Section 404 of the Clean Water Act: An Overview
Section 404 of the Clean Water Act establishes a program to regulate
the discharge of dredged 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.
What does Section 404 Require?
The basic premise of the program is that no discharge of dredged or fill
material can he 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.
Agencies' Responsibilities
Army Corps of Engineers
- administers the day-to-day program, including individual permit decisions
and jurisdictional determinations
- develops policy and guidance
- enforces Section 404 provisions.
Environmental Protection Agency
- 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.
Individual Permit Process Under the Clean Water Act Section 404
Who's Involved in Regulation?
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.
A Federal permit is required to dis- charge 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.
The 404 Individual Permit Process
Public notice
(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.
Comment period
(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.
Public hearing
Citizens may request that the Corps conduct a public hearing however,
public hearings are not normally held.
Permit evaluation
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.
*Modified from Kathleen Rude, "Conservation: You Can Make a difference,"
Ducks Unlimited, September/October 1990, 26-28.
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