Section 404 of the Clean Water Act

Section 404 Permit Program

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).

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 first show that steps have been taken to avoid impacts to wetlands, streams and other aquatic resources; that potential impacts have been minimized; and that compensation will be provided for all 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 EngineersExit which evaluates applications under a public interest review, as well as the environmental criteria set forth in the CWA Section 404(b)(1) Guidelines, regulations promulgated by EPA.

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, 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; Exit
  • Conducts or verifies jurisdictional determinations;
  • Develops policy and guidance; and
  • Enforces Section 404 permit provisions.

U.S. Environmental Protection Agency

U.S. Fish and Wildlife Service and National Marine Fisheries Service:

  • Evaluate 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
  • Elevate specific cases or policy issues pursuant to Section 404(q).

Congressional Reporting

In accordance with EPA's fiscal years 2014 and 2015 appropriations, the Agency is required to submit regular reports to Congress regarding review of public notices issued by the U.S. Army Corps of Engineers for proposed Clean Water Act Section 404 standard permit actions. The following reports starting in April 2014 list all of the public notices for proposed standard permit actions received by EPA, the location of the project, the extent of the Agency's review and the number of days under review for each project where EPA sent a letter.  Note, the reports for the first and second quarter of Fiscal Year 2014 only include public notices for proposed standard permit actions where the Agency commented in a letter. Projects continue to show up in subsequent reports until a final permit decision from the Corps of Engineers is reported. All completed reports can be found on this page.

Additional Section 404 Information