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
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3
4
7
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11
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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.
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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
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
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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.
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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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