Section 404 of the Clean Water Act authorizes the Secretary of the Army to issue permits for the discharge of dredge or fill material into navigable waters. The Secretary of the Army has delegated this authority to the Army Corps of Engineers.
However, Section 404 of the Clean Water Act also authorizes the Environmental Protection Agency to deny the use of any defined area as a disposal site for dredge or fill material.
Divided Responsibility: EPA and the Army Corps of Engineers
As per 33 CFR 320–330, the Army Corps of Engineers:
As per 40 CFR 230–233, the Environmental Protection Agency:
- Administers the day-to-day program, including individual permit decisions and jurisdictional determinations.
- Develops policy and guidance.
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- Develops and interprets environmental criteria used in evaluating permit applications.
- Determines the scope of geographic jurisdiction.
- Approves and oversees State assumption of permitting.
- Identifies activities that are exempt.
- Reviews/comments on individual permit applications.
- Has authority to veto the Corps’ permit decisions.
- Evaluates specific areas for permitting applicability.
Who Needs a Dredge-and-Fill Permit?
Anyone intending to discharge dredge or fill materials into a water of the United States is required to obtain a permit from the Army Corps of Engineers before commencing the discharge.
However, there are exclusions
to the permitting requirement:
- Normal farming, silviculture, and ranching activities (but not filling to convert land to these uses)
- Maintenance of dikes, dams, and levies (but not construction or modification of such structures)
- Construction or maintenance of farm, stock pond, or irrigation ditches
- Maintenance (but not construction) of drainage ditches
- Construction of temporary farm, forest, or mining roads done in accordance with specified “best management practices.”
What Are “Dredge” and “Fill” Materials Anyway?
40 CFR 232.2 defines dredge material as “material that is excavated or dredged from waters of the United States,” while “fill material” is defined as “material placed in waters of the United States where the material has the effect of
1. Replacing any portion of a water of the United States with dry land; or
2. Changing the bottom elevation of any portion of a water of the United States.”
Types of Dredge-and-Fill Permits
As with many other environmental permit programs, there are two types of permits covering the discharge of dredge and fill materials.
- Individual Permits, which are required for discharges that have the potential for a significantly adverse impact. The requirements will be specific to the project.
- General Permits, for discharges that have minimal adverse effects. Dischargers may comply with a general permit if one exists for the activity they are doing and if they meet the conditions described in the permit. On January 6, 2017, the Army Corps of Engineers renewed 50 previous nationwide permits (with few revisions) and issued two new permits. The full list can be found at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/.
Permit decisions are made by the Corps’ district engineers in conjunction with the EPA (except in New Jersey and Michigan, currently the only states with approved §404 programs that operate in lieu of the Federal program). Individual permit application forms can be obtained from the Corps’ district office having jurisdiction over the affected waters. In most cases, discharges covered by a general permit do not require submission of an application, but some do require a separate notification to be made to the Corps.
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