Water quality in the U.S. is greatly controlled by Section 404 of the Clean Water Act. Water resources are precious and need protection so we have clean, fresh water to drink. Water quality also supports plant and animal life that are critical to our health and survival, as well as our enjoyment of our surroundings.
One of the Clean Water Act's most important provisions is Section 404, which gives the Secretary of the Army power to grant or deny permits to dump dredge or fill materials into waters of the United States at specified disposal sites. Essentially, Section 404 regulates how the shape, character, and course of U. S. waters and the lands surrounding them may be changed.
Section 404 was added to the CWA in 1972. It applies to all navigable waters of the United States, defined in 33 CFR Part 329 as, "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce," plus their tributaries and adjacent wetlands and isolated waters where the use, degradation or destruction of such waters could affect interstate or foreign commerce. Section 404’s geographical scope also includes the ocean up to three miles from the shores of U. S. territories.
The types of "dredge and fill materials" regulated under Section 404 include sand, rock, and dirt used to construct fast (fixed) land for site development, roadways, erosion protection, etc. Water from such materials which is discharged back into regulated waterways is also subject to Section 404, even if the materials themselves are not deposited in regulated waterways. Other types of pollutants discharged into waterways are regulated under Section 402 of the CWA.
Authority to administer and enforce Section 404 has been delegated by the Secretary to the Chief of Army Engineers, and further decentralized to district officers of the Corps of Engineers. These officers are directed to evaluate the impact of proposed work upon the public interest, and to hold public hearings allowing citizen input over a reasonable period of time before issuing conditioned permits. Local Corps of Engineers officers may also grant alternative forms of permits, such as letters of permission and regional general permits. If a local officer grants a permit in conformance with the procedures specified under Section 404, there is no formal administrative appeals process for his decision.
The Corps works closely with state government environmental protection agencies throughout the permitting process. This partnership ensures that local needs and community wishes are incorporated in permit evaluations.
The Corps may revoke, suspend, or modify permitted activities, and impose criminal, civil, or administrative penalties for non-compliance with permit requirements. The Corps initiates all criminal enforcement actions, but works closely with the Environmental Protection Agency to determine what enforcement actions are necessary.
If threatened or endangered species' habitats may be affected by activities regulated under Section 404, the Corps is required to consult with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service before making a permit decision. The permit applicant is required to submit a Biological Evaluation of the proposed activities' impact on such species.
Section 404 of the Clean Water Act provides a flexible interagency framework within which land-shaping activities can be conducted while taking into consideration potential impacts upon animals, plants, and the quality of local residents’ lives.
