Clean Water Act Section 404 Basics

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

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

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

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

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

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

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

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

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

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