To protect human health and the environment, waterways in the United States are strictly regulated by the Environmental Protection Agency (EPA). Whether you’re a private landowner, a for-profit developer, or a public or private agency or organization, the Clean Water Act (CWA) is the primary law governing water pollution. The CWA also requires certain permits to be obtained before construction or development occurs near U.S. waters.
The rules for one of these permits can be found in Section 404 of the CWA. Specifically, Section 404 seeks to avoid or minimize losses to wetlands and other waters of the United States (WOTUS) by regulating the discharge of dredged or fill material. This includes altering or filling a jurisdictional water body for any of the following reasons:
- Commercial or residential development
- Water resource projects (i.e., levees and dams)
- Waterway enhancements (e.g., county or state parks)
- Infrastructure projects (i.e., roads, bridges, trails, and airports)
- Mining and resource extraction operations
- Various other operations
One goal of the 404 permitting program is to encourage landowners and developers to consider practical alternatives that may be less damaging to the WOTUS; and that any action taken will not significantly degrade a protected body of water. The mere act of applying for a permit means that you’re able to show that steps have been taken to avoid impacts to nearby waters and, where unavoidable, the potential impacts have been minimized.
For those projects that simply can’t avoid impacting a WOTUS, 404 permitting acts as the equalizer. The issuance of the permit assures that any negative effects on a protected body of water are mitigated and that compensation will be provided for all remaining unavoidable impacts. The idea behind 404 permitting isn’t to prevent progress or make it difficult to complete projects — it’s to ensure the quality of the nation’s waterways for future generations.
Experienced Professionals to Handle Complex Rules
Navigating the complexities of the 404 permitting process requires the services of a knowledgeable and trusted partner. The professional staff at Snyder & Associates has almost two decades of experience performing this service for our clients. Led by Principal Environmental Scientist, Jeff Walters, our team is fluent in handling all permit types (more on this later) and we’ll work with the regulatory body to ensure your permit is completed as efficiently as possible.
As part of a multi-disciplinary organization, our environmental scientists can handle any type of stand-alone WOTUS project that requires 404 permitting. Additionally, our team is backed by a full staff of civil and structural engineers to coordinate on larger projects that may have a water component, such as a bridge or dam. And because the Clean Water Act is a fluid document that is periodically revised due to new legislation, you’ll benefit from engaging an experienced team that works tirelessly on your behalf using the most current information.
New Navigable Waters Protection Rule (NWPR)
The introduction of the Navigable Waters Protection Rule (NWPR), finalized in January 2020, is a recent example of changes that can occur to the Clean Water Act. The NWPR establishes a new definition for waters of the United States that revises the 2015 definition. In short, the NWPR creates four categories of jurisdictional waters that are federally regulated under the CWA and twelve categories of excluded waters and water features. The four categories of jurisdictional WOTUS defined by the NWPR are:
- Territorial seas and Traditional Navigable Waters (TNW)
- Certain lakes, ponds, and impoundments
- Wetlands adjacent to jurisdictional waters
Within these four categories of jurisdictional WOTUS, key changes that we’ve identified as having the greatest impact for our clients include:
- Removal of jurisdictional status for ephemeral streams
- Lakes, ponds, and impoundments are jurisdictional ONLY if they have connectivity to TNW and tributaries
- Wetlands adjacent to TNW, tributaries, ponds, lakes, and impoundments are jurisdictional, even if they have a physical separation
- Ditches may have jurisdiction under certain circumstances
The list of waters excluded from jurisdiction as defined by the NWPR is as follows:
- Waterbodies not included in the four categories listed above
- Ephemeral features
- Diffuse stormwater run-off
- Ditches not identified as WOTUS
- Prior Converted Cropland (PCC)
- Artificially irrigated areas that would revert to upland if irrigation ceased
- Artificial lakes and ponds
- Water-filled depressions incidental to mining or construction activity
- Stormwater control features
- Groundwater recharge, water reuse, and wastewater recycling structures
- Waste treatment systems
Despite these changes, the workflow process for identifying WOTUS, including wetlands, still includes the completion of a wetland and stream delineation, first. Also, HEC-RAS modeling can be used in tandem with a field delineation to perform inundation mapping and create inundation depth datasets. The use of HEC-RAS modeling benefits our clients by verifying the jurisdiction of a wetland or stream. This, in turn, should reduce the USACE review process when determining jurisdiction on complex projects.
The changes brought about by the NWPR have a greater impact once wetland and stream delineations are completed and the permitting phase of a project begins. The U.S. Army Corps of Engineers (USACE) is responsible for issuing Section 404 permits and monitoring their compliance. As USACE district offices begin phasing in these new rules, our team will continue to question and challenge district decisions to best serve our clients. Our thorough understanding of the new NWPR definitions ensures that we’re better able to advocate for our clients and help streamline the permitting process.
Working with the USACE
Permitting a project with the USACE shouldn’t cause project delays and cost overruns. When handled by experts in the field, it’s similar to securing a building permit from a city or county office. Having performed nearly 500 wetland delineations over the past 20 years, our team ensures that every project is permitted appropriately, on time, and without any added expense. We’re well-versed in the nuances of Section 404 and have forged relationships with the critical decision-makers in most district USACE offices — one of the many vital, unseen benefits that we bring to the table.
There are three key elements to successfully obtain a USACE permit: understanding of impacts, the appropriate level of documentation, and time. Section 404 permits fall into one of three categories; Nationwide (NWP), Regional (RP), and Individual Permits (IP). The USACE typically only issues two of these types, NWPs and IPs. The main difference between an NWP and IP is a project’s scale of impact on aquatic resources, including rivers, streams, and wetlands.
The USACE will issue an NWP when impacts to wetlands are less than one-half acre in size and is separated from the nearest river or stream by less than 300 or 500 linear feet, respectively. When impacts exceed these thresholds, the USACE will issue an IP. An IP requires additional documentation, as well, including threatened and endangered species reviews, alternatives, analysis, and cultural resources investigations. It should also be noted that all projects exceeding one-tenth acre of wetland impacts and/or 300 linear feet of stream impacts require mitigation.
Most Nationwide and all Individual Permits require a wetland and stream delineation to identify wetland and stream boundaries within the project site. The delineation report includes the project location, purpose and need of the proposed action, and a summary of findings. Impacts are determined by transferring the delineated wetland and stream boundaries into the project design plans. Snyder & Associates uses the wetland delineation reports and design plans to directly fill out the USACE permit application form. Turnaround time for receiving an NWP is typically 6-8 weeks, while an IP is generally received in about 180 days.
Early Professional Involvement Beneficial for All
Whenever possible, we recommend engaging our environmental sciences staff early in the project scope. This allows us to best serve you by determining the necessary level of documentation and time required to obtain a USACE permit and to ensure the permitting process is completed as efficiently as possible. However, we fully recognize that a lack of understanding of permitting requirements or existing property conditions can lead to a delay in seeking outside support. And that’s not uncommon. So even if our professionals aren’t consulted until late in the game, we’re still equipped to complete the job successfully.
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 the Snyder & Associates team who can answer questions and help you get started on the path to 404 permitting success.