Clean Water Act Section 404 Basics

1. Clean Water Act Section 404Basics

2. 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

3. 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 T&E species); Section 404(q) authority

4. CWA Section 404 Jurisdiction Overview • “Discharge” • of “dredged or fill material” • into “waters of the United States” • From a “point source.”

5. 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

6. Section 404(b)(1) Guidelines • Substantive environmental standards for permit decisions • Prohibit avoidable or significant adverse impacts to aquatic environment • Applicant must demonstrate compliance

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

8. 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

9. 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

10. 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

11. 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