***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.
2.
3.
4.
5.
wetlands (tidal and non-tidal)
stream channels
open waters (lakes, pond)
all interstate waters
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
Alexander
Caldwell
Haywood
McDowell
Swain
US Army Corps of Engineers
Alleghany
Catawba
Henderson
Mecklenbur
g
Transylvania
151 Patton Avenue
Ashe
Cherokee
Iredell
Union
Mitchell
Room 208
Avery
Clay
Jackson
Watauga
Polk
Asheville, NC 28801-5006
Buncombe
Cleveland
Lincoln
Yancey
Rowan
Telephone: (828) 271-7980
Burke
Gaston
Macon
Fax: (828) 281-8120
Cabarrus
Graham
Madison
Rutherford
Stanley
Raleigh Regulatory Field Office
Alamance
Franklin
Nash
Surry
US Army Corps Of Engineers
Caswell
Forsyth
Northampto
n
Vance
6508 Falls of the Neuse Road
Chatham
Granville
Wake
Orange
Suite 120
Davidson
Guilford
Warren
Person
Raleigh, NC 27615
Davie
Halifax
Wilkes
Randolph
Telephone: (919) 876-8441
Durham
Johnston
Wilson
Rockingham
Fax: (919) 876-5823
Edgecombe
Lee
Yadkin
Stokes
Washington Regulatory Field
Office
Beaufort
Currituck
Jones
Bertie
Dare
Lenoir
Camden
Gates
Martin
US Army Corps Of Engineers
Pitt
Tyrrell
Post Office Box 1000
Carteret*
Green
Pamlico
Chowan
Hertford
Pasquotank
Craven
Hyde
Perquimans
Washington
Washington, NC 27889-1000
Telephone: (252) 975-1616
Wayne
Fax: (252) 975-1399
*Croatan
National
Forest Only
Wilmington Regulatory Field
Office
Anson
Duplin
Onslow
Bladen
Harnett
Pender
Brunswick
Hoke
Richmond
Carteret
Montgomer
y
Robeson
US Army Corps Of Engineers
Post Office Box 1890
Wilmington, NC 28402-1890
Columbus
Telephone: (910) 251-4511
Sampson
Moore
Cumberland
Fax: (910) 251-4025
Scotland
New
Hanover
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.