United States Environmental Protection Agency Office of Water Regulations and Standards Criteria and Standards Division Washington, DC 20460 EPA 440-5-81-002 October 1980 The States' Choice: 404 Permit Program ------- The States' Choice: 404 Permit Program United States Environmental Protection Agency Office of Water Regulations and Standards EPA 440/5-81-002 October 1980 ------- Foreword The 404 Permit Program regulates discharges of dredged and fill material in the Nation's waters and wetlands. The U.S. Army Corps of Engineers (Corps) administers this program and issues permits after consultations with the U.S. Environmental Protection Agency (EPA) and other Federal agencies which comment on permit applications. Some of the regulated waters and activities are of National significance, and need to be under a Federal program. But there are also many local areas with local problems that vary by as many wetlands and adjoining waters as are on this continent. Obviously, chaos would result if every local group developed its own independent program. Just as obviously, handing down decisions from Washington is not always the answer. State 404 Programs can be the answer. Congress has said that the States have the "primary responsibilities and rights. . to prevent, reduce, and eliminate pollution," and it is EPA's responsibility to preserve and protect that role. States control the lands and waters within their own boundaries. Many States are already working with the same environmental issues that the 404 Program addresses. A State can greatly simplify the approach to dredge and fill issues by developing a State 404 Program. The transfer of 404 permitting authority from Federal to State level will make it easier for government to respond to the applicant with a single voice, for permit procedures to be consolidated, and for time delays and expense to be reduced. The entire operation could be smoother and more effective. The State that assumes control of its own 404 Program fulfills its administrative role. States have the sensitivity to function as the balance wheel so often desperately needed in environmental issues to maintain natural resources while considering industrial and commercial development. Joseph A. Krivak Director, Criteria and Standards Division ------- Table of Contents Foreword Why a State 404 Program? What States Already Do What States Can Do How 404 Works With Other State Programs Developing a State 404 Program For Further Information n 1 3 4 7 9 11 in ------- Why a State 404 Program? Why should a State develop its own dredge and fill permit program under Section 404 of the Clean Water Act? Won't it mean more work? Yes. But it will give the State a big plus more direct control over the use of its own waters and land. The State will become the focal point for natural resource management within its borders. It will be able to better coordinate the permitting processes and environmental considerations required by other Federal programs. Because the State handles these permits within its own borders, the State will be able to speed up the permitting process. Data can be gathered and analyzed more quickly and accurately when staff can jump in a car and conduct a site check or confer with a permit applicant. The local factor is the key, not only to expediting permits, but to making the entire 404 Program succeed. Not everyone is aware that building a dock or filling even a small wetland can damage the environment and, in fact, requires a permit to ensure that minimal damage results. It is in the tributaries and inland waters, where the States can administer the 404 Program, that this lack of-awareness presents a major threat to the environment. Wetlands are the most poorly protected of all our water resources; nearly half of our Nation's wetlands have been destroyed since pioneer days, largely by conversion to farming. Americans must become aware of wetlands' role in maintaining water supplies, reducing erosion, abating floods, and providing animal and fish habitats. Not only wetlands but all U.S. waters need protection from indiscriminant dumping of dredged or fill material. The States are in the best position to educate their own citizens about these concerns. North Dakotans understand why their prairie potholes are called a "duck factory"they're the most important breeding ground for waterfowl in North America. They must also understand the consequences of draining and filling those potholes. New Yorkers, on the other hand, have different resource problems, as do The State as Focal Point for the 404 Program National Marine Fisheries Service ------- Californians, and on down the list. Some States don't have prairie potholes or even know what they are! This is why individual States can most effectively communicate with their own citizens, through schools, universities, and public interest groups, regarding the particular resource concerns of that State. For the same reason because they know best their own geography States are in the best position to protect their own natural resources. It's far easier for a State official to know when a pond is being dredged or a boat dock constructed without a permit just as it's far easier for him to know how many ponds there are in his State, where they are, and how important they are than it is for Federal or even regional agencies. Each region of the country faces different problems that must be resolved as part of the 404 permitting process. Since the States understand local problems, they are better equipped to balance conflicting concerns under the 404 Program than are Federal agencies. A discussion with persons knowledgeable about 404 activities throughout the country reveals that, in waters other than Phase I waters, approximately one in five activities requiring 404 permits is actually permitted before the work is done. This may be State 404 Programs could reduce unpermitted activities. All Other Activities, Phase I Permit Applications All Other Permit Applications because the Corps has historically been responsible for "traditionally navigable waters," or it might be because people living near navigable waters are more aware of the need for permits. Whatever the reason, activities are occurring in the so- called Phase II and III waters in an unchecked manner, leading to degradation of inland waters and wetlands. It is a powerful reason for the States to assume dredge and fill permit authority in those waters. The State 404 Program can combine local knowledge with existing State and Federal laws and programs to produce a comprehensive natural resource management plan that makes sense, will work in the State, and will gain citizen support. Wetlands are a natural resource benefitting millions of people the same taxpayers millions of dollars in flood control and water purification benefits. Draining or destroying wetlands for the quick economic gain of any group is false economy and counter to the best interests of the public. The State is in the unique position of being able to balance its citizens' needs with their use of land and water resources and, consequently, to maintain productive natural resources while considering industrial and community growth and development. 2 ------- What States Already Do Most States already issue 404-type permits under State laws. Almost all coastal States protect their coastal waters through State coastal management programs. Many also have laws protecting inland waters and wetlands to some extent. However, most have not been able to prevent the serious problemsresulting in the need for costly structural flood control, water purification, and water storage facilitiesthat can be caused by certain dredge and fill practices. The accompanying bar graph shows the approximate number of States issuing permits or otherwise controlling dredge and fill activities. Although none of the State permitting programs is as comprehensive as the 404 Program, States have gained experience in the technical and administrative activities required of a 404 Program. The States have also worked with the Federal 404 Program and so are already familiar with many specifics of the Program. 404-Related State Regulatory Programs Figures based on data available as of October 1980. Protection of Inland Wetlands Zoning of Lake & Stream Shores Permitting of Fill in Coastal Waters Protection of Wild & Scenic Rivers Regulation of Construction in Floodplains Management of Coastal Areas Permitting under NPDES Regulation of Construction in Lakes & Waterways I 10 15 I 20 Number of States T 25 I 30 \ 35 ------- What States Can Do The Clean Water Act of 1977 says that States may assume control of the 404 Program in all waters not subject to the ebb and flow of the tide or actually navigable or navigable after reasonable improvement, and their adjacent wetlands. Exactly what does that mean? Since 1899, all navigable waters in this country have been protected by the U.S. Army Corps of Engineers. But it was only in 1972, in the Federal Water Pollution Control Act Amendments, that Congress created a permit program (Section 404) to control the discharge of dredged or fill materials into all waters of the U.S. The Corps operates the permit program under EPA and Corps guidelines and regulations. The Corps has described waters of the U.S. as: Phase I - all navigable waters and adjacent wetlands; Phase II navigable waters and their primary tributaries including lakes larger than 5 acres in surface and adjacent wetlands; Phase III all waters of the U.S. In 1977, Congress amended the 1972 Act to provide States the opportunity to assume permitting authority from the Corps for waters other than Phase I waters, plus historically navigable waters presently unnavigable. The rationale was simple: a State 404 Permit Program would reduce duplication and red tape and avoid "excessive regulation" by the Federal government while preserving Federal control over waters necessary for interstate and foreign commerce. The 1977 Act also recognized that the State is best qualified to protect its own waters and balance social and economic concerns. By assuming the 404 Program, States will gain clear jurisdiction in most of the Nation's lakes, small rivers, streams, and inland wetlands. That means all the waters within State boundaries except commercially or potentially navigable waters and tidal waters and their adjacent wetlands, which remain under the Corps' jurisdiction. In those waters which were once navigable but are not now actually or potentially navigable (e.g., streams used by fur traders in the 19th century), the State The accompanying charts illustrate percen- tages of waters which could be regulated under State 404 Programs. It is based on a 50 percent sampling of Corps Districts. ------- ------- will assume jurisdiction over the water itself under Section 404, but the Corps will retain jurisdiction over structures built in the water under Section 10 of the River and Harbor Act of 1899. Section 404 permits are required for a wide variety of activities, including: Constructing dams, levees, and causeways; Placing fill for residential, industrial, commercial, or recreational uses; Constructing shore protection devices such as riprap, groins, seawalls, breakwaters, and revetments; Adding sand to form a beach; Adding bank reinforcement structures for intake and outfall pipes; Creating artificial islands or reefs; and Disposing of excess dirt, rocks, refuse, or other materials in waters or wetlands. Some dredge and fill discharges do not need permits. These include normal farming, ranching, or forestry practices, such as plowing, seeding, cultivating, or harvesting, which do not convert the area to a new use or restrict the flow, circulation, or reach of waters of the U.S. States may issue two types of 404 permits. General permits may be issued on an areawide basis authorizing discharges of dredged or fill material from clearly described categories of activities that are similar in nature. Authorized activities must cause only minimal adverse environmental effects when performed separately, and result in minimal cumulative adverse effects on the environment. States are urged to use general permits to reduce administrative costs, as long as the waters and wetlands of the State remain adequately protected. Individual permits are needed for all projects requiring a 404 permit not authorized by a general permit. Applicants include anyone intending to discharge dredged or fill material into waters or wetlands. The applicant may be a private citizen, corporation, association, public institution, or local or State government. 6 ------- How 404 Works with Other State Programs Optimum State Natural Resource Management Optimum Natural Resource Management Solid ft Hazardous Waste Management A State-operated 404 Program will lead to fully integrated permit authority over activities in lakes, waterways, and wetlands. Many programs the State already administers address the same issues as those associated with 404. NPDES, water quality programs, and clean lake programs are obviously inter- connected, but together they may not be able to keep State water clean and clear if disposal of dredged or fill material upstream has caused sediments or other pollutants to affect the water. State administration of both NPDES and 404 can also reduce conflicts for applicants. For example, an applicant may receive an NPDES permit with the condition that his outfall be located below the water surface midstream at a minimum of 3 feet above the river bottom. Construction of the necessary shoreline structures and bottom supports could require a 404 permit. Reviewing these permit applications together would ensure efficient, consistent, and fair regulation. The National Flood Insurance Program provides States with technical assistance for comprehensive floodplain management. If dikes and levees are to be used, the decision must be made whether the dike will circle around a wetland area and include it in the flood zone, or cross the wetlands and cut them off from the waterway that nourishes them. Clearly, the selection and design of flood protection devices should include technical assistance from the people who help review permits for the 404 Program, and should be consistent with Program standards. Section 404 and Coastal Zone Management both emphasize a concern for wetlands in balancing development with environmental protection. Much of the ------- research on wetlands ecology has focused on coastal wetland systems. It is important not only that knowledge of the ecological aspects of wetlands be shared, but also that decisions regarding non-tidal wetlands within the Coastal Zone be coordinated. The boundaries of the State's Coastal Zone Management Area are based on county lines. It is possible that not all the waters within a coastal county will be tidal, thus making certain waters and wetlands subject to both the Coastal Zone Management and the State 404 Programs. Regulation of streams and wetlands may be integrated under State 404 and Coastal Zone Management Programs. ------- Developing a State 404 Program Obviously, a State 404 Program can benefit the State, the regulated public, and the environment. But is it complicated to set up? Not really. The first steps involve discussion both within the State itself and with Federal agencies involved with 404- type activities in the State. The State should contact the EPA Regional 404 Coordinator. He can easily be located by using the directory at the conclusion of this book. The Regional Coordinator will be happy to come to the State and discuss the Program with those involved on the State level. Such a meeting should include State agencies which could administer the Program, and should cover the general differences between State programs and the requirements for State 404 Programs. It may take more than one meeting; certainly, it will involve a good deal of work and coordination with the Federal agencies involved. But the EPA Regional Coordinator will guide the State along the correct path to develop an effective and beneficial State 404 Program. ------- 10 ------- For Further Information Section 404 Program Strategy Library Services (MD-35) U.S. EPA Research Triangle Park NC 27711 (919) 541-2777 A Guide to the Dredge or Fill Permit Program (C-6, July 1979) A Guide to the Consolidated Permit Regulations (C-8, May 1980) Best Management Practices Guidance, Discharge of Dredged or Fill Materials (EPA 440/3-79-028, September 1979) U.S. EPA Public Information Center (PM-215) 401 M St., S.W. Washington DC 20460 Wetlands: A Case for Protection Wetlands Slide/Tape Presentation (Available on loan) Eileen Hopewell, Librarian NTOTC Lending Library U.S. EPA Cincinnati OH 45268 (513) 684-7503 Section 404 (b) (1) Guideline Reference Aquatic Protection Branch (WH-585) Attn: Bob Sanford 401 M St., S.W. Washington DC 20460 Consolidated Permit Regulations 45 Federal Register 33290 (May 19,1980) Available from EPA Regional Offices Index to Consolidated Permit Regulations Guidance to State 404 Program Regulations U.S. EPA State Programs Task Force Aquatic Protection Branch (WH-585) 401 M St., S.W. Washington DC 20460 Soon to be Available: Informational Handbook Series six handbooks aimed at dredgers, engineers, farmers, developers, foresters, and the oil and gas industry (December 1981) State Programs Booklet Series seven booklets concerning State 404 Programs and the resources in seven ecological regions of the U.S. (June 1981) Wetlands: America's Forgotten Natural Resources (February 1981) America's Wetlands 16 mm film (February 1981) EPA Regional Offices EPA Region 1 JFK Federal Bldg. Boston MA 02201 Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont* 617-223-7223 EPA Region 2 26 Federal Plaza New York NY 10007 New Jersey, New York, Puerto Rico, Virgin Islands* 212-264-2515 EPA Region 3 6th and Walnut Streets Philadelphia PA 19106 Delaware, Maryland, Pennsylvania, Virginia, West Virginia, District of Columbia 215-597-4081 EPA Region 4 345 Courtland Street NE Atlanta GA 30308 Alabama, Georgia, Florida, Mississippi, North Carolina, South Carolina, Tennessee, Kentucky 404-881-3004 EPA Region 5 230 S. Dearborn Chicago IL 60604 Illinois, Indiana, Ohio, Michigan, Wisconsin, Minnesota 312-353-2072 EPA Region 6 1201 Elm Street Dallas TX 75270 Arkansas, Louisiana, Oklahoma, Texas, New Mexico 214-767-2630 EPA Region 7 324 East 11th Street Kansas City MO 64106 Iowa, Kansas, Missouri, Nebraska 816-374-6201 EPA Region 8 1860 Lincoln Street Denver CO 80295 Colorado, Utah, Wyoming, Montana, North Dakota, South Dakota 303-837-3878 EPA Region 9 215 Fremont Street San Francisco CA 94105 Arizona, California, Hawaii, Nevada, Pacific Islands 415-556-1840 EPA Region 10 1200 Sixth Avenue Seattle WA 98101 Alaska, Idaho, Oregon, Washington 206-442-1203 11 ------- The States' Choice Will* 12 ------- |