildlife Federation: www.nwf.org/wetlands/index.html • Wetland Action: www.wetlandaction.org/importance.htm • Sierra Club: www.sierraclub.org/wetlands • Izaak Walton League: www.iwla.org/sos/awm/awmkit.html • Association of Wetland Managers: www.aswm.org/wetland_functions.asp


Appendix 5: U.S. Environmental Protection Agency Regional Offices

EPA General Wetlands Hotline: 1 (800) 832-7828

Region 1 (CT, MA, ME, NH, RI, VT) 1 Congress St. Suite 1100 Boston, MA 02114-2023 http://www.epa.gov/region01/ Phone: 617-918-1111 FAX: 617-918-1809 Toll free within Region 1: 888-372-7341

Region 2 (NJ, NY, PR, VI) 290 Broadway New York, NY 10007-1866 http://www.epa.gov/region02/ Phone: 212-637-3000 FAX: 212-637-3526

Region 3 (DC, DE, MD, PA, VA, WV) 1650 Arch Street Philadelphia, PA 19103-2029 http://www.epa.gov/region03/ Phone: 215-814-5000 FAX: 215-814-5103 Toll free: 800-438-2474 Email: [email protected]

Region 4 (AL, FL, GA, KY, MS, NC, SC, TN) Atlanta Federal Center 61 Forsyth Street, SW Atlanta, GA 30303-3104 http://www.epa.gov/region04/ Phone: 404-562-9900 FAX: 404-562-8174 Toll free: 800-241-1754

Region 5 (IL, IN, MI, MN, OH, WI) 77 West Jackson Boulevard Chicago, IL 60604-3507 http://www.epa.gov/region5/ Phone: 312-353-2000 FAX: 312-353-4135 Toll free within Region 5: 800-621-8431

Region 6 (AR, LA, NM, OK, TX) Fountain Place 12th Floor, Suite 1200 1445 Ross Avenue Dallas, TX 75202-2733 http://www.epa.gov/region06/ Phone: 214-665-2200 FAX: 214-665-7113 Toll free within Region 6: 800-887-6063

Region 7 (IA, KS, MO, NE) 901 North 5th Street Kansas City, KS 66101 http://www.epa.gov/region07/ Phone: 913-551-7003 Toll free: 800-223-0425

Region 8 (CO, MT, ND, SD, UT, WY) 1595 Wynkoop St. Denver, CO 80202-1129 http://www.epa.gov/region08/ Phone: 303-312-6312 FAX: 303-312-6339 Toll free: 800-227-8917 Email: [email protected]

Region 9 (AZ, CA, HI, NV) Environmental Protection Agency 75 Hawthorne Street San Francisco, CA 94105 http://www.epa.gov/region09/ Phone: 415-947-8000 EPA-WEST (toll free in Region 9): 866-947-8000 FAX: 415-947-3553 Email: [email protected]

Region 10 (AK, ID, OR, WA) 1200 Sixth Avenue Seattle, WA 98101 http://www.epa.gov/region10/ Phone: 206-553-1200 FAX: 206-553-2955 Toll free: 800-424-4372


Appendix 6: U.S. Corps of Engineers Regulatory Jurisdiction


Appendix 7: Sample Corps Public Notice


Appendix 8: Sample Public Notice 2

Interested parties are hereby notified that an application has been received for a Department of the Army permit for certain work in waters of the United States as described below and shown on the attached drawings.

APPLICANT - Idaho Transportation Department (ITD), 600 West Prairie, Coeur d'Alene, Idaho 83815, contact Mr. Dave Karsann at 208-772-1200. For information from the Corps of Engineers, contact Ms. Barbara Benge at 509-527-7153.

LOCATION - Sand Creek (Lake Pend Oreille) and adjacent wetlands, Sec. 23, T.57N., R.2W., Boise Meridian, Sandpoint USGS Quadrangle, in Sandpoint, Bonner County, Idaho.

WORK - Discharge approximately 84,750 cubic yards of crushed rock, sand and concrete fill material and approximately 29,980 cubic yards of dredged material into approximately 2.71 acres below the ordinary high water mark of Sand Creek and approximately 2.82 acres of wetlands adjacent to Sand Creek to construct two bridges for the Sand Creek Byway (a segment of US-95 through Sandpoint, Idaho), a bicycle and pedestrian pathway, an extension (fill pad) on the east shoreline, bank stabilization, a temporary construction access, temporary cofferdams, concrete for fence post footings, two screened water intakes, stormwater pond outlet structures, and three habitat enhancement areas. Dredge approximately 29,980 cubic yards of gravelly sand. Location and description of the work are shown on the attached drawings and exhibits.

PUBLIC HEARING – A public hearing will be jointly conducted by the Idaho Department of Lands and the Corps of Engineers on Monday, November 20, 2006 at 6:00 p.m. at the Sandpoint High School, 410 South Division Avenue, Sandpoint, Idaho 83864. The applicant will briefly describe the proposed activity followed by a period for the public to provide both written and verbal comments.

CONSTRUCTION PERIOD - Applicant proposes to start construction in 2006 and estimates construction will take 3 years. The permit would authorize construction for a period of 3 years.

PURPOSE – The purpose of the proposed project is to construct the Sand Creek Byway segment of the Sandpoint North and South project in accordance with the “Sand Creek Two-Lane Alternative” (preferred alternative) described in the Sandpoint North and South Final Environmental Impact Statement, approved September 9, 1999 and the Environmental Assessment Additions and Changes to US-95, Sandpoint North and South approved May 7, 2004, the May 23, 2000 Record of Decision, entitled “US-95, Sandpoint North and South”, and the April 15, 2005 Finding of No Significant Impact, both issued by the Federal Highway Administration. The bicycle and pedestrian pathway is to provide recreation between Sagle and Ponderay that maintains and expands existing facilities between Sagle and Sandpoint, consistent with the July 2001 Sand Creek Conceptual Master Plan. The extension (fill pad) on the east shoreline is to provide a buttress for the highway embankment between Bridge and Cedar Streets that will also serve as a landscaped area for the pathway


to continue along Sand Creek. Rock will be placed along the bank of Sand Creek to stabilize and protect the bank and pathway from erosion. The proposed temporary construction access will provide a structurally sound base to support equipment large enough to drive the piles for bridge piers and lift the bridge components. Temporary cofferdams, when needed, will serve to dewater construction areas around bridge piers, the shoreline extension (fill pad), enhancement area #1 and other fills in Sand Creek to minimize turbidity impacts during construction. The proposed fence south of Sand Creek between the highway and the railroad is designed for public safety by preventing pathway users from crossing the railroad tracks. The screened water intakes will provide water to irrigate proposed landscaping. The stormwater pond outlet structures would dissipate energy and protect the creek bank from erosion as stormwater discharges into Sand Creek. The purpose of the three habitat enhancement areas is to mitigate for the loss of 2.71 acres of open water area in Sand Creek by providing seasonal habitat along the creek for pathway users and wildlife. The dredging would be done to mitigate channel hydraulic impacts from construction of the shoreline extension fill pad, construct a base for bank stabilization material, provide a flat bench for compacted embankments, remove temporary fills needed for construction, key the fill structures into the bank, install two pump station intakes, set riprap for stormwater pond outlet structures in Sand Creek, and recovery of data on archaeological resources.

ADDITIONAL INFORMATION – The Federal Highway Administration approved the Sand Creek Two-Lane Alternative as identified in the “US-95 Sandpoint North and South Final Environmental Impact Statement and May 23, 2000 Record of Decision (ROD)”. An Environmental Assessment was prepared to assess potential environmental impacts from proposed additions to the original design after the ROD was issued. The proposed project known as the Sand Creek Byway is part of that alternative. The project extends from US-95 milepost 473.5 to milepost 476.01 and is divided into three sections. The southern section of the Byway includes building a realigned two-lane US-95 roadway, a new interchange at Superior Street, a gateway and new parking area upon entering Sandpoint and erecting two bridges to carry a section of US-95 and a southbound off-ramp over Sand Creek.

The middle section of the Byway consists of a realigned two-lane US-95 roadway with an auxiliary southbound lane, construction of a lightweight fill embankment that includes a vegetated wall and decorative concrete panel wall, construction of a shoreline extension (fill pad) that includes landscaping, and construction of three habitat enhancement areas adjacent to the east shoreline of Sand Creek. The northern section of the Byway consists of construction of a new interchange at the intersection US-2, US-95, and SH-200 and construction of a new gateway into Ponderay. A bicycle and pedestrian pathway will be constructed the entire length and parallel to the highway.

A number of the structures described above will require a Department of the Army permit for the discharge of crushed rock and granular fill material waterward of the ordinary high water mark of Sand Creek and into adjacent wetlands. Approximately 84,750 cubic yards of crushed rock, sand and concrete fill material and approximately 29,980 cubic yards of dredged material would be discharged into approximately 2.71 acres below the ordinary high water mark of Sand Creek and into approximately 2.82 acres of wetlands adjacent to Sand Creek. The various discharges into Sand Creek and adjacent wetlands are described below.

Most of the roadway construction is designed to avoid discharges into Sand Creek; however, two bridge piers are proposed in the creek. One pier will be needed in the creek to support a southbound off-ramp that crosses over Sand Creek and merges with Superior Street. This off-ramp will provide a second access point for southbound traffic to downtown Sandpoint as established via extensive public involvement. A second bridge will be needed to support a section of US-95 over Sand Creek. Both bridges are shown on Figure 8 of the drawings.

A proposed 10-foot wide pedestrian and bicycle pathway will be located along the east shoreline of Sand Creek. The pathway is anticipated to be approximately 1.8 miles long. Sections of the pathway will require the discharge of fill material into the creek. The pathway location is supported by the City of Sandpoint Master Plan and was refined through community and agency involvement.

A 600-foot long by up to 115-foot wide shoreline (fill pad) extension will be constructed on the east shore of Sand Creek between Bridge Street and Cedar Street to provide a buttress for the highway embankment in this location. The fill pad would eliminate approximately 1.06 acres of Sand Creek. The fill pad would provide park-like landscaping and a section of the proposed pathway. The shoreline extension is shown on Figures 9 and 10 of the drawings.

Approximately 1,700 cubic yards of granular rock will be discharged below the ordinary high water mark of Sand Creek to stabilize approximately 7,000 feet of bank. The applicant proposes five different bank stabilization treatments to be randomly placed on the entire east bank of Sand Creek. Each of the treatments is designed to incorporate vegetation and woody debris. The bank stabilization is shown on Exhibits 1 through 3.

A temporary work pad will be constructed for equipment access to allow construction of the two bridge piers in Sand Creek as shown on Figure 9 of the drawings. The work pad will require the discharge of approximately 7,355 cubic yards of clean rock into the creek. The rock will be removed from the creek upon completion of the bridge piers.


Temporary cofferdams or similar structures will be constructed when needed to dewater around two bridge piers the shoreline extension (fill pad), and habitat enhancement area #1 during project construction. Two types of cofferdams will be constructed. Sheet pile will be used around the bridge piers and the shoreline extension. Gravel will be used to hold up the sheet piles. Approximately 18,500 cubic yards of gravel will be temporarily discharged for the sheet pile cofferdams. An inflatable cofferdam will be used to dewater habitat enhancement area #1. No fill material will be required for the inflatable cofferdam. The cofferdams will be removed from Sand Creek upon project completion.

An 8-foot high chain link fence will be constructed in wetlands south of Sand Creek along the permanent easement between ITD property and railroad property. The fence shown on Figures 8 of the drawings will separate the pathway from the railroad and will prevent pathway users from crossing the railroad tracks to access the shoreline of Pend Oreille Lake. The fence posts will be spaced 10 feet apart and require the discharge of concrete into 3-foot deep holes that are 10 inches in diameter.

The applicant also proposes to install two screened 6- to 8-inch concrete water intakes in Sand Creek at approximately elevation 2055.5 feet. Each intake will divert water to a pump and wet well, which is set back from the creek approximately 20 feet. Each intake and pump will provide pressure irrigation to approximately 2.3 acres of landscaped area at the Sandpoint gateway and 2.5 acres of landscaped area at the shoreline extension. The intakes are shown on Figures 8 and 9 of the drawings. The applicant proposes to install seven stormwater pond outlet structures in Sand Creek. These structures are shown on Figures 8, 15, 16, 19 and 31 through 33. The creek bank would be dredged to construct a base for the structure, the pipe outlet would be constructed, and riprap would be discharged to stabilize the bank. The riprap would act as an energy dissipater to protect the bank from erosion.

The applicant states that approximately 29,980 cubic yards of gravelly sand would be dredged from Sand Creek to construct the project. Dredging would consist of four types as discussed on the table below entitled “Summary of Proposed Dredged Material. (insert table 2 and write-up of Sand Creek Dredging. Type A dredging (Figures 10 and 23) would involve dredging 2,230 cubic yards of material to maintain the existing channel bottom depth along the shoreline extension fill pad. This dredging is designed to reduce the impacts of placing the shoreline extension fill pad in Sand Creek. Type B dredging (Figures 10-18 and 26) would involve dredging 5,555 cubic yards of material to construct bank stabilization and construct a bench cut for fill in Sand Creek in areas where existing ground is steeper than 5:1. This dredging would provide a foundation for the proposed streambank stabilization. Type C dredging (Figures 10 and 24) would involve dredging 8,945 cubic yards of temporary fill placed between sheet pile cofferdams for the proposed shoreline extension. This type of dredging would also involve dredging of 4,000 cubic yards of temporary fills (Figures 9 and 21) needed for construction of the southbound off ramp bridge and Sand Creek Bridge. Type D dredging would involve dredging needed to set stormwater pond outlet structures (Figures 31 through 33) and dredging needed to recover cultural resources (Figures 34 through 36)

Type A and B dredged material, which consists of approximately 10,410 cubic yards, would be disposed of in an upland location shown on Figure 4 of the drawings where it would not reenter waters of the US. Type C dredged material would consist of granular fill which would be used for the road project. Type D dredged material would be used to backfill the original dredged location.

In-water work in Sand Creek will be conducted from October 15 to April 15 of each year during low water conditions. Upland work to construct the Byway will be conducted the remainder of the year.

The applicant has developed a Storm Water Pollution Prevention Plan (SWPPP) to reduce water quality degradation during construction activities. The applicant will minimize turbidity and sedimentation by constructing inflatable dams, cofferdams, and turbidity curtains around the work proposed in Sand Creek to dewater the work site. The plan includes methods and implementation measures to minimize erosion, turbidity and sediment transport during construction. A spill prevention, control and countermeasure plan has been prepared to address the use, storage and disposal of petroleum products during construction.

Throughout development of the Byway, the applicant worked to avoid and minimize the amount of fill material to be placed in Sand Creek and wetlands. Retaining walls have been designed in various areas where fill was initially proposed. The pathway width and alignment were adjusted along Sand Creek to minimize the amount of fill. A portion of the pathway approximately 300 feet in length near the Cedar Street Bridge is proposed to be constructed on piles to avoid additional fills. The alignment of the southbound off-ramp at the north interchange was shifted so only a portion of a wetland system will be filled. In-water piers in Sand Creek have been reduced so only one pier is required for each of the southbound off-ramp bridge and the Sand Creek Bridge.

To mitigate for filling 2.82 acres of wetland, described above, the applicant has already constructed 2.5 acres of open water, emergent and forested wetlands at Sandpoint High School. Besides the natural flow through the property, drainage from athletic fields and parking lots has been routed to the mitigation site. The applicant proposes to mitigate the remaining 0.32 acre of wetlands, prior to or concurrent with project construction, by constructing 0.99 acres of wetland. The site currently proposed for constructing the wetland mitigation is shown on Figures 1 and 3 of the drawings. The applicant proposes to convert the sediment


basin into wetland habitat.

The applicant proposes to mitigate for discharges into 2.71 acres of open water in Sand Creek to construct the bicycle pathway by constructing three habitat enhancement areas adjacent to Sand Creek. Approximately 2.71 acres of Sand Creek will be filled at three locations to create shallow water habitat enhancement. The enhancement areas will include native vegetation plantings and underwater habitat structures made of natural materials that will include root wads, rock clusters, and logs that will be attractive and beneficial to pathway users, birds, amphibians, aquatic mammals, and fish. The enhancement areas are shown on Figures 13 through 18.

The application, along with a project history, alternatives evaluated, and additional information on this project is available on our website at: http://www.nww.usace.army.mil/html/offices/op/rf/rfhome.htm

AREA DESCRIPTION – The proposed project is in a section of Sand Creek that is flooded when Pend Oreille Lake is at full pool, 2062.5 NGVD, during the summer recreation season. Water levels drop from October to April each year and the creek bottom becomes exposed as a mud flat. Bottom substrate consists of fine sand. Timber harvest, agriculture, and urbanization have all contributed to sediment in Sand Creek. The removal of riparian cover in the watershed has resulted in increased water temperatures. Vegetation along the creek consists mainly of black cottonwood, snowberry, bitter cherry, dogwood, and conifers. A railroad track runs parallel to the proposed highway segment on the east side of the highway alignment. Downstream of the project, at the mouth of the creek, several multi-slip marinas extend into the creek.

ANTICIPATED IMPACTS ON AQUATIC ENVIRONMENT - Applicant states the normal pool elevation would not change as a result of fill placement in Sand Creek; however the location of the normal pool elevation contour on the east side of Sand Creek will permanently shift to the west. The project will slightly reduce the extent of navigable water in Sand Creek; however the project will not impede continued use of Sand Creek by small boats, personal watercraft, and other recreational activities. Sand Creek would continue to be navigable during winter months while construction is in progress. Small amounts of sediment may enter Sand Creek during construction, but the SWPPP is expected to prevent adverse impacts to water quality. For further discussions regarding anticipated impacts, please see the application located on our website. OTHER AUTHORIZATIONS - Other authorizations obtained or requested include: Consent to Build Within the Flowage Easement of Sand Creek from Seattle District Corps of Engineers, a Conditional Letter of Map Revision from the Federal Emergency Management Agency, a Non-navigational Encroachment Permit from Idaho Department of Lands, and a Storm Water Permit from the City of Sandpoint. WATER QUALITY CERTIFICATION - This will also serve as public notice that Idaho Department of Environmental Quality (IDEQ) is evaluating whether to certify that the discharges of dredged and fill material proposed for this project will not violate existing water quality standards. A Department of the Army permit will not be issued until water quality certification has been issued or waived by the IDEQ, as required by Section 401 of the Clean Water Act. If water quality certification is not issued, waived or denied within 60 days of this public notice date, and an extension of this period is not granted to the IDEQ Quality, certification will be considered waived. Additionally, within 30 days of this public notice, any person may provide written comments to IDEQ and/or request in writing that IDEQ provide them notice of their preliminary Section 401 certification decision. Comments concerning certification for this project should be mailed to: Idaho Department of Environmental Quality, Coeur d’Alene Regional Office, 2110 Ironwood Parkway, Coeur d'Alene, Idaho 83814. CULTURAL RESOURCES - Coordination is currently being conducted with the office of the Idaho State Historic Preservation Officer to determine if this activity will affect a site listed on the National Register of Historic Places or a site that may be eligible for listing on the Register. ENDANGERED SPECIES - Coordination has been completed with the U.S. Fish and Wildlife Service and the Service concurred the project may affect, but is not likely to adversely affect bald eagle and bull trout and will have no effect on gray wolf, woodland caribou, grizzly bear, and Canada lynx or other species designated as endangered or threatened under the Endangered Species Act, or their critical habitat. ENVIRONMENTAL IMPACT STATEMENT - Preliminary review indicates the activity will not require preparation of an Environmental Impact Statement. Comments provided will be considered in preparation of an Environmental Assessment. AUTHORITY - This permit will be issued or denied under the authority of Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. EVALUATION - The decision whether to issue a permit will be based on an evaluation of the probable impact, including cumulative impacts, of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit, which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental


concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people. In addition, our evaluation will include application of the EPA Guidelines (40 CFR 230) as required by Section 404(b)(1) of the Clean Water Act.

CONSIDERATION OF PUBLIC COMMENTS - The Corps of Engineers is soliciting comments from the public; Federal, State, and local agencies and officials; Indian Tribes; and other interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the Corps of Engineers to determine whether to issue, modify, condition or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

COMMENT AND REVIEW PERIOD - Interested parties are invited to provide their comments on the proposed activity, which will become a part of the record and will be considered in the decision. Comments should be mailed to: U.S. Army Corps of Engineers Walla Walla District Regulatory Branch 201 North 3rd Venue Walla Walla, Washington 99362-1876 Comments should be received not later than the comments due date of this notice to receive consideration.

/signed/ A. Bradley Daly Chief, Regulatory Division

Enclosure


Appendix 9: Sample Public Comment Letter regarding Public Notice in Appendix 8

Source: http://www.nican.info/NICAN%20404%20rnd%202%20sample%20comm%20fin%2010.1.06.doc Date_____________ Barbara C. Benge U.S. Army Corps of Engineers Walla Walla District Regulatory Branch 201 North 3rd Avenue Walla Walla, Washington 99362-1876 Re: Comment on Sand Creek Byway Permit Application - NWW No. 040500002 For Discharging Dredged and Fill Materials into Sand Creek Dear US Army Corps of Engineers: I am writing in regards to Idaho Department of Transportation’s application for a permit for discharging fill and dredging in Sand Creek in order to construct the Sand Creek “byway” segment of the US 95 Sandpoint North-South project. As you are aware, Section 404 of the Clean Water Act regulates discharge of dredged and fill materials into the nation’s waters. The applicable regulations include 40 CFR Part 230 defining the 404(b)(1) guidelines for evaluating the impacts of the proposed activity and 33 CFR 320 defining the public interest review process. It is my/our understanding that, in order to receive a Section 404 permit, the application and the project must meet regulatory requirements or the permit will be denied. It is my/our expectation that the in evaluating the permit for compliance with the applicable regulations and that those regulations will be upheld. Below are my/our comments on Idaho Transportation Department’s permit application: Sincerely, Sandpoint Area Citizen(s) Your address


Here are some of the key issues that the Corps must address while weighing the pros and cons of issuing the permit: An Alternatives Analysis is required Section 404 Clean Water Act Regulations require the applicant (ITD) to demonstrate that steps have been taken to avoid impacts to existing aquatic values. The project is not a water dependant facility. The purpose of the project, as defined by ITD in the 2000 Record of Decision is “…to improve the operation of a state highway facility” and “…to facilitate through non-stop and truck traffic.” (ROD p. 21) Accomplishing this purpose does not require locating Highway 95 on the east bank of Sand Creek. Placing the 2 lane (w/3rd auxiliary lane) bypass/ highway on the proposed site requires significant intrusion into Sand Creek. It will have significant impacts on the aquatic, aesthetic and economic values currently provided by Sand Creek and the waterfront setting. These impacts are avoidable. There are practicable alternatives to the Sand Creek highway that would avoid the proposed alignment’s adverse impacts on aquatic and other values. ITD has rejected all alternative routes without considering them in detail. The application fails to provide evidence that a practicable, feasible alternative does not exist which would have less adverse impact on the aquatic ecosystem, as required by the permitting process. The application does not adequately demonstrate that steps have been taken by ITD to avoid impacts on the aquatic ecosystem, therefore the request for permit must be denied. Furthermore, the stated purpose of the project has been changed to: “to construct the Sand Creek Byway segment of the Sandpoint North and South project” as requested by the Army Corps during correspondence reading the previous ITD application for permits. The change is clearly an attempt to rule out consideration of alignment alternatives. The alternatives analysis is a core requirement of the permitting process and there is no provision in the regulations to eliminate consideration of alternatives due to a deliberately narrow, location-based definition of its purpose, i.e., “to construct a highway along Sand Creek.” Alternatives have recently been identified that appear to be practicable and completely avoid impacts to Sand Creek/ the aquatic environment. The alternatives include a tunnel (www.SandpointTunnel.com) and a through town surface street connector (www.ConnectNorthIdaho.org). The Corps should consider both of these as part of an alternatives analysis. Economics – ITD’s application does not adequately address the short and long term impacts of placing a highway on Sandpoint’s waterfront. The town of Sandpoint attracts tourists in part because of its location on an attractive waterfront, which is Sand Creek. The Sand Creek highway will destroy the ambience that makes the town unique and desirable as a destination resort town. Tourism will decrease resulting in business failures and lost jobs. Aesthetics - The aesthetics of the downtown waterfront will be profoundly impacted by converting it to an elevated highway. This will adversely affect locals and tourists who use the waterfront for recreation and relaxation. Highway noise will be constant, and punctuated by sirens reverberating over the water when there is an accident or a traffic violation. Land use - Building the Sand Creek bypass will convert the use of Sand Creek from a high value waterfront and recreational amenity to a highway, destroying Sandpoint’s economy, wildlife and fish habitat, recreational uses and cultural amenities in the process. Recreation - Sand Creek and its east bank are currently used for a variety of recreational pursuits, from canoeing, kayaking, rowing, motor-boating and recreational fishing to bird watching and walking on the trail on the east bank and just enjoying the beauty of the creek. These pursuits will be negatively impacted by its conversion to a highway. Wetlands - The mitigation proposed by ITD for filling wetlands is inadequate. The replacement wetlands at the High School are no substitute for the aquatic value of the Sand Creek wetlands that will be destroyed. Historic and Archeological values – These values will be irretrievably lost. I am/ we are very concerned about the impacts of proposed highway construction on the railroad Depot. Placing a busy, noisy highway 20 feet from the


Depot will definitely alter the setting of the Depot and eliminate the public’s ability to enjoy this historic treasure. The Depot is extremely fragile and will likely be damaged by construction of the highway in such close proximity. The permanent loss of Sandpoint’s history including pre-historical sites that will be forever buried beneath the highway is disturbing. The proposed location for the highway is rich with historical and archeological data. Collecting some of the data and sending it to the University of Idaho in Moscow does not adequately mitigate for the permanent loss of tribal and local history on the peninsula. Fish and wildlife values - The east bank of Sand Creek provides habitat for a wide variety of birds and other wildlife and fish that utilize shoreline habitat. During construction all vegetation from thousands of feet of shoreline will be removed and replaced by concrete walls and noisy traffic. The big cottonwoods where bald eagles perch all winter opposite the downtown will be gone and so will the eagles. This will negatively impact the use and enjoyment of the waterfront for locals and tourists alike. Water quality – ITD’s proposal to place 84,000 cubic yards of fill in the creek and dredge almost 30,000 cubic yards has a high potential to negatively impact water quality. Sand Creek soils are very unstable, highly erosive and prone to mass failure. Severe water quality damage is likely, should a mid winter or early spring flood event occur during fill and dredge operations. Sand Creek is prone to mid-winter flooding during January thaws which are a regular occurrence in the Idaho Panhandle. The Corps should take a hard look at the risks associated with construction of the project as proposed, especially given the history of severe water quality damage associated with ITD’s highway construction projects adjacent or near waterways in north Idaho. (Bulldozer in Lake Coeur d’Alene, Mica Bay filled with sediment, etc.). The proposed relocation of Sand Creek’s main channel will change the way the creek flows and may cause long term shoreline erosion and accretion that ITD is not anticipating or capable of preventing. The project has the potential to impact water quality downstream in Lake Pend Oreille as well as Sand Creek. We ask the Corps to take a hard look at the feasibility and risks associated with ITD’s proposed dredging and filling. Safety issues – The proposed highway does not meet current standards for safety. No traffic barrier is planned that would separate north and south bound traffic, raising the potential for crossover (head-on) crashes. Proximity to the railroad tracks and train traffic near Bridge Street also raises concerns. Furthermore, there does not appear to be any way for stranded motorists to get off the highway, except to walk to one end or the other. This could create a particularly dangerous situation for stranded motorists in the winter – not every one has a cell phone in their car. The means for emergency vehicles to expeditiously gain access when accidents occur is not clear. The potential for traffic to proceed at unsafe speeds along this straight stretch of road is another factor to be considered. Consideration of property ownership – The acquisition of the Right of Way property from the Burlington Northern Railroad has yet to be finalized. In general, the quality of life, needs and welfare of the community - Building a highway up Sand Creek will create a massive, noisy barrier between downtown Sandpoint and City Beach Park which is the gateway the Lake Pend Oreille. The aesthetic and noise impacts of an elevated highway on City Beach, west shore restaurants, the Sandpoint Marina, other waterfront amenities and the downtown will degrade the quality of life of locals who use the area for recreation and business owners and employees who depend on it to attract visitors. Cumulative impacts on the public interest – All of the above impacts combined will have profound and significant negative impact on the community and its future economic, aesthetic and environmental well-being. The Corps must consider the lack of balance between the numerous and reasonably foreseeable detriments that will result from the construction of the Sand Creek highway versus the purported, but questionable benefits eschewed by ITD. In reality, the only benefit accrues to non-stop truckers and those who want to get to Walmart from Sagle without going through Sandpoint. All other impacts are detrimental.

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