egion 10
Clean Water Act Section 404 Q&A
TACT SHEET
EPA Region 10 Clean Water Act Section 404 Q&A
U.S. Environmental Protection Agency, Region 10
# 910-F-09-005
October 2009
If your construction project involves work in waters of the United States, including wetlands, most
likely you will need to obtain a Clean Water Act Section 404 permit from the U.S. Army Corps of
Engineers ("Corps"). Since this authorization is required under Section 404 of the Clean Water Act,
they are sometimes referred to as "Section 404" permits.
What is Section 404 of the
Clean Water Act?
In 1972 Congress passed the Federal Water
Pollution Control Act, more commonly known
as the Clean Water Act. The goal of the Clean
Water Act is to "restore and maintain the chemical,
physical, and biological integrity of the
Nations waters."
There are multiple sections of the Clean Water
Act that specify how to achieve this goal.
This includes permitting requirements for the
discharge of materials, including pollutants,
into waters of the United States. Section
404 establishes a permitting program for the
discharge of dredged or fill materials. The
discharge of dredged material can include re-
depositing materials, such as soils, into waters at
a site. Examples of activities which may require
a Section 404 permit are using equipment to re-
channelize a stream; using heavy equipment to
land clear wetlands; and ditching.
What are the "waters of the
United States"?
The "waters of the United States," protected
under the Clean Water Act include all tidal
and interstate waters, and certain lakes, ponds,
rivers, streams (whether perennial, intermittent,
or ephemeral), impoundments, and wetlands.
Determining whether a particular water body
or wetland is a "water of the United States"
can be complex. Information on making this
determination may be found at http://www.epa.
gov/wetlands/guidance/ CWAwaters.html.
Why protect "waters of the
United States"?
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 United States is an investment in our quality
of life.
• They provide essential habitat for wildlife like
fish and waterfowl. Salmon, ducks, and moose
are examples of animals that depend on aquatic
habitats. For example, wetlands within a stream
system provide critical rearing and overwinter-
ing habitat for juvenile salmon. Young salmon
use near shore marine environments for food
and shelter.
These habitats are important in supporting
our regional recreational and commercial fish
industries. A 2006 report by the Kenai River
Sportfishing Association found that recre-
ational salmon fishing in Upper Cook Inlet
in Alaska generated direct spending of $415
million and total sales of $532 million. This
spending supported approximately 6,100 full
time jobs, producing $171 million in income.
Other studies have found that anglers have
spent $489 million fishing in Oregon waters;
$1 billion fishing in Washington waters; and
$344 million fishing in Alaska waters1.
1 Stedman, S. and Hanson,}. Habitat Connections:
Wetlands, Fisheries and Economics. National Oceanic
and Atmospheric Administration Website: www.nmfs.
noaa.gov/habitat/habitatconservation/publications/
habitatconections/habitatconnections.htm. Accessed
7/1/2009.
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EPA Region 10 - Clean Water Act Section 404 Q&A
• Pollutants and sediments are captured through
stream buffer vegetation and wetlands. These
waters filter out harmful pollutants resulting in
healthier drinking waters, swimming areas and
wildlife habitat. Constructing water treatment
plants to capture the same amount of pollutants
and sediments could cost millions of dollars. For
example, an EPA study found that a $5 mil-
lion water treatment plant would be needed to
remove the same amount of pollutants as the
Congaree Bottomland Hardwood Swamp of
South Carolina.
• Wetlands store runoff from heavy rains and snow
melts, reducing flood damage. Wetlands help
stabilize stream flows and lake levels. Loss of
wetlands can result in increased floods and
flood damage. Flood damage in the United
States averages $2 billion each year, causing
loss of life and property. In 2007, severe flood-
ing closed 1-5 in Washington and resulted in
more than $47 million in losses associated with
freight transportation2. A study in Washington
State estimates the value of wetlands in flood
protection to be as high as $51,000/acre3.
How does the Section 404
permitting program work?
The Corps and EPA co-administer the Section
404 program. The Corps issues Section 404 per-
mits that meet the environmental standards. 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.
Permits can be issued for the placement of dredged
or fill material if there are no practicable alterna-
tives to the proposed activity, and if impacts to the
aquatic environment have been avoided and mini-
mized to the maximum extent practicable. The
2 Washington State Department of Transportation. 2008.
Storm-Related Closures of 1-5 and 1-90: Freight Trans-
portation Economic Impact Assessment Report Winter
2008-2008. WA-RD 708.1.
3 Washington State Department of Ecology, 1997. The
Economic Value of Wetlands: Wetlands' Role in Flood
Protection in Western Washington. Ecology Publication
No. 97-100.
404 (b)(l) Guidelines require that only the least
environmentally damaging practicable alternative
for any project be authorized.
Nearly half of the wetlands in the continental
United States had been lost by the time the Clean
Water Act was enacted by Congress. A national
"no net loss" of wetlands has been in effect since
1989. To meet this goal, compensatory mitigation
must generally be provided for project impacts
through the creation, restoration, enhancement, or
preservation of other wetlands or waters.
In 2008, the Corps and EPA issued new regula-
tions on the standards for mitigation projects. All
permit applications must now include a discussion
of mitigation for the proposed project.
Does a Section 404 permit
cover all of permitting needs
for activities in waters?
Work in waters and wetlands may be regulated on
multiple levels: local, county, state and federal. For
example, a federal Rivers and Harbors Act Section
10 permit ensures a project will not obstruct
or alter a navigable water of the United States.
A Clean Water Act Section 401 certification
requires that work in waters and wetlands comply
with state or tribal water quality standards. Your
work may require a National Pollution Discharge
Elimination System permit for stormwater
discharges. Therefore it is important that you
check with your state and local governments to
find out which laws apply to your project.
How do I determine if
a Section 404 permit is
required for my project?
Ask your local Corps staff if Section 404 applies to
your project.
You may require a permit if your project:
• Impacts wetlands or other waters of the United
States. Get to know your property. Gather rel-
evant documents such as property descriptions,
topographic maps, aerial photographs, zoning
maps, floodplain maps, U.S. Fish and Wildlife
Service National Wetland Inventory maps,
ordinances or ordinance summaries, etc.
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EPA Region 10 - Clean Water Act Section 404 Q&A
Example of excavated materials placed on to a 'wetland 'which could be subject to Section 404.
If wetland locations and/or boundaries must be
determined more precisely, you may request a
wetland delineation by a Corps staff member
or hire a local consultant.
• Involves the discharge of dredged or fill material
into 'waters or 'wetlands. Many activities fall un-
der the definition of discharge of dredged or fill
materials. For example, the Corps definitions of
these terms include: filling wetlands for com-
mercial, recreational or industrial development;
bank stabilization projects that require rip rap;
fill associated with roads, dams or dikes; and
beach nourishment. The Corps definition of
these and other terms can be found in the Code
of Federal Regulations at 33 CFR 323.2.
What is considered a
violation of Section 404?
Violations fall in to two broad categories:
• Failure to comply with the terms and conditions of
a Section 404permit. The Corps is typically the
lead agency for resolving these types of viola-
tions.; or
• Discharging dredged or fill material to waters of
the United States without a permit when one is
required. Either the Corps or EPA may be the lead
enforcement agency for unauthorized activities.
How are violations of
permits or unauthorized
activities detected?
There are multiple ways for EPA and the Corps
to learn of potential Section 404 violations. These
include citizen tips, information from state and
local counterparts and random site inspections. If
the Corps discovers an unauthorized activity, it will
generally issue a Notice of Violation and/or Cease
and Desist letter.
If EPA discovers an unauthorized activity, it may
issue an information request about an alleged vio-
lation. EPA's information request letters are sepa-
rately enforceable documents under Clean Water
Act Section 308.
The Corps and EPA can also perform a site in-
spection to determine if a violation has occurred.
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EPA Region 10 - Clean Water Act Section 404 Q&A
EPA has credentialed federal inspectors who
inspect sites for compliance with the Section 404
requirements (for a full copy of the requirements,
see: www.epa.gov/OWOW/wetlands/regs/
sec404.html).
What are the penalties for an
unauthorized activity?
It is EPA's general policy to seek complete restora-
tion of impacted waters where an unauthorized
discharge would not qualify for 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 pen-
alties up to $37,500 per day for violations of Sec-
tion 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.
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 Wetlands and
Waterways Regulation and Permitting Webpage:
www.usace.army.mi]/CECW/Pages/ww_reg_
permitaspx
• Section 404 of the Clean Water Act: a copy can
be found on EPA's website at www.epa.gov/
OWOW/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 4
http://ecfr.gpoaccess.gov.
• The Construction Industry Compliance Assistance
Center (CICA)
• CICA is your source for plain language expla-
nations of environmental rules for the con-
struction industry. The CICA Wetlands sec-
tion contains useful features that will help you
understand the regulations and find out how to
comply. Also, there are links to related resourc-
es. CICA website:
www.cicacenter.org/wetlands.html
Who should I contact for
more information about
Section 404?
You can contact the U.S. EPA for further informa-
tion by calling: (800) 424-4EPA.
&ERA
U. S. Environmental Protection Agency
1200 Sixth Avenue, ETPA-081
Seattle, Washington 98101-1128
If you need materials in an alternative format, please
contact Caryn Sengupta TTY users please call the
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