Enacted to conserve and restore the quality of the nation's waterways, § 404 of the Clean Water Act (CWA) requires authorization for dredge and fill activities for activities in waters of the U.S., including certain wetlands. The § 404 permit program is administered jointly by EPA and the Army Corps of Engineers (COE).
Lead Agency: The COE handles the actual issuance of permits, and it determines whether a particular area of land is a wetland or water of the U.S. The COE also has primary responsibility for ensuring compliance with permit conditions, although EPA plays a role in compliance and enforcement.(1) Other agencies involved in reviewing applications for and ensuring compliance with § 404 permits include NMFS, FWS, and state agencies.
The COE can authorize dredge and fill activities with a standard individual permit, a letter-of-permission, a nationwide permit, or a regional permit. Based on the level of impacts associated with a proposed project, the COE will make a determination on what type of permit review and authorization is appropriate. Authorizations expire 2-5 years from the date of issuance; however, they may be renewed if the COE is notified at least one month prior to expiration.(2) Depending on the scope of the project and construction methods, certain activities associated with advanced water power renewable energy projects (e.g., transmission cables) may require a § 404 permit.
Consultation: In its application review, the COE will consult with federal and state agencies to evaluate potential impacts on fish and wildlife, water quality, navigation, historic, cultural, scenic and recreational values, and local economies. The inter-agency consultation process also involves review and negotiations to identify conservation measures that can help protect and mitigate potential effects. Before issuing a decision on a Standard Individual Permit, the COE will provide a 15 to 30 day public notice period. Also, the COE must provide notice of and opportunity for public hearings before issuing a permit.
If a project could affect a threatened or endangered species or its critical habitat, then the COE must engage in an Endangered Species Act § 7 Consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) before issuing an authorization.(3) Additionally, the project applicant may be required to submit a Biological Evaluation.(4)
Process Time: Usually 60 to 120 days; but if an EIS is required process time will increase.
Legal Authority: Clean Water Act § 404 (33 USC § 1344).