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Overview
Section 404 of the Clean Water Act establishes a permitting program to regulate excavation and the discharge of dredged and fill material into
waters of the United States, including wetlands. Examples of activities that might be regulated under this program include:
- Stream crossings;
- Dam construction and flow regulation;
- Water diversion for canals, irrigation systems, and stock tanks;
- Streambed modification and stabilization; and
- Building subdivisions, master planned communities, highways and airports.
The U.S. EPA and the Army Corps of Engineers (Corps) jointly administer the program. In addition, the U.S. Fish & Wildlife, the National Marine Fisheries Service and State resources agencies (e.g., Department of Environmental Quality, Game and Fish Department, Water Resources) have important advisory roles.
Section 401(a) of the CWA requires the state (ADEQ) to review a federal permit or license, prior to issuance to determine whether the action as proposed will comply with the State's water quality standards effluent limitations, and other requirements of state law. The State can certify, conditionally certify, waive or deny a CWA 401 certification. The Corps cannot issue a permit where the State has denied a CWA 401 certification.
The basic premise of the program is that no discharge of dredged or fill material can be 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 applying for a permit, the applicant must show that they have:
- Taken steps to avoid wetland impacts where practicable;
- Minimize potential impacts to wetlands;
- Provided compensation for any remaining, unavoidable impacts through activities to restore or create wetlands.
The program is jointly administered between the Army Corps of Engineers and the U.S. EPA. The Corps' duties include:
- Administering the day-to-day program, including individual permit decisions and jurisdictional determinations;
- Developing policy and guidance; and
- Enforcing Section 404 provisions.
The U.S. EPA is responsible for:
- Developing and interpreting environmental criteria used in evaluating permit applications;
- Determining the scope of geographic jurisdiction;
- Identifying activities that are exempt;
- Review/comments on individual permit applications;
- Has the authority to veto the Corps' permit decision;
- Elevating specific cases; and
- Enforcing Section 404 provisions.
The Corps has a number of authorization mechanisms including permits, letters of permission, and regional or state specific permissions.
An individual permit is required for projects that have potentially significant impacts. Individual permits require an application form describing the proposed activity be submitted to the Corps. Once the application is complete, the Corps issues a public notice containing the information needed to evaluate the likely impact of the activity. Notice is sent to all interested parties including adjacent property owners, government agencies and others who have requested notice. A hearing may be requested for cause.
However, for discharges that have only minimal adverse effects, the Corps has developed general permits that can be issued on a nationwide, regional or state basis for particular types of activities (e.g., minor road crossings, utility line backfill, flood control projects). General permits are developed and require the same public notice requirements and opportunity for public hearing. Once issued, the general permit may be modified or revoked if the activities are found to have any adverse impacts. General permits are issued for a specified time period, usually five years.
Currently there are 40 Nationwide General Permits (NWP)  . These NWPs have been CWA 401 certified by ADEQ and many contain state-specific conditions in addition to the Corps requirements.
ADEQ has authority under section 401 of the CWA to grant, deny or waive water quality certification for both individual and nationwide permits. The Corps cannot issue a permit, individual or general, where ADEQ hasn't approved or waived certification or where ADEQ has denied certification.
Fees
No fees are required to process the application and develop the permit.
U.S. Corps of Engineers Links
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