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Avoidance: The key to Section 404 of the Clean Water Act permitting

Thursday, July 11, 2013

Chris Thomas, PWS, Environmental Assessment

What would the world be like without the Clean Water Act (CWA)? Certainly, it would be a less regulated one, given all of the hurdles we have to jump through to get a CWA Section 404 permit. However, we already know what the world would be like because, before the law’s enactment in 1972, we lived in that world (well, some of us closer to retirement did, anyway). It wasn’t pretty. It’s also a reality that Olsson’s environmental scientists can help their clients avoid.

So, what was that world like? The last ground troops left Vietnam, and Dirty Harry was a hit movie. But Harry wasn’t the only thing needing some “scrubbing.” Approximately two-thirds of our nation’s waters were unfit for swimming or fishing. A couple of years before, in 1969, an oil slick on the Cuyahoga River in Ohio caught fire… for the 13th time since 1868. Lake Erie was considered a dead lake, and our polluted waters killed off millions of fish across the nation. That’s bad. It is a reality none of us should ever care to know. 

Permitting for the CWA can be complicated, and many clients (and some project managers) have an unfavorable attitude toward the process. This outlook is understandable. What one person regards as an inconsequential ditch, the government may call a regulated water of the United States. Not only is that a big difference of opinion, it may also come with a difficult permitting process to steer through. However, members of Olsson’s Environmental Assessment team can help avoid these costly and time-consuming measures.

Why is our proverbial little stream (or ditch, or whatever it is called) important? Let’s take a minute to look at it from an ecological perspective. The best way to understand this is to visualize a watershed as a tree. In this exercise, the main trunk is a river, the lateral branches are large streams, the twigs are smaller streams, and so on. The cumulative “length” of the twigs will be much greater than the length of the larger branches and main trunk. That is also true for the small streams in a watershed. It is impossible to protect the river without protecting the small streams, even if they seem no more than a ditch. Disturbing one “ditch” may not be that impactful. However, whether you have 100 or 1,000 projects—each disturbing one “ditch”—the effects add up. This is what was witnessed before 1972.

There are a couple of items to encourage understanding of the CWA. First, always keep in mind what was happening with our nation’s waters before 1972. Second, we can be proactive in our planning to avoid complications in the CWA permitting process. Remember, if you went fishing before 1972, you would have needed to try three fishing holes before you could find one suitable enough to catch dinner (unless you enjoy eating The Simpsons fish). Further, below is an explanation of proactively planning to avoid CWA permitting complications.

First, let’s go over the basics of the CWA and, specifically, Section 404 of the law. Section 404 regulates the discharge of dredged or fill material into a water of the United States. The U.S. Army Corps of Engineers (USACE) handles the law’s day-to-day regulation. A “U.S. water” can be a stream, a wetland, a pond, or what some people may call a “ditch.” Consultants, which include many members of Olsson’s Environmental Assessment team, can determine, or at least coordinate, the jurisdictional status of these waters with the USACE. If a project will affect a jurisdictional water, it will need a Section 404 permit.

To keep it simple, there are two types of Section 404 CWA permits: Nationwide and Individual. A Nationwide permit is a streamlined permit based on small impacts to jurisdictional waters. These permits usually take around two to four months to obtain. The Nationwide permits come with jurisdictional water impact thresholds, which tell you the amount of jurisdictional waters a project can affect and still qualify for the Nationwide permit. If impacts to jurisdictional waters exceed these thresholds, the project will likely need an Individual permit. An Individual permit is a longer process because the project results in greater impacts to jurisdictional waters. This process includes all those factors clients want to avoid, such as a time-consuming public notice and comment periods, longer time durations, and additional fees. The Individual permit process can take approximately six months to a year, or longer, depending on the complexity of the project.

The lesson here is to plan appropriately so you can avoid the Individual permit process. To do that, a project must limit the jurisdictional water impacts to less than the Nationwide permit thresholds. This is where the Olsson Environmental Assessment team can help. By involving Olsson early in the design process, staff members can help clients identify and avoid jurisdictional waters. By avoiding these, you can save valuable time (by avoiding a lengthy permit process), money (by avoiding additional consulting fees and by avoiding mitigation costs resulting from affecting a large amount of jurisdictional waters), and stress. Avoiding jurisdictional waters is critical to maintaining a good project timeline, budget, and, most importantly, the environment.

In real estate, the mantra is “location, location, location.” When dealing with the CWA permitting process, the mantra is “avoidance, avoidance, avoidance.” If you want to save time and money, talk to an Olsson Environmental staff member before starting a design. Staff members can tell you what areas to avoid or where you may have complications. The preemptive information Olsson can provide is more valuable at the beginning of the project than at the end of it.  

Since the CWA’s enactment, our nation’s waters have improved. The CWA’s goal was to make 100 percent of our nation’s waters usable for swimming and fishing by 1983. We haven’t yet reached that goal, but we have made progress. Today, 35 percent of the nation’s waters are unfit for swimming or fishing. Clearly, to reach our ultimate goal, we have more work to do. In seeking the early advice of scientists, clients can avoid constructing projects in sensitive areas. The “avoidance” practice saves you time and money. Even more importantly, it helps to achieve our country’s goal to make all waters safe.

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