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Wetlands are lowland areas that are inundated or saturated by surface or ground water at a frequency that, under normal circumstances, supports a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. They tend to be highly productive areas that provide habitat for many species of plants, fish, and waterfowl. Where a federally assisted mass transportation project affects a wetland, Federal wetlands planning processes require that an analysis of potential wetland impacts must be included in environmental documentation.

Wetlands Permitting Process

Environmental Analysis: For any mass transportation project that may affect a wetlands area, the US Department of Transportation (USDOT) "Order on Preservation of the Nation's Wetlands" (5660.1A) requires that an analysis of impacts must be performed. USDOT's order is based on Protection of Wetlands, Executive Order 11990. If the analysis shows that the project will have a significant impact on wetlands, an Environmental Impact Statement will usually be required. The environmental analysis should include an assessment of the impacts on wetlands and associated wildlife resulting from both construction and operation of the project. It should also include measures to minimize adverse impacts and avoid, to the fullest extent possible, drainage, filling or other disturbance of wetlands. Alternatives that would avoid new construction in wetlands must be studied. If the preferred alternative requires new construction in wetlands the analysis must demonstrate that there are no practicable alternatives to the use of the wetlands, and all practicable measures to minimize harm have been included.

Wetlands Permitting: Any mass transportation project that involves discharge of dredged or fill material to waters of the US, including wetlands, is subject to the "Section 404" permitting process, established under the Clean Water Act, Section 404 (33 U.S.C 1344) and jointly run by the US Army Corps of Engineers (USACE) and the US Environmental Protection Agency (US EPA). The wetlands permitting program is administered and enforced by the USACE as described in Section 404 Permitting Program (PDF) (33 C.F.R 320 et seq). In general, the permitting program operates according to the principle of "no net loss of wetlands;" requiring a sequence of "avoid, minimize, enhance and compensate." Guidance on the contents of the permit application and the evaluation criteria are described in US EPA's Section 404 (b)(1) Guidelines (40 C.F.R 230).

The USACE can issue two types of permits: individual permits that are issued following case-by-case evaluations of specific projects; and general permits that are issued on a nationwide or regional basis for groups of activities that are substantially similar in nature and cause, and have only minimal environmental impacts. For actions covered by a general permit, no further reporting or written communication is required at the time the individual activity is initiated.

The information that is needed for compliance with Section 404 of the Clean Water Act can be integrated into the National Environmental Policy Act compliance process, but the permit itself does not have to be obtained prior to approval of an Environmental Assessment or Environmental Impact Statement. Normally this information includes a formal jurisdictional delineation of wetlands, functional assessment of those wetlands and mitigation proposals. The grant applicant submits a permit to the USACE, which initiates a public comment period, and notifies US EPA of the application. US EPA reviews the application and has the authority to deny a permit.

A permit application for an activity that involves the discharge of dredged or fill material must include: the purpose of the discharge, a description of the type, composition and quantity of the material, the method of transportation and disposal of the material, and the location of the disposal site. If the project involves construction of a filled area, piles or platforms, the description should include the use of and specific structures to be erected on the fill or platform. Section 230.10 of the US EPA's guidelines referenced above, explain in detail what information should be included in the permit application.

Federal Wetlands Statutes, Regulations, Orders, & Guidance

  • Clean Water Act, Section 404 (33 U.S.C 1344) (PDF) - Gives authority to the US Army Corps of Engineers to regulate discharges of dredged or fill material into waters of the United States, including wetland areas. This includes fill that occurs as a result of infrastructure development, such as a light rail line or a bus terminal. Permit applicants must demonstrate that they have attempted to avoid wetland impacts where practicable. Where impacts do occur they must be compensated by restoration or creation of wetlands.
  • Section 404 Permitting Program (33 C.F.R 320 et seq) (PDF) - Federal regulations for the US Army Corps of Engineers (USACE) permitting program describing USACE's authority to operate the program, and general policies for implementing the program.
  • Section 404 (b)(1) Guidelines (40 C.F.R 230) - Guidance regarding the substantive criteria to be used in evaluating permit applications.
  • Protection of Wetlands, Executive Order 11990 - Requires Federal agencies to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative.
  • Preservation of the Nation's Wetlands, U.S. DOT Order 5660.1A - Sets forth the US Department of Transportation (DOT) policy for interpreting Executive Order 11990. Requires that transportation facilities and projects should be planned, constructed, and operated to assure the protection, preservation, and enhancement of the nation's wetlands to the fullest extent practicable, and establishes procedures for implementation of the policy.
  • Corps of Engineers Wetlands Delineation Manual - Field manual used by the agencies to identify and delineate wetlands for purposes of Section 404 of the Clean Water Act.
  • Applying the Section 404 Permit Process to Federal-Aid Highway Projects (September 1988) - Discusses ways to improve interagency coordination on federal-aid highway projects, and ways to integrate the National Environmental Policy Act and Section 404 requirements.

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Updated: Wednesday, March 16, 2016
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