Thousands of wetland acres are destroyed every year in the Gulf States thanks to permission granted by the U.S. Army Corps of Engineers (Corps). Through Section 404 of the Clean Water Act, the Corps has the authority to grant permits that "dredge or fill" waters of the United States, including wetlands. A permit is thus required any time a person wishes to fill wetlands or to construct a building, subdivision, strip mall, road, pipeline, industrial facility, etc. that will destroy wetlands.
Gulf Restoration Network fights Corps-authorized wetland destruction by:
- Reviewing hundreds of wetland destruction permit requests every year, and commenting on the most egregious.
- Helping citizens fight wetland destruction in their communities.
- Monitoring the mitigation for wetland destruction required by the Corps and State Agencies.
Before granting a permit, the Corps is supposed to consider:
- Whether an alternative(s) to the project exists that would not negatively affect wetlands. If there are practical alternatives, the permit should not be issued.
- Whether the project is water-dependent. If water is not required to fulfill the project's basic purpose, the permit should not be issued.
- Whether the project has been designed in a way that avoids and reduces the impacts to the environment. If wetlands must be destroyed, the Corps must require the developer to "mitigate" for the destruction by building or restoring similar wetlands.
- Whether the project will cause a violation of state water quality standards. In order to ensure this the State must also certify that there will be no harmful effects on water quality due to the wetland destruction.
While the intended purpose of the permitting process is to "avoid, reduce, and mitigate" damage to wetlands, the granted permits allow for the destruction of wetlands that should otherwise be preserved. Luckily, the 404 process also requires public participation. Through this process, permit requests must be noticed on Corps websites, as well as in local newspapers. Although you may not read the newspaper every day, you can still stay informed about new proposals that would potentially destroy wetlands by adding your name to the public-notice mailing lists maintained by state and federal regulatory agencies involved with wetland-related projects.
Laws That Protect Wetlands
The use of wetlands is regulated by federal, state, and local governments. There are four general types of laws, including those specifically directed at:
- Wetland Habitat (administered by the Corps and U.S. Environmental Protection Agency [EPA]);
- Water Quality (administered by EPA and the states);
- Coastal Protection (administered by EPA, the National Oceanic and Atmospheric Administration [NOAA], and the states); and
- Local Land-use (administered by state or local governments).
Each area of the law has its own permitting process, government administrators, and opportunity for public input. It is therefore important to have a general knowledge of each of these four areas of the law when dealing with any specific project or potential development.
Federal Laws and Regulations
The Clean Water Act
In 1972, Congress passed the Water Pollution Prevention and Control Act— commonly known as the Clean Water Act — to protect the quality of the nation's surface and ground waters, including oceans, lakes, rivers, streams, aquifers, coastal areas, and wetlands. The Clean Water Act sets out broad rules for protecting the waters of the United States and gives the Corps and EPA the power to write more specific rules governing activity in or on water and wetlands. These more specific rules are known as 'regulations' and can be found in the Code of Federal Regulations. Sections 404 and 401 are two parts of the Clean Water Act that apply directly to wetlands protection. While Section 404 regulates activities that affect the filling of wetlands, Section 401 is concerned with maintaining good water quality in wetlands.
Section 404 of the Clean Water Act
Section 404 of the Clean Water Act (often referred to as 'Section 404') forbids the unpermitted "discharge of dredge or fill material" into waters of the United States. Section 404 does not regulate every activity in wetlands, but requires anyone seeking to 'fill' a wetland to first obtain a permit from the Corps. For example, if a person wishes to construct a building or other development and wetlands need to be filled to complete the project, Section 404 requires that the person first obtain a permit from the Corps.
There are four main federal agencies involved in the Section 404 permitting process and the primary responsibilities of each are described in GRN’s Guide to Protecting Wetlands in the Gulf of Mexico [pdf]. If you are concerned about a wetland destruction project in your area and would like to consult us, contact Scott Eustis, GRN’s Coastal Wetland Specialist, at Scott@healthygulf.org.