Environmental Protection
Offica of Wetlands, Ocaans,
and Watersheds (A-104 F)
                                 March 1993
                 Section  404 Regulatory  Program:
                 Issues and Examples
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      In recent years,  implementation of the
Section 404 regulatory program has received con-
siderable attention. In addition to coverage in the
popular press, in late 1991 the Environmental
Protection Subcommittee of the Senate Environ-
ment and Public Works Committee  requested
that EPA and the US. Army Corps of Engineers
(Corps) review 108 cases submitted to the Sub-
committee which allegedly illustrated problems
in implementation of the Sec-
tion 404  regulatory program.
While it would be unmanage-
able to furnish the complete re
suits of our review, it is useful
to review the type of issues fre-
quently raised. In general, it is
important to note that these
cases often reflected confusion,
misunderstanding, or misinfor-
mation, rather than problems
with the actual implementation
of the program. In some cases,
it appeared that commentors
equated the regulation of wetland areas with ad-
vance denial of authorization for any discharge or
activity or the loss of one's ability to use that
property for any financial return.  In its most
extreme form, this perception prevented land-
owners from even applyinging for permits which
they believed would never be granted.  This is
certainly the most unfortunate misperception re-
vealed in the case examples and simply does not
reflect actual implementation of the Section 404
regulatory program.

      Many case examples raised concerns about
what were believed to be inaccurate determina-
tions of the presence of wetlands on the property.
In many of these cases, particularly in areas that
may not be wet year-round, the subject property
did not fit the landowners' particular perception
of what constitutes a wetland. These important
systems, nevertheless, are wetlands, and may be
  jurisdictional wetlands for the purposes of the
  Clean Water Act

        Certain cases reflected a lack of under-
  standing about regulatory requirements for ac-
  tivities in wetlands because of different regula-
                 tory requirements from gov-
                 ernment agencies, including
                 State and local requirements.
                 This concern was particularly
                 evident in those cases involv-
                 ing farmers potentially affected
                 by the Swampbuster program
                 under the Food Securities Act.
                 Many cases reflected the fear
                 that the mere presence of wet-
                 lands precluded any activity
                 and rendered the land unus-
                 able to the landowner.
...cases often re-
flected confusion,
or misinformation,
rather  than  prob-
lems with the actual
implementation of
the program...

        Many of the case examples cited perceived
  delays in the Section 404 permitting process. It is
  true that some delays do occur in the Section 404
  program. To address this problem, EPA and the
  Corps have been working to make the process
  more efficient, and to ensure adequate staffing. It
  is alsq the case that some delays involve regula-
  tory requirements of other State or Federal laws.
  Additionally, in many cases the issues of concern
  were related to enforcement actions on the part of
  the Federal government for unauthorized dis-
  charges or requirements for processing of after-
  the-fact permit applications. Because these cases
  may involve illegal activities carried out without
  required Section 404 permits, resolution of the
  issues involved in these cases is, by the very
  nature of the circumstances, time consuming and
  controversial. These circumstances, however, do
  not represent normal processing requirements of
  che Section 404 regulatory program.

Section  404  Regulatory Program:
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                                             ST. VINCENT DePAUL SOCIETY
                                          HOMELESS SHELTER PARKING LOT
                                                   JUNEAU, ALASKA
      In this case a fanner in Albion, Illinois,
cleared 3 acres of brush on his farm and straight-
ened a ditch (routine maintenance operations) to
prevent  water from ponding on his land. Mr.
Longbons has stated that he received conflicting
information regarding the regulation of his opera-
tions and that agencies have placed  excessive
demands on him by requiring mitigation for ditch-
ing activities. He is concerned about losing the
right to continue normal farm management prac-
      Mr. Longbons contacted the Soil Conser-
vation Service to assure the work would be consis-
tent with the Food Securities Act (Farm Bill). The
SCS responded that the work was allowable, but
that he  should contact the Corps and EPA to
assure compliance with the Clean Water Act.
However, Mr. Longbons did not do so.
      Staff from the Environmental Protection
Agency, the Corps of Engineers, and Congress-
man Pouchard's office conducted an inspection of
the site. The inspection showed that Mr. Longbons
had cleared a ditch and 3 acres of bottomland
hardwood forest, and dug a new lateral ditch,
sidecasting the material into the wetlands.  It
should be noted that maintenance activities for
existing  drainage ditches are exempted from the
Section 404 program. Mr. Longbons' clearing of
the old drainage ditch, the major component of
this project, was never regulated. However, clear-
ing a bottomland hardwood forest, creating a new
lateral ditch, and disposing of materials into wet-
lands are regulated activities.   Therefore,  Mr.
Longbons' actions constituted a violation of Sec-
tion 404 of the Clean Water Act In light of the facts
of this case, EPA Region 5 recommended to the
Corps that an after-the-fact permit be issued with
a mitigation condition for the loss of the 3 acres of
bottomland hardwood forest  The lateral ditch
has been stabilized with perennial grasses. Under
the permit, Mr. Longbons is able to plant crops in
the cleared area.
                                             This anecdote has appeared in several
                                       places, including the Wall Street Journal and Con-
                                       gressional testimony.  In general, the account
                                       raises concerns regarding alleged delays in the
                                       evaluation of a Section 404 permit application for
                                       a homeless shelter in Juneau, Alaska.
                                              The Section 404 permit application was,
                                       in fact, for construction of a parking lot  The
                                       public comment  period ended  on January 26,
                                       1990, and after interagency discussions, the per-
                                       mit was issued on August 3,1990.
                                              In 1989, the EPA and the Corps of Engi-
                                       neers adopted an Advance Identification plan
                                       identifying wetland  areas generally suitable or
                                       unsuitable for fill within the core service area of
                                       the City/Borough of Juneau, Alaska. The Ad-
                                       vance Identification program is designed to pro-
                                       vide information to the regulated public of the
                                       suitability of proposed discharges into designated
                                       wetland areas. The area targeted by the St. Vincent
                                       DePaul Society for future development was clas-
                                       sified as "generally unsuitable" for the discharge
                                       of fill material
                                             The final Section 404 permit application
                                       was only for expansion of a parking lot  adjacent
                                       to the shelter.  The expansion was based upon
                                       local zoning restrictions requiring facilities of a
                                       designated size to have a requisite number of
                                       parking spaces. While the Society submitted the
                                       permit application, it was noted by the Society
                                       that a homeless shelter did not necessarily require
                                       the number of parking spaces required by the
                                              EPAandtheUS. Fish and Wildlife Service
                                       objected to the proposed project, expressing con-
                                       cerns regarding the size and design of the parking
                                       lot.  In response, the applicant made modifica-
                                       tions to minimize potential impacts of erosion to
                                       surrounding wetlands. As previously stated, the
                                       issues were mutually resolved and the permit was
                                       issued about six months after the application was
     TOR MORE INFORMATION: call the EPA Wetlands Hotline* at l-MO-Ł32-7828
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