Whether you’re a private landowner, developer, municipality, public agency, or organization, the Clean Water Act requires permitting before construction or development occurs near U.S. waters. In this post, Nichoel Church, Environmental Scientist for Snyder & Associates, shares a cautionary tale about the importance of 404 permitting and how to comply to protect yourself and our valuable natural resources.
Stream Realignment Causes Downstream Flooding
“Hi there—I just received a cease and desist letter that mentions an $850,000 penalty fee! I don’t know what I need to do to, or why I need to do it? I was just trying to use more land for my garden and make it easier to farm…I wasn’t trying to break the law,” stated a landowner that I spoke with by phone.
A cease and desist letter is a warning that requires specific actions to occur by a specified date. In this case, the letter was sent because the Clean Water Act, which protects rivers, lakes, streams, wetlands and other bodies of water, had been violated.
Unaware of the environmental impacts and Section 404 of the Clean Water Act, the landowner had straightened a creek on his property. A few months later when it rained in spring, several downstream neighbors experienced excessive flooding. This was the first time flooding had occurred, prompting his neighbors to notify the state authorities about the straightening of the stream.
State authorities contacted the U.S. Army Corps of Engineers (USACE), which is the agency that enforces the Clean Water Act. After investigating and determining that a violation had occurred, they sent the landowner a notification letter.
Why is 404 Permitting Important?
Altering a stream channel, or any body of water for that matter, can have serious consequences.
In this instance modifying the stream changed the flow and speed of the water when it rained, exceeding the channel’s capacity to contain it, which caused downstream flooding. Other negative impacts that may occur include erosion, loss of soil, soil deposition, and a loss of riparian buffer such as trees and grass along the water’s edge. When a riparian buffer is compromised, the negative impacts expand to include changes in water temperature, disruption of the ecosystem, and loss of species.
However, these effects can be avoided by obtaining a 404 permit, which ensures that engineering is completed in an integrated manner involving the modeling, review, and analysis of proposed changes to account for downstream effects.
After-the-Fact (ATF) Permits
The letter the landowner received stated corrective measures, which were to submit construction drawings to re-meander the stream on the former alignment within 30 days and obtain an “After-the-Fact” permit. If the stream wasn’t fixed, enforcement would include serious consequences of civil and criminal penalties.
When the USACE was contacted regarding the requirement of resolution, the regulatory contact was understanding but firm. Information was shared on Section 404 of the Clean Water Act and what needed to occur to correct the violation. The USACE also directed the landowner to a list of engineering consultants who could assist with the design to re-meander the stream channel. Snyder & Associates was listed as an expert in stream design and environmental permitting, making us the firm of choice.
Guiding 404 Permitting Success
I discussed the letter, permitting requirements, and design needed to move forward with the landowner. Using aerial imagery, my colleagues and I reviewed the original stream alignment before it was straightened. Next, our survey team conducted a topographic survey of the straightened stream.
The data showed that the straightened stream was approximately 2,000 linear feet shorter than it was before. This explained an increase of water moving through the stream and the smaller floodplain surrounding it, which led to downstream flooding.
To move forward quickly and efficiently, the landowner allowed us to become an authorized agent. From that point on, we were able to work directly with the USACE on their behalf. We understood the landowner’s rationale for straightening the stream and were committed to finding a solution that would work for everyone.
Together with the USACE, we determined that the stream would benefit from two large meanders on an alternate alignment with a riparian buffer spanning its length. Re-meandering the stream this way would increase its length by 1,700 feet, and adding the riparian buffer would increase the floodplain to reduce flooding concerns.
Within 30 days, our water resources department developed a design that satisfied both the USACE and the landowner. Within 60 days, the landowner received a letter from the USACE approving the design with an After-the-Fact 404 permit. The landowner thanked us for navigating the 404 permitting process and for identifying a positive solution that allowed them to farm with ease.
Steps in the 404 Permitting Process
Permitting is a process that takes careful thought and due diligence. Given the complexity of the application and enforcement, 404 permitting is often misunderstood. With consistently changing regulations, guiding clients successfully through the process has become a navigational effort. The story detailed above, describes the process after the Clean Water Act had been violated. But what if you’re just starting a project? What steps do you need to take to comply with Section 404 of the Clean Water Act?
- Our initial steps include a wetland and/or stream delineation of your property to identify jurisdictional waters of the United States.
- If your project site doesn’t include U.S. waters, no further action is required, but documentation of the determination is strongly recommended.
- When waters of the U.S. are present, we’ll review the project with you to gain a deeper understanding of the goals you have for the property and work with you to avoid or minimize impacts.
- Finally, we’ll determine if a nationwide, regional, or individual permit is needed and submit a joint application to the USACE on your behalf to authorize project activity.
It’s important to keep in mind that the time it will take to secure a 404 permit depends on the project, the state in which the project is located, and how significant of an impact it will have. As always, it’s best to avoid impacts altogether. The primary goal of Section 404 is to ensure that there’s no sustained net loss of aquatic resources. When unavoidable, we’ll guide you with environmentally friendly solutions to minimize and mitigate the impact, such as mitigation banks.
For additional information on 404 permitting or to learn more about how we can help, fill out our environmental services request form. We’ll put you in touch with a member of our team who can answer any questions you have and help you get started on the path to 404 permitting success.