Whenever someone plans to disturb the ground in waters of the United States (including wetlands and benthic surfaces), they generally need authorization from the Army Corps of Engineers under Section 404 of the Clean Water Act. Disturbances can take the form of “placement of fill material, grading, mechanized land clearing, and redeposit of excavated/dredged material.”
In order to make their decision, the Corps must consult with state and federal agencies, which may include the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service. Along with the Clean Water Act, other regulations that often need to be considered are Section 10 of the Rivers and Harbors Appropriations Act of 1899 and Section 103 of the Marine Protection, Research and Sanctuaries Act. The Corp will consider what habitats your project might impact, including any that may be home to organisms listed as endangered or threatened by the Engendered Species Act. The Endangered Species Act is a powerful force in protecting species from extinction – often forcing developers to radically change or even cancel a project that threatens protected habitats.
If the Corps deems that a project will have a significant environmental impact, they must prepare an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA). The EIS is a very detailed account of the environmental issues involved, including a list of alternatives to the project and what their impact would be. The EIS, when done thoroughly, holds the Corps to a decision based on empirical evidence. However, it lies with the Corps to decide if the impact of the project is “significant.”
An applicant for a permit under Section 404 must show that there are no practical alternatives to a project that significantly harms the environment. When there are no practical alternatives, the applicant must provide appropriate mitigation. Whether this mitigation truly creates net zero harm to the environment is a point of great contention amoung environmental experts and developers. Many feel that there is no true mitigation for environmental harm in one area by attempting to protect another area. Often fixes rendered end up not “taking” due to either an error in implementation or natural causes. In these cases, no mitigation actually occurs.
The Corps only approves permits for activities that it sees as being in the public’s best interest. However, this review can be subjective and offers the Corp a great deal of leeway. “Maintenance dredging” does not require a permit. However, it does require an exemption, and you must show that the area you’re dredging is an established channel and “that no significant impacts occur to previously undisturbed natural areas.”
The public has the opportunity to comment on each permit application through a public hearing. The State may also issue a written recommendation concerning the permit. The Corps must consider the individual and cumulative effects of the project on: “conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore 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.”
The permit process can take anywhere from a few months to many years, depending on the project’s scope.
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