Overview:
The federal Clean Water Act (CWA) was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Section 404(b)(1) of the CWA requires federal permits for the disposal of dredge or fill material into "waters of the United States," which generally includes wetlands that are adjacent to or have a hydrologic connection to navigable water ways. Disturbances in "isolated" wetlands are not regulated under the CWA, but are subject to review and approvals under Wisconsin’s wetland regulations.
Activities regulated under Section 404(b)(1) of the CWA include, but are not limited to:
"fills" for commercial, residential and transportation development (e.g., dirt, gravel, sand, concrete, asphalt, wood chips, etc.)
water resource projects (e.g., dams and levees)
conversion of wetlands to uplands (i.e., drainage) for farming and forestry
The St. Paul District of the U.S. Army U.S. Army Corps of Engineers (COE) administers the Section 404 permit program in Wisconsin, with oversight from Region 5 of the Environmental Protection Agency (EPA).
Federal Permit Process:
Clean Water Act Guidelines for wetlands, sometimes referred to as Section 404(b)(1) guidelines, provide that permits for the discharge of dredged or fill material in federally regulated wetlands will not be issued if:
- A practicable alternative* exists that is less damaging to the aquatic environment (40 CFR Part 230.10(a)), or
- If the project will cause or contribute to significant degradation of the waters of the United States (40 CFR Part 230.10(c)).
The practicably alternatives analysis requires applicants for Section 404 permits to:
- Avoid wetland impacts: No discharge shall be permitted if there is a practicable alternative with less adverse impact.
- Minimize wetland impacts: If impacts cannot be avoided, appropriate and practicable steps to minimize adverse impacts must be taken (e.g., project modifications).
- Mitigate for unavoidable wetland impacts: Wetland mitigation includes the restoration, creation, enhancement, or in exceptional cases preservation of wetlands and/or other aquatic resources for the purpose of compensating for unavoidable impacts.
A 1990 Memorandum of Agreement between the COE and the EPA defined this three-part application process as "sequencing," and required that efforts to avoid, minimize and mitigate wetland impacts must occur in sequential order.
* Site designs that avoid or minimize wetland impacts have consistently been deemed "practicable," even if they reduce the economic returns of a project.
Click here to view the full Section 404(b)(1) guidelines (note: subpart B begins on page 10).
Types of Permits & Comment Opportunities:
Individual permits: Activities with potentially significant adverse impacts to federally regulated wetlands will require coverage under a "standard individual" permit. The COE must provide Public Notice with a 15-30 day public comment period for all standard individual permits.
You can track public notice announcements for individual Section 404 permit applications in your community three ways:
- View notices online at the COE website.
- Receive electronic notices for permit applications in the counties of your choice by subscribing to St. Paul District of the COE’s permit notification listserve.
- Request copies of public notices by mail by calling (651) 290-5354 or writing to: the Regulatory Branch, U. S. Army Corps of Engineers, 190 Fifth Street East, Ste 401, St. Paul, MN 55101-1638.
Comments that highlight how a project proposal fails to meet mandatory sequencing requirements (i.e., avoid, minimize, mitigate), or why a project would have a significant adverse impact on wetland functions and water quality, will be far more effective than comments based solely on how the activity will change the character of a community or specific community members’ use and enjoyment of the resource.
Keep in mind too that informed public comments on controversial projects help regulatory agencies consider all sides of an issue. Pressure to issue permits can be intense when local authorities or business leaders support a project, so comments from the concerned public force regulatory agencies to strive for an equitable balance between public and private concerns when they conduct the public interest review.
For more information on writing effective comment letters click on "Wetland Protection Strategies" on the menu above. For assistance describing the features and functions of the wetland of concern, click on "Gathering Information About Your Wetland".
For more information about the status of a particular permit application or project, contact the U.S. Army Corps of Engineers District Engineer for your County.
General permits: Activities that are similar in nature and will have only minimal adverse impacts on the environment (individually or cumulatively) may be authorized under a general permit. The permit applicant must demonstrate that the proposed activity is eligible for coverage under the general permits and that all sequencing criteria (i.e., avoid, minimize, mitigate) have been met. Except in rare circumstances, no public comment opportunities are available for activities authorized under general permits.
Click here to view general permits effective in Wisconsin.
Wetland Impacts Not Regulated Under the Clean Water Act:
Discharges of dredged and fill material into isolated wetlands are not regulated under the Clean Water Act because these types of wetlands fall outside of the definition of "waters of the United States." The state of Wisconsin does, however, regulate construction activities in isolated wetlands.
Federal law also exempts a limited number of other activities (e.g., routine maintenance of farming operations, installation of access roads for timber harvest) from federal wetland permitting requirements under certain conditions (click here for more details), but Section 404 exemptions do not apply if the activity converts a wetland to dry land or impairs the flow of water through the wetland.
Because Section 404 of the Clean Water Act only regulates the discharge of dredged and fill material into waters of the U.S., activities such as draining wetlands or removal of above ground vegetation unfortunately do not require permits if the activity can be accomplished without the placement of dredged and fill material. The effects of wetland drainage and vegetation removal are, however, considered in the impacts analysis of projects that include areas of wetland fill.
> Click here to continue to the discussion of Wisconsin Wetland Regulations.
