&EPA
Regulatory Requirements
Section 404 of the Clean Water Act (CWA) establishes a program to regulate the
discharge of dredged or fill material into waters of the United States, including
wetlands. Activities in waters of the United States regulated under this program
include fill for development, water resource projects (such as dams and levees),
infrastructure development (such as highways and airports) and mining projects.
Section 404 requires a permit before dredged or fill material may be discharged
into waters of the United States, unless the activity is exempt from Section 404
regulation (e.g. certain farming and forestry activities).
Wetlands
subject to Clean
Water Act
Section 404 are
defined as
"areas that are
inundated or
saturated by
surface or
ground water at
a frequency and
duration
sufficient to
support, and
that under
normal
circumstances
do support, a
prevalence of
vegetation
typically
adapted for life
in saturated soil
conditions.
Wetlands
generally
include
swamps,
marshes, bogs,
and similar
areas."
The basic premise of the program is that no
discharge of dredged or fill material may
be permitted if: (1) a practicable alternative
exists that is less damaging to the aquatic
environment or (2) the nation's waters would be
significantly degraded. In other words, when
you apply for a permit, you must show that you
have, to the extent practicable:
Taken steps to avoid wetland impacts;
Minimized potential impacts on wetlands;
and
Provided compensation for any remaining
unavoidable impacts.
Proposed activities are regulated through a
permit review process. An individual permit is
required for potentially significant impacts.
Individual permits are reviewed by the U.S. Army
Corps of Engineers, which evaluates applications
under a public interest review, as well as the
environmental criteria set forth in the CWA
Section404(b)(l) Guidelines. However, for
most discharges that will have only minimal
adverse effects, a general permit may be suitable.
General permits are issued on a nationwide,
regional, or State basis for particular categories
of activities. The general permit process
eliminates individual review and allows certain
activities to proceed with little or no delay,
provided that the general or specific conditions
for the general permit are met. For example,
Striped bass
minor road activities, utility line backfill, and
bedding are activities that can be considered for
a general permit. States also have a role in
Section 404 decisions, through State program
general permits, water quality certification, or
program assumption.
Agency Roles and Responsibilities
The roles and responsibilities of the Federal
resource agencies differ in scope.
U.S. Army Corps of Engineers:
Administers day-to-day program, including
individual and general permit decisions;
Conducts or verifies jurisdictional
determinations;
Develops policy and guidance; and
Enforces Section 404 provisions.
U.S. Environmental Protection Agency:
Develops and interprets policy, guidance
and environmental criteria used in
evaluating permit applications;
Determines scope of geographic jurisdiction
and applicability of exemptions;
Approves and oversees State and Tribal
assumption;
Reviews and comments on individual
permit applications;
Has authority to prohibit, deny, or restrict
the use of any defined area as a disposal site
(Section 404 (c));
Can elevate specific cases (Section 404(q));
Enforces Section 404 provisions.
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U.S. Fish and Wildlife Service and National
Marine Fisheries Service:
Evaluates impacts on fish and wildlife of all
new Federal projects and Federally
permitted projects, including projects
subject to the requirements of Section 404
(pursuant to the Fish and Wildlife
Coordination Act); and
Elevates specific cases or policy issues
pursuant to Section 404(q).
Manual for Identifying Wetlands
The U.S. EPA and U.S. Army Corps of Engineers
use the 1987 Corps of Engineers Wetlands
Delineation Manualio identify wetlands for the
CWA Section 404 permit program. The 1987
manual organizes the environmental
characteristics of a potential wetland into three
categories: soils, vegetation, and hydrology. The
manual contains criteria for each category. Using
this approach, an area that meets all three criteria is considered a
wetland.
Wetlands on Agricultural Lands
Farmers who own or manage wetlands are directly affected by two
important Federal programsSection 404 of the CWA and the
Swampbuster provision of the Food Security Act. The
Swampbuster provision withholds certain
Federal farm program benefits from
farmers who convert or modify
wetlands. The U.S. EPA, U.S.
Army Corps of Engineers, U.S.
Department of Agriculture,
and U.S. Fish and Wildlife
Service have established procedures
to ensure consistency between the programs.
Many normal farming practices are exempt from Section 404.
Waterlilies
The Wetland Fact Sheet Series
Wetlands Overview
Types of Wetlands
Threats to Wetlands
Wetland Restoration
Funding Wetland Projects
Functions and Values of Wetlands
Teaching About Wetlands
Wetland Regulatory Authority
Wetlands Compensatory Mitigation
Benefits of Wetland Monitoring
For more information, call EPA's Wetlands Helpline at 1-800-832-7828
On the Internet
EPA's Wetlands Website www.epa.gov/owow/wetlands/regs/
Section 404 of the Clean Water Act www.epa.gov/owow/wetlands/laws/
Wetland Delineation Manual www.wes.army.mil/el/wedands/wlpubs.html
U.S. Army Corps of Engineers Regulatory Program www.usace.army.mil/inet/functions/cw/cecwo/reg/
U.S. Army Corps of Engineers' Waterways
Experiment Station Environmental Laboratory www.wes.army.mil/el/wetlands/wetlands.html
Environmental Law Institute www.eli.org
In Print
America's Wetlands: Our Vital Link Between Land and Water. For a copy, order from EPA's publications web site at http://
yosemite.epa.gov/water/owrccatalog.nsfor call the EPA Wetlands Helpline at 1-800-832-7828.
Wetlands Deskbook, 2nd Edition, Margaret N. Strand. Available from the Environmental Law Institute. Call 1-800-433-
5120; fax your request to (202) 939-3868; ore-mail to orders@eli.org.
Our National Wetland Heritage: A Protection Guide, 2nd Edition, Jon A. Kusler, Ph.D., Executive Director, Association of
State Wetland Managers. Available from the Environmental Law Institute. Call 1-800-433-5120; faxyour request to
(202) 939-3868; or e-mail to orders@eli.org.
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