Environmental Protection
Agency
Offica of Wetlands, Ocaans,
and Watersheds (A-104 F)
March 1993
wEPA WETLANDS FACT SHEET #18
Section 404 Regulatory Program:
Issues and Examples
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ISSUES
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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.
ACCURACY OF WETLANDS
DETERMINATIONS
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
REGULATORY REQUIREMENTS
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,
misunderstanding,
or misinformation,
rather than prob-
lems with the actual
implementation of
the program...
TIMEFRAMES FOR THE §404
PERMIT PROCESS
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.
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Section 404 Regulatory Program:
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EXAMPtE
RANDY LONGBONS
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-
tices.
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
ordinance.
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
submitted.
TOR MORE INFORMATION: call the EPA Wetlands Hotline* at l-MO-Ł32-7828
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