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2005 North Dakota Attorney General Reports and Opinions 1 (2005)

handle is hein.sag/sagnd0003 and id is 1 raw text is: LETTER OPINION 2005-L-01 January 3, 2005 Mr. Ken Royse Chairman Burleigh County Water Resource District 221 North 5th Street Bismarck, ND 58501 Dear Mr. Royse: Thank you for your letter asking whether the state may allow land developers to construct wildlife habitat on Missouri River sandbars to satisfy federal mitigation requirements. It is my opinion that the state may allow land developers to construct wildlife habitat on Missouri River sandbars to satisfy federal mitigation requirements provided the state permit is issued under a comprehensive river management plan, the habitat serves a public purpose, the habitat's presence does not unreasonably interfere with public use of the river, and the constitution's gift clause is satisfied. ANALYSIS Background - Missouri River land development and regulation. Recently, considerable development has occurred on land adjoining the Missouri River, particularly in the Bismarck-Mandan area. Nearly all of the development has been for housing. Development projects often include work to prevent bank erosion, which is usually achieved by riprap. The United States Army Corps of Engineers asserts jurisdiction over bank stabilization projects under the Clean Water Act and the Rivers and Harbors Act. U.S. Army Corps of Engineers, Department of the Army Decision Document: WW Ranch Bank Stabilization Proposal 1-2 (Mar. 21, 2001) (hereafter Corps' WW Ranch Decision). The Corps believes that bank stabilization adversely affects sandbar development. EA., id. at 49, 84. Sandbars are of interest to the Corps because sandbar habitat is relied on by the piping plover and interior least tern. E, id. at 50; In re Operation of the Missouri River System Litiqation, 03-MD-1555, 2004 WL 1402563 at *8 (D. Minn. June 21, 2004) (sandbar habitat essential to plover and tern survival). The tern is listed as endangered under the federal Endangered Species Act (ESA) and the plover is considered threatened.' Furthermore, the United States Fish & Wildlife 1 Endangered and Threatened Wildlife and Plants; Interior Population of the Least Tern Determined to be Endangered, 50 Fed. Reg. 21784 (May 28, 1985) (to be codified at 50 C.F.R. pt. 17); Endangered and Threatened Wildlife and Plants; Determination of

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