United States
               Environmental Protection

               July 1979
              Office of Water Planning
              and Standards (WH 585)
              Washington DC 20460

A Guide to the
Dredge  or Fill
Permit Program



    I.A. Purpose of This Guide

    I.E. Functions and Values of Wetlands  and  Aquatic  Ecosystems

    I.e. Section UOU as a Mechanism  for Wetland  and  Aquatic

         Ecosystem Management


    II.A. Historical Overview

    II.B. Current Scope of the  Program

    II.C. Definitions

    II.D. The Section  40<((b)(1)  Guidelines

    II. E. Relationships with Other Programs



    IV.A. General Requirements

    IV.B. Program Transfer to the  States

    IV.C. State Program Operations


I.A. Purpose of This Guide

    This guide describes the Dredge or Fill Program under Section 0t of
the Clean Water Act (Federal Water Pollution Control Act, as amended, 33
U.S.C. S13U4).  Section ton regulates the discharge of dredged or fill
materials into the waters of the United States, including wetlands
adjacent to such waters (see Chapter II, Definitions).  The program is
administered by both the U.S. Environmental Protection Agency (EPA) and
the U.S. Army Corps of Engineers (COE), which has primary responsibility
for the permit program.  Under amendments contained in the Clean Water
Act of 1977 (CWA), EPA is authorized to oversee transfer of specified
parts of the program to interested States with eligible State-level
programs.  (Authority not transferred to the States in this way remains
with the COE.)

    The purpose of this guide is to present an overview of the program.
A description of the history, scope, and general requirements of Section
tit, of the operation of the COE permit program, and of the mechanisms
for transfer and operations of State-level programs are followed by a
guide to effective citizen involvement in the entire process.

    Whether you are seeking a permit under Section 104, attempting to
establish a HOH program in your State, or merely interested in learning
more about the program, this guide can provide you with most of the
basic information you'll need to achieve your goal.
I.E. Functions and Values of Wetlands and Aquatic Ecosystems

    The purpose of the Clean Water Act is to restore and maintain the
chemical, physical, and biological integrity of the waters of the United
States.  These waters are valuable for navigation, commerce, recreation,
habitat, and breeding and spawning areas for many species of fish and
wildlife, and, of course, as a source of water and food for much of the
Nation's population.  Wetlands form a particularly sensitive and
important segment of these ecosystems, and therefore merit special

    Until recently, wetlands had generally been thought of as
wastelands, inhabited primarily by mosquitoes and other pests.  As a
result, about one-third of our Nation's wetlands have been destroyed in
the last 70 years, and in many States the loss exceeds 50 percent.
Agriculture, residential and commercial development, landfills and
garbage dumps have commonly replaced the Nation's wetlands.

    Over the past two decades, the valuable functions of wetlands and
aquatic ecosystems have come to be recognized by the public.  Wetlands,
estuaries, and open waters provide habitat and breeding, spawning, and
nursery grounds for various aquatic and terrestrial organisms, most
notably waterfowl, shellfish, and fish.  Wetlands are highly productive
of nutrients, certain agricultural and silvicultural products, and
gravel, peat, and other mineral products.  The ability of wetlands to
store and gradually release water can abate much erosion and flood
damage.  Water purification and, in some cases, groundwater recharge are
other services wetlands perform.  In addition, aesthetic, recreational,
scientific, and educational values are furthered by these natural
aquatic areas.

    While general public concern for wetland preservation has grown,
private development pressures have also increased.  Property adjacent to
open space or water is desirable for residential and recreational
development.  Wetlands are often cheap, flat, and available even in
largely developed population centers.  They may provide developers the
opportunity to build higher priced waterfront residences.

    In addition to residential and commercial development pressures,
wetlands are often subjected to:  (1) drainage for silviculture, mosquito
control, or by farmers seeking to expand their agricultural production;
(2) destruction for flood and erosion control;  (3) dredging to maintain
navigation;  (t) excavation of sand, gravel, and other mineral resources;
and  (5) use as landfills, junk yards, and dumps for industrial and
residential wastes.  Upland activities may also affect wetlands and
aquatic ecosystems, by reducing water quantity and quality, increasing
runoff and sediment load, affecting the chemical content of the water,
and altering temperature regimes.

    Although different types of activities will affect different types
of ecosystems to varying degrees, very often the loss of an aquatic
ecosystem means the loss of a free service provided by that ecosystem to
the public.  Thus, for example, development of a wetland which stored
flood waters may result in the need for structural flood control, at
significant public expense.  Wise use of wetlands and water bodies can
provide the public with necessary and valuable services at minimal cost.
I.e. Section 40U as a Mechanism for Wetland and Aquatic Ecosystem

    The direct disposal of dredged or fill material in wetlands or
aquatic ecosystems may destroy or modify habitats, increase suspended

sediment loads and bottom sedimentation, and alter hydrologic regimes.
The general ecosystem also may suffer reduction in species diversity,
standing crop, and productivity.  Effects vary according to the type of
wetland as well as the project characteristics  the activities and the
volume and type of material involved.

    The Section 0t program requires that such adverse impacts be
evaluated before discharging dredged or fill material into waters of the
United States.  In addition to the COE's public interest review
conducted prior to issuing i04 permits, environmental and social
factors, necessity, and the existence of alternative sites must be
considered.  in this way the loss to the public resulting from damage to
an aquatic ecosystem must be considered along with the public benefits
of a project.

    Similarly, a State 104 program would screen projects involving dis-
charges of dredged or fill material according to environmental and
other. State-specific standards.  Besides protecting wetlands and
aquatic ecosystems within their borders, these States could include
regulation of wetlands use in their general planning for growth and


II.A. Historical Overview

    The Army Corps of Engineers has been responsible for protecting the
navigable waters of the United States since enactment of the River and
Harbor Act in 1899.  Under that Act many activities, including dredging,
required COE permits if they were to be conducted in waters usable for
interstate or foreign commerce.  While maintenance and enhancement of
navigation were the focus of the River and Harbor Act, in 1968 the COE
expanded its permit review criteria to include fish and wildlife,
conservation, pollution, aesthetics, ecology, and other public interest

    This public interest review reflected growing national awareness of
the need to protect the aquatic environment and the enactment of related
Federal legislation, such as the Fish and Wildlife Coordination Act.  At
the same time, the COE was expanding its definition of navigable waters
to include all presently, historically, and reasonably potential
navigable waters and all waters subject to the ebb and flow of the tide,
up to mean high water (mean higher high water on the Pacific Coast) in
tidal waters and up to ordinary high water in freshwater areas.

    In 1972, amendments to the Federal Water Pollution Control Act of
1948 were enacted.  Section 404 of the Amendments established a permit
program regulating the discharge of dredged or fill material into waters
of the United States.  Permit approval must comply with guidelines
developed under Section 404 (b) (1) by the EPA in conjunction with the
COE.  These guidelines, 40 Code of Federal Regulations Part 230, were
published in 40 Federal Register 41291  (September 5, 1975) and are
currently being revised.

    The COE may override the guidelines if navigation or anchorage
requires.  Nevertheless, EPA may prohibit or restrict any discharges of
dredged or fill material after public notice, opportunity for public
hearing, and consultation with the COE, if such discharges might have an
unacceptable adverse effect on a municipal water supply, wildlife,
recreation areas, or shellfish beds and fishery areas, including
spawning and breeding grounds.

    It was not until 1975, that the full extent of the Section 404
program was realized.  In that year, the COE's already expanded
definition of navigable waters was held by a court to be inconsistent
with the definition contained in the 1972 Amendments (NRDC v. Callawav).
The court ordered the COE to regulate all of the waters of the United

States, in compliance with the perceived legislative intent to protect
the integrity of the entire aquatic system.

    The COE issued regulations fully covering its new jurisdiction in
three phases.  Phase I included all waters previously regulated by the
COE plus all wetlands adjacent to those waters.  Phase II included
primary tributaries to Phase I waters and lakes with a surface area
greater than five acres, plus adjacent wetlands.  Phase III included all
waters of the United States (see Chapter II, Definitions).  These
regulations, 33 CFR Part 323, were published in 42 FR 37121 (July 19,
1977) .

    This expansion of Section HOU's jurisdiction gave rise to issues of
much concern in Congress.  Some States feared this apparent intrusion by
the Federal Government into the traditional province of State and local
authority regarding land use; others felt that the Federal program would
duplicate State activities.  As a result, several amendments to Section
tOU were included in the December 1977 Amendments to the Federal Water
Pollution Control Act, now known as the Clean Water Act.
II.B. Current Scop

    Section tOt currently provides for the regulation of discharges of
dredged or fill material into all waters of the United States.
Standards for environmental protection, found in the guidelines, govern
both the COE and State permit programs.  Under the 1977 Amendments to
the Clean Water Act EPA must approve and oversee the operation of State
Section U0<4 programs.  The COE retains jurisdiction of Phase I waters,
and regulates all waters of the United States in the absence of an
approvei State program.

    Major roles are also played by the U.S. Fish and Wildlife Service
and by the National Marine Fisheries Service.  Both agencies review and
comment on permit applications and provide technical assistance to
protect fish and wildlife resources and mitigate project impacts.  The
1977 Amendments particularly emphasized review and comment and technical
assistance to the States by the Fish and Wildlife Service, primarily
through the National Wetlands Inventory.

    Under Section 404 (f) , certain discharges are exempt from regulation
as not being major sources of water pollution.  These activities

    1.   Normal farming,  silviculture, and ranching practices;

    2.   Maintenance of existing serviceable structures, such as dikes,
dams, riprap, bridge abutments, and transportation structures;

    3.   Construction or maintenance of farm or stock ponds and irriga-
tion ditches, and maintenance of drainage ditches;

    4.   Temporary sedimentation basins or construction sites, if no
fill material will be placed into navigable waters;

    5.   construction or maintenance of farm or forest or temporary
mining roads, where best management practices are applied; and

    6.   Activities conducted under an approved State Section
208 (b) (4) (B)  program.

    The  last of these exemptions, activities under an approved 208(b)(4)
program, requires EPA approval and oversight.  The 1977 Amendments
provide  that certain classes of activities or discharges may be excluded
from regulation under Section 404, provided:

    1.   The State is administering an approved Section 404 permit pro-

    2.   EPA has approved a Statewide program under Section
208 (b) (4) (B) ; and

    3.   EPA has approved the best management practices applicable to
these activities, and they comply with the Section 404 environmental

    These exemptions do not alter responsibility to comply with effluent
standards or prohibitions under Section 307.  Nor do they apply when the
proposed activity will develop a new use for a water body, either
impairing its flow or reducing its reach.

    Another limitation to the scope of Section 404 is the 404(r)  exemp-
tion for discharges associated with the construction of certain Federal
projects.   For the exemption to apply, an environmental impact statement
discussing the effects of the discharge and considering the Section 404
guidelines must be prepared and submitted to Congress prior to both the
discharge and Congressional authorization of funds for the project.
Again, standards regarding toxic pollutants under Section 307 still must
be met.

    While some types of discharges are exempt from regulation under the
statute, others may be exempted by the COE under Section 404 (b) (2) .

This provision allows the COE, on a case by case basis, to permit
activities which would not be acceptable under the guidelines, on a case
by case basis, if the interests of navigation so require.  This
exemption and all other permitting activities are nevertheless subject
to EPA's authority to prohibit or restrict the use of any aquatic system
as a disposal site.  Areas where discharges are restricted may be
predesignated, even before such a discharge is proposed, or may be
designated in response to a permit application.  Regulations under
Section 404 (c) are in 40 CFR Part 231, proposed in 44 FR 14578
(March 13, 1979).

    Procedures for approving State programs and operating the COE and
State permit programs will be discussed at greater length in Chapters
III and IV of this guide.
II.C. Definitions

    Adjacent means bordering, contiguous, or neighboring.  Wetlands
separated from other waters of the United States by manmade dikes or
barriers, natural river berms, beach dunes, and the like are "adjacent

    Approved program means a State program approved by EPA.  An
"approved State" is one administering an "approved program."

    Best Management Practices (BMP's) means methods, measures, prac-
tices, or design and performance standards to prevent or reduce the
pollution of waters of the United States.  BMP's include but are not
limited to schedules of activities, prohibitions of practices, and
maintenance procedures.  BMP's developed by State Section 404 agencies
must insure compliance with  (1)  the Section 404 environmental
guidelines; (2) effluent limitations and prohibitions under Section
307 (a); and (3) water quality standards.

    Discharge of dredged material means any addition of dredged material
into waters of the United States.  The term includes, without
limitation, the addition of dredged material into waters of the United
States and the runoff or overflow from a contained land or water
disposal area.  Discharges of pollutants into waters of the United
States resulting from the subsequent onshore processing of dredged
material that is extracted for any commercial use  (other than fill) are
not included within this term.  They are subject to Section 402 of the
Clean Water Act even though the extraction and deposit of such material
may also require a permit from the Corps of Engineers.

    Discharge of fill material means the addition of fill material into
waters of the United States.  The term generally includes the following
activities:  (1)  placement of fill that is necessary for the construction
of any structure;  (2) the building of any structure or impoundment
requiring rock,  sand, dirt, or other materials for its construction;  (3)
site-development fills for recreational, industrial, commercial,
residential, and other uses; (4) causeways or road fills; (5) dams and
dikes; (6)  artificial islands;   (7) property protection and/or
reclamation devices such as riprap, groins, seawalls, breakwaters, and
revetments;  (8)  beach nourishment; (9) levees; (10) fill for structures
such as sewage treatment facilities, intake and outfall pipes associated
with power plants and subaqueous utility lines; and (11) artificial

    Disposal site means that portion of U.S. waters enclosed within
fixed boundaries and consisting of a water surface area (when present),
a volume of water  (when present), and a substrate area.  In the case of
wetlands on which water is not present, the disposal site consists of
the wetlands surface area.  Fixed boundaries may consist of fixed
geographic point(s) and associated dimensions, or of a discharge point
and specific associated dimensions.

    Dredged material means material that is excavated or dredged from
waters of the United States.

    Fill material means any material used primarily either to replace
water with dry land or to change the bottom elevation of a water body.
The term does not include any pollutant discharged into the water
primarily to dispose of waste, as that activity is regulated under
Section 402 of CWA.  The Director, in consultation with the Section 402
permitting authority, will determine the primary purpose of proposed

    General permit means either a State or a Corps of Engineers Section
404 permit authorizing discharges of dredged or fill material from
clearly described categories of activities that are similar in nature,
will cause only minimal adverse environmental effects when performed
separately, and result in minimal cumulative adverse effects on the
environment.  These Section 404 permits are issued on a local. State,
regional, or nationwide basis.

    Nationwide permit means a Department of the Army authorization for
certain discharges of dredged or  fill material into waters throughout
the Nation.

    Navigable waters means waters of the United States, including the
territorial seas.  This term includes (together with their tributaries
and adjacent wetlands) :

    1.   All waters which are currently used, were used in the past, or
may be used in interstate or foreign commerce, including those subject
to the tide;

    2.   Interstate waters, including interstate wetlands;

    3.   All other waters such as intraState lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds
whose use could affect interstate or foreign commerce.  These include
waters used by interstate or foreign travelers for recreational or other
purposes; waters fished for interstate or  foreign commerce; and waters
used for industrial purposes in interstate commerce.

    1.   All impoundments of waters otherwise defined as navigable

    Treatment ponds or lagoons designed to meet the requirements of the
CWA (other than cooling ponds meeting the criteria of this definition)
are not waters of the United States.

    (For purposes of clarity the term "waters of the United States" is
primarily used through the regulations rather than "navigable water.")

    Permit means a control document issued by EPA, COE, or an approved
State that complies with all legal requirements and procedures.

    Phase I waters means navigable waters of the United States and
adjacent wetlands.

    Phase II waters means navigable waters of the United States and
their primary tributaries, including adjacent wetlands and natural lakes
greater than five acres in surface area.

    Phase III waters means all waters of the United States.

    Regional Administrator means the Regional Administrator of the
appropriate Regional Office of the Environmental Protection Agency or
his delegated representative.

    State means any of the 50 States, the District of Columbia, Guam,
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, or
the Trust Territory of the Pacific Islands.

    State reoulated waters means those waters over which the Corps of
Engineers relinquishes permitting authority to State's approved Section
404 permit program.  These waters shall be identified in the Memorandum
of Agreement between the State and the Secretary of the Army.

    Section 404 (g) (1) requires that the Secretary retain jurisdiction
over the following waters:

    1.   Waters subject to the ebb and flow of the tide;

    2.   Waters which may be used transport interstate or foreign
commerce shoreward to their ordinary high water mark; and

    3.   Wetlands adjacent to waters in 1 and 2.

    Waters of the United States means:

    1.   The territorial seas with respect to the discharge of dredged
or fill material.

    2.   Coastal and inland waters, lakes, rivers, and streams that are
navigable waters including adjacent wetlands;

    3.   Tributaries to navigable waters including adjacent wetlands;

    4.   Interstate waters and their tributaries, including adjacent
wetlands; and

    5.   All other waters of the United States not identified in
paragraphs 1-4, which could affect interstate commerce.  The landward
limit of jurisdiction in tidal waters, in the absence of adjacent
wetlands, shall be the high tide line and the landward limit of
jurisdiction of all other waters, in the absence of adjacent wetlands,
shall be the ordinary high water mark.

    Wetlands means those areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs and similar areas.

II.D. The Section ton (b) (1)  Guidelines

    The section i0t environmental guidelines are intended to be the
basis of decisionmaking under Section 
broader geographical jurisdiction, as it applies to all waters of the
Dnited States, and not merely the navigable waters which are regulated
under the River and Harbor Act.  Evaluation of permit applications under
Sections 9 and 10 is not limited to factors of navigation and commerce,
however, so that the same public interest review is conducted by the COE
under both statutes.  Thus, permit review is conducted jointly when more
than one Section applies, which is often the case.

    Section 208 of the Clean Water Act, provides an alternative to the
Section ftOH program.  In a State having an approved Section 40U permit
program, and a. Statewide approved Section 208 (b) (

    The COE administers several permit programs, among them Section 404.
COE authority under Section 401 extends to discharges of dredged or fill
material in the waters of the United States, or only in navigable waters
and their adjacent wetlands, e..g., Phase I waters where there is an
approved State program regulating the other waters.   Program exemptions
apply to the COE program as well as to the States1 programs.  The
Section 404 environmental guidelines also apply to the COE as well as to
the states.  Although in the interest of navigation the COE may issue a
permit for an activity which would be inconsistent with the
environmental guidelines, even this authority is subject to EPA's right
to prohibit discharges in areas EPA determines to be environmentally

    The COE generally issues individual permits under Section 404,
evaluated on a case by case basis in compliance with the guidelines.
This evaluation takes into consideration environmental, economic,
health, and welfare concerns, natural resources and hazards, aesthetics
and recreation, land and water use, energy needs, and similar factors.
An environmental assessment must be prepared for each application in
compliance with the guidelines.

    General permits may be issued by both the COE and the States for
certain types of activities in specific, relatively small geographic
areas within their jurisdiction.  The activities must cause only minimal
environmental harm, both individually and cumulatively.  The permit must
terminate within 5 years, and may be modified or revoked earlier should
the adverse environmental impacts become greater.

    The COE may also issue nationwide permits, either for discharges
into smaller, minor waters or for certain types of activities.  These
permit categories are designed to make the Section 404 program more
manageable, efficient, and effective.

    If an individual permit is required, an application form must be
submitted, along with drawings of the proposed project.  The application
must include the following information:

    1.   A detailed description of the project, including its purpose  .
and use, types of structures, and type and quantity of dredged or fill

    2.   Names and addresses of adjoining or affected property owners;

    3.   Site information, including address, tax assessor's
description, name of the waterway, and other details permitting easy
identification of the property;

    i.   Status of all necessary approvals and certifications;

    5.   Explanations of denials of any necessary approvals or certifi-
cations; and

    6.   Signature of applicant or authorized agent.

    Public notice of the application must be issued within 15 days of
receipt by the COE of all required information.  Notice is sent to all
parties, adjacent property owners, and appropriate Government officials.
Others may request copies of public notices, and they should be posted
in the neighborhood.  The notice contains adequate information for
interested parties to evaluate the project's potential environmental

    Public comments are generally accepted for a 30-day period (or up to
75 days under special circumstances), during which anyone may request
that a public hearing be held.  After all objections to the project are
taken, the applicant is afforded an opportunity to rebut the opposition.

    The final decision on an application is to be made by the District
Engineer as soon as possible after public notice.  In certain cases,
most notably when another Federal agency objects, the decision may be
referred from the District Engineer to the Division Engineer.  If
unresolved issues or objections remain, the application may be referred
from the Division Engineer to the Chief of Engineers in these instances:

    1.   Statutes or Memoranda of Understanding prescribe procedures for
resolving objections from another Federal agency which preclude a final
determination at the Division level;

    2.   The COE position is contrary to the Stated position of the

    3.   Relevant laws, regulations, and policies are in substantial

    H.   The Chief of Engineers requests the case be forwarded for

    5.   The baseline used to determine the limits of the territorial
sea would be affected; or

    6.   Section 9 is involved in the application.

    The District Engineer is responsible for seeing that permittees
comply with all permit conditions.  If a violation occurs, either the
COE or EPA may issue an administrative order requiring compliance within
a specific time period or take civil action.  A violation may lead to a
civil action, such as a permanent or temporary injunction.  If the
violation is willful or negligent, the permittee can be fined between
$2,500 and $25,000 per day of violation, or imprisoned for up to 1 year,
or both.  A second violation, shall be punishable by a fine of no more
than $50,000 per day or up to 2 years imprisonment, or both.  Similar
penalties apply to discharges for which no permit has been obtained.

    For more detailed information on the COE Section 404 regulatory pro-
gram,  see 33 CFR Parts 320-329, especially Parts 320, 323, 325, 326,
327, 329, 42 FR 37121 (July 19, 1977); the U.S. Army Corps of Engineers
Permit Program, A Guide for Applicants (EP 1145-2-1, November 1977); or
contact the District Engineer in your area.

typical corps  permit  review  process
                                     Public Notice issued
     Applicant Submits
    Engineer Form 4345
     to District Office
and Processed
                                                             Normal 30 Day
                                                            comment period
                  Application denied...
"^^ | Cc
| Specia
| Local A;
(State Agen;
Federal Agenc


t Gr





                                                       Application reviewed by Corps
                                                       and other interested agencies.
                                                       organizations^^ individuals
                                      Evaluation Factors
                 Environmental Concerns
                 Fish and Wildlife values
                 Flood damage prevention
                 Welfare of the General Public
                 Historic values
                 Land Use
                 Water supply
                 Water quality
                 Energy needs
                 Food production


IV.A. General Requirements

    The 1977 Amendments established a system whereby the State could
assume a significant part of the Dredge or Fill Program.  The object was
to return responsibility for certain decisions affecting land use to the
States and to limit duplication of effort.  Congress did not intend to
alter the nature of the permit program, however.  The State programs
are, essentially, to mirror the Federal program, and must comply with
the Section 404 guidelines.  EPA's role both in approving State programs
and overseeing decisions made under them emphasizes the importance
Congress placed on maintaining Federal standards and insuring that water
quality and wetlands be protected.  EPA's responsibility in the transfer
of Dredge or Fill programs to the States is an integrated system of
ministerial and substantive duties.

    The statute itself sets requirements for State authority. Federal
review criteria and time schedules, and State program withdrawal
procedures.  EPA regulations may be found in the Proposed Consolidated
Permit Regulations, 40 CFR Parts 122A, 123A, 123E, and 121, published in
44 FR 34243 (June 14, 1979).  The statutory requirements for contents of
State programs are in brief:

    1.   "Full and complete" program description;

    2.   Statement by the Attorney General, or State agency attorney,
that the State has adequate authority for the program;

    3.   Authority to issue permits which comply with (but are not
limited to):  Section 404 guidelines. Section 307 standards and
prohibitions.  Section 403 criteria, and Section 308 inspections;

    4.   Authority to issue permits for fixed terms not to exceed 5

    5.   Authority to issue permits which can be terminated or modified
for cause, such as violation of a permit condition, misrepresentation or
failure to disclose all relevant facts in obtaining a permit, and
changed conditions;

    6.   Authority to insure notice of applications to EPA, the public,
and to other affected States and to provide opportunity for public

    ~>.   Authority to guarantee opportunity for potentially affected
States to make recommendations and to insure when such recommendations
are not accepted that a justification is given the commenting State;

    8.   Authority to insure that no permitted activity would, in the
judgment of the COE, in consultation with the Coast Guard, substantially
impair anchorage or navigation;

    9.   Authority to enforce compliance with permits and the program,
through civil and criminal penalties and other means;

    10. Authority to assure continued coordination with Federal and
Federal-State water-related planning processes; and

    11. Minimum funding, personnel qualifications, and manpower require-
IV.B. Program Transfer to the states

    The requirements a State must satisfy to have its program approved,
and the procedures EPA must follow in approving State programs, are con-
tained in both the Clean Water Act and the regulations.  The following
discussion highlights the standards for Section 104 program transfer,
found primarily in tO CFR Parts 123A and 123E.  For more detailed
information, refer directly to the regulations, or contact
Frances Peterson, Aquatic Protection Branch (WH-585), 01 M Street,
S.W., Washington, D.C.  20U60,  (202) U72-3UOO.

    A State seeking to administer a Section UOt permit must submit the
following to EPA:

    1.   A letter from the Governor requesting program approval;

    2.   A Statement from the Attorney General, or independent State
agency counsel, asserting adequate authority to administer the program.
This includes adequate legislation and regulations already in effect, an
analysis of State law on what constitutes a taking of private property
without just compensation, and assurances that the State will be able to
prohibit or terminate discharges as required both by the Section 40U
guidelines and the need to protect sensitive areas.

    3.   A complete program description, including the agency organiza-
tion, application procedures, categories of discharges, and permit
issuance and enforcement priorities and procedures.  The program

description must designate a State agency responsible for issuing the
permits and explain its relationship to other State and local agencies.
Available resources, estimated costs, and anticipated types and numbers
of activities to be regulated must also be included;

    1.   Copies of the application forms, standard reporting forms, and
manifest form to be used;

    5.   Copies of all applicable State laws and regulations;

    6.   A Memorandum of Agreement (MOA)  with the Regional Administrator
of EPA; which describes classes and categories of applications and
permits subject to Federal review, reporting requirements, enforcement
program and capability, and the scope of waiver of Federal review.  This
MOA must be consistent with the State/EPA Agreement, and must be subject
to modification.

    7.   A Memorandum of Agreement with the COE which identifies which
waters in the State will come under State jurisdiction and which are to
remain under the COE.  This MOA should also identify the individual and
general permit processing procedures, provide (if agreed to)  for
transfer of pending permit applications to the State, prohibit
discharges the COE believes would substantially impair anchorage and
navigation, and delineate the classes or categories of permits for which
Federal review has been waived.

    Within 10 days of submission of these State program elements, EPA
must send copies of the program to the COE, the Fish and Wildlife
Service, and the National Marine Fisheries Service.  Within 30 days of
submission, EPA must notify the State as to whether or not the
submission is complete.  The time period for program review then begins.
Material changes in the program during the review period will terminate
adherence to the schedule, and the review period will recommence.  At
the start of the review period, notice must be published in the FR and
newspapers in the State, announcing a public comment period of at least
U5 days and a public hearing at least 30 days after publication.
Comments on the program submission by the Fish and Wildlife Service must
be made to EPA within 90 days of submission and the determination of
authority must be made by EPA within that time period, or the State
program shall be deemed approved.  If the submission is disapproved, EPA
must notify the State as to the reasons for disapproval and suggest
revisions that would lead to approval.

    After a State Section HOt program has been approved, it may be modi-
fied at the request of either EPA or the State.  The State must provide
EPA with a full modified program submission.  If the modification is

substantial, public notice and at least a 30-day comment period are
required, and approval by EPA must be published in the Federal Register.

    If a State no longer wishes to administer the program, the program
may be withdrawn.  Voluntary transfer from the State to the COE requires
180 days notice by the State, accompanied by a plan for transfer.
Within 60 days notification, the plan must be evaluated by EPA and the
COE: at least 30 days before transfer, notice must be published in the
Federal Register and in newspapers in the state.

    Should an approved State program cease to meet the statutory and
regulatory requirements, and the state fail to take corrective action,
the program may be withdrawn by EPA.  Criteria for withdrawal include
inadequacies in legal authority, program operation, or enforcement,
noncompliance with the Memorandum of Agreement with EPA, and any other
failures to comply with the law.  If the criteria for withdrawal are
met, the Administrator of EPA may issue an order for withdrawal,
specifying the allegations and setting a hearing date.  Response to the
order must be within 30 days.

    At the hearing, of which a record must be kept, non-parties may be
permitted a limited appearance and parties may be represented by counsel
or others.  The presiding officer at the hearing must prepare
recommendations and certify the entire record to the Administrator
within 30 days of filing proposed findings and conclusions.  Within 20
days of certification, all parties may file exceptions or other
documents with the Administrator.  The Administrator must issue a
decision within 60 days.

    If the decision upholds the State program, it is reviewable as a
"final agency action." If the State program is found to violate the law,
the State must be given a reasonable time, up to 90 days, to correct the
deficiencies.  Such corrective action would result in the issuance of a
supplemental order of no withdrawal.  Failure to correct the program
inadequacies will lead to a supplemental order of withdrawal, and return
of the State's part of the Section 404 program to the COE.  Withdrawal
of the State program will not relieve any persons from compliance with
State law.
IV.C. State Program Operations

    The statute and the regulations set standards for the operation,
transfer, and Federal oversight of the State permit program.  The most

basic operational requirement is that a State permit be mandatory for
regulated activities.

    There are several exemptions from the State permit program.  The
following activities are not regulated, provided they do not involve
discharges of toxic pollutants:

    1.   Normal farming, silviculture, and ranching activities.  This
includes crop management or rotation, plowing, cultivation, harvesting,
soil and water conservation practices on uplands, and similar

    2.   Maintenance, including emergency reconstruction of currently
serviceable structures, such as dikes, dams, levees, groins, riprap,
breakwaters, causeways, bridge abutments or approaches, and
transportation structures.

    3.   Construction or maintenance of farm or stock ponds or
irrigation ditches or maintenance of drainage ditches.

    tt.   Construction of temporary sedimentation basins on construction

    5.   Construction or maintenance of forest and farm roads, or
temporary roads for moving mining equipment, in accordance with best
management practices in the approved State program and those necessary
to protect water quality, aquatic life, wildlife, endangered species,
and migratory, breeding, nesting, and feeding areas.

    6.   Activities regulated under an approved State Section 208

    7.   Federal projects specifically authorized by Congress if an
environmental impact statement for the project considers the effects of
the discharge, and the requirements of the Section HOH guidelines, and
is submitted to Congress prior to authorization of, or appropriation
for, the project.

    All other discharges of dredged or fill material which are within
the State's jurisdiction require a permit, usually an individual permit.
In such cases the project is reviewed on its own merits, and a permit
applying solely to that particular project is granted or denied.  For
some relatively minor projects, however, the State is authorized to
issue general permits for activities which are similar, will result in
minimal environmental disturbance for any project, and cumulatively will
have only minimal adverse effects on the environment.  All general

permits require compliance with the Section HQH guidelines and toxic
pollutant standards, and must specify the activities permitted,
geographic areas covered, type of material which may be discharged, and
maximum quantity and extent of activity.  In addition, the permit
requires best management practices and may include other conditions.

    Before any activity is conducted under a general permit, advance
notice must be given to the State.  If a proposed discharge is covered
by a general permit, no individual permit is required unless the State
determines that under the guidelines, an individual permit is necessary
to protect the aquatic environment.  The State may modify, revoke and
reissue, or terminate any general permit after first giving public

    If an individual permit is required, the State is encouraged to
familiarize potential applicants with the standards and procedures and
consult with them before they submit an official application.  the
application must:

    1.   Contain a complete project description;

    2.   Identify the source and type of material to be discharged and
the method of dredging to be used;

    3.   Specify the use of structures to be erected on fill;

    4.   Provide information about the area for evaluation under the
Section 401 guidelines, including possible alternatives, physical and
chemical characteristics of the area, life which may be dependent on
water quality and quantity, special characteristics of the site and
adjacent areas which require protection, and uses of the area which
might affect human health and welfare;

    5.   Describe technologies or management practices which could mini-
mize adverse environmental effects;

    6.   List necessary approvals and any decisions already made; and

    7.   Contain a drawing and maps.

    Generally public. Federal, and State agency review and comment will
be on the basis of the permit application.  In some cases the State must
reach a tentative decision on the permit.  If it decides to issue the
permit, the State must prepare a draft permit.  A fact sheet or a
statement of basis must also accompany the draft permit briefly
explaining the terms and conditions of the permit.  This outlines the

significant factual, legal, methodological, and policy questions
considered when drafting the permit.

    The draft permit must contain all the requirements found in a final
permit.  At a. minimum, these will include the following:

    1.   The permittee must comply with all terms of an existing permit;

    2.   The permit shall be reviewable, and may be modified, revoked
and reissued, or terminated;

    3.   The permittee must report any activity which would constitute
cause for modification or revocation;

    <.   The permittee must allow the State access to records and
regulated operations, and the right to sample any substances which the
permittee is required to monitor;

    5.   The permittee shall furnish records to the State upon request;

    6.   The permittee shall maintain in good working order all
facilities and treatment or control systems used to achieve compliance
with the permit;

    7.   In the event of noncompliance, the permittee shall provide the
State with a description of and reasons for noncompliance, and action
taken or planned to reduce, eliminate, or prevent the noncompliance.
This information may be required within 2H hours or 5 days of the time
the permittee becomes aware of the situation;

    8.   The permittee shall take all reasonable steps to minimize
adverse environmental impacts from noncomplianc;

    9.   The permittee shall cease or lessen its business activities if
necessary to comply with the permit;

    10. The permittee shall not falsify or knowingly tamper with any
monitoring, reporting, or other required device or information;

    11. The permitted discharge shall comply with the Section UOt
guidelines, and shall be conducted so as to minimize adverse
environmental impact;

    12. Standards for toxic pollutants shall be at least as stringent as
chose in Section 307 (a);

    13.  Approved best management practices must be incorporated into the

    14.  A detailed sketch with the location and boundaries and the type
of material to be discharged must be provided.

    Notice of a permit application or a draft permit shall be given by
the State, to the applicant; State agencies responsible for plan
development under Sections 20 8 (b) (2) and 303 (c), or water quality, fish,
and wildlife resources; any adjacent property owners; the Section 40H
program in another, potentially affected State; and the Regional
Director of the Federal Aviation Administration, if the activity may
affect aircraft operations.  In addition, notice shall be given to
anyone requesting notification, as well as to a list of likely
participants.  The notice must identify the applicant, and a contact for
further information; include statutory authority and regulation; and
describe the activity, the draft permit, and the comment and hearing

    A public hearing may be requested by any interested person.  The
written request must State the issues to be raised.  If there is
significant public interest, a hearing shall be held.  Written comments
may be submitted on the draft permit or, on the permit application.  At
the time of issuance of a final permit, the State must respond to the
public comments and explain all changes made to the draft permit.

    The State is prohibited from issuing a permit when:

    1.   The permit would not comply with the statute, regulations, or
guidelines, including the Section UQH guidelines;

    2.   The Regional Administrator objected and the issue has not been

    3.   The COE has determined that anchorage or navigation would be
substantially impaired;

    14.   The discharge would be into an area in which disposal is pro-
hibited by EPA.

    Once a permit is issued, the State program monitors and enforces the
permit .conditions, with specific authority to:

    1.   Abate unauthorized activity by order or suit in State court;

    2.   Sue or enjoin a. threatened or continuing violation;

    3.    Assess,  or sue to recover, civil penalties for violations of
statutory, regulatory, or permit conditions;

    4.    Seek criminal remedies for program requirement violations;

    5.    To seek criminal remedies for false Statements and the like in
monitoring, reporting, notification, etc.;

    6.    Obtain a cease and desist order or an interim protective order;

    7.    Notify the Regional Administrator by phone of a situation
dangerous or threatening to the public health and welfare.

    Complementary to enforcement is monitoring and evaluation of the
program.  The State must establish procedures for the receipt,
evaluation, and investigation of notices and reports from permittees.
In addition, the State must conduct its own independent inspections,
including comprehensive surveys of the waters and activities regulated,
periodic inspection of the permittee's activities, and investigation of
possible violations.  The State must submit quarterly and annual reports
to the  Regional Administrator, who must analyze the cumulative impacts
of activities on the integrity of the waters of the United States.

    These actions by the State in administering the permit program are
subject to Federal review under terms defined in the MOA between the
State and EPA Regional Administrator.  Although this agreement includes
any waiver of Federal review of certain or categories of activities it
cannot  waive review of discharges which may affect another State, major
dischargers, discharges into critical areas, proposed general permits,
and discharges of toxic or hazardous substances.  In addition, the
waiver  is always terminable.

    Where Federal review has not been waived, the MOA identifies the
forms and information which the State must forward to the Regional
Administrator, the COE, the Fish and Wildlife Service, and the National
Marine  Fisheries Service.  The VGA shall require prompt transmission of
a copy  of every complete permit application received, any environmental
impact  Statement prepared under State law,  and notice of every related
action, including copies of the proposed and final permit.

    The Regional Administrator may comment on any application or
proposed permit.   If he has objections, the Regional Administrator must
notify  the state of his reasons. Sections of the Clean Water Act relied
upon, and the necessary corrective actions.  Grounds for objection

    1.   Insufficient information to determine compliance with the
Section U0 guidelines;

    2.   Failure to assure compliance with the statutory and regulatory

    3.   Inadequate justification for the rejection of recommendations
by another affected State;

    t.   Procedural inadequacies or errors;

    5.   Misinterpretation or misapplication of the statutory or regu-
latory requirements;

    6.   Inadequate procedures for reporting, monitoring, and the like;

    7.   Failure to carry out the statutory or regulatory requirements
where EPA standards governing the activity have not been promulgated;

    8.   Issuance of the permit would be outside the statutory or
regulatory requirements.

    The MOA between the State and the COE must further assure that the
State will not approve an application transferred to the State by the
COE and previously identified by the COE as incomplete or deficient,
until the applicant has taken corrective action.

    The regulations assure coordination with other Federal,
Federal-State, and State programs.  State actions under the Section U04
program must be consistent with the Wild and Scenic Rivers Act and with
water Quality Management planning under Sections 208 and 303.  The State
must reach an agreement with the Section 208(b) (i)  regulatory program
administrator, and consult with State fish and wildlife agencies, use of
information available from the Fish and Wildlife Service, particularly
the National Wetlands Inventory, and affected States.


-*" c

	 1 *
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FEDERAL  *^~~*.
40-1 PROCESS /404(K>N
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                                                            OPl'ORTUNITILS FOR PUULIC INPUT

                                                           * MAY INCLUDE A DRAFT PERMIT


    The preceding chapters have briefly described the regulatory program
under Section HOH of the Clean Water Act.  At several stages public
hearings and comment periods are either required or offered.  Yet
without active concern and participation on the part of the public,
these attempts to incorporate public opinion cannot succeed.  The intent
of Congress and the policies of EPA and COE are to involve the public in
Section U01 decisionmaking.  It is up to you to make it work.

    One form of public participation which takes place in the early
policy formulation stages of the program, comments on proposed
regulations, can have lasting impact on the direction the program takes.
Watch the Federal Register for relevant proposed regulations, or contact
EPA and the COE and ask to have the regulations mailed to you as they
are issued.  The comment period may vary, but it is normally at least 30
days.  Although the regulations may appear to be complex and confusing,
a careful reading should enable you to State whether they are too weak,
too strong, or in need of clarification, on one or several points.
Public hearings are often held, at which explanations may be offered.
Remember t,hat this is your program, and that you may find yourself
subject to it someday.  Don't hesitate to ask questions, and to maJce any
constructive comments you feel could improve the policies and
administration of the program.

    Other routes for affecting basic policies are present in the State
transfer procedures.  If your State is interested in submitting a
program to EPA, you can contact your State legislators and the State
lead agency to determine: (1) compliance with the State program
requirements;  (2) potential problems the program faces; and (3)  the
underlying policy of the State authority.  The State program
requirements set minimal criteria only; your State's program should
reflect your attitudes toward protection of wetlands wherever leeway is

    On the other hand, your State may not have taken any action regard-
ing transfer of the Section 40t program.  If you'd like to see more
action in this respect, again contact your legislators or the State
wetland or water resource agency.  Perhaps your State has a strong
wetlands regulation program which would not be readily compatible with
the Section UOU requirements.  Or perhaps a lack of public interest has
led to neglect of this program.  Once you know the reasons for inaction,
you can best decide how to proceed.  Consequently, your State officials
will be able to act more responsibly and confidently.

    Submission of a State's proposed program should not mark the end of
public participation in the transfer process.  Review by EPA includes
public comment and hearings.  If you know of reasons why the submission
should be either approved or disapproved, be sure to inform EPA, as well
as the State and any other interested agencies.  This is a major
decision, and must be based on all available information.

    Even after the basic policy decisions have been made, the public
plays a vital role in the evaluation of permit applications.  Both the
COE and State programs encourage public comment and hearing.  To receive
notice of all permit applications made to the COE in your area, write
the COE District in which you are located and ask to receive such
notice.  Often you may find the proposed projects insignificant.  Yet by
keeping informed you will be certain to know about any projects you do
find controversial or objectionable.  If you have reason to believe the
project will adversely affect the environment, request a public hearing.
In this way, a variety of points of view and sources of information will
become available and enhance the quality of the decision made on the

    Finally, vigilance after the decision is an important contribution
the public can make towards the Section tO program.   If the State does
not comply with its own program, or with the requirements for that
program, EPA is authorized to withdraw approval.   Individuals within the
State are in a very good position to monitor the State's compliance with
the law.  If the State fails to comply,  a petition to EPA may succeed in
forcing compliance or termination of the State program.   Similarly, the
public can aid in enforcing the permits issued by both the COE and the
States.  Known or suspected violations should be reported to the
responsible agency, which often has inadequate staff  to discover them.
Thus, public "watch-dogging" may provide the strength to support the
substantive requirements of Section UOU.

    This discussion provides some general ideas on how you can become
involved in the Section UOU program.  Involvement requires thought,
time, and effort on your part.   Without it, the loss  of  wetlands and
other valuable aquatic resources will be more difficult  to prevent.
With it, the Section 0t program may prove an effective  tool serving all
of us well.


This Guide is one in a series of pamphlets
which describe various EPA permit programs.
The full series includes:

. A Guide to New Regulations for NPDES  (C-l)

. A Guide to the Underground Injection
  Control Program (C-2)

. A Guide to Proposed Consolidated Permit
  Regulations (C-3)

. A Guide for States on Proposed Consolidated
  Permit Regulations (C-4)

. A Guide to the Hazardous Waste Management
  Program (C-5)

. A Guide to the Dredge or Fill Permit
  Program (C-6)

. A Guide to the Consolidated Application
  Form  (C-7)


Write to:

U.S. Environmental Protection Agency
Public  Information Center (PM-215)
401 M Street, S.W.
Washington, D.C. 20460