Section 404 of the Clean Water Act

Section 404 of the Clean Water Act (codified at 33 USC 1344) authorizes the regulation of the discharge of materials into Waters of the Unites States. The program is administered by the Army Corps of Engineers through the Navigation and Navigable Waters regulations 33 CFR 320-338.

When It Is Required

Any project that proposes to discharge into Waters of the United States, and generally any project that requires a state wetland permit or stream alteration consultation, must obtain a permit from the Corps. Waters of the United States are defined broadly to include wetlands and intermittent waterways (33 CFR 328). Recent US Supreme Court cases have caused the Corps to refine the definition of Waters of the United States, but in general any project that requires a state wetland permit would also require a permit from the Corps.

The Corps reissued a State Programmatic General Permit (PGP) to expedite review of smaller projects in navigable and inland waters of the state. The PGP categorizes projects as Category 1, “Self-Verification” with Notification Form required, or Category 2, “Reporting”. The PGP also identifies projects that don’t qualify in these categories, and require an Individual Permit from the Corps. For most non-navigable waters, fills less than 3,000 square feet and bridge projects that use spans, open bottom arches, or embedded culverts fall under Category 1, and applicants may proceed following submission of a Notification Form to the Corps. Individual Permits are required for fills over one acre and in certain other cases.

Permit Process

Permit application submittal requirements are listed in the PGP. For the Category 1 Self-Verification, the Notification Form requires the permittee’s contact information, wetland impact information, contractor information, and work dates.

For Category 2 projects, applicants must submit:

  • A completed application form (ENG 4345).

  • Plans that illustrate the proposed work in reference to the limits of Corps jurisdiction as applicable. Impacts should be shown with cross hatching or shading (no color) on both plan views and cross sections. Plans should be in black and white on 8.5” x 11” paper and contain all other appropriate information.

  • A description of the proposed work, project purpose and location, including a locus map and photographs, if applicable.

  • Data sheets to support wetland delineations.

  • A narrative description of the habitat(s) including dominant plant community(ies) present, soil type and relevant existing and adjacent land uses.

  • A demonstration that there will be no more than minimal direct and indirect impacts to the aquatic resource(s) resulting from the project. Consideration should be given to impacts associated with expected hydrologic changes, effects on riparian habitat, forest fragmentation, impacts to headwater and ephemeral streams, stormwater discharges and other potential water quality and wetland habitat impacts.

  • Information on federal endangered and threatened species and critical habitat, and state endangered and threatened species that occur or may occur in the project area.

  • Identification and description of potential impacts to essential fish habitat.

  • Identification of potential discharges of pollutants to waters, including potential impacts to impaired waters, in the project area.

  • Identification, quantification, and description of potential impacts to aquatic resources, including delineation of wetlands, special aquatic sites, special wetlands and vernal pools.

The Corps provides Application and Plan Guidance for applicants to identify all the required items to submit. A pre-application meeting with the Corps is recommended, and a Corps representative attends the monthly natural resource agency meetings at VTrans, along with DEC, EPA, and USFWS. A Determination of Eligibility for the VT GP is issued for Category 2 projects within about 30 days.

For Individual Permit applications, applicants submit the materials for a Category 2 application, plus:

  • Alternatives Analysis

  • Any other permits or approvals required, such as Section 401 Water Quality Certification, Section 106 or Title 19 (rivers and streams).

Timeframes for processing of individual permits can vary depending on the complexity of the project, and includes a public notice period and, in some cases, a public hearing. The duration or expiration date of Section 404 permits can vary but is typically three to five years. Regulations for processing Army Corps applications are codified in 33 CFR 325.2, Processing of Applications.

Related Regulations

Regulatory programs with overlapping jurisdiction with Section 404 of the Clean Water Act include, but are not necessarily limited to, the following:

  • Section 401 Water Quality Certification: Water Quality Certification is required for projects requiring a Federal permit which involve discharges to water bodies or wetlands. Section 401 is administered by ANR, and for larger projects, requires a separate permit application with plans and details. Certification is usually issued in conjunction with either a State Wetlands Permit or a Stream Alteration Permit (Title 19).

  • State Wetlands Permit Program: Vermont regulates alterations of “significant” wetlands through a state wetland permitting program.

  • Title 19 (state rivers and streams): VTrans is exempt from the Stream Alteration Permit program, but under state law referred to as Title 19, VTrans is required to consult with ANR prior to engaging in repairs or construction that involve streams, ponds, or lakes.

  • Section 10 of the Rivers and Harbors Act: The Army Corps of Engineers and the US Coast Guard regulate dredging and filling in navigable waters.

For More Information

U.S. Army Corps of Engineers,

New England District

Vermont Project Office

11 Lincoln Street, Room210

Essex Junction, Vermont 05452

www.nae.usace.army.mil

Permit applications, applications guidelines and technical assistance are available from the following websites:

Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Northcentral and Northeast Region

http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/NCNE_suppv2.pdf

Army Corps of Engineers Regulatory Division Application and Plan Guideline Checklist

http://www.nae.usace.army.mil/Regulatory/Forms/Application_PlanGuidelines.pdf

Army Corps of Engineers Application for Department of the Army Permit

http://www.nae.usace.army.mil/Regulatory/Forms/Application.pdf

Department of the Army General Permit State of Vermont

http://www.nae.usace.army.mil/Regulatory/Public%20Notices/12/spn20121211.pdf