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  Wetlands

SECTION 404 PROGRAM

Although there are five government agencies in Illinois with primary wetland regulatory authority, the USACE is considered the lead agency. In Illinois, there are five USACE districts: Chicago, Louisville, Memphis, Rock Island, and St. Louis. Click here to see in which USACE District you reside.

Section 404 of the Clean Water Act "prohibits the discharge of dredged or fill material into waters of the United States without a permit from the U.S. Army Corps of Engineers" (Hubbell et al. 1995). These "waters of the United States" include all waters and wetlands that could be important for interstate commerce purposes, and have traditionally included: territorial seas; coastal and inland waters; lakes, rivers and streams that are navigable; tributaries to these waters; wetlands adjacent to these waters or their tributaries; interstate waters and their adjacent wetlands; tributaries to these waters and their adjacent wetlands; and all other waters not identified above (U.S. Army Corps of Engineers 1987). Click here for USACE Section 404 Guidelines.

The USACE jointly administers Section 404 authority with the USEPA, the administering agency for the entire CWA, and receives oversight support from the USF&WS. Under a Memorandum of Agreement (MOA) between the USEPA and the Department of Defense (DOD), the USACE is given sole responsibility for making final permit decisions pursuant to Section 404 and, "conducts jurisdictional delineations associated with the day-to-day administration of the Section 404 program" (U.S. Department of Agriculture 1996). The USEPA retains the authority to enforce compliance with Section 404 and maintains the power to overrule USACE decisions on the issuance or denial of permits (U.S. Environmental Protection Agency 1995). If there is a dispute about whether an area can be regulated, the USEPA has the ultimate authority to determine the actual geographic scope of waters of the United States subject to jurisdiction under all sections of the CWA, including the Section 404 regulatory program (U.S. Department of Agriculture 1996). Click here for USEPA section 404 guidelines.

If an activity is planned to take place that is likely to result in the discharge of a dredge or fill material into a wetland or any other water of the United States, the USACE must be contacted so the activity may be considered for a 404 permit. The USACE is not required to approve every application that is submitted. It has the authority to deny any permit request that does not comply with established criteria or meet minimum standards. One such criteria is that an applicant must prove the wetland impact cannot be avoided and that every feasible step has been taken to minimize the effects of the activity (Strand et al. 1997 and U.S. Environmental Protection Agency 1995).

Nationwide Permits

Because the USACE handles a large volume of applications and must process them efficiently, a Nationwide Permit (NWP) system has been established. NWPs are the vehicle through which the USACE authorizes approximately 80 percent of the activities they regulate. A NWP is a general permit intended to apply throughout the United States and its territories. A NWP is designed to eliminate the need to issue an individual permit for specific small-scale activities which minimally affect wetlands. NWPs allow certain activities to take place in waters of the United States which meet precise limitations and result only in minimal impacts (Strand et al. 1997).

On February 11, 1997, the USACE reissued 40 NWPs. At the time this document was completed, not all of the NWPs reissued by the USACE were valid in Illinois. Several NWPs still required Section 401 certification from IEPA. Section 404 applications filed under one of these uncertified NWPs must be subjected to an individual Section 401 review by IEPA. If persons are interested in learning the details of any of the NWPs, including the specific minimum standards and their current status in Illinois, they should contact their local USACE District Office (U.S. Army Corps of Engineers 1997).

Section 404 Exemptions
Not every dredge or fill activity occurring in a wetland requires a permit from the USACE. The Section 404 program has provisions that exempt certain activities from the permitting process. The USACE primarily focuses on regulating activities in wetlands that are not agricultural in nature. Activities that are exempted from Section 404 regulations include: "normal farming, ranching,and silviculture activities; maintenance and emergency reconstruction of damaged structures; construction and maintenance of farm or stock ponds, irrigation ditches, or temporary sedimentatio basins; and construction of farm, forest, or temporary roads." Click here for the full list of exempted activities. All other activities resulting in the discharge of dredge or fill material into wetlands including: "land-clearing efforts, stream channelization, bridge piling operations, and discharges subject to other authorities" are subject to Section 404 regulations (Hubbell et al. 1995).

Section 404 Enforcement
If an adverse impact to a wetland involving the discharge of dredge or fill material occurs without the proper permits having first been secured from the USACE and the activity is not exempted, the entity performing the activity is out of compliance with federal law and is subject to penalties. If the proper permits were secured from the USACE, but the terms and conditions of those permits have not been followed, the entity performing the activity is still considered out of compliance with federal law and is subject to penalties. Both the USACE and the USEPA have the authority to enforce Section 404 violations through several avenues. In a 1989 MOA between the two agencies it was decided the USACE would have the lead responsibility for enforcing violations when the terms and conditions of an issued permit have not been followed. When the violation involves non-permitted activities the USACE and USEPA determine which agency will take the lead in enforcing the activity based upon the criteria contained in the MOA (Strand et al. 1997 and U.S. Environmental Protection Agency 1995).

Both the USACE and the USEPA may issue orders requiring violators to cease activities and/or undertake steps to correct the violations. Cease and desist letters can be issued to any public or private entity, and they should be taken seriously. The recipient of such a letter must either immediately stop the illegal activity and apply for a permit and/or reconcile the damages or risk serious prosecution (Strand et al. 1997 and U.S. Environmental Protection Agency 1995).

In addition to issuing cease and desist orders and requiring remediation, the USACE and USEPA may levy administrative penalties up to $25,000 per day, per violation. A violator may also be faced with criminal penalties as high as $250,000 and 15 years imprisonment for an individual, and as high as $1,000,000 for an organization. In addition, an individual may face civil penalties up to, but not exceeding, $125,000 per activity (Strand et al. 1997 and U.S. Environmental Protection Agency 1995).

Participants in an activity which will potentially impact a wetland should contact their local USACE District Office to find out if the activity requires an individual permit. If an activity is not exempted or does not fall under a NWP or another valid general permit, an individual permit must be secured. Once an application requiring an individual permit has been filed, it is posted for approximately 30 days to allow the public to comment on the activity. This comment period opens the application to review by individual citizens, special interest groups, and local, federal, and state agencies. At this time the IEPA must certify that the proposed activity complies with the water quality standards of the state. At the end of this public review period, the USACE may issue or deny the permit or hold a public hearing before making a final determination. If a permit is denied, a project cannot legally proceed. If a permit is approved, the project may proceed providing it follows the specifications required by the USACE in the permit (Strand et al. 1997 and U.S. Environmental Protection Agency 1995).

[ Introduction   | Section 404 Program  |  Nationwide Permits & General Conditions | Section 401 Program |Critical Resource Waters |  | Swampbuster Prog.  | Interagency Wetlands Policy Act of 1989  |  Rivers, Lakes & Streams Act  | Wetland Detmermination & Delineations |Conclusion ]

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