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. ------- 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. ------- 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. ------- 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 Federal Relay Service: 800-877-8339 4 ------- |