Regulations & Permits
Habitat restoration projects often involve affect the public—they impact water quality, endangered and threatened species, historic properties, and the navigability of water bodies. Various federal and state statutes and regulations are in place to ensure adequate environmental protection during each phase of restoration activities. Restoration practitioners must be aware of potential impacts and how to comply with applicable regulations.
Below is a table of common federal regulations applicable to habitat restoration projects. Additional permit and regulation requirements might exist at the state level as well as at the local and county levels.
Federal Acts and Implementing Regulations
End Point: Permit, Consultation, or Analysis
National Environmental Policy Act of 1969 - Implementing Agency: Any federal action agency
The National Environmental Policy Act
of 1969 (NEPA), as amended (42 USC §§ 4321, et seq., 40 CFR Parts 1500-1508) was enacted in 1969 to establish a national policy for the protection of the environment. It applies to federal agency actions that have the potential to affect the quality of the human environment. Generally, federal agencies begin the NEPA planning process by preparing an Environmental Assessment (EA) to determine whether an action will have a significant effect on the quality of the human environment (40 CFR 1508.27; NAO 216-6, 6.01b). If an impact is likely to be significant, an environmental impact statement is prepared.
Any federal action
Categorical Exclusion, Environmental Assessment and/or Environmental Impact Statement
Clean Water Act: Section 404 - Implementing Agency: US Army Corps of Engineers (USACE) and EPA
Section 404 of the Clean Water Act requires prior approval for any discharge of dredged or fill material into the waters of the United States. A Section 404 permit is required for any restoration project that undertakes one of the following activities: (1) discharging fill or dredged material in U.S. waters, including wetlands; (2) site development fill for residential, commercial, or recreational developments; (3) construction of revetments, groins, breakwaters, levees, dams, dikes, and weirs; and (4) placement of riprap and road fills.
Clean Water Act: Section 401 - Implementing Agency: State / EPA
Under Section 401
, States and Tribes can review and approve, condition, or deny all Federal permits
or licenses that might result in a discharge to state or tribal waters, including wetlands. The major federal licenses and permits subject to Section 401 are Section 402 and 404 permits (in nondelegated States), Federal Energy Regulatory Commission (FERC) hydropower licenses, and Rivers and Harbors Act Section 9 and 10 permits. States and tribes make their decisions to deny, certify, or condition permits or licenses primarily by ensuring the activity will comply with state water quality standards.
State or Tribal Waters
Section 401 state certification
Rivers and Harbors Act of 1899: Section 10 - Implementing Agency: USACE
The Rivers and Harbors Act of 1899 requires approval prior to the accomplishment of any work in, over, or under navigable waters of the United States, or which affects the course, location, condition, or capacity of such waters. A Section 10 permit is required for any restoration project that undertakes one of the following activities: (1) construction of piers, breakwaters, bulkheads, jetties, weirs, and intake structures; (2) work such as dredging or disposal of dredged material; and (3) excavation, filling, or other modifications to navigable waters of the United States.
All navigable waters and tidal waters
Section 10 permit
Endangered Species Act - Implementing Agencies: National Marine Fisheries Service (NMFS) and US Fish & Wildlife
The Endangered Species Act
(ESA) provides for the conservation of species that are endangered or threatened with extinction throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend. The National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) share responsibility for implementing the ESA, with FWS managing land and freshwater species and NMFS managing marine species, including anadromous salmon (ocean species that return to rivers to spawn). There are currently 1,855 listings (endangered and threatened) under the ESA, with NMFS having jurisdiction over 61 listed species. Federal action agencies are required to consult with NMFS and/or USFWS on any action authorized, funded, or undertaken that might affect endangered or threatened species.
All Threatened or Endangered Species
Magnuson-Stevens Fishery Conservation and Management Act: Essential Fish Habitat - Implementing Agency: NMFS
The Magnuson-Stevens Fishery Conservation and Management Act
(MSA) mandates that fishery management plans (FMPs) be developed by the Regional Fishery Management Councils (with review by the Secretary of Commerce) to prevent overfishing and rebuild overfished fisheries. FMPs must include language written by the Councils that identifies Essential Fish Habitat (EFH) for managed species and identifies measures to conserve and enhance the habitat necessary to fish to carry out their life cycles. Essential Fish Habitat is defined as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. Federal action agencies are required to consult with NMFS on any action authorized, funded, or undertaken that may adversely affect EFH.
All Essential Fish Habitat
EFH Conservation Recommendations
Marine Mammal Protection Act of 1972 - Implementing Agency: NMFS
The Marine Mammal Protection Act
(MMPA) prohibits, with certain exceptions, the take of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the United States. The definition of “take” is to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. An authorization under the MMPA may be required for any restoration project that "takes" or harasses a marine mammal.
All Marine Mammals
MMPA Incidental Take Authorization or Letter of Authorization (LOA)
Coastal Zone Management Act - Implementing Agency: NOAA and State
Waters of the US
Varies by state
National Historic Preservation Act: Section 106 - Implementing Agency: State Historic Preservation Office (SHPO)
The National Historic Preservation Act
(NHPA), amended in 1992, requires that responsible federal agencies taking action that potentially affects any property with historic, architectural, archeological, or cultural value that is listed on or eligible for listing on the National Register of Historic Places (NRHP) comply with the procedures for consultation and comment issued by the Advisory Council on Historic Preservation.
Any federal action
Consultation with SHPO