Section 404 of the CWA regulates discharge of materials into waters of the U.S., including wetlands, and is administered by the Army Corps of Engineers (the Corps or COE).

History

By the 1970’s, some of the nation’s rivers and lakes had become so degraded from sewage, toxic chemicals and other pollutants that they were virtually lifeless. The American public’s growing concern about this water pollution led to the amendment in 1972 of the Federal Water Pollution Control Act of 1948. This amended act is commonly referred to as the Clean Water Act or CWA. The CWA’s objective is to maintain and restore the integrity of the nation’s waters by regulating pollutants discharged into them.

The CWA has several sections. The main section affecting landowners in the Northern Colorado area is Section 404, commonly called the wetland permit (although Section 404 also regulates discharges into some streams and water bodies).

When is a CWA Permit needed?

Generally, a CWA permit is always needed before discharging dredged or fill material into any jurisdictional waters of the U.S., including wetlands (there are some exemptions for farming and forestry activities). The type of permit needed varies, depending on the size and type of project and amount of impacts on jurisdictional waters of the U.S. as described under the Type of CWA Permits section below.

What is a jurisdictional water of the U.S (including wetlands)?

The definition of jurisdictional waters of the U.S. has changed over the years because of Supreme Court decisions. The current Army Corps of Engineers and EPA guidance defines jurisdictional waters as traditionally navigable waters, their tributaries, and associated wetlands. For the Lefthand, Saint Vrain, Big Thompson and Little Thompson watersheds, jurisdictional waters include the four main drainages (Left Hand Creek, St. Vrain Creek, Big Thompson River and Little Thompson River), their tributaries and associated wetlands. The Corps’ jurisdiction also includes some irrigation canals. If you are uncertain if a small tributary (such as a dry sandy wash), irrigation canal or an isolated cattail pond on your land is jurisdictional, call the Denver Regulatory Office or a wetland specialist for information.

What part of a stream or waterbody does the Corps regulate?

Generally, a CWA permit is always needed before discharging dredged or fill material into any jurisdictional waters of the U.S., including wetlands (there are some exemptions for farming and forestry activities). The type of permit needed varies, depending on the size and type of project and amount of impacts on jurisdictional waters of the U.S. as described under the Type of CWA Permits section below.

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What is a wetland?

The Corps defines 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 to support, a prevalence of vegetation typically adopted for life in saturated soil conditions.

In more common terms, wetlands are areas where water is present at or near the soil surface for a long enough periods to form wetland soils that support wetland plants. The Corps regulations require that all three of the following criteria be present to be classified as wetlands. If only one or two of these criteria are present, then the Corps does not consider the area a wetland. (However, other entities such as Boulder and Larimer Counties do consider these wetlands when only meeting one or two of the three criteria). If you live in Boulder or Larimer County, you may need to adhere to wetland permitting requirements even if your property only meets one or two of the criteria.

Water needs to saturate the soil during the growing season for long enough to support wetland plants. This period can range from one month to the entire growing season. Surface water can be present, but does not have to be.

Wetlands along a stream can be difficult to delineate. Where would you draw a line between wetlands and uplands on the photo at right?

When soils are saturated for long enough, anaerobic conditions (lacking oxygen) develop. Hydric soils can have visible indicators such as mottles or iron depletion. The soil in the photo at right displays iron depletion (seen as the rusty orange color).

Photo courtesy of U.S Army Corps of Engineers

Certain kinds of plants are adapted to saturated soils. The common hydric plants include cattails, reed canarygrass and sandbar willow. Other wetland plants are not as easy to identify, such as fowl bluegrass, redtop and Canada wildrye. Some plants can grow in both wetlands and uplands.

Wetlands can range from easily identifiable types, such as cattails growing in standing water, to less obvious wetlands, such as grassy meadows that are only saturated for a month or so in the spring. The edge of wetlands can also be difficult to identify. For example, sandbar willows growing along the edge of a stream may be wetlands, but sandbar willows growing on the top of a slope may be uplands.

If you have an area that you are planning on doing construction and you are unsure if it is a wetland, call the Corps Denver Regulatory Office or a wetland specialist to get more information.

Wetlands along a pond near the Little Thompson River

Type of CWA Permits

There are three types of CWA permits depending on the size and complexity of your project. Click for more information:

Nationwide 404 Permit (NWP)

Streamlined review process for projects that meet certain criteria and can be determined to have minimal environmental effects/ impacts. Intended for projects that fit into overall categories and can be approved or denied based on a quicker review.

Regional General 404 Permit (RGP)

Streamlined review process similar to Nationwide 404 Permits. Regional General Permits are issued for specific activities and entities, such as natural disaster mitigation, fisheries or channel/bank stabilization.

Individual 404 Permit (NWP)

Lengthier and more in-depth review process for projects that do not fit into the Nationwide criteria or the Regional General Permits. These permits are typically for larger and more complex projects.

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