WETLAND · Environmental Planning Federal approvals and the Corps program

Section 404 of the Clean Water Act deals with one specific act: putting dredged or fill material into waters of the United States. That includes construction and dredging in the nation's navigable waters. The Army Corps of Engineers issues the permits. EPA does not issue them, but it writes the rules, oversees the program and holds separate authority over jurisdiction, enforcement and the veto power described in Section 404(c).

Dredged or fill material is not the same as every disturbance near a stream. The program is aimed at the placement of material, which is why a project that removes material, or one that only passes through, is judged differently from one that fills.

The Army Corps of Engineers runs the day to day permit review. EPA sets the environmental criteria the Corps applies, and the two agencies share jurisdiction over what counts as a water of the United States. A state or a Tribe can also take over the 404 program for certain waters, a step called assumption. Where assumption has happened, the state or tribal program handles some permits that would otherwise go to the Corps.

The split matters to a landowner because it changes who you call first. It also means the reach of the program depends on a definition that has been in motion. EPA and the Department of the Army have proposed to revise the definition of waters of the United States, so the boundary of federal jurisdiction is not a fixed line. For any parcel, the practical question is whether the wet area on it meets that definition at the time of the review.

The program protects three things that are easy to confuse. A water of the United States is a legal category, not a description of every wet spot. A wetland is defined and identified by its own criteria, and a stream is a flowing water. EPA publishes the definitions and the identification methods separately, and a delineation on the ground will use those methods rather than a landowner's impression of where the ground gets soft.

Vermont, New Hampshire and Maine all have wet ground that does not automatically qualify as a water of the United States. That is why a wetland delineation is usually the first document that decides how much of the federal program applies to a site.

A permit application goes to the Army Corps of Engineers, which publishes the process and the forms. Some projects are exempt from needing a permit, and the Corps lists those categories. Exempt does not mean unregulated: an exempt activity can still trigger state or local review, and it can still be affected by the definition of waters of the United States.

EPA also provides increased transparency regarding Clean Water Act jurisdictional determinations, which lets a landowner see how similar questions have been decided. For a project near a municipal boundary, that record is often more useful than a general rule of thumb.

The federal permit is rarely the only approval. Section 401 of the same law gives a state or a Tribe the chance to certify that a federal permit will not violate its water quality standards. When a state certifies, conditions can be attached. When it declines, the federal permit cannot go forward. This is the hinge between the two systems, and it is why a federal application is often filed alongside a state one.

The Approvals That Commonly Apply page sets out the state layer that sits beside the federal one. In the northern woods, that layer usually includes wetland permits, shoreland rules and water quality certifications, and each has its own timeline. A federal permit issued without the state certification in hand is not much use.

Town volunteers often see a federal permit and assume their review is over. It is not. A conservation commission or a planning board works from local ordinances, and Commissions and Planning Boards can impose their own conditions on the same project. Local review can move faster than the federal process, or it can lag behind it, and the two do not automatically sync.

This is the part that catches people out. A project can hold a valid federal permit and still be blocked at the town level for a reason that has nothing to do with the Clean Water Act.

One topic runs through both systems: the strip of vegetated ground along a wetland edge. Federal review looks at impacts to the aquatic resource. State and local rules look at wetland buffers measured in feet from a delineated boundary. The same edge can be judged twice, once for what it does to water quality and once for how close the work sits to the line.

That overlap is why a single survey often serves several applications. Getting the delineation right, and getting it accepted, tends to settle more of the review than any argument about the merits of the project.

Mitigation follows a sequence. The first question is how to avoid impacts to wetlands, streams and other aquatic resources. The second is how to minimize what remains. Only then does compensatory mitigation come in, which offsets adverse impacts that could not be avoided or reduced. EPA describes the Compensatory Mitigation Rule and how mitigation projects are meant to replace lost functions.

Those functions are concrete: protecting and improving water quality, providing habitat to fish and wildlife, storing floodwaters and maintaining surface water flow during dry periods. It is worth reading the mitigation pages before designing a site plan, because the sequence above shapes what a reviewer will ask for.

EPA enforces Section 404 and publishes how to report a suspected violation. Enforcement actions are one way the program protects wetlands, and the agency publishes its enforcement work along with regional contacts. The practical point is that the program has a compliance side, not just a permit side, and the compliance side applies whether or not a permit was ever requested.

If you want to see the whole picture for a parcel, start with the review map on environmental review who reviews, then read the specific rules for the state and the town. The land wetlands and planning pages cover the assessment work that comes before any of it, and the EPA wetlands pages describe the resource itself. The open question for most projects is not whether a permit is needed, but how early in the design the delineation and the state certification have to be settled.

The Sedge and Granite editorial team
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