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Section 5: Wetlands/Streambed Permits

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Clean Water Act

Section 404 of the Federal Water Pollution Control Act Amendments of 1977 (Clean Water Act) authorizes the U.S. Army Corps of Engineers (Corps) to regulate material removed from or placed into “waters of the United States.” The jurisdiction of this law includes not only navigable waters but most other waters and wetlands adjacent to such waters.

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Waters of the United States

Waters of the U.S. can be any of the following:

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Wetland Defined

The Corps and the U.S. Environmental Protection Agency (EPA) jointly define wetlands as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

Three characteristics identify wetlands: vegetation, soil and hydrology. Indicators of all three must be present during some part of the growing season for an area to be a wetland. The area may be a wetland if any of the following exist:

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  • The area is in a floodplain or has low spots in which water stands at or above the soil surface during the growing season. Caution: Many wetlands lack both standing water and waterlogged soils during at least part of the growing season
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  • The area has plant communities that commonly grow in areas with standing water for part of the growing season. Examples include cypress swamps, cordgrass marshes, and cattail marshes.
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  • The area is periodically flooded by tides, even if only by strong, wind-driven or spring tides.
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Section 404 Permits

Section 404 Permits are required by the U.S. Army Corps of Engineers (USACE) in relation to work that will add or remove discharge of material in “waters of the U.S.” and associated wetlands. For additional guidance refer to the Environmental Manual.

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Activities That Require Permits

Activities in wetlands or streambeds that may require a permit include, but are not limited to:

Activities typically do not require a 404 Permit, if they:

Before beginning any work in streambeds or suspected wetlands, consult your district environmental coordinator to determine if a permit is needed.

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404 Permitting for Maintenance Activities

Maintenance activities that involve dredge or fill of material within a Water of the U.S. can usually be permitted under the Section 404 Nationwide Permit Program (NWP). These permits address specific activities that would result in pre-approved impacts, and authorizes those activities and impacts as long as the permittee complies with the conditions of published permit being sought. Some activities that typically do not require 404 permits are grass and wildflower establishment, noxious weed control, chemical vegetation control, right of way mowing and trimming.

There are currently over 40 types of nationwide permits, with several that are frequently used to permit maintenance activities. With few exceptions, anticipate that pre-construction notice (PCN) will be required and provided to the USACE prior to the work being performed. Once an approval has been obtained from the USACE, the activity may commence. Plan ahead and consult with your district environmental coordinator to determine the most appropriate 404 permit type. A listing of all 404 Nationwide Permits can be located on the USACE website.

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