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Certain Construction Activities May Require Section 404 Permit

One of the primary functions of the Clean Water Act (the Act) is to protect the quality of surface water in the United States by regulating the discharge of pollutants. The main objective of the Act is to ensure the biochemical and physical integrity of U.S. waters, encouraging “the protection and propagation of fish, shellfish and wildlife and recreation in and on the water.”

In general terms, the Act carries out this objective by prohibiting the discharge of pollutants into U.S. waters, unless discharge is specifically authorized by a permit. Pursuant to the terms of the Act, a contractor must be granted an applicable permit before the contractor may deposit dredge or fill materials into federally protected waters. Section 404 of the Act sets forth a permitting process that regulates the issuance of such permits.

Typical examples of construction activities that may be subject to Section 404 regulation include:

  • Construction of dams, dikes, and most roads
  • Diversion of water flow for irrigation systems and water flow
  • Modification and stabilization of streambeds
  • Creation of ditches and leveling land

Administration of Section 404 Permits

The Section 404 permitting program is administered by the U.S. Army Corps of Engineers (Corps), subject to environmental direction from the U.S. Environmental Protection Agency (EPA). While the Corps generally issues Section 404 dredge and fill permits, the EPA possesses the authority to veto any permitting decisions made by the Corps.

The EPA establishes guidelines for permit evaluations and reviews. In addition, it issues commentary for individual permit applications, and under some circumstances, forbids or limits the use of a site for the disposal of dredged or fill material.

State Permit Programs

Pursuant to the Act, the EPA is authorized to delegate specified Section 404 permitting duties to qualified states (which it has done with such states as New Jersey and Minnesota). More specifically, once a state implements an approved permitting program, it may issue Section 404 permits for certain properties. This allows permit applicants to submit applications directly to the state for approval, eliminating the need to seek permission from the federal government.

The Permit Process

The Section 404 permitting process is based on the general principle that a discharge of dredged or fill material will not be allowed if a less harmful practical alternative exists. Further, discharges that result in a significant degradation of the quality of the nation’s waters will also be prohibited. As a consequence, in order to obtain a permit, the applicant must show all of the following:

  • Actions have been taken (where practical) to avoid impinging upon wetlands
  • Potential adverse effects to wetlands have been reduced
  • Remediation for any unavoidable impacts has been provided by the restoration or creation of other wetlands

The Corps issues two different kinds of Section 404 permits: (1) Individual permits, and (2) General permits.

Individual Permits

Individual permits are required when construction activities involve potentially significant environmental impacts. In broad terms, the issuance of individual permits typically follows this process:

  1. An individual or corporation submits a permit application describing the proposed activity to a Corps office.
  2. Once the application is complete, the Corps issues a public notice so the potential impact of the activity can be evaluated. The public notice, typically posted near the project site and at other government facilities, also invites commentary regarding the proposed activity.
  3. During the comment period, the Corps and other federal and state agencies review the application and the comments received.
  4. The Corps may be requested to hold a public hearing, although the occurrence of a public hearing is unusual.
  5. The Corps makes a final decision based on public commentary and its own evaluation of the activity.
  6. The Corps describes its permit decision by issuing a “Statement of Finding,” which is available for public viewing.

General Permits

The Corps may issue general permits on a nationwide, regional or state basis for minor activities that will likely have only negligible environmental impacts. The procedure for the issuance of general permits has similar public notice requirements and an opportunity for a public hearing, but generally requires less time and less paperwork. However, a general permit is only valid where its required conditions have been fulfilled. If the applicable conditions are not fulfilled, an individual permit is required.

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