Changes
to Federal Wetlands Policy
Wetlands
are believed to be among the most environmentally beneficial areas
in the nation. They include marshes, swamps, bogs, and similar areas
that have developed between open water and dry land. Because wetlands
have unique soils and plants, they provide food and habitat for
fish and wildlife, provide water purification, erosion control,
flood control during major storms, water recharge during droughts,
and dry weather, and recreation benefits.
On
January 10, 2003 the U.S. Environmental Protection Agency (EPA)
and the U.S. Army Corps of Engineers announced new actions that
will help clarify the Clean Water Act's (CWA) requirements for protection
of the nation's wetlands. The new actions indicate the following:
- Field
staff should continue to assert jurisdiction over traditional
navigable waters (and adjacent wetlands) and, generally speaking,
their tributary systems (and adjacent wetlands).
- Field
staff should not assert CWA jurisdiction over isolated waters
that are both intrastate and non-navigable, where the sole basis
available for asserting CWA jurisdiction rests on any of the factors
listed in the "Migratory Bird Rule".
- The
CWA protects wetlands, streams, and other waters from discharges
of pollutants by requiring permits with appropriate environmental
safeguards before a discharge may be authorized. In the SWANCC
case, the Supreme Court held that the Corps had exceeded its CWA
regulatory authority in asserting jurisdiction over isolated intrastate
non-navigable ponds based on the Migratory Bird Rule.
These
actions, which reaffirm federal authority over the vast majority
of America's wetlands, are in response to the Supreme Court's 2001
decision in Solid Waste Agency of Northern Cook County vs. U.S.
Army Corps of Engineers (SWANCC), which limited federal authority
under the CWA to regulate certain isolated wetlands. In
North Carolina, aside from federal CWA section 404 dredge and fill
requirements, persons who engage in construction activities (including
clearing, grading, and excavation) that disturb five or more acres
are required to obtain a federal National Pollutant Discharge Elimination
System stormwater permit. In addition, a sedimentation and erosion
control permit must be obtained from local governments or the North
Carolina Division of Land Resources for land disturbances of one
or more acres. Stormwater permit may also be required.
The
federal agencies also issued new mitigation guidance and a "National
Wetlands Mitigation Action Plan" on December 26, 2002. The
Plan identifies a number of issues involving compensatory mitigation
requirements for which an interagency team will develop additional
guidance over the next several years. These include:
- Developing
performance standards for monitoring and management of mitigation
sites.
- Developing
a model mitigation plan checklist for permit application.
- Defining
criteria for making compensatory mitigation decisions within a
watershed context.
- Protecting
wetlands for which "mitigation", restoration, or creation
is not feasible or scientifically "viable".
Continued
pg. 4
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