Exemption from Section 404 of the Clean Water Act Permitting Pursuant to Section 404(f)(1)(B) for:
In anticipation of the imminent threat Hurricane Ana pose to the main Hawaiian Islands and coastal areas, the Honolulu District Regulatory Office is providing the following information and guidance regarding activities that are exempt from permit requirements under Section 404 of the Clean Water Act. The purpose of this information and guidance is to assist the regulated public, including public agencies and other responsible parties, in preparing for and responding to these anticipated discrete storm events.
The 404 permit exemption for the purpose of maintenance, including emergency reconstruction of recently damaged parts, is codified at 404(f)(1)(B) of the Clean Water Act and is prescribed in federal regulation at 33 CFR 323.4(a)(2). The regulations specify that the discharge of dredged or fill material into waters of the United States does not require a Corps permit for maintenance, including emergency reconstruction of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches and transportation structures. However, maintenance does not include any modification that changes the character, scope, or size of original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption. Furthermore, the discharge of dredged or fill material placed in waters of the United States must not: (1) consist of EPA toxic pollutants and (2) be a part of an activity whose purpose is to convert an area of waters of the United States to a different use, where the flow or circulation of waters of the United States may be impaired or the reach of those waters reduced (see 33 CFR 323.4(c)).
As a result of hurricane/storm related damages to currently serviceable structures, you may conduct the necessary maintenance or reconstruction of the damaged structure in waters of the United States without a Corps Section 404 permit provided you comply with the requirements outlined in the regulation. You are also hereby advised that the 404(f)(1)(B) exemption does not obviate your need to obtain other necessary Federal, state, and/or local permits or approvals.
If the repair and maintenance of the damaged structure would require additional fill beyond the scope of the original fill (i.e., beyond the as-built design) and/or would involve the temporary discharge of dredged or fill material into waters of the United States, such as cofferdams or temporary access roads, Section 404 authorization is needed and could be processed under a Nationwide Permit (NWP) #3 (Maintenance) and/or NWP #45 (Repair of Uplands Damaged by Discrete Events) providing the proposed project meets the terms and conditions of the NWP. The use of a NWP requires you to notify the Corps (via a pre-construction notice, General Condition #31(b)) of your intended work. Please refer to the 2012 NWPs at:
For further information, please contact our office at (808) 835-4303 or via email at CEPOH-RO@usace.army.mil.