Wetland Regulation and the Section 404 Permit

© Dr. John Jacob, TCWP

The Clean Water Act

The Clean Water Act (CWA) is the primary mechanism used by the Federal Government to govern water pollution. In 1972, a set of amendments significantly reorganized and expanded the Federal Water Pollution Control Act (originally passed in 1948). At this time, the Act became commonly referred to as the Clean Water Act. It was significantly expanded in 1977 with the Clean Water Act of 1977 amendments. The goal of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (CWA 1977). The two major parts of the CWA are the terms with federal monies to be used for municipal sewage treatment plant construction (Titles I,II, and VI) and regulatory requirements and standards for discharge of pollutants into waters of the US (Titles III, IV, and V).

Under Title III of the Act, all discharges into waters of the US are deemed illegal unless specifically authorized by a permit (Section 301). Title IV of the CWA details the requirements for permits and licenses of discharges required by Section 301 of the CWA.

Section 404 of Title IV establishes a program for the Federal Government to regulate discharge of dredged and fill material into waters of the US. The Section 404 Program is jointly administered by the EPA and the US Army Corps of Engineers (USACE).

Section 404(b)(1) of the CWA allows the Federal Government to develop guidelines for permitting discharges of dredged and fill material into waters of the US.   The current manifestation of these guideline (published in 2008) were developed based on the concept that the discharge “will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern” (40 CFR 230.1(c)) and that “degradation or destruction of special aquatic sites, such as the filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines” (40 CFR 230.1(d)).

USACE Section 404 Permit Evaluation

The USACE considers four primary factors in determining the issuance of a Section 404 permit:

1. Is there a practical alternative with less impact to the aquatic system?
2. Does the discharge comply with all other environmental standards and laws?
3. Does the discharge significantly degrade waters of the US in terms of human welfare, aquatic life and special aquatic habitat, and recreational, aesthetic, and economic values?
4. Have all practical and appropriate steps been taken to minimize impacts to the aquatic system?

It is through evaluation of discharges of dredged and fill material under the Section 404 Program that wetland functions and values considered jurisdictional under the Clean Water Act are protected and maintained so that the chemical, physical, and biological integrity of water of the US are maintained.

Further Reading

• What are waters of the US?
• Do I need a Wetland Permit?
• Development and Wetlands
• Mitigation Banking in Texas