The Clean Water Act of 1972 (“CWA”) is the principal statute governing water quality in the United States. The goal of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve that goal, the CWA utilizes a variety of pollution control measures, including the establishment of water quality standards, requirements for the pre-treatment of wastewater, and a permitting program for discharges of pollutants into protected waterbodies. The Environmental Protection Agency (“EPA”) is the federal agency that is primarily responsible for implementing the CWA. When most people think of the CWA, they think of EPA.
However, since the CWA was first established, it has been administered jointly. Along with EPA, the United States Army Corps of Engineers (“Corps”) is responsible for implementing the CWA. Although EPA carries out the majority of the CWA provisions, the Corps is specifically tasked with executing the CWA section 404 permitting program for the discharge of dredged or fill material into waters of the United States.
CWA Section 404 Basics
Section 404 of the CWA establishes a permitting program for discharges of dredged or fill material into waters of the United States, including wetlands. Under section 404, “dredged material” has been defined as “material that is excavated or dredged from waters of the United States.” 33 C.F.R. § 323.2(c). Discharging dredged materials into a protected waterbody includes, but is not limited to, both the addition of dredged material into a specific discharge site, or runoff material from an otherwise contained area. “Fill material” has been defined as “material placed in waters of the United States where the material has the effect of: (i) replacing any portion of a water of the United States with dry land; or (ii) changing the bottom elevation of any portion of a water in the United States.” 33 C.F.R. § 323.2(e)(1). Some examples of fill material given in the regulations include rock, sand, soil, construction debris, and materials used to create any structure of infrastructure. 33 C.F.R. § 323.2(e)(2).
Finally, the term “waters of the United States” has been defined to six specific categories of waters. Only those waters that fall under the definition are subject to the section 404 permitting program. Waters of the United States had multiple definitions since the CWA was initially passed. For an in-depth look at the history of the term and its current definition, click here. Importantly, one of the six categories of protected waters includes wetlands which are defined as “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support […] a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(c)(16).
Activities that are most often regulated under the section 404 program include fill for development, water resource projects such as dams and levees, infrastructure development including highways and airports, and mining projects. However, unless an activity is specifically exempted from the program, then action which causes dredged or fill materials to be discharged into protected waters will require a section 404 permit. Many of the exempted activities are related to agriculture. Specifically excluded from the permit program are “normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products or upland soil and water conservation practices.” 33 C.F.R. § 323.4(a)(1)(i).
Permits issued under section 404 can be either individual or general. Individual permits tend to be issued to individual parties to approve a certain activity, while general permits can cover a variety of activities and be applicable nationwide. Finally, section 404 also allows states to propose programs allowing them to issue their own dredge and fill permits.
While EPA administers the bulk of the CWA, the Corps is responsible for implementing the section 404 permitting program. However, EPA retains some authority to oversee and regulate certain aspects of the program. The following is a general overview of each agency’s responsibilities under section 404 of the CWA.
Under the CWA, it is the Corps’ responsibility to issue all section 404 permits, enforce the section 404 provisions, develop policy and guidance, and make certain jurisdictional determinations. Any party that may discharge dredged or fill materials into a water of the United States will need to apply to the Corps for a permit.
The section 404 program allows for the issuance of either individual or general permits. Individual 404 permits are issued to individual parties on a project-by-project basis. In general, no discharge of dredged or fill material will be permitted under the program if: (1) a practicable alternative exists that is less damaging to the aquatic environment; or (2) the nation’s waters would be severely degraded. 40 C.F.R. § 230.5. Applicants for individual permits work with the Corps to ensure that a permit would authorize only the least environmentally damaging activity.
A general 404 permit applies to a category of activities that result in the discharge of dredged or fill materials into waters of the United States. To issue a general permit, the Corps must show that the activities allowed by a general permit are: (1) similar in nature, and in impact on water quality; (2) will have only minimal adverse effects when performed separately; and (3) will have minimal cumulative impacts on water quality. 40 C.F.R. § 230.7(a). If an applicant’s dredge or fill activities are covered by a general permit, then the applicant will not need to seek an individual 404 permit. Instead, all it has to do is comply with the terms of the general permit.
Along with issuing individual and general 404 permits, the Corps is also responsible for issuing jurisdictional determinations to help implement the section 404 program. Jurisdictional determinations specify what geographic areas will be treated as subject to regulation by the Corps under the CWA. In other words, the Corps helps to determine which waterbodies are considered “waters of the United States.” Importantly, it is EPA, not the Corps, that is not responsible for issuing regulations defining the term “waters of the United States.” Instead, the Corps assists in determining which waterbodies fall into the regulatory definition issued by EPA. The Corps issued a Regulatory Guidance letter in 2016 outlining its process for making jurisdictional determinations.
Although EPA is not responsible for the day-to-day processes of implementing section 404 of the CWA, it is still responsible for certain key duties under the provision. Those duties include developing policy, guidance, and environmental criteria used in evaluating permit applications; determining the scope of geographic jurisdiction; approving and overseeing State and Tribal assumption of permitting authority; and has the authority to prohibit, deny, or restrict approval of a section 404 permit.
As previously discussed, EPA is responsible for passing regulations defining the term “waters of the United States” under the CWA. When the Act was first passed, the Corps and EPA both had authority to define the term for the portions of the CWA that each agency implemented. Ultimately, EPA became solely responsible for defining the term which determines which waterbodies are subject to CWA permitting authority.
Along with determining which waters are protected by the CWA, EPA is responsible for determining whether to allow a state or tribal government to administer its own dredged or fill material permitting program. Section 404 of the CWA requires that any state which would like to administer its own permit program must apply to EPA in order to do so. Although EPA consults with the Corps, the final decision is ultimately up to EPA.
Finally, EPA has the authority to either restrict or wholly veto any section 404 permit issued by the Corps. According to the text of section 404, EPA may veto or restrict a Corps dredge or fill permit if EPA determines that the proposed permit activity is likely to result in “unacceptable adverse effect[s] on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C. § 1344(c). EPA can exercise this authority at any time during the permitting process, and can either entirely restrict the discharge of dredge or fill material into the proposed waterbody, or can place a restriction on the amount of discharge permitted. Since the CWA was first passed, EPA has issued only 13 section 404 vetoes. For more information on EPA’s veto power, and a recent lawsuit involving a veto issued in 2008, click here.
The majority of the CWA is administered by EPA. For most CWA-related issues, parties will look to EPA as the authoritative agency. However, if someone is proposing an activity that will involve the discharge of dredged or fill material into a water protected by the CWA, they will need to turn to the Corps rather than EPA for the necessary permit. Although EPA retains some responsibilities involving dredge or fill permits, it is the Corps that manages the day-to-day implementation of the program, including issuing individual and general permits.
To read the text of the CWA, click here.
To read section 404 of the CWA, click here.
For additional section 404 resources, click here.
For more National Agricultural Law Center resources on the CWA, click here.