Complying with US Army Corps of Engineers Requirements for Work in Waters of the United States, Section 404

Section 404 of the Clean Water Act aims to restore and maintain the chemical, physical, and biological integrity of waters of the U.S. by regulating the discharge of dredged or fill material into these waters.
Waters of the U.S. may include but are not limited to streams, wetlands, some open water, and some ditches. The following common construction activities typically require a permit from the U.S. Army Corps of Engineers (USACE):
  • land clearing in waters of the U.S.
  • placement of dredged or fill material, temporarily or permanently, within waters of the U.S.
  • bridge or culvert replacements
  • any heavy equipment use in waters of the U.S.
  • converting any water of the U.S. to a different type of water of the U.S. or to upland.
  • draining a wetland
In order to comply with Section 404, TxDOT must:
  • Obtain any required USACE permit for proposed work before work begins in TxDOT ROW. Contractors are responsible for obtaining any off-site permits, including
    those needed
     for PSLs. Check the CMP for any permits that have not
    been obtained
     before project letting.
  • Review the commitments pertaining to the USACE permit in the environmental permits, issues, and commitments (EPICs) section in the PS&E. A copy of the permit will also be kept in the SWP3 Binder for easy access and reference.
  • Ensure that the contractor is aware of any waters of the U.S. in the area where work will occur, and make sure these are delineated,
    and any impacts are avoided, minimized, and permitted
     prior to construction.
  • Ensure that the contractor is familiar with the work and associated impacts that have been authorized by the Section 404 permit.
  • Ensure that the contractor adheres to all agreements, mitigation plans, general conditions, and BMPs required by the permit.
  • Ensure change orders are reviewed by environmental staff to they can determine if proposed changes
    would necessitate a modified or new
     USACE permit prior to work being conducted. When contractor-initiated changes to the issued Section 404 permit are desired, it is the contractor’s responsibility to obtain a new or revised Section 404 permit from the USACE at the cost of the contractor (unless otherwise agreed upon by both parties). In this situation, no claims for schedule delays are allowed.
  • Understand that failure to comply with all permit conditions may result in contract work stoppages being issued by the USACE or TxDOT.