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

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The States' Choice:
404 Permit  Program
United States Environmental
Protection Agency

Office of Water Regulations
and Standards

EPA 440/5-81-002

October 1980

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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

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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
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                                                                            in

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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

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   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

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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
                                               problems—resulting in the need for costly
                                               structural flood control, water purification,
                                               and water storage facilities—that 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

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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.

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   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

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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

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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.

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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.

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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
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The States' Choice
              Will*
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