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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
January 3, 2005
Mr. Ken Royse
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.
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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