Section 404 of the Clean Water Act
Section 404 of the Clean Water Act establishes 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 may be 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 the 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 aquatic resources or if significant degradation would occur to the nation’s waters. Permit review and issuance follows a sequential 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 set forth in Section 404(b)(1) of the Clean Water Act.
The first step in determining whether a Section 404 permit is required for a project is to determine whether 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.
Approved Jurisdictional Determination Form
U.S. Army Corps of Engineers Wetland Delineation Manual
Regional Supplements to Corps Delineation Manual
If waters of the United States are present within the project area and they would be impacted as a result of the discharge of dredged or fill material, it is necessary to seek a permit/authorization from the USACE. Activities can be approved via Individual Permits, Nationwide Permits, or Regional General Permits.
Nationwide Permits (NWPs) are a type of general permit issued by the Chief of Engineers. They are designed to regulate certain activities associated with minimal impacts with as little delay or paperwork as possible. However, an activity can only be authorized under an NWP if the 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 at the District level. Like Nationwide Permits, they are designed to regulate certain minimal-impact activities with as little delay or paperwork as possible. Information on Regional General Permits can be obtained from each District.
U.S. Army Corps of Engineers Regulatory Branch
Source: usace.army.mil and fws.gov