Wetland Regulations in North Carolina

Prepared by:
Vernon N. Cox, Leon E. Danielson, and Dana L. Hoag,
Agricultural and Resource Economics,
Applied Resource Economics and Policy Group.

Wetlands perform a variety of valuable functions. They improve water quality, recharge groundwater, provideflood control, and support a wide variety of fish, wildlife, and plants. Federal and state governments have written a number of laws and regulations designed to protect wetlands. Because of the complexity of these laws and regulations and the number of different agencies involved in enforcement, complying with these regulations can be complicated. This fact sheet summarizes the major regulations related to protection of wetland resources in North Carolina.

Wetlands and Policy

The U.S. Fish and Wildlife Service (FWS) estimates that when Europeans first arrived in North America, wetlands occupied more than 220 million acres in the area that now comprises the lower 48 states. By 1980, wetlands occupied about 104 million acres. The FWS estimates the current rate of wetland loss to be about 290,000 acres per year. For approximately 200 years, the Federal Government and many states, including North Carolina, approved of and assisted in wetland destruction as a way to improve public health and encourage economic development. For the first 70 years of the twentieth century, the U.S. Department of Agriculture offered direct financial and technical assistance to farmers for wetland drainage. Many of these direct incentives for wetland destruction ended during the 1970's. In 1977, President Carter issued Executive Order 11990 which required agencies of the Federal Government to "minimize the destruction, loss or degradation of wetlands" and to "avoid direct and indirect support of new construction in wetlands wherever there is a practicable alternative." This change in federal policy has led to a number of regulations which affect the use of wetlands in the United States and North Carolina.

What are Wetlands?

In order to implement the wetland regulations, it is first necessary to reach an adequate definition of wetland characteristics so that regulated areas can be identified. The Army Corps of Engineers, the U.S. Environmental Protection Agency (EPA) and the Soil Conservation Service (SCS) use wetland definitions that are conceptually the same. In general, wetlands are identified as lands having all three of the following attributes: Much of the controversy surrounding wetlands in recent years has focused on the proper definition and identification of wetlands. Wetlands regulated under sections 404 and 401 of the Clean Water Act are currently identified using technical criteria in the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual. In 1989, a revised multi-agency manual was developed as a replacement for the 1987 version. However, these revisions led to considerable confusion and controversy. As a result, another revision of the delineation manual was developed in 1991, but, because it generated additional controversy, it was not adopted. During Congressional review of the 1991 manual, Congress barred the Corps from implementing the 1989 manual. As a result, the 1987 manual continues to be used for wetland delineation. Congress also appropriated funding for the National Academy of Sciences to study wetlands science issues. The results of this study should provide additional information necessary to develop a revised delineation manual. The study is to be completed in 1994.

Why Are Wetlands Important?

Historically, wetlands have been considered unimportant, even worthless. At best, they were considered useful only when filled or drained. However, during the last twenty to thirty years,

scientists and policy makers have become more aware of the value of wetlands to landowners and the general public. These wetland values may include:

Increased awareness of the value of wetlands has resulted in a number of regulations and pro- grams designed to protect wetlands and the benefits they provide.

Major Wetland Regulations and Their Enforcement

Table 1 provides an outline of the wetland regulations discussed in this fact sheet. Each category is discussed below. Section 404 Permits Section 404 of the Clean Water Act of 1972 provides the primary legislative authority behind federal efforts to regulate the use of wetlands. Section 404 requires that a permit be obtained from the U.S. Army Corps of Engineers prior to undertaking any activity that will result in the discharge of dredged or fill materials into waters of the United States, including wetlands.

Corps regulations state that the discharge of dredged material includes the addition of material to specified discharge sites located in waters of the United States and the runoff or overflow from a contained land or water disposal area. Fill material includes any material used primarily for replacing an aquatic area with dry land or changing the bottom elevation of a body of water.

Table 1. State and Federal Legislation Affecting Wetlands

Legislation Responsible Agency Regulated Activity
Section 404
Clean Water Act ( 1972)
US. Army Corps of Engineers Discharge of dredged or fill
materials into waters of the
United States
Section 401
Clean Water Act ( 1972)
NC Division of Environmental Management Discharge of pollutants
in surface waters of the state
NC Coastal Area Management Act (1974) Division of Coastal Management Development in designated
"Areas of Environmental Concern"
Division of Coastal Management State Dredge and Fill Act (1969) Division of Coastal Management Filling or dredging in estuarine waters, tidelands, marshlands, and state-owned lakes
Title XIV: 1990 Food, Agriculture,
Conservation and Trade Act
Agricultural Stabilization and Conservation Service Conversion of wetlands for the purpose of agricultural production

Upon receiving a permit application, the Corps determines the type of permit needed, if any. If an individual permit is required, a public notice is prepared containing information on the nature and magnitude of the project to evaluate the probable impact on the public interest. Copies of the notice are sent for review and comment to each federal and state resource agency, local agencies, and the public.

The federal resource agencies notified upon receipt of a 404 permit application are the U.S. Environmental Protection Agency (EPA), the National Marine Fisheries Service (NMFS), and the U.S. Fish and Wildlife Service. The Corps is required to consult with these agencies and to give full consideration to their comments and recommendations. In addition, the Department of the Army, the EPA, and the Departments of Agriculture, Commerce, Interior, and Transportation have established interagency agreements under which these agencies can comment on permit applications. Of all the federal agencies and departments mentioned above, EPA is the only federal agency which has-authority to prohibit issuance of a 404 permit. Any agency may, however, request higher level review within the Department of the Army if the agency disagrees with the permit decision made by the Corps.

The Corps and EPA currently operate the Section 404 program under a 1990 Memorandum of Agreement which states that activities that require a 404 permit should be avoided when possible; when they cannot be avoided, impacts should be minimized; and, after all possible minimization is achieved, compensatory mitigation is required to offset the remaining unavoidable impacts. The Memorandum directs that mitigated wetlands be replaced on a one-to-one functional basis. This is usually implemented as a 2:1 acreage replacement. When mitigation is chosen as a condition for a 404 permit, it normally involves the construction of new wetlands or the restoration of existing wetlands that have previously been degraded. The decision to issue or deny a 404 permit is made by the Corps District Engineer who serves as project manager for the application. Corps regulations also allow the issuance of general permits which cover wetlands activities that the Corps has determined are substantially similar in nature and that cause only minimal individual and cumulative environmental impacts. Thirty-six general permits have been issued nationwide. The Corps of Engineers' Wilmington District has issued thirteen regional permits for use in North Carolina. General permits have been issued for activities such as:

The most frequently used general permit is Nationwide Permit 26 which applies to wetland fills less than ten acres in size. To qualify for this permit, a project must meet one of the following criteria: (1) the wetland must be located adjacent to a stream above headwaters; or (2) the wetlands are isolated, which is defined as being hydrologically separated from surface waters.

A number of activities which qualify for a general permit require notification to the Corps of Engineers before the activity begins. If there is any uncertainty regarding whether an activity qualifies for a general permit or whether notification of the Corps is required, it is advisable to contact the Corps of Engineers to verify the status of the activity prior to undertaking the project.

The following activities are exempt from Section 404 regulatory requirements.