What Is Considered A Violation Of
Section 404 Or Oregon's Removal-
Fill Law?
Violations fall into two broad categories:
1. Failure to comply with the terms and
conditions of a Section 404 or ODSL
permit. The Corps and ODSL are typically
the lead agencies for resolving these types of
violations; or
2. Discharge of dredged or fill material to
waters of the United States without a
permit when one is required. Either the
Corps or EPA, in conjunction with ODSL,
may be the lead enforcement agency for
unauthorized activities.
What Are The Penalties For An
Unauthorized Activity Under 404?
It is EPA's general policy to seek complete
restoration of impacted waters where an
unauthorized discharge would not qualify for an
after-the-fact authorization under Section 404.
Restoration often includes monitoring periods
which can extend up to 10 years to ensure the
site restoration goals have been met.
In addition to restoration, EPA may also seek
penalties up to $37,500 per day for violation of
Section 404 requirements. EPA can also seek
criminal penalties for Section 404 violations.
EPA generally reserves its criminal enforcement
authority for flagrant and egregious Section 404
violations.
Working in waterways or wetlands without an
ODSL permit or contrary to the conditions of
an issued permit, is a criminal misdemeanor in
Oregon punishable by a fine of up to $6,250 and
one year in jail. Violators may also be subject
to a civil penalty of up to $10,000 per day of
violation.
Where Can I Learn More?
• U.S. Environmental Protection Agency
Region 10 404 Program Webpage: http:/
yosemite.epa.gov/R10/ecocomm.nsf/
Wetlands/Wetlands
• U.S. Army Corps of Engineers Portland
District Regulatory Program website: htt]
www.nwp.usace.army.mil/op/g/home.asp
• Section 404 of the Clean Water Act: a copy
can be found on EPA's website at: http://
www.epa.gov/QWQW/wetlands/regs/sec404.
html
• Regulatory text for the Section 404 program
can be found in the federal Code of Federal
Regulations at 40 CFR Parts 230-233 http://
ecfr.gpoaccess.gov
• The Construction Industry Compliance
Assistance Center (CICA): CICA is a
source for plain language explanations of
environmental rules for the construction
industry. CICA website: http://www.
cicacenter.org/wetlands.htl
• Oregon Department of State Lands
Wetlands/Waterways Removal-Fill website:
http://oregonstatelands.us/DSL/PERMITS/
index, shtml
&EPA
EPA-910-R-09-009
United States
Environmental Protection
Agency
Clean Water Act § 404
Regulatory Overview for Oregon
Oregon Operations Office
US EPA Region 10
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What Are The "Waters Of The United
States"
The "waters of the United States" protected
under the Clean Water Act (CWA) includes all
tidal and interstate waters, and certain lakes,
ponds, rivers, streams, impoundments, and
wetlands. Determining whether a particular
waterbody is a "water of the United States"
or jurisdictional can be complex. Information
on making these determinations can be found
at http://www.epa.gov/wetlands/guidance/
CWAwaters.html
Why Protect "Waters Of The U.S.?"
Clean water, including streams, shorelines,
estuaries and wetlands, all contribute to the
social, economic and environmental health of
our nation. We can't live without it. Protecting
the waters of the U.S. is an investment in our
quality of life.
Waters, including wetlands, provide essential
habitat for fish and wildlife. Wetlands are
some of the most productive ecosystems in
the world, comparable to tropical rain forests
and coral reefs. Salmon, ducks and otters are
examples of animals that depend on aquatic
habitats. Wetlands that are part of stream
and river systems provide critical rearing and
overwintering habitat for juvenile salmon.
Healthy aquatic habitats support economically
important industries in the Pacific Northwest
such as recreational and commercial fishing.
Wetlands are extremely important for water
storage and protecting water quality. By
retaining snowmelt and runoff, they help to
recharge the groundwater that supplies our wells
and they stabilize stream flows and lake levels.
This also helps to reduce flood events and flood
damage.
Wetlands filter sediment, nutrients, and toxic
pollutants out of surface water. This helps to
keep pollutants out of our wells and out of the
lakes where we fish and swim. The construction
of water treatment plants to do the same
thing would cost millions of dollars for every
community.
What Is The Clean Water Act Section
404 Permitting Program And How
Does It Work In Oregon?
Section 404 of the CWA establishes a permitting
program for the discharge of dredged or fill
material into waters of the United States. The
discharge of dredged material can include re-
deposition of fill materials, such as soils, into
waters at the site. Examples of activities which
may require Section 404 permits are: using
equipment to re-channelize a stream; using
heavy equipment to land clear wetlands; and
ditching.
The U.S. Army Corps of Engineers (Corps)
and the U.S. EPA co-administer the Section
404 program. The Corps issues Section 404
permits that meet the environmental standards
developed by EPA. EPA provides oversight of
the Section 404 program. EPA reviews proposed
permit activities, evaluates compliance with the
program's regulations (the 404(b)(l) Guidelines)
and prohibits the issuance of permits in some
instances. Both agencies have enforcement
authorities.
In the State of Oregon, aquatic resources are
also regulated by the Oregon Department of
State Lands (ODSL) under an independent state
authority. Under Oregon's Removal-Fill Law,
state permits are required for most activities that
affect more than 50 cubic yards of material in
streams, lakes, estuaries and wetlands. Almost
all activities, regardless of size, need a permit
in Oregon Scenic Waterways and in streams
designated "essential salmonid habitat."
What Are The Permitting
Requirements?
Permits can be issued for the placement
of dredged or fill material if there are no
practicable alternatives to the proposed activity,
and if impacts to the aquatic environment
have been avoided and minimized to the
maximum extent practicable. The Section
404 (b)(l) Guidelines require that only the
least environmentally damaging practicable
alternative for any project be authorized.
There are several different types of permits
available from the Corp and ODSL. An
individual permit is used for projects that do
not qualify for categorical permitting and/
or for projects proposing significant impacts
to the aquatic environment. Other categories
of permitting such as Nationwide permits (or
General Authorizations by ODSL) and Regional
General Permits are available for projects that fit
defined categories of activities that have minimal
impacts to the aquatic environment. NOTE: The
Corps and ODSL use a joint application form
since many projects that require a federal permit
also require a separate state permit.
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