***This document was produced by a SSC 570 student to help others better understand wetland regulations and permitting in North Carolina. However, information in this document does not include all pertinent information regarding water resource regulatory programs in North Carolina. Information in this document is also subject to change due changing policy, laws, or regulations. ***
There are several federal and state agencies responsible for the regulation of wetlands in North Carolina:
1. U.S. Army Corps of Engineers (USACE)
2. U.S. Department of Agriculture (USDA)
3. N.C. Department of Environment and Natural Resources – Division of Water Quality (NCDENR – DWQ)
USACE
Regulates wetlands by enforcing mandates from Section 404 of the Clean Water Act of 1977 (formerly Federal Water Pollution Control Act). The Corps was designated by congress to “maintain and restore the chemical, physical, and biological integrity of the water of the United States". They were to meet these objectives by evaluating permits for the proposed placement of fill material into wetlands. Section 404 of the Act "authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits for the discharge of dredged or fill material into the waters of the United States, including wetlands".
Jurisdictional Areas under Section 404: “All waters of the U.S.” which includes…..
1. wetlands (tidal and non-tidal)
2. stream channels
3. open waters (lakes, pond)
4. all interstate waters
5. navigable waters (ex. Atlantic Intercoastal Waterway)
Wetland determinations are made using the 1987 Corps of Engineers Wetland
Delineation Manual. All of these waters must be connected (hydrologically or through interstate commerce) or adjacent to another jurisdictional feature. A Corps representative must make the determination that the wetland is isolated.
Types of Permits
Nationwide General: Authorized for specific activities nationwide with minimal impact and minimal evaluation time. There are 44 nationwide permits (NWP) which typically have a ½ acre limit for fill in wetlands and 300 linear foot limit for fill in stream channels. For example a NWP #39 would authorize fill material in wetlands or waters for the purpose of residential, commercial or industrial development. To apply for a Nationwide Permit, a Pre-Construction Application must be submitted to the appropriate field office.
Regional General: Authorized for unique activities in a specific state. These are general permits (GP) for activities that typically only occur in certain area, have minimal impact with minimal evaluation times. A PCN can also be used to apply for a general permit when appropriate.
Individual: This a standard permit that authorizes activities that exceed the limits of the nationwide permits, or if the activity does not meet the conditions of an available nationwide. An individual permit may also be used if the USACE representative asserts “discretionary authority”. This is when the Corps asserts that the proposed activity has more than minimal impact to the resource.
Individual permits are generally reserved for projects with potential for substantial environmental impacts. This permit requires a full public interest review, including public notices and coordination with involved agencies, interested parties and the general public.The individual permit application is different from the nationwide permit application.
When any permit application is received, it is evaluated based upon three criteria: avoidance, minimization, and mitigation. Once the applicant meets these criteria, a permit can be issued.
There are “notification” thresholds for most permits. The thresholds are different depending on the permit. For example, a NWP #39 does not require notification if the cumulative wetland impacts are less than 1/10 acre. However, NWP #39 does require notification for any stream channel impacts. Refer to the appropriate Nationwide Permit or General Permit for notification requirements.
Some activities do not require prior notification. If a property owner does not obtain the proper permits for the discharge of fill then the Corps can require one or a combination of actions:
1. Restoration of the impacted area
2. A permit is issued for the work “after-the-fact”
3. The case is forwarded to the District Attorney’s office for civil penalties (fines, jail time).
Exemptions:
These are activities that may fill a wetland area but are considered “exempt” from Department of the Army regulations. Some examples are:
1. Forestry; which includes construction of forest roads (provided activity meets federal Best Management Practices and Wilmington District Policy)
2. Farm paths
3. Irrigation ponds without a dam (must be USDA program participant)
Title 33, Chapter 26, Subchapter IV, Section 1344, Part (f) lists activities that are exempt.
There are also several activities that do not require permits because there is no impact to wetlands or other waters. Some examples are: placing boardwalks in wetlands, foot bridges across streams (bank-bank), planting vegetation by hand, and removing vegetation provided root mass is left intact.
For current information on the USACE Regulatory Program in North Carolina, please visit http://www.saw.usace.army.mil/wetlands/index.htm or contact the Field Office responsible for the project site:
U.S. Army Corps of Engineers Field Offices & County Coverages
Asheville Regulatory Field Office
US Army Corps of Engineers151 Patton Avenue
Room 208
Asheville, NC 28801-5006
Telephone: (828) 271-7980
Fax: (828) 281-8120 / Alexander
Alleghany
Ashe
Avery
Buncombe
Burke
Cabarrus / Caldwell
Catawba
Cherokee
Clay
Cleveland
Gaston
Graham / Haywood
Henderson
Iredell
Jackson
Lincoln
Macon
Madison / McDowell
Mecklenburg
Mitchell
Polk
Rowan
Rutherford
Stanley / Swain
Transylvania
Union
Watauga
Yancey
Raleigh Regulatory Field Office
US Army Corps Of Engineers6508 Falls of the Neuse Road
Suite 120
Raleigh, NC 27615
Telephone: (919) 876-8441
Fax: (919) 876-5823 / Alamance
Caswell
Chatham
Davidson
Davie
Durham
Edgecombe / Franklin
Forsyth
Granville
Guilford
Halifax
Johnston
Lee / Nash
Northampton
Orange
Person
Randolph
Rockingham
Stokes / Surry
Vance
Wake
Warren
Wilkes
Wilson
Yadkin
Washington Regulatory Field Office
US Army Corps Of EngineersPost Office Box 1000
Washington, NC 27889-1000
Telephone: (252) 975-1616
Fax: (252) 975-1399 / Beaufort
Bertie
Camden
Carteret*
Chowan
Craven / Currituck
Dare
Gates
Green
Hertford
Hyde / Jones
Lenoir
Martin
Pamlico
Pasquotank
Perquimans / Pitt
Tyrrell
Washington
Wayne
*Croatan
National
Forest Only
Wilmington Regulatory Field Office
US Army Corps Of EngineersPost Office Box 1890
Wilmington, NC 28402-1890
Telephone: (910) 251-4511
Fax: (910) 251-4025 / Anson
Bladen
Brunswick
Carteret
Columbus
Cumberland / Duplin
Harnett
Hoke
Montgomery
Moore
New Hanover / Onslow
Pender
Richmond
Robeson
Sampson
Scotland
USDA
Responsible for regulating wetlands protected under the 1985 Food Security Act, also known as “Swampbusters” Act.
The act states that agricultural commodities cannot be produced on converted wetlands.
a. An agricultural commodity means any agricultural product produced by annual tilling of the soil, including tilling by one-trip planters (no-till planters ?).
b. Converted wetland means a wetland that has been drained, dredged, filled, leveled, or otherwise manipulated (including any activity that results in impairing or reducing the flow, circulation, or reach of water) for the purpose of making the production of an agricultural commodity possible.
c. Agriculture can be practiced in wetlands as long as the practice is possible due to natural conditions (e.g. drought) and does not destroy natural wetland characteristics.
If a farmer decides to drain or modify a wetland for agriculture, he or she then becomes ineligible for USDA farm subsidies. These include:
a. Any type of price support or payment
b. A farm storage facility loan
c. Crop insurance
d. Disaster payments
e. Loans
If wetlands occur on an agricultural tract (as identified by Farm Service Agency maps), then the delineation is performed by a Natural Resource Conservation Service (NRCS) agent. The delineation is then submitted to the Corps representative for approval if necessary. If a farmer wants to fill or mechanically clear these wetlands, then he/she must receive a permit from the Corps. This permit will prevent their farm subsidies from being affected (called an “agricultural exemption” by NRCS).
1. Forested land is not considered agricultural land and forests are not an agricultural commodity by these rules.
2. If a forest occurs on a farm, the NRCS will map the wetland in the forest, but it will use Corps of Engineer wetland definitions and wetland identification requirements (personal communication with Ken Jolly, COE, Raleigh, 1996).
3. If a forest does not occur on a farm, then it comes under the control of the Corps of Engineers.
4. Rules governing forested lands may change quickly, so the above needs to be checked each year.
DWQ
North Carolina’s Division of Water Quality (Wetlands/401 Unit) also regulates wetlands. Their authority includes Section 401 of the Clean Water Act as well as several state statutes. The "401" is essentially a verification by the state that a given project will not degrade Waters of the State or otherwise violate water quality standards.
If the Corps determines that a 404 Permit is required, then a 401 Water Quality Certification is also required. The Corps also determines which type of permit is applicable to your work, a Nationwide, Regional, General or Individual Permit. For each of the Nationwide, Regional or General Permit, a matching General Certification must be issued by DWQ in order for the Permit to be valid. An Individual 401 Water Quality Certification is necessary if an Individual 404 Permit is required.
For wetlands, DWQ requires notification for any impacts that exceed 1/3 acre. The same PCN as mentioned above is also used to notify them. If they approve the permit application, then DWQ will issue a “401 Certification” for the wetland impacts.
They also regulate isolated wetlands. To fill an isolated wetland in North Carolina, DWQ requires notification for wetland impacts that exceed 1/10 acre west of Interstate 95 and 1/3 acre east of I-95. However, the Corps has to make the determination that the wetland is actually isolated.