Summary of Clean Water Act, Section 404
- The main premise of the §404 regulatory program is that no discharge of dredged or fill material can be permitted if a practicable alternative exists which is less damaging to the aquatic environment or if the nation's waters would be significantly degraded.
- §404(a) of the Clean Water Act authorizes the U.S. Army Corps of Engineers (Army Corps) to issue permits regulating the discharge of dredged or fill material into the waters of the United States, including wetlands.
However, the U.S. Environmental Protection Agency (EPA) develops regulations with which the Army Corps must comply and reviews the permits issued by the Army Corps. §404(c) authorizes the EPA to veto an Army Corps decision to issue a permit if that proposed action "will have an unacceptable effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. Under §404(f), the EPA exempts some activites from regulation under §404. These activities include many ongoing farming, ranching, and silviculture practices.
- There are two basic types of §404 permits issued by the Army Corps, individual and general. An individual permit is usually required for potentially significant impacts. However, for most discharges that will have only minimal adverse effects, the Army Corps often grants general permits. These may be issued on a nationwide, regional, or statewide basis for particular categories of activities (e.g., minor road crossings, utility line backfill and bedding) in order to expedite the permitting process.
- When applying for a permit you must show that you are in compliance with the EPA §404b(1) guidelines. These include:
1) avoiding wetland impacts where practicable,
2) minimizing potential impacts to wetlands, and
3) providing compensation for any remaining unavoidable impacts through activities to restore or create wetlands.
- Other permit application requirements:
- A §401 Water Quality Certification from the appropriate Regional Water Quality Control Board.
- If threatened or endangered species may be affected by the proposed activity, the Army Corps will consult with the appropriate Federal agency (e.g., U.S. Fish and Wildlife Service) to obtain a biological opinion on the affects to the species.
- If the proposed activity will have significant impacts on the human environment, an Environmental Impact Statement will be required by the Army Corps.
- If cultural resources are within the permit area and will be impacted by the proposed activity, the Army Corps must comply with §106 of the National Historic Preservation Act and the applicant may be required to obtain cultural resource surveys.
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