Section 404 Permits
Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredge and fill material into waters of the United States, including wetlands. Activities in waters of the United States that are regulated under this program include fills for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports), and conversion of wetlands to uplands for farming and forestry.
EPA and the Army Corps of Engineers (Corps) jointly administer the program. In addition, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and State resource agencies have important advisory roles. The Charleston District of the Army Corps of Engineers chairs the Interagency meeting held once a month to provide an open forum for local, state, and federal agencies to hear and comment on proposed projects before they are put out on public notice.
Fish and Wildlife service Section 404 Responsibilities
The Fish and Wildlife Service plays an important advisory role in the Section 404 process. Our mission is working with others to protect, conserve, and enhance fish, wildlife and plants, and their habitats, for the continuing benefit of the American people. Wetlands are vital for sustaining fish and wildlife populations in the United States. They provide important feeding, breeding, and migration habitat for a number of species. This includes 50 percent of our migratory bird species and over 30 percent of plants and animals listed under the Endangered Species Act. Our mission is authorized and accomplished via our various authorities, including: the Fish and Wildlife Coordination Act, Fish and Wildlife Act of 1956, Food Security Act, Anadromous Fish Conservation Act, Migratory Bird Treaty Act, and Endangered Species Act.
- assess potential adverse effects directly encompassing wetlands and wildlife resources
- conduct site visits to assess biological functionality and habitat quality
- coordinate with local, state, and federal agencies
- comment to the Army Corps of Engineers
What does Section 404 Require?
The basic premise of the program is that no discharge of dredged or fill material can be permitted if a practicable alternative exists that is less damaging to the aquatic environment or if the nation's waters would be significantly degraded. In other words, when you apply for a permit, you must show that you have:
- taken steps to avoid wetland impacts where practicable
- minimized potential impacts to wetlands
- provided compensation for any remaining, unavoidable impacts through activities to restore or create wetlands.
Regulated activities are controlled by a permit review process. An individual permit is usually required for potentially significant impacts. However, for most discharges that will have only minimal adverse effects, the Army Corps of Engineers often grants up-front general permits. These may be issued on a nationwide, regional, or state basis for particular categories of activities (for example, minor road crossings, utility line backfill, and bedding) as a means to expedite the permitting process.
Section 404(f) exempts some activities from regulation under Section 404. These activities include many ongoing farming, ranching, and silviculture practices.
A Federal permit is required to discharge dredged or fill material into wetlands and other waters of the United States. The flow chart tells what the Corps does once it receives an individual permit application.
- administers the day-to-day program, including individual permit decisions and jurisdictional determinations
- develops policy and guidance
- enforces Section 404 provisions.
- develops and interprets environmental criteria used in evaluating permit applications
- determines scope of geographic jurisdiction
- approves and oversees State assumption
- identifies activities that are exempt
- reviews/comments on individual permit applications
- has authority to veto the Corps' permit decisions (Section 404[c])
- can elevate specific cases (Section 404[q])
- enforces Section 404 provisions.
A Brief History of The Clean Water Act
The Clean Water Act (CWA) is the cornerstone of surface water quality protection in the United States. (The Act does not deal directly with ground water nor with water quantity issues.) The statute employs a variety of regulatory and nonregulatory tools to sharply reduce direct pollutant discharges into waterways, finance municipal wastewater treatment facilities, and manage polluted runoff. These tools are employed to achieve the broader goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters so that they can support "the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water."
For many years following the passage of CWA in 1972, EPA, states, and Indian tribes focused mainly on the chemical aspects of the "integrity" goal. During the last decade, however, more attention has been given to physical and biological integrity. Also, in the early decades of the Act's implementation, efforts focused on regulating discharges from traditional "point source" facilities, such as municipal sewage plants and industrial facilities, with little attention paid to runoff from streets, construction sites, farms, and other "wet-weather" sources.
Starting in the late 1980s, efforts to address polluted runoff have increased significantly. For "nonpoint" runoff, voluntary programs, including cost-sharing with landowners are the key tool. For "wet weather point sources" like urban storm sewer systems and construction sites, a regulatory approach is being employed.
Evolution of CWA programs over the last decade has also included something of a shift from a program-by-program, source-by-source, pollutant-by-pollutant approach to more holistic watershed-based strategies. Under the watershed approach equal emphasis is placed on protecting healthy waters and restoring impaired ones. A full array of issues are addressed, not just those subject to CWA regulatory authority. Involvement of stakeholder groups in the development and implementation of strategies for achieving and maintaining state water quality and other environmental goals is another hallmark of this approach.
The 404 Individual Permit Process
(issued by the Corps within 15 days of receiving all permit information)
The public notice describes the permit application, including the proposed activity, its location, and potential environmental impacts. The public notice invites comments within a specified time.
(15 - 30 days, depending on the proposed activity)
The application and comments are reviewed by the Corps and other interested Federal and State agencies, organizations, and individuals. The Corps determines whether an Environmental Impact Statement is necessary.
Citizens may request that the Corps conduct a public hearing however, public hearings are not normally held.
The Corps evaluates the permit application based on the comments received, as well as its own evaluation.
Environmental Assessment and Statement of Finding
The Statement of Finding, document, which explains how the permit decision was made, is available to the public.