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Frequently asked questions

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Updated: December 2013

The following are typical questions regarding wetlands and 404 permits for construction of roadways and structures.

What is a wetland?

A wetland is an area that is flooded or saturated by surface or ground water long enough to support vegetation typically adapted for life in saturated soil conditions. From a regulatory standpoint, an area is considered a wetland if it has wetland hydrology, wetland plants, and hydric soils (wet soils).

What is a jurisdictional stream?

A jurisdictional stream includes rivers, streams, drainage ditches, and ravines with a defined streambed and stream banks, an ordinary high water mark (a clear line along the stream bank(s) below which vegetation does not grow due to the flow of water), and deposited sediment (i.e. sand or mud bars).

What is a 404 permit?

A 404 permit is issued by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act. The 404 permit authorizes construction within wetlands, streams, ponds, etc. The permit also contains general and special conditions, which clarify activities that are allowed and/or restricted for a particular project. The Iowa Department of Natural Resources’ 401 certification is incorporated into and becomes a part of the "404 permit."

What is a 401 permit?

A 401 Certification is issued by the Iowa Department of Natural Resources under Section 401 of the Clean Water Act. The Iowa DNR’s 401 certification also authorizes construction of the project and provides special conditions that must be followed.

Explain nationwide, regional, and individual permits.

Nationwide permits, regional permits, and individual permits are all types of 404 permits.

Nationwide permits and regional permits are issued for projects that have minimal environmental impacts. They provide a simplified, expedited process that eliminates lengthy review by the regulatory agencies and allows certain activities to proceed with little or no delay. Iowa Department of Transportation projects are normally covered by nationwide permits; however, regional permits may be issued if impacts from a project exceed the limits for nationwide permits but are not large enough to require an Individual permit. A 401 certification is automatically issued when the U.S. Army Corps of Engineers issues a nationwide or regional permit.

Individual permits are required for projects with potentially significant environmental impacts or impacts to rare or special aquatic types. These projects involve evaluation of applications by the Corps, Iowa Department of Natural Resources, the Iowa State Historic Preservation Officer, U.S. Fish and Wildlife Service, U.S. Environmental Protection Agency, as well as the public. These permits typically require compensatory mitigation.

When is a 404 permit required?

A 404 permit is required for the discharge of dredged or fill material into waters of the United States, which include wetlands, rivers/streams/drainages, ponds, and lakes (fill material is the trigger). Typical activities that require Section 404 review include grading, widening, and resurfacing; culvert extensions; bridge/culvert replacements; riprap and/or flood emergency repairs; new construction on new alignment; and any construction in or around streams or wet areas (including clearing and grubbing).

Who obtains the permits?

The Iowa Department of Transportation secures all 404 permits/401 certifications within approved right of way, including Iowa DOT borrows. A contractor would be responsible for obtaining a 404 permit and other environmental clearances for contractor borrows, value engineering borrows, or any activities outside of approved right of way.

How long does the 404 permit process take?

The length of the 404 permit process is dependent on the size and complexity of the project. For projects authorized by nationwide or regional permits, the timeframe is typically one to two months. For individual permits, the timeframe is typically six to eight months.

How do I know if a project has a 404 or 401 permit?

All Iowa Department of Transportation projects that need a 404 permit will have an Iowa DOT Standard Note 281-1 included in the standard notes. Standard Note 281-1 will list the type of 404 permit that has been obtained and the permit number. All projects that have 404 permit also have a 401 certification automatically included with the permit. Local projects also have a note in the plans to indicate a 404 permit has been obtained.

Where can I find information regarding 404 permit requirements?

Specific permit requirements are described in the general and special conditions of the 404 permit. A copy of the 404 permit is e-mailed to the Iowa Department of Transportation's district construction engineer for all projects for which a permit has been obtained. The Iowa DOT's Office of Contracts or Office of Location and Environment can provide a copy of a project’s 404 permit upon request, or 404 permits for Iowa DOT are available on the Iowa DOT’s web site at the following link.

http://envpermits.iowadot.gov/CMEPortalENV/Home.aspx

Other sources of information related to wetlands and 404 permit requirements include:

  • Iowa DOT's General Specifications 1105.14 and 2547.
  • Project plans, bid items, and reference notes.
  • Special provisions.
  • Chapter 10 of the Iowa DOT's Construction Manual; and the Office of Construction and Materials has a procedure guide titled “Iowa Department of Transportation Requirements for Section 404 permits”.

Does the Iowa Department of Transportation obtain 404 permits for contractor borrows, value engineering borrows or alternate borrows or contractor waste sites?

No. The contractor is responsible for obtaining 404 permits and any other environmental clearances for contractor borrows or waste areas. See Iowa DOT's General Specification 1106.07.

Does the Iowa Department of Transportation obtain 404 permits for temporary stream crossings?

Yes. Temporary stream crossings or workpads that are constructed in accordance with Standard Road Plan EW-401 and located within approved right of way will be authorized unless noted in the project plans, reference notes, or special provisions.

What are the consequences of violating the 404 or 401 permit requirements?

Performing unauthorized work in wetlands or streams is a violation of the Clean Water Act with potentially stiff penalties including fines and/or requirements to restore the area and/or imprisonment. Enforcement is an important part of the U.S. Army Corps of Engineers regulatory program. Surveillance and monitoring activities are often aided by various agencies, groups, and individuals who report suspected violations.

Who consults with the U.S. Army Corps of Engineers and Iowa Department of Natural Resources regarding 404 permits and interpretation or questions?

The Iowa Department of Transportation's Office of Location and Environment's water resources section has six project managers on staff whose primary responsibility is to secure 404 permits and coordinate projects with the Corps and Iowa DNR. These project managers are more than willing to handle any interaction with either the Corps or Iowa DNR, as necessary.

When can fill be placed in a wetland or how do I know what a contractor is permitted to do if there is a wetland on site? Are contractors allowed to work anywhere within the approved right of way?

The 404 permit should authorize fill placement in any wetlands and/or streams that fall within approved Iowa Department of Transportation's right of way, including Iowa DOT borrow areas. Occasionally, there may be wetland areas located inside of approved right of way that are protected from disturbance. These areas will be noted in the plans or special provisions, and are typically marked in the field with orange snow fence.

If there are wetlands or restricted areas on a project site, how do I know where they are? Do they need to be physically identified in the field to restrict access?

These areas should be identified in project plans or in special provisions for environmental protection. In some cases, exclusionary fence is installed on the project to ensure that the contractor does not disturb these areas.

Are the 404 permits considered a part of the contract documents? How is this referenced?

Yes. Iowa Department of Transportation’s Standard Note 281-1 and General Specifications 1105.14.

What are acceptable means for maintaining a copy of the permit on the project site?

A copy of the 404 permit should be kept in the project trailer or with the inspector.

Who should be invited to the preconstruction conference if a 404 permit has been issued for a project?

The Iowa Department of Transportation's Office of Location and Environment's water resources section has a construction engineer. For projects with 404 permit-related issues, the OLE construction engineer may be invited at the discretion of the Iowa DOT's resident construction engineer.

Is the Iowa Department of Transportation's resident construction engineer (RCE) responsible for any documentation during or after completion of a project covered by a 404 permit? If so, what and who is it provided to?

The RCE may be responsible for some documentation during the project, such as notifying the U.S. Army Corps of Engineers when a project begins, providing the Corps with a plan for temporary construction activities, or providing the Corps and Iowa Department of Natural Resources results of sediment analysis when hydraulic dredging is to occur. However, these notifications will likely be limited to projects within large rivers (i.e., the Mississippi or Missouri) and the requirements for these notifications will be clearly defined in special conditions of the 404 permit, in plan notes, or in special provisions.

The RCE is typically not responsible for any 404 permit documentation after completion of a project; however, the RCE should notify the Iowa DOT’s Office of Location and Environment’s construction engineer upon completion of the project. OLE is responsible for providing the Corps with a “Completed Work Certificate” as required by all 404 permits. OLE can be notified informally via email; otherwise, the 435 serves as the trigger for OLE to notify the Corps of project completion.

What involvement of the regulatory agencies may occur during the course of a project covered by a 404 permit?

Typically, the only involvement that the regulatory agencies will have will be inspection of the construction site to ensure the Iowa Department of Transportation is in compliance with the 404 permit.

For larger projects, particularly those within the Missouri River or the Mississippi River, additional involvement may be necessary, including notifying the U.S. Army Corps of Engineers and U.S. Coast Guard when the project is scheduled to begin, providing the Corps with a plan for all temporary construction within a specific resource; providing the Corps and Iowa Department of Natural Resources with results of sediment analysis as required for projects with hydraulic dredging; and coordinating with the Corps and/or Iowa DNR for unauthorized fills or spills.

Updated: December 2013

The following provides a summary of each type of permit, a description of the purpose of the permit, the regulatory agency responsible for the permit, and the Iowa Department of Transportation’s OT office responsible for obtaining the permit for Iowa DOT administered projects. For projects administered by a local agency, the local agency is responsible for obtaining the permit. In general, permits and clearances pertain to essential work within highway rights-of-way.

For additional information, see the FAQ’s for environmental considerations, permits, & clearances summarizing permit types, purposes, regulatory agency, etc.

Contractors need to know if something has been requested and denied relative to the permit. Can this information be provided in the contract?

If a contractor has a question whether something had been pursued and denied, they need to post the question on BIDX.

What can a contractor do postletting relative to permit approvals?

Contractors must bid projects based on all the contract documents. If the contract documents (i.e., permits) do not state something is approved, the contractor can pursue a request to the regulatory agency for their own additional approvals(refer to Iowa Department of Transportation’s General Specifications 1105.14 Protection of Water Quality and Wetlands).

If a contractor gets postletting permit approval after award and signing of the contract, would it mandate that it be a value engineering proposal?

Any permit approvals obtained by the contractor postletting, after award of contract and signing, would not be subject to value engineering, as long as it does not involve a change to the plans. The postletting permit approvals must be confirmed in writing from the regulatory agency and will be accepted by the Iowa Department of Transportation.

Can the Iowa Department of Transportation permit multiple methods of temporary stream access and clearly identify/define in the contract documents?

It is not possible for the Iowa DOT to submit all the potential methods for permit approval because this is dependent on the contractor’s means and methods. The Iowa DOT will ensure that there is at least one method that can be used to ensure the work is constructible.

Would it be beneficial to detail out temporary stream access in the permit?

Temporary stream access is detailed in Standard Road Plan EW-401.

What is ordinary high-water mark?

The term ordinary high-water mark means a point on a streambank or shoreline at which the presence and action of surface water is so continuous as to leave a distinct mark below which vegetation and soil is noticeably different from the top of the streambank or shoreline. This mark is typically recognized by the presence of a clear line below which vegetation cannot grow due to the presence of surface water, but can also be identified by other physical characteristics within the stream channel, including the presence of litter and woody debris (e.g., corn stubble, leaves, tree branches and/or limbs), or erosional features, such as shelving, scour holes, and sediment.

Sandbars and vegetation bars within the stream channel are generally considered to be below the ordinary high-water mark.

Could clearances for a project be listed in the contract documents?

Not at this time, but this will be further reviewed for consideration in the future.

Can a list of all approved permits and documents be provided for each project?

Not at this time, but this will be further reviewed for consideration in the future.

Can prebid communication be improved?

For some projects the Iowa Department of Transportation will hold possible constructability meetings and/or pre-bid meetings for discussion of the project and to received input from the construction industry.

Could copies of the permits be put on BIDX?

Copies of permits are now available on the Iowa DOT's web site at: Section 404 permit Library

Can dredging be approved ahead of time?

If Iowa Department of Transportation determines that dredging is essential to construct the project, then the Iowa DOT will pursue approval of dredging in the 404 permit application. This typically includes dredging inside cofferdams, barge slips, removal of sand bars to improve water flow, etc.

If the Iowa DOT determines that dredging in the project area is not allowed, due to environmental or other concerns, then the Iowa DOT will include a Standard Note 282-2 in the plans clearly stating that dredging of any type is not allowed and the reason why.

When not specifically disallowed by the Iowa DOT, contractors may elect to pursue their own approvals for the use of dredged materials, provided those approvals are in accordance with Articles 1105.14 and 1106.07 and there are no environmental concerns. Elective items typically include the use of dredged materials for causeways constructed according to Standard Road Plan EW-401, work pads, etc. The Iowa DOT will inform contractors of relevant information about stream conditions as much as possible based on specific questions provided via BIDX. Please note that Iowa DOT obtains approval for temporary structures constructed according to Standard Road Plan EW-401, but not for the source of materials used within those structures.

In general, 404 permits require that materials excavated/dredged from the stream be removed to upland, non-wetland locations when no longer necessary for construction of the project.

Updated: December 2013

The following are questions regarding 404 permits and the construction of temporary stream crossings and work pads for construction of bridges and reinforced concrete box culverts.

Where do I find what a contractor is permitted to do on a bridge or culvert project relative to working in a river, stream, or drainage way?

In the 404 permit and in Iowa Department of Transportation's General Specifications 1105.14 and 2547. A contractor is permitted to do construction that is authorized by the 404 permit. Because the permit contains conditions that may affect construction methods, it should be reviewed by the contractor before the work is performed.

The Iowa DOT’s Office of Contracts can provide a copy of a project’s 404 permit upon request.

Is a contractor permitted to take soil material from a river, stream, or drainage way to construct a stream crossing and work pads?

No, unless the dredging or stream excavation is a required element of the contract documents. If included in the contract documents, dredging or stream excavation would be authorized by Iowa Department of Transportation’s 404 permit.

When not a part of Iowa DOT’s 404 permit or contract documents, a contractor may, at his own discretion and his own expense, apply for a 404 permit to dredge or excavate the stream. Contractors should be aware that this process may take months and will not be paid for by the Iowa DOT.

If permitted in item 2 above, can the soil material be redistributed back into the river, stream, or drainage way after use?

No. The Iowa Department of Natural Resources requires that materials used for temporary stream crossings or work pads be removed to an upland area within 30 calendar days of no longer being needed.

What is a contractor required/permitted to do with soil material excavated from a cofferdam?

The soil material excavated from a cofferdam must be removed to an upland area. If stockpiled for later use, the material must be stored in a manner that it will not erode into streams, water bodies, or wetlands.

Once cofferdam construction is complete, the cofferdam should be backfilled in accordance with Iowa Department of Transportation's General Specification 2405.02. The material originally excavated from the cofferdam may be replaced as backfill.

What is a 401 permit?

The 401 permit is issued by the Iowa Department of Natural Resources under Section 401 of the Clean Water Act. The Iowa DNR’s 401 certification authorizes construction of the project and provides special conditions that must be followed.

What is a 404 permit?

The 404 permit is issued by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act. This also authorizes construction and provides special conditions. The Iowa Department of Natural Resources's 401 certification is incorporated into and becomes a part of the "‘404 permit".

What is Nationwide permit 14?

Nationwide permit 14 provides for the construction or improvement of linear transportation projects, such as highways and bridges.

What is Nationwide permit 33?

Nationwide permit 33 provides for temporary stream crossings and works surfaces, such as causeways or work pads.

Can you provide an explanation for "Any other applicable permits"?

Nationwide permit 13, Streambank Stabilization, provides for streambank shaping and riprap placement. Nationwide permit 3, Maintenance, provides for repair or replacement of existing infrastructure damaged by storm activity.

What is the "EW-401 and associated requirements"?

Standard Road Plan EW-401 provides for the basic design of temporary stream crossings, causeways, and work pads used with Iowa Department of Transportation projects. EW-401 has been preapproved by the regulatory agencies and is covered by Iowa DOT’s 404 permits.

Alternative methods of constructing stream crossings and work pads are not generally approved in contract documents or 404 permits, unless specifically stated. Contractors wishing to use alternative methods may, at their own discretion and expense, apply for a 404 permit to authorize an alternative stream crossing. Contractors should be aware that this process may take months and will not be paid for by the Iowa DOT.

If a contractor is permitted to dredge a river, stream, or drainage way to construct temporary stream crossing and work pads, what are the requirements (specifically related to hydraulic vs. mechanical dredging)?

Some requirements will be listed in the 404 permit. Other requirements include 1) the material must be clean (meaning 10 percent or fewer fines passing the #200 sieve), and 2) the activity must be approved in a 404 permit.

For hydraulic dredging in the Missouri River, the contractor is required to perform elutriate testing in accordance with Iowa Department of Natural Resources guidelines'. Hydraulic dredging in other rivers in Iowa does not have this requirement. Mechanical dredging has no additional special requirements.

What is the definition of “ordinary high-water mark” and how is it determined in the field?

An ordinary high-water mark is a line on the shore established by the fluctuations of water and indicated by physical characteristics, or by other appropriate means, that consider the characteristics of the surrounding areas (see 33 CFR 328.3(e)).

Ordinary high-water mark may be recognized in the field by a number of characteristics, including a pronounced scour line on the streambank or the lower limit of permanent vegetation. Normally, the ordinary high-water mark is that line on the bank or shoreline that has vegetation growing above and bare soil below.

How are drainage pipes sized when using the Iowa Department of Transportation’s Standard Road Plan EW-401?

The size of pipe and number of pipes is to be determined by the contractor. In accordance with Standard Road Plan EW-401, the pipes must be sized to not restrict expected high flows or prevent the movement of aquatic life. It is the contractor's responsibility to size the pipes depending on the field conditions to meet the requirements of the regulations.

When is a floating silt curtain, Iowa Department of Transportation’s Standard Road Plan EC-202 (replaced EC-18), required?

In the future, floating silt curtain (Standard Road Plan EC-202), will be required whenever a temporary crossing or work pad is constructed according to Standard Road Plan EW-401. The purpose is to prevent sediment pollution that may be harmful to aquatic life during the installation or removal of temporary crossings or work pads. The engineer should be consulted if field conditions prevent installation of floating silt curtains.

The Iowa DOT will notify contractors when this requirement has been put into effect.

If the contractor is not permitted to construct a temporary stream crossing and work pads, what form of river, stream, or drainage way access would be allowed?

This would depend on what was allowed by the regulatory agencies in the 404 permit. Other methods may include temporary bridges, work from barges, barge slips at shoreline, or other methods involving little or no impacts to rivers or streams.

Where in the Iowa Department of Transportation's General Specifications is temporary stream access addressed?

The Iowa DOT's General Specifications 2547.

If a contractor uses broken concrete or rip rap to armor their temporary stream crossing and work pads, can the later use of this rip rap material be used for revetment installation on the project or other projects?

Yes. In accordance with Iowa Department of Transportation's General Specifications 2547, revetment that has been removed may be incorporated elsewhere in the project provided it meets the specification for the intended final use.