What Are The Penalties For An
Unauthorized Activity?
It is EPA's general policy to seek complete
restoration fo impacted waters where an
unauthorized discharge would not qualityfy 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
penalites 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.
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: http://www.usace.army.mil/
CECW/Pages/ww reg permit.aspx
• Section 404 of the Clean Water Act: a copy
can be found on EPA's website at: http://
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 httj
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.html
Contacts For Section 404
U.S. Environmental Protection Agency
Idaho Operations Office: http://yosemite.epa.gov/
RlO/HQMEPAGE.NSF/Idaho/IQQ+Qffice
(208) 378-5746
Walla Walla District of the U.S. Army Corps of
Engineers:
http://www.nww.usace.army.mil/html/offices/op/
rf/rfhome.htm
Walla Walla office: (509) 527-7150
Field Offices in
Idaho Falls: (208) 522-1645
Boise: (208) 345-2154
Coeur d'Alene: (208) 765-7237
Idaho Department of Water Resources, Stream
Channel Protection Program (for any work in
streams and rivers): http://www.idwr.idaho.gov/
WaterManagement/StreamsDams/default.htm
State office: (208) 287-4800
Regional offices in
Idaho Falls: (208) 525-7161
Twin Falls: (208) 736-3033
Boise: (208) 334-2190
Coeur d'Alene: (208) 762-2800
Idaho Department of Lands (for any work in
navigable waters, including lakes and many
rivers): http://www.idl.idaho.gov/bureau/smr/
navwaters/nw index.htm
State office: (208) 334-0200
Regional offices in
Coolin: (208) 443-2516
Sandpoint: (208) 263-5104
St. Maries: (208) 245-4551
Coeur d'Alene: (208) 769-1577
McCall: (208) 634-7125
Boise: (208) 334-3488
Twin Falls: (208) 324-2561
Local Government: Many local governments
have setback ordinances and floodplain
development ordinances. Please contact your
local government before construction.
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What Are The "Waters Of The United
States"
The "waters of the United States" protected
under the CWA include all tidal and interstate
waters, and certain lakes, ponds, rivers, streams
(whether perennial, intermittent or ephemeral),
impoundments, and wetlands. Determining
whether a particular waterbody is a "water of the
United States" can be complex. Information on
making this determination 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 moose 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 such as recreational and
commercial fishing. For example, a 2006 report
by the Kenai River Sportfishing Association
found that sport and personal use salmon fishing
in Upper Cook Inlet generated direct spending
of $415 million (2003 dollars) and total sales
of $532 million. This spending supported
approximately 6,100 full time jobs that produced
$171 million in income.
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. The State of Washington estimated the
flood protection value to be up to $51,000 per
acre of wetlands.
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?
Section 404 of the Clean Water Act establishes a
permitting program for the discharge of dredged
or fill materials into waters of the Unite 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. EPA
provides oversight of the Section 404 program.
EPA review 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.
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 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 CWA
was enacted by Congress. To better protect the
remaining wetlands, "no net loss" of wetlands
has been a national goal since 1989. In order
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
regulations on the standards for mitigation
projects. All permit applications must now
include a discussion of mitigation for the
proposed project.
What Is Considered A Violation Of
Section 404?
Violations fall in to two broad categories:
1. Failure to comply with the terms and
conditions of a Section 404 permit. The
Corps is typically the lead agency for
resolving these types of violations; or
2. 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.
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