Effects of ESA on "Post Construction Notification" Wetland Fills

The May 29, 1999 listing of several stocks of salmon, steelhead, and bull trout in the Northwest as endangered, threatened, or proposed species has affected the process by which certain minor wetlands less than 0.10 acres in size are processed by the U.S. Army Corps of Engineers (COE) under the Nationwide Permit (NWP) program.

In the past, wetland fills of this type could be authorized relatively simply under the "post-construction notification" provision of NWP 39.  This type of permit has often been a preferred alternative for developers wanting to avoid the 6 to 18 months permit review period by the COE before beginning their projects.  "Post-construction notification" wetland fills were authorized without prior notification to the COE provided that other conditions of the Nationwide Permit program were met.  Permit applicants were required to submit a report, within 30 days of completion of the work, to the District Engineer that described the wetland fill and any compensatory mitigation used to offset the loss of waters of the United States.

One of the conditions for authorization of NWP 39 is General Condition 11 which mandates that all NWP's, including "post-construction notification" fill permits must comply with provisions of the Endangered Species Act (ESA).  General Condition 11 prohibits the COE from issuing a permit that would result in a "take" of a federally listed endangered or threatened species.  In general, a "take" is considered to be an activity that results in the harm, killing, or capture of a federally listed species or causes significant modification or degradation of critical habitat. 

In accordance with General Condition 11, all NWP's and are subject to review by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (the Services) known as a Section 7 consultation.  This ESA consultation frequently requires that permit applicants provide the COE with either a Biological Evaluation or a Biological Assessment (BE/BA), depending on the scope of the project and the potential severity of the proposed impacts.

The BE/BA must document any impacts to federally-listed species or designated critical habitats in the vicinity of the proposed action.  Preparation of a BA/BE requires review of the specific proposed site plan, mitigation plan for anticipated impacts, and detailed construction information, including temporary erosion and sediment control plan, as well as the design of the stormwater system.  In general, applications for activities identified as having ‘no effect’ are authorized by the COE without forwarding the BE/BA to the Services.  Applications for proposed activities that ‘may affect’ listed species are forward to the Services for Section 7 consultation.  Section 7 consultation from the Services can take up to 6 months process.

Currently, the COE recommends that a BE or ‘no effect’ determination letter addressing potential effects of the wetland fill on federally listed species be prepared prior to filling the wetland and submitted to the COE.  If the COE determines that the proposed project will have ‘no effect’ on federally listed species (as detailed in the BE), then it will acknowledge that the activity is in compliance with ESA and the "post-construction notification" timetable for permit authorization can proceed.  However, if the proposed project ‘may affect’ federally listed species, the COE recommends that no fill be placed within wetlands until the applicant has received notification from the COE that the Services concur with the BE in order to avoid a potential "take" and violation of the Endangered Species Act.

Raedeke Associates, Inc. specializes in guiding clients through the wetland permitting process in the most timely and cost efficient manner.  We continue to track new developments in federal, state, and local regulations that affect construction in the region.   In addition, we can prepare a BE/BA or "no effect' letter that meets the requirements of the COE and the Services. 

For more information on the preparation of a BE/BA, the permitting process, or how the recent listing of salmon, steelhead, and bull trout could affect your project, call Emmett Pritchard at (206) 525-8122 or email him at epritchard@raedeke.com