Section 404 of the Clean Water Act established a program to regulate the discharge of dredged or fill material into waters of the United States. The Rivers and Harbors Act of 1899 defined navigable waters of the United States as “those waters that are subject to the ebb and flow of the tides and/or are presently used, or have been used in the past, or maybe susceptible to use to transport interstate or foreign commerce." The Clean Water Act built on this definition and defined waters of the United States to include tributaries to navigable waters, interstate wetlands, wetlands which could affect interstate or foreign commerce, and wetlands adjacent to other waters of the United States.
The program is jointly administered by the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA). The USACE is responsible for the day-to-day administration and permit review and EPA provides program oversight. The fundamental rationale of the program is that no discharge of dredged or fill material should be permitted if there is a practicable alternative that would be less damaging to our aquatic resources or if significant degradation would occur to the nation’s waters. Permit review and issuance follows a sequence process that encourages avoidance of impacts, followed by minimizing impacts and, finally, requiring mitigation for unavoidable impacts to the aquatic environment. This sequence is described in the guidelines at
Section 404(b)(1) of the Clean Water Act.
The first step in determining whether or not a Section 404 permit is required for your project is to determine whether or not waters of the United States, including wetlands, are present within the project area. The following links for the USACE’s approved jurisdictional determination form, wetland delineation manual, and regional supplements provide guidance on how to identify wetland areas.
If waters of the United States are present within your project area and they would be impacted as a result of the discharge of dredged or fill material, a permit/authorization from the USACE would be necessary. Activities can either be permitted under Individual Permits, for which
Engineer Form 4345 would need to be completed; Nationwide Permits, or Regional General Permits.
Nationwide Permits (NWPs) are a type of general permit issued by the Chief of Engineers and are designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts. An activity is authorized under a NWP only if that activity and the permittee satisfy all of the NWP's terms and conditions. Per NWP General Condition (GC) 23 (Regional and Case-By-Case Conditions): The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in its section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act consistency determination. Regional Conditions can be obtained from the District Office having jurisdiction over your project area.
Regional Permits are a type of general permit issued by the District, and similar to Nationwide Permits, they are designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts. Information on Regional General Permits can be obtained from each District.
See also:
Source: usace.army.mil and fws.gov