CWA Section 404 and 401 Permitting Workshop Final Slides · 22/5/2018 · The Clean Water Act The...

Clean Water Act

Section 404 and 401 (& Section 10 of the Rivers and Harbors Act)

Permitting Workshop

Spring 2018

Partners: WSDOT Liaison Program

US Army Corps of Engineers Seattle District Washington State Department of Ecology

Table of Contents Acronyms

Module 1 - Corps Permitting Program Overview

Module 2 - Making friends with the 2017 Nationwide Permits (404/10 permits and 2017 NWPs)

Module 3 - 401 Water Quality Certification Overview and Permit Processes

Module 4 - JARPA Preparation and Submittal

Module 5 - 404 Exemptions (Maintenance)

Acronyms

Acronyms i

401 Section 401 of the CWA

402 Section 402 of the Clean Water Act

404 Section 404 of the CWA

AJD Approved Jurisdictional Determination, Corps

AO Administrative Order, Ecology

BO Biological Opinion (ESA)

Corps US Army Corps of Engineers

CWA Clean Water Act

CZMA Coastal Zone Management

DE District Engineer, Corps

Ecology Washington Department of Ecology

EPA Environmental Protection Agency, US

ESA Endangered Species Act

HPA Hydraulic Project Approval, Washington Department of Fish and Wildlife

HRM Highway Runoff Manual, WSDOT

IC Individual Certification, Ecology 401

IP Individual Permit, Corps

ISPG Integrated Streambank Protection Guidelines

JARPA Joint Aquatic Resource Permit Application

LOV Letter of Verification, Ecology 401

MHHW Mean higher high water

MHW Mean high water

NFA No further action, Ecology 401

Acronyms ii

NGC National General Condition, of the NWPs

NHPA National Historic Preservation Act

NPDES National Pollutant Discharge Elimination System, Section 402 of the CWA

NWP Nationwide Permit, Corps

OHW Ordinary high water

PCN Pre-construction Notification

RGC Regional General Condition, of the NWPs

SEPA State Environmental Policy Act, Washington

TDA Threshold Discharge Area

WOUS Waters of the US

WQC Water Quality Certification

Introduction- Susan Buis, Corps Liaison with WSDOT.

Photo: https://umweltstiftung.allianz.de/v_1437051301000/media-

data2/projekte/05_umweltkommunikation/27_kuehkopf/titel_kuehkopf.jpg

Mod 1- Corps Permitting Program

Overview 1

There are two (2) laws that mandate the permits the Corps requires and are covered in

this workshop:

• Section 10 of the Rivers and Harbors Act

• Section 404 of the Clean Water Act (CWA)

For more information info on these and other Corps permits see the Corps’ Permit

Guidebook at http://www.nws.usace.army.mil/Missions/Civil-

Works/Regulatory/Permit-Guidebook/Corps-Permit/.

Photo: top- Washington Department of Natural Resources webpage, bottom-

premiertransport.net

2


Overview

Section 10 of the Rivers and Harbors Act of 1899

The purpose the Rivers and Harbors Act is to ensure the free flow of interstate commerce

on our aquatic “highways” and the navigability of navigable waters. Remember that before

there were modern roads that rivers and lakes were the way people and goods got around

most easily.

A Section 10 permit is required for any structure or work in (above or below) navigable

waters of the US. This includes but is not limited to:

Buoys/floats bulkheads

Marinas dredging

Breakwaters Piers

Fill Boatlifts

Piling marine railways

boat ramps disposal of dredged material

A “navigable water” is currently used or was used in the past or may be used in the future

to transport interstate or foreign commerce, or any water in which there are tides. For

Section 10, You and I don’t decide; we go by an established list. The list can be found on the

Corps website.


Overview 3

Also, Lake Washington, Lake Washington Ship Canal, Lake Union, Samish River, and

many more.

Lists of Navigable Waters and Section 404 Traditional Navigable Waters in Washington

State can be found in the Chapter 4: Streams, Rivers, and Tidal Waters of the Corps

Permit Guidebook at http://www.nws.usace.army.mil/Missions/Civil-

Works/Regulatory/Permit-Guidebook/.


Overview 4

On some rivers, only part is considered navigable and therefore under section 10

jurisdiction. For example, on the Yakima only 11 miles are considered navigable.

Lists of Navigable Waters and Section 404 Traditional Navigable Waters in Washington

State can be found in the Chapter 4: Streams, Rivers, and Tidal Waters of the Corps

Permit Guidebook at http://www.nws.usace.army.mil/Missions/Civil-

Works/Regulatory/Permit-Guidebook/.


Overview 5

The Clean Water Act

The purpose of the act is to restore and maintain the chemical, physical and biological

integrity of the Nation’s waters (or Waters of the US).

To do this, the Clean Water Act established national permitting programs and water

quality monitoring and reporting requirements:

The CWA permit programs we’re concerned with today are:

• Section 401, water quality certification

• Section 404, discharge of dredged and fill material into Waters of the US

Before we go into more detail on Section 404, you must first understand what is meant

by “Waters of the US”.


Overview 6

Waters of the US

The Corps has jurisdiction under Section 404 over Waters of the US (WOUS).

There is a long list of what is defined as a “Water of the US”. In general, it means waters

that;

• Are navigable

• Are used for interstate or foreign commerce

…

Photo: top- The News Tribune, bottom- Port of Seattle


Overview 7

• Are tidally influenced

• Cross state lines

Photo: bottom- GoogleMaps, top- NOAA tide charts


Overview 8

• Are tributaries of the waters listed above

• Are wetlands adjacent (connected) to waters listed above – Adjacent will be defined

in a couple slides.

For more information see the 1986/1988 Regulatory Definition of "Waters of the United

States“ at https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-

water-act and the Corps Permit Guidebook at

http://www.nws.usace.army.mil/Missions/Civil-Works/Regulatory/Permit-

Guidebook/Corps-Permit/Limits-of-Jurisdiction/.


Overview 9

Corps jurisdiction in tidal waters

There are two high tide levels on west coast; Mean High Water (MHW) and the high

tide line or Mean Higher High Water (MHHW).

In tidal waters, the Section 10 jurisdiction line is MHW, which is the lower high tide.

The Section 404 jurisdiction line is MHHW, which is the higher high tide.

Section 404 regulates more waters than Section 10 does (blue box).

FYI – on the east coast, the two high tides are the same height. The Gulf of Mexico has

only one high tide each day.


Overview 10

Corps jurisdiction in fresh waters

In fresh water, the Section 10 jurisdiction line is up to (below or over) Ordinary High

Water (OHW) Mark.

Section 404 jurisdiction would include below OHW and tributary rivers, streams,

adjacent wetlands, etc. The Corps phrase is “waterward”.

Section 404 regulates more waters than Section 10 does (blue box).

On tidally influenced rivers, such as the Columbia River, consult with your Corps liaison

to determine where the jurisdiction line is for your project location; it will vary by river

mile.


Overview 11

Ordinary High Water

For tidal waters, Mean High Water and Mean Higher High Water are measured

elevations that you look up online.

For fresh water, the OHW is a line you find in the field by looking for elevation, soil, or

plant changes, water stains on rock, presence of litter & debris, etc. as shown in this

photo.

For help identifying the OHW, look at the Corps RGL 05-05: Guidance on Ordinary High

water mark Identification at http://www.usace.army.mil/Missions/Civil-

Works/Regulatory-Program-and-Permits/Guidance-Letters/.

Ecology’s Coastal Training Program has an excellent class on finding the OHW mark in

the field. Check their course schedule to see when the next class is available

(http://www.coastaltraining-wa.org/page-1811068).


Overview 12

Adjacent wetlands under Corps jurisdiction

Adjacent wetlands are those that are close enough to have a hydrological connection.

The stream on the left is a WOUS because it flows into a navigable river, so it’s

jurisdictional. The wetland to the left of it is jurisdictional because it is adjacent to the

stream.

Even though the wetland on the right is not abutting the WOUS, it is still adjacent and

jurisdictional because there is likely a hydrological connection under the earthen berm.

The size of the berm is irrelevant, any natural or man-made berm does not make a

wetland un-connected. So a single wetland on one side of I-5 would be considered

adjacent to regulated waters on the other side.


Overview 13

Is the wetland in the photo adjacent?

The Corps doesn’t regulate isolated wetlands but Ecology does.

A wetland is isolated if it does NOT have a surface or relatively shallow and short

underground connection to a water of the US. In other words, it is not considered

adjacent.

To determine if a wetland is isolated, you need to look at landscape position,

which Corps staff will do using maps or on a site visit.

The wetland on this slide is isolated. It doesn’t have a surface connection and if

there is an underground connection, it is deep and quite a distance to the streams

on either side of it.


Overview 14

Here’s a graphic representation of what you need to know to determine if a

wetland is isolated… Not really.

The Corps determines whether a wetland is isolated or not. This is called a

jurisdictional determination.

If you think you have an isolated wetland, coordinate with a Corps liaison,

document what you know about it, and submit page 5 of Regulatory Guidance

Letter (RGL) 06-01 to get written agreement that the wetland is isolated.


Overview 15

Ditches

If a ditch is excavated in an upland, intercepts the groundwater table, and develops an

Ordinary High Water Mark (OHWM), it becomes a Water of the US (WOUS) IF it

connects to a WOUS. If an upland ditch that does NOT connect to a WOUS develops

wetland characteristics it would still not be regulated.

Make sure to include any ditches constructed in uplands on the as-builts. That will make

it easier in the future to determine the jurisdiction in the event that the ditch develops

some wetland characteristics in the future.

If a ditch connects to a WOUS, it is regulated by CWA Section 404, since any impact to

the ditch could be transmitted downstream to the WOUS.


Overview 16

A ditch excavated in a wetland at the toe of the road embankment where there is no fill

is a Waters of the U.S. (WOUS). The line of jurisdiction would extend to the wetland

boundary where the wetland is NOT on fill. Wetlands that develop on the road

embankment (fill) are not WOUS. The boundary of a wetland that develops on fill can

be really hard to delineate accurately. Ask for help from the WSDOT ESO Wetland

Program and/or a Corps liaison. The Corps will probably want to review the line in the

field.

The initial construction of the ditch would be fill and require a permit if the ditch is

constructed in a WOUS. Once constructed, the ditch becomes part of the

transportation structure. Then it can be maintained as part of the road without needing

a permit. If it is later filled, for example as part of a road widening, then a permit would

be needed because it is still a WOUS if constructed in a WOUS.


Overview 17

Discharge

Section 404 permits the discharge of dredged or fill material in any water of the U.S.

It is important to note that this says “fill” not “structure”. Section 10 regulates

structures (mostly) and Section 404 regulates fill.

Clean excavation is not considered discharge as long as there is only incidental fallback.

Incidental fallback is the minor amount of material that may fall from the sides of a

bucket excavator during excavation.

Photo: USACE


Overview 18

Activities that are considered the discharge of dredged or fill material include:

• placement of fill (rock or dirt)

• mechanized land clearing

• grading

• excavation (including ditching in some instances, we talked about this)

• piling (if wet concrete poured in place. A pre-made concrete piling installed is

not. If a form placed in the WOUS and wet concrete is poured into the form,

the work would be regulated as fill.)

Photo:

1) Dolos in Germany Creek, the Olympian

2) WSDOT Roadside Design webpage

3) SR 20 Fish Creek excavation, WSDOT Flickr


Overview 19

Introduction- Sandi Manning, Corps liaison with Ecology.

1Mod 2- 404/10 permits and 2017 NWPs

Section 404 Authorizations

There are two types of 404 authorizations; general and individual permits. Your work

may be exempt from getting a section 404 authorization if it is for maintenance. See

Module 5: Exemptions for additional information.

• General permits- this includes Nationwide permits (NWP). General permits are

permits that are issued for a category of work. When your work is covered under one

of the existing general permits, like NWP 14 for linear transportation projects, the

Corps is verifying that you are covered. They are not issuing you your own permit for

the work.

• Individual permits (IP)- When an activity is neither exempt nor covered under a

general permit. An individual permit is a permit that you apply for and receive if

approved. It’s yours and only yours, you don’t have to share it with 40,000 other

people. A standard IPs is for projects that have impacts that exceed the minimum

impact types that general permits cover, they require a public notice, and usually

receive much more public, agency, and tribal scrutiny, and generally take a year

longer than a NWP to process.


What are Nationwide Permits?

Nationwide Permits (NWP) are general permits for activities that are minimally

impacting (generally < 0.5 acres fill).

The NWPs are valid for 5 years. They were just reissued on March 18, 2017, and are

good until March 17, 2022. Any activities permitted under the 2017 NWPs must be

complete by March 17, 2023, or they must be re-authorized under the new NWP or IP.

There are 54 activity-specific NWPs.

It takes less time to verify under a general permit, like the NWPs, than to have your

work approved under and IP. Once the Corps has a complete application, they only have

45 days to issue a permit decision. Luckily most of WSDOTs work fits under the NWPs

and is processed much quicker than the national average thanks to the Liaison Program.


Section 10 Authorizations

The approval actions under Section 10 used by WSDOT are coverage by a NWP and

Individual Permits. For approval through the NWPs, the Corps will issue the Section 10

with there verification of coverage under the NWP. This is most common for Ferries

projects.

If your have work in a Section 10 water (below the MHW line or OHWM), then your

work cannot be exempt from getting a permit.


2017 Nationwide Permit User’s Guide

The Users Guide has several tiers of conditions and requirements. All the National and

Regional General conditions, the activities, activity-specific conditions, the water quality

certifications; all in one place.

As soon as you think you will need a Section 404 permit, review this guide and follow

the directions on the WSDOT permitting webpages.

It is important to know early on the type of permit you may need; individual or

Nationwide. This will help you properly plan your project schedule and have the right

information for your application.


Nationwide Permits consist of several tiers of conditions for Section 404, Section 10,

and Section 401:

• Corps’ National general conditions- Apply to all work anywhere in the nation.

(Section 4 of the User’s Guide)

• Corps’ Regional general conditions- Apply to all work in Washington State.

(Seattle District conditions, Section 3 of the User’s Guide)

• Corps’ Activity specific description- These are the individual NWP, each of

which is a category of activities that have limits and restrictions within the

text of the NWP. (Section 5 of the User’s Guide)

• Corps’ Regional NWP-specific conditions- Apply to work anywhere in the

Washington State that is using a specific Nationwide, found in Guide under

the NWP description. (Section 5 of the User’s Guide)

• Ecology’s Section 401 Water Quality Certification general conditions (Section

7 of the User’s Guide)

• Ecology’s Section 401 Water Quality Certification NWP specific conditions

(Section 7 and 5 of the User’s Guide)


Notifying vs. non-notifying

The Pre-Construction Notification (PCN) is needed for certain Nationwide permits and when triggered by a Regional or National General Condition.

If a PCN is required, then you have to notify the Corps by applying for verification to use the Nationwides. In Washington this means submitting a JARPA. You cannot begin construction without the verification from the Corps.

For example, a PCN/JARPA if:

• If greater than no effect for ESA/106

– If using Programmatic BO or 4-d for ESA (because these would not be considered a no effect)

• ALL Bank Stabilization

• ANY new or modified/extended culverts

• ANY loss of linear feet of stream channel

• ANY project that will have permanent wetland losses that exceed 1,000 sf (requires mitigation plan)

If the activity is covered and does not require a PCN/JARPA, then the coverage is non-notifyingand you can proceed without submitting an application to the Corps.

For the majority of WSDOT work, a PCN/JARPA will be required.


Example: Nationwide Permit 14

You will see the text Nationwide 14 starts on page 49. This is the definition of what

activities can be covered under this nationwide and when.

Then on page 50, it details out what the PCN requirements are for that nationwide.

It tells you which regional general conditions and national general conditions apply and

links back to them for quick reference.

For each nationwide, it also directs you back to the national and regional conditions for

information on the PCN requirements.

Then the State, Tribal, or EPA 401 conditions are listed.

This is the same format for each NWP.


PCN Requirements

The national and regional conditions for PCN requirements have changed since the 2012 Nationwides.

You are still required to submit a PCN/JARPA and plan sheets. Now you must also submit:

• Documentation to meet ESA and Section 106 of the National Historic Preservation Act

‒ If the Corps is the federal lead, ESA and 106 must be complete in order for them to issue a permit decision. You will need to coordinate with the Corps during those processes if they are the lead.

‒ If there is another federal lead, usually the Federal Highway Administration or Federal Transit Administration, then the Corps only needs to know the preliminary effect determination. The Corps will need to be a Cooperating Agency on the Memorandum of Agreement when there is an adverse effect for Section 106. If the consultations are not complete by the time the Corps is ready to issue the permit decision, they will add a condition to the permit that the consultations must be complete prior to the start of the permitted activity

• Color photos of pre-project condition showing the Water of the US and Shoreline condition. This requirement can be met if there are photos in the wetland or stream biology reports or mitigation plan.

• Mitigation plan for greater than 1,000 sf of permanent wetland loss


Process for determining if you can use a NWP

When you have a project or work that you may want to cover under the NWPs, follow

these three steps:

1. Check the activity specific NWPs to see which permit your activity or type of

work may be covered by.

2. Check the Regional and National conditions for that NWP to see if your work

meets them.

3. Check the general conditions that apply to all activities to see if your work

meets them.


Nationwide Permits for WSDOT projects

This module will only cover changes to the most commonly used NWPs

and key conditions.

This table shows WSDOTs usage of the 2012 Nationwide Permits (March 2012-March

2018). The permits are ranked from most to least used. The average duration is also

included just to give you an idea of how long some of the permits can take from receipt

of the JARPA at the Corps to when the permit is issued.

The four most commonly used NWPs for WSDOT are:

• 14 - Linear Transportation Projects

• 13 - Bank Stabilization

• 27 - Aquatic Habitat Restoration, Establishment, and Enhancement Activities

• 3 – Maintenance

When you go to use the User’s Guide, start out by checking these four permits as well

as NWP 23 – Approved Categorical Exclusions. If you only anticipate having temporary

impacts, first go to NWP 33 - Temporary Construction, Access, and Dewatering.


NWP 14 can be used for constructing or improving roadway projects.

No change from the 2012 permits!

Just a couple important things to remember:

• You can only use this nationwide for up to a half acre of non-tidal and 1/3 of

an acre of tidal impacts.

• You have to notify the Corps (submit a PCN/JARPA) if you:

• Discharge to a special aquatic site (like a wetland or riffle and pool

complex; see EPA General Condition 1-Special Aquatic Sites on page

114 and 115 for the full list)

• Impacts are greater than 0.1 acres


NWP 13 can be used to stabilize banks for erosion control or prevention.

Barbs have been added to the list of bank stabilizing activity examples.

Make sure to always coordinate with the Corps liaisons if the material placed exceeds 1

cubic yard per running foot.

Other important things to remember are that:

• All new bank stabilization ALWAYS requires a PCN.

• You will need to include the additional information for RGC 5.

• If you have greater than 1 cubic yard per running foot, your work requires DE

approval. You can still use the NWP if Corps agrees to waive this requirement.

• Work greater than 500 linear feet (measured along the red line for barbs) also

requires DE approval.


Examples of uses of NWP 13


This drawing is a good example of the different types of bank stabilizing activities that

can be covered under NWP 13.

This is also a great example of a drawing to submit with the JARPA.


NWP 27 can be used for activities that restore or enhance aquatic resource functions, this includes stand-alone mitigation sites. It cannot be used for any work that has a transportation need.

The JARPA must now include a description of the benefits of the project.

This requirement was added to the NWP 27 specific regional condition that also requires that the PCN include:

• Why the loss is necessary (when there is a loss)

• How the loss be fully offset by beneficial impacts of projects (when there is a loss)

• Pre-project site conditions (including photographs)

• General wetland and other aquatic functions the site provides

• Proposed maintenance and monitoring plans

o The monitoring currently done as part of the Tribal Culvert Injunction is sufficient to meet this requirement

o If during monitoring the culvert is not passing all life stages of salmon, retrofits may be required

There is not an impact area limit to use NWP 27. However, if your impacts are close to or over half an acre the Corps will likely take a closer look at the purpose and work and whether the work is for a non-aquatic related need.


If you have a fish passage or other project to improve aquatic habitat, consider using

NWP 14 instead of 27 to save you from having to do all the additional documentation.

Projects verified under NWP 27 cannot include mitigation. In a few projects where

there were more than minor impacts to Cat I or II high quality wetlands WSDOT has

proposed, or the Corps’ has required, mitigation. The Corps usually does not require

mitigation for the work associated with fish passage and improving habitat even if NWP

14 is used for WSDOT projects.


NWP 3 can be used for maintenance on any previously authorized fill or fill placed

before 1978. It also authorizes the removal of sediments and debris around authorized

fill or structures like culverts and bridge footings.

Allowed activities have changed a little since the 2012 NWPs:

• Added that any channel modification must be adjacent to or within the

boundaries of previously authorized fill.

• New riprap is not allowed; use NWP 13 bank stabilization.

• The removal of sediments is limited to within 200 ft of existing structure. The

existing structure can be any part of the roadway or transportation structure,

including previously authorized ditches.

• Allows for “minor deviation” in configuration or filled area, material

size/type, and if needed for other agency requirements (example – HPA

mitigation). So if the work is not exempt (same type of material and

footprint) a NWP 3 may work for your project.

NWP 3(c) allows temporary fill if needed to maintain the structure (example: access

road to reach bridge or culvert). This is one of the only areas where greater than ½ acre

fill is allowed, but it is temporary and site restoration is required.


These four Regional General Conditions and their changes since the 2012 NWPs are

important to note for WSDOT projects.


If your work includes new bank stabilization, make sure to include the following

information in the PCN/JARPA:

• Cause of erosion, distance of existing structures from new work

• Other bank stabilization within 300 feet

• Current and post project habitat conditions (fish, wildlife, special aquatic

sites)

• Use of least environmentally damaging methods (including bioengineering,

woody material, root wads, bank planting, beach nourishment, ISPG)


Water crossings are culverts or anything that goes across a water of the US.

If you have a water crossing where salmonids listed in the culvert injunction (Chinook,

steelhead, Coho, chum, pink, and sockeye) are present, stream sim or a method that

provides passage at all life stages must be used.

If you don’t use stream sim, you will need to include additional information on why not

in the PCN/JARPA and explain how the design will provide equivalent or better fish

passage than stream sim.

The Preliminary Basis for Design (PBOD), now Preliminary Hydraulic Design (PHD), may

have much of the information the Corps needs. For fish passage projects, it may be

helpful but is not required to submit the PBOD or PHD with your application to the

Corps.

This RGP now requires monitoring also. WSDOT projects that use the Fish Passage

project monitoring protocols satisfy this condition. Contact the WSDOT Stream

Response Program Manager (Susan Kanzler) for a copy of the protocols.


If you have any stream loss you will need to submit a PCN.

You cannot have any loss of perennial streams or a net loss of 300 feet of

ephemeral/intermittent stream.

The stream loss restriction can be waived by the district engineer on a case-by-case

basis. If you think you will need the waiver make sure to coordinate with the Corps

liaisons as soon as possible.

For fish barrier removals or aquatic habitat enhancement projects, any stream loss

would be self mitigating due to the overall watershed benefits and site

restoration/planting, woody material placement, etc. Stream loss for other work not

associated with aquatic habitat enhancement may require mitigation.


If you have more than 1000 square feet of permanent impacts you will have to mitigate

at least at a 1:1 ratio. You will also need to submit a mitigation plan with your JARPA .

The Corps may still ask for mitigation for impacts less than 1000 square feet. WSDOT

typically provides this unless it is for fish barrier removals.

It is important to note that temporary impacts that last longer than 6 months may also

require mitigation, or in cases where tree removal is needed due to long-term

temporary impacts.


Tips to using the NWPs

A couple final tips on using the 2017 Nationwide permits:

• NWP 14 is your friend- you will usually want to start there.

• The loss of greater than half an acre of waters of the US is only allowed for

NWP 23, 3(c), 27, and 33.

• Sandbags ARE fill and can be covered under NWP 18 or 3(c).

• PCN needed:

o For all projects that cannot meet a no effect for ESA

o For NWP 18 - If you have over 10 cubic yards, or if any fill is placed in a

wetland


Introduction- Marc Hershfield, 401 Water Quality liaison with Ecology.

401 Water Quality Certification Overview

Similar to Section 404, Section 401 of the Clean Water Act is an important part of

protecting our nation’s waters. This module will introduce 401 Water Quality Certifications

and will show how they interact with Section 404; focusing on when work is done under

one of the 2017 Nationwide permits.

1

Mod 3- 401 Water Quality Certification/

Permit Processes

Section 401 of the federal Clean Water Act (23 CFR Sec. 1341 (Section 401))

If you have work that requires a federal permit or license and that has the potential

discharge into the Waters of the US then you will need a certification from the state in

which that water originates that there is “reasonable assurance” that the work will meet

the state water quality standards. For Washington, these can be found in the Water

Quality Standards for Surface Waters of the State of Washington, Chapter 173-201A WAC.

For most waters in Washington, the agency with jurisdiction is the Washington Department

of Ecology (Ecology). For waters on a Tribal Reservation, either the Tribe (if they have 401

approved) or the Environmental Protection Agency is the 401 lead. If a tribe or the EPA are

the 401 lead, it will take longer to get through the permit process. You will need to factor in

more time in your project schedule.

2


Permit Processes

Ecology jurisdiction in and around tidal waters

Remember this slide from the 404 jurisdiction discussion?

The need for 401 certification is triggered if there is work (discharge) the same area as

Section 404 and 10 (blue box) and a Corps permit (a federal permit) is needed.

Ecology’s 401 jurisdiction consists of all potential discharges; including construction and

operation of the facility (purple box). This can include work above MHHW (high tide line).

The 401 defers to the 402 NPDES permit as much as possible when work is covered under a

402 permit.

Ecology also issues water quality certifications for projects authorized under Section 10 if

there is an associated discharge. Ecology notifies the Corps when they are going to require

a Section 401.

3


Permit Processes

Ecology jurisdiction in and around fresh waters

The same goes for 401 jurisdiction in fresh waters as tidal waters. Section 401 can and does

cover work in uplands. 401 staff works with the 402 staff when there is NPDES coverage.

Things to consider when looking for where Ecology would have 401 jurisdiction include:

• Work below OHW of receiving water and in wetlands

• Upland with adjacent wetlands

• Conversion of upland to wetland

• Temporary Staging area in a wetland (this is a likely 401 trigger)

4


Permit Processes

Section 401 Water Quality Certifications

Ecology issues water quality certifications for general permits, like NWPs, or individual

certifications.

This module focuses on the certifications for the 2017 NWPs.

5


Permit Processes

401 Certifications of 2017 Nationwide Permits

Ecology reviewed the Corp’s 2017 NWPs and issued three different types of 401 water

quality certification decisions for them:

• Certified- No additional review required by Ecology if Corps determines that

project meets all NWP State General Conditions.

• Certified, subject to conditions- Ecology Section 401 review is required for

projects or activities where State Specific Conditions have not been met. Ecology

can issue a Letter of Verification (LOV) if the conditions from Ecology can be met;

Ecology is verifying that your work is in compliance with their certification of the

NWPs. If Ecology’s conditions cannot be met, Ecology will require an individual

Section 401 Water Quality Certification.

• Denied without prejudice- All projects or activities authorized by NWP must

obtain an individual Section 401 Water Quality Certification.

If your work does not fit a nationwide and requires an individual permit from the Corps,

you will first need an individual Section 401 Water Quality Certification from Ecology.

6


Permit Processes

The Corps’ Users Guide is not only the one-stop-shop for the Corps’ NWP information.

The guide also contains everything you need to know regarding Ecology’s 401 water quality

certification decisions and conditions for the NWPs.

For additional information on the 401 Certifications for Nationwide Permits see Section 7

of the Corps NWP User’s Guide. Relevant 401 certification information can also be found in

Section 5 with the NWP you intend to use.

7


Permit Processes

General conditions

These conditions apply to all work regardless of the Nationwide permit being used. Make

sure to review them each time you think you will need a 404 and 401 permit.

The 8 general conditions are:

• In-water construction activities

• Discharging to IMPAIRED waters

• Application – JARPA info and exhibits

• Aquatic resources requiring special protection

• Mitigation

• Temporary fills

• Stormwater pollution prevention

• State 401 review for PCNs

Photo: WSDOT Flickr

8


Permit Processes

NWP-specific conditions

These conditions apply only when the associated NWP is being used. Conditions may

trigger Ecology’s review of the JARPA to verify the work meets water quality standards or

that an individual certification is needed or conditions may trigger an individual

certification.

For example, this is page 50 and 51 of the User’s Guide. It shows the 401 certification of

NWP 14, and what triggers Ecology’s review (area, type of activity, and risks).

9


Permit Processes

10

Conditions for WSDOT projects

Overall the changes to Ecology’s conditions for the 2017 NWP were fairly minor. The next

few slides will review only the conditions for the four most common permits used and as

discussed in Module 2.


Permit Processes

Changes from the 2012 Nationwide conditions are that:

• Ecology review is now required for projects that impact more than 1/3 of an acre

of jurisdictional waters.

• Work in or adjacent to a contaminated site will also trigger Ecology’s review of

the project.

Photo source: Hanford nuclear reactor, Wikipedia

11


Permit Processes

There was a change to the area where Ecology’s NWP 13 certification applies.

An individual water quality certification is required for new or extended bank stabilization

in the marine and estuarine waters of the entire Salish Sea, not just Puget Sound.

12


Permit Processes

For the 2017 Nationwides, Ecology now has to review projects covered under NWP 27 that

are:

• Mitigation banks or advanced mitigation sites.

• In or adjoining a known contaminated clean up site.

Ecology will still also review projects that involve fill in tidal waters or affect ½ acre or more

of wetlands.

13


Permit Processes

There were no changes to the NWP 3 conditions.

Ecology review is still needed if:

• The project or activities are below the Ordinary High Water Mark (OHWM) with

new work being proposed outside the original footprint.

• The proposed project or activity increases the original footprint of the structure

by more than 1/10th acre in wetlands.

• The project or activity includes adding a new structure, such as a weir, flap

gate/tide gate, or culvert to the site.

14


Permit Processes

15

Coastal Zone Management Act (CZMA) Federal ConsistencyCZMA is separate from 401 decisions.

The State is required to review projects requiring a federal license or approval, to

determine consistency with the state Coastal Zone Management Program’s enforceable

policies. The State, Ecology, has made three determinations for specific NWPs:

• Concur- Ecology agrees that the project or activity is consistent with

Washington’s Coastal Zone Management Program and no further action is

required.

• Concur, Subject to Conditions: An individual CZM Consistency Determination is

required for projects or activities authorized by this NWP if state Section 401

review is required.

• Object: An individual CZM Consistency Determination must be obtained from the

State for all projects or activities authorized by this NWP.


Permit Processes

Permit Processes

There are five different permitting processes you could encounter depending on whether

your work meets the Nationwides and conditions and whether the Corps has jurisdiction.

The Liaison Program tracks how projects progress through these processes and uses the

information to report back to the host agencies and to WSDOT environmental staff how

long they might expect the 404/401 permitting to take.

16


Permit Processes

Any time your work qualifies for a NWP, the process will start like this. The Corps has a

statutory target of 45-days to issue a permit decision after they receive a complete

application.

Depending on where your project is, your project may need to go out for a 10-day tribal

notice.

Depending on the type of NWP being used, your project may also need to go out for a 10-

day agency review.

17


Permit Processes

Ecology’s review process will depend on how Ecology certified the NWP the Corps verified

the work under:

1) Certified without conditions or conditions met without triggering review - has no

further action (NFA). Ecology will make the determination with the Corps and an

NFA statement will be included in the Corps verification letter.

2) Conditions trigger Ecology review - results in review and a Letter of Verification

(LOV)

3) Corps NWP and denied without prejudice or condition triggers Ecology individual

certification (IC)

The benefit of having Ecology Liaisons is that they can start their review as soon as they get

the JARP; they don’t have to wait for the Corps to send them the NWP verification. They

will only have to wait for the Corps permit decision to issue their decision.

18


Permit Processes

When an IP is needed from the Corps, an individual certification is always needed for the

401.

The process starts with a joint public notice. This process is different from when you get

verified under a NWP because you get the 401 certification before the Corps issues the IP.

19


Permit Processes

For isolated wetlands, neither Sections 404 or 401 applies to the project. However, the

work may still trigger review under Ecology’s state-delegated jurisdiction.

You will still submit a JARPA to both the Corps and Ecology but the decision for Ecology will

be issued by the Wetland Specialist, not the 401 Water Quality Specialist. With the JARPA,

submit page 5 of the Corp’s RGL 06-01 at https://wsdot.prod.acquia-

sites.com/environment/technical/policies-procedures-permits/applying-permits-joint-

aquatic-resource-permit#IsoWetlands. Also see WSDOTs Determining jurisdiction of waters

of the United States webpage.

20


Permit Processes

Introduction- Tara Stone, Liaison Program Coordinator.

The Liaison Program manager and coordinator help make sure you are getting the

project support from the liaisons you need and to help make sure the liaisons are

getting the information and resources they need to issue a permit decision.

The Liaison Program Coordinator is now responsible for the complete application and

drawing guidance for 404 and 401 permitting.

1Mod 4- JARPA Preparation and Submittal

Before preparing a JARPA

Step 1, before preparing the JARPA or coordinating with the Corps and Ecology is

to….read the Users Guide!

Know which permit you think you could applying under. Know what the limitations and

requirements to use that permit.

The Users Guide tells you what the Corps and Ecology need to know to verify coverage

under the NWPs.


JARPA Form

The JARPA form is where you are going to highlight all the important information to make it as easy as possible for the liaisons to issue a permit decision. Having all the key information on the form will not only save the permitters from digging through the submittal documents; it will make your permitting process go much smoother and quicker.

Supplemental Documents

The information on the JARPA and drawings you need to submit doesn’t vary too much between the agencies. However, there is some difference in which supplemental documents each agency needs. Use the JARPA and Supplemental Documents Matrix on the WSDOT applying for permits with a JARPA webpage (http://www.wsdot.wa.gov/environment/environmental-technical/environmental-permits-approvals/applying-permits-joint-aquatic) to find out what documents to send and in which format depending on the type of action.

Submittal

To submit the JARPA to the Corps and Ecology liaisons, follow the process outlined on the WSDOT environmental liaison webpage (http://www.wsdot.wa.gov/environment/technical/environmental-liaisons). The webpage also has guidance for how and when to communicate with the liaisons during the permitting process.


Drawings

The drawings are one of the most important parts of the submittal. They tell the

liaisons what the work is, where the work is, and what the impacts are. The liaisons

also use the drawings for tribal and agency coordination and for public notices.

Drawings are the leading cause of incomplete JARPA submittals at WSDOT.

Before submitting, make sure that you have everything required from the Corps

Drawing Checklist. You can find the drawing guidance on the Corps Seattle Districts

Commonly Used Forms, Templates and Information Papers website

(http://www.nws.usace.army.mil/Missions/Civil-Works/Regulatory/Forms/)


Make sure the drawings are as clear as possible by following these tips:

• Monument markers, geotech sampling points, fiber optics, and other

engineering elements may not be part of the work resulting in impacts and

therefore do not need to be shown. Same with property or buildings far

outside the project area.

• Keep your drawings scaled so that the work and impacts are clearly visible.

• Use call-outs and profiles as needed and as appropriate. For example; having

a profile B-B out in the stream where there is no work doesn’t tell the Corps

what the discharge is. Having B-B at the headwall is great because it shows

the composition of the new structure including depth, size, material of the

headwall and proposed OHW and streambed design in the culvert.

• Make sure you have a north arrow.

• Make sure you also have the temporary impacts, not just permanent.

• Flow lines are really helpful.


The key information to make sure comes across clearly is:

• What was existing

• What is proposed

• Where are the permanent and temporary impacts

• Where is the water of the US (with OHW and buffers)


This is a great example of a profile drawing.

It clearly shows:

• Existing

• Proposed/new/work

• OHW

• Excavation and fill limits- including depth

• Fill composition- this is missing from a lot of drawings. Just showing the

proposed elevation or fill limits does not tell the regulators what is being

placed where. Make sure to include excavation depth and type of fill

material.


Title blocks

Make sure that the title blocks have all the necessary information (project name, Corps

permit number if you have it, date, page #, lat/long).

The dates on all the drawings need to match. This means that if one drawing needs

replaced, you will need to resubmit all the drawings.

The adjacent property owner information is only required for an Individual Permit (IP)

and there is a table in the JARPA form for this information. If you are submitting

drawings for an IP, just put “see attached” or “see JARPA”.


Impact tables

The number one reason drawings make applications incomplete is that the impact

tables on the drawings do not match the tables in the JARPA form.

Make sure the impact tables on the drawings are consistent with the JARPA form are

consistent with the mitigation report and/or wetland biology report.

If the numbers don’t match, for example there has been a design change since the

Mitigation Report was prepared that reduced the impact area, you need to explain why

the tables are different in the JARPA (Part 7 and Part 8).

Make sure that the codes or names used to identify different wetlands and water

bodies are consistent throughout all the documents also.


Complete application- 404/10 needs

For NWPs, the information to include in the JARPA and supplemental documents

depends on the Nationwide permit you are applying for. Check the text of the NWP,

national and regional general conditions, and permit-specific conditions to see what to

include.


Complete application- 401 needs

For 401, the information to include in the JARPA and the supplemental documents

depends largely on the type of water you are discharging to.

Each of the types of waters of the US below will have different requirements:

• Wetlands

• Waterways

• Stormwater

• Groundwater


Wetland Impacts

If you have wetland impacts, you will have to fill out Part 7 of the JARPA and submit:

• Wetland Biology Report with data forms and ratings

• Wetland Mitigation Plan (if compensatory mitigation is required)

o Indicate within the application how you have followed the mitigation

sequence by avoiding and minimizing impacts. Provide specific

examples such as adjusting road alignments and steepening slopes,

etc. Sometimes you may tweak the project so that impacts to higher

quality wetlands are minimized; documenting that is important.

12Mod 3- 401 Water Quality Certification

Stormwater impacts

You will need to provide specific information in the JARPA and supplemental documents if you have an increase in impervious surface area.

On the JARPA form, make sure to fill out:

• Part 6: Make sure stormwater activities, such as capacity increase or discharge to a 303(d) water, are described fully.

• Part 9: A brief explanation project meets Highway Runoff Manual (HRM) (9h).

Supplemental documents you will need to submit include:

• Stormwater Plan indicating water quality and flow control treatments

• Table with areas of new, replaced, and existing impervious surface

• Map depicting the Threshold Discharge Area (TDA) boundaries

It is also important to make sure during permitting that the numbers you are providing are consistent with your other environmental permits, approvals, or consultations. For stormwater, this especially means the Endangered Species Act consultation.

Photo: North Fork Native Plants


Waterways

For impacts to waterways, not including wetlands, you will need to fill out part 8 of the

JARPA form.

Make sure to include the following information in 8f:

• Potential construction sequencing

• Stream diversion

• Dewatering methods

• Concrete process water pH

Photo: WSDOT, Michelle Jacobs-Brown


1Mod 5 - 404 Exemptions (Maintenance)

Section 404 Authorizations- ExemptionsSome work is exempt from 404 permit requirements under Section 404(f)(1),

including the maintenance of transportation structures. This module will apply mostly

to the Regional Environmental Maintenance Coordinators (RMECs).

This module will review criteria work must meet to be exempt and the 3

common types of maintenance exemptions used by WSDOT;

• bank stabilization

• culvert repair

• bridge footing scour repair.

A full list of exempt activities and additional information on exemptions can be

found on the EPA 404 website (https://www.epa.gov/cwa-404/exemptions-

permit-requirements).


Criteria to be exempt

In order to be exempt, work must be consistent with previously authorized fill in the

following ways (33 CFR 323.4(a)(2)):

• Scope = The purpose of the work must be the same as the purpose of the

previous fill.

• Character = The material must be of the same type and size as was

previously placed.

• Size = The footprint of the work must be the same as the previous fill area.

The repair must also be done within a “reasonable period of time” after the damage

occurs.

Photo: WSDOT, North Fork Toutle River


Bank Stabilization

Example 1

This is an example of work that is not exempt. WSDOT needed to place new riprap

and so the size, or footprint, is different. This is also native soil, not road

embankment, so the character of the new fill is different than existing.

Photo: WSDOT


Example 2

Here is another example where WSDOT needed to repair the embankment. It is too

hard to tell what the eroded material was because of all the snow and we could not

determine if the project was exempt.

Photo: WSDOT, Nason Creek


Here is a close up of the same site with the snow removed. Looking to see if the

work would replace existing fill.

It was determined the road was built on native soil and common borrow. No riprap

was found upon site inspection. The river changed course and formed a new

meander bend.


Work proposed included new riprap embankment. Does not meet character

(common borrow to riprap).


Example 3

Existing riprap, replaced up to edge of pavement to be same size as previous fill, is

exempt to blue line because other rock of similar character is present.


Example 4

This work would likely be exempt except that it is in a Section 10 water, Lake Chelan.

Remember from Module 2, there are no exemptions for Section 10. A NWP was

needed for work below OHW


Example 5

This is the hardest example. The top photo shows existing embankment; bottom

shows new scour area forming.


The work on the left (yellow box) is repair to the existing embankment. The work is

above MHW out of Section 10 Jurisdiction, but below MHHW in the 404 jurisdictional

area. The repair was done to match the existing condition and the work was exempt.

Any work below MHW needed NWP 13.

The work to the right (pink box), where there was new scour forming, is new fill so

not exempt.


New work proposed (along blue line) is in an area where there was not previous

fill/riprap embankment and so it needed covered under NWP 13.


Culvert Repair

If replacing that failed culvert within the footprint of the transportation structure.

Can change configuration or make a larger size, just can’t lengthen beyond the

permitted fill area to meet the exemption criteria.


Culvert failure

The repair was able to be done entirely within the roadway prism and so was exempt.

There was some embankment repair also but it was separate from the culver and was

verified under a NWP.


Broken culvert

Repairing this culver would be exempt if in-kind replacement and no new fill needed.

Replaced fill would be allowed below culvert.

Photo: WSDOT


Here is the last culvert from a different angle. You can clearly see the break.


Bridge Footing Scour Repair

This photo shows a bridge footing repair that is exempt.

Reviewing the exemption criteria:

• Scope – yes bridge pier protection

• Character – yes, riprap replacement

• Size – yes same footprint as marked in red


In this photo you can clearly see the area where rock is missing.


In this photo you can clearly see the area where rock is missing. Replacing the rock

around these footings was exempt.


CWA Section 404 and 401 Permitting Workshop Final Slides · 22/5/2018 · The Clean Water Act The...

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