Short Answer: A landowner may remove woody debris or trash from a stream (e.g., debris that is blocking a culvert or accumulating around a structure), and perform “one-step” dredging of debris from a stream so long as that can be done without placing equipment in the stream or disturbing the streambed. For example, a landowner can:

• Enter on foot (use a chainsaw) & remove debris
• Pull debris out using equipment located above the streambank

Beyond that, work in or affecting a creek or stream (no matter how small) may require some type of federal and/or state permit or approval.

The West Virginia Conservation Agency (“WVCA”) is one of the primary entities coordinating such activities; to report a stream blockage, erosion or similar problem to the WVCA, call 1-866-UC-FLOOD (1-866-823-5663). The WVCA, and/or its federal partner, the Natural Resources Conservation Service (“NRCS”), will provide technical assistance to evaluate an issue and the best approach to addressing it. Those issues that present an immediate risk to a structure are more likely to be the subject of a NRCS-sponsored project. For less urgent projects, the WVCA and NRCS will work with a landowner to provide advice on how to obtain appropriate permit coverage to allow work to be completed.

Detail: Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits doing any work in the “navigable waters” of the U.S. that may affect the course, condition, or capacity of any such waters. “Navigable waters” includes all waters that are presently used, have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. These would include, for example, the Ohio River, Elk River, Greenbrier River, and Kanawha River. A complete list of navigable waters in West Virginia is found on the U.S. Army Corps of Engineers’ Huntington District webpage, at www.lrh.usace.army.mil. Placing anything in such a stream, or doing anything that would modify the course of the stream or affect such a navigable water, requires a permit from the U.S. Army Corps of Engineers (“Corps”).

In addition, under state law no one may work in, or place equipment in, any West Virginia stream without first obtaining a “right of entry” permit or other approval from the West Virginia Division of Natural Resources (“WVDNR”)’s Office of Land and Streams. However, if you are “removing floating woody debris or trash from the stream, such as tree limbs and trash blocking the mouth of a culvert or accumulating around the piers of a bridge,” you do not need a right of entry permit so long as such work “can be performed from the stream bank without placing equipment in the stream or disturbing the streambed.” For more information as to right of entry permits, contact the Office of Land and Streams at 304.558.3225 or under the “Administration” tab at http://www.wvdnr.gov.

Under section 404 of the federal Clean Water Act (“CWA”) (33 U.S.C. § 1344), a permit is required whenever a proposed activity involves a “discharge” or placement of “dredged or fill material” into “waters of the United States.” The term “waters of the United States” is defined broadly, to include virtually any small stream, even those that typically flow only seasonally. Likewise, the term “fill material” is defined broadly, to include anything that changes the bottom elevation of a stream. So, any effort to “re-build” a stream bank or affect the course or direction of a stream would be prohibited unless a CWA § 404 permit has been obtained. The Corps, along with the federal EPA, administers the CWA § 404 permit program. Persons who are found responsible for unauthorized placement of fill into a stream may face administrative orders to comply, civil penalties of as much as $37,500 per day per violation, and court-ordered injunctive relief. When a § 404 permit is required, the West Virginia Department of Environmental Protection (“WVDEP”) must issue a “water quality certification” under CWA § 401 before such a § 404 permit becomes effective.

The Corps has issued a special “Regional [§ 404] Permit for Stream Restoration Activities Performed by the West Virginia Conservation Agency” that provides a streamlined way of authorizing work in cooperation with landowners in alleviating hazards to life and property resulting from sudden watershed impairments. The types of projects covered by this permit including debris and deposition (sediment) removal, bank stabilization, stream erosion repair, and restoration of bridges or utilities. The WVCA coordinates all work under this Regional Permit, and must submit a list of all potentially covered projects prior to the closing date of the disaster declaration. Therefore, affected landowners who may wish to seek coverage and assistance under this permit should contact the WVCA as soon as possible. To report a stream blockage, call 1-866-UC-FLOOD (1-866-823-5663).