Clean Water Act Section 404 Basics

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Clean Water Act Section 404Basics
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Clean Water Act Section 404

• Regulates discharges of dredged or fill material
  into waters of the U.S., including wetlands
• Examples development, water resource projects,
  mining, and infrastructure
• Section 404
• Establishes permit program
• Provides for environmental criteria
• Outlines exemptions, state assumption
  requirements, and review/oversight procedures

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Joint Administration/Agency Roles in CWA Section
404

• EPA Develops environmental guidelines, policy,
  and guidance determines scope of jurisdiction
  reviews permits, maintains Section 404(q) and (c)
  elevation and veto authority identifies
  exempt activities shares enforcement role
  w/Corps
• Corps of Engineers Reviews and issues permits
  develops policy and guidance conducts
  jurisdictional determinations shares enforcement
  w/EPA
• Fish and Wildlife Service, National Marine
  Fisheries Service Evaluate impacts on fish and
  wildlife (including TE species) Section 404(q)
  authority

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CWA Section 404 Jurisdiction Overview

• Discharge
• of dredged or fill material
• into waters of the United States
• From a point source.

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Individual and General Permits

• Permit program administered by Corps of
  Engineers, with EPA oversight
• Individual Permits (more than minimal impacts)
• Public notice agency review
• 404(b)(1) Guidelines and public interest review
• General Permits (minimal individual cumulative
  impacts)
• Nationwide, state, regional and programmatic
  permits

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Section 404(b)(1) Guidelines

• Substantive environmental standards for permit
  decisions
• Prohibit avoidable or significant adverse impacts
  to aquatic environment
• Applicant must demonstrate compliance

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Mitigation

• Mitigation Sequence Avoid, Minimize, Compensate
  Wetland Impacts
• Methods
• Restoration
• Creation
• Enhancement
• Preservation

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Other Section 404 Permit Requirements

• Corps of Engineers public interest review
• Corps balances benefits and detriments of project
  to public
• Permits issued only for projects consistent with
  public interest
• CWA Section 401 water quality certification
• A certification by state/tribe that project would
  be consistent with water quality goals
• If 401 certification is denied, a permit cannot
  be issued

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Elevation and Veto

• Section 404(q) EPA may request Army headquarters
  review of a permit application
• Memorandum of Agreement contains procedures
• Section 404(c) EPA may restrict or prohibit
  discharge
• Regulations govern process
• 11 completed since 1972

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CWA Exemptions

• CWA Section 404(f) provides that certain
  discharges generally do not need a 404 permit,
  including
• several that are part of normal, ongoing farming,
  ranching, and silviculture activities (e.g.,
  plowing, seeding, cultivating, harvesting)
• Activity recaptured and permit required if
  discharge
• brings an area into a new use, and
• either impairs flow or circulation or reduces
  reach of waters

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State Assumption

• CWA Section 404(g) et seq. provide requirements
  for state assumption of the permit program
• Jurisdiction over most Rivers and Harbors Act
  Section 10 waters and adjacent wetlands retained
  by Corps
• State program must be no less stringent than
  Federal
• MI and NJ have assumed
• Other States have adopted Programmatic General
  Permits