Clean Water Act Section 404 Permit (14-FD-a)

Information current as of 2023

A person (developer) must obtain a Section 404 Approval from the US Army Corps of Engineers (USACE) to discharge dredge or fill material into waters of the United States. 33 U.S.C. § 403. The USACE regulates the discharge of dredged or fill material into waters of the United States pursuant to the Section 404 of the Clean Water Act and Title 33 CFR 323 Permits for Discharges of Dredged or Fill Material Into Waters of the United States. In regulating the discharge of dredged or fill material, the USACE has developed multiple general permits to authorize common activities that have minimum impacts to waters of the United States. These general permits are an expeditious way to receive authorization for a project that has been designed to meet the terms and conditions of the general permit.

The USACE uses three types of general permits: Nationwide Permits, Regional General Permits, and Programmatic General Permits. Not all USACE district offices use all three types of general permits. In addition, many districts have placed regional conditions on their Nationwide Permits. Therefore, a developer should verify which district the proposed project is located in and then contact the district office to determine if the district’s Nationwide Permit has any additional regional conditions. The district offices can also answer any questions regarding the terms and conditions and/or applicability of a certain general permit to a proposed activity. Some general permits do not require any notification to USACE to use them while others may require notice to and verification from USACE prior to use.

When a project activity does not meet the terms and conditions of a general permit, an individual permit is required. The individual permit can be a Letter of Permission that is also an abbreviated process that is primarily used for certain activities that fall squarely under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). Section 10 reviews under the Rivers and Harbors Act and reviews pursuant to Section 404 under the CWA are primarily the same, except for projects that require an alternatives analysis under the Section 404(b)(1).

The other type of individual permit is a Standard Individual Permit and is most often just called an “Individual Permit.” This process is more detailed and is the primary focus of the remainder of this section and the associated flowchart.

Note: Regardless of the type of permit, USACE must also comply with Section 7 of the Endangered Species Act, Section 106 of the National Historic Preservation Act, and its Tribal Trust Responsibilities. Additional information may be required from the developer for USACE to comply with these laws but such processes are not discussed in detail in this section since they are applicable to any federal action associated with the proposed activity. For more information, see:

On-Site Evaluation Overview: 10

USACE may require compensatory mitigation for impacts to aquatic resources regardless of permit type. See 33 C.F.R. § 332 for more information.

The discussion below and flowchart assume that the developer already knows a permit is required. In cases where the developer is unsure if an aquatic feature, such as a wetland, at the potential project site is jurisdictional and subject to Section 404 permit requirements, the developer should contact the USACE district early in the process to discuss any information that may be needed by USACE to make a jurisdictional determination, such as a wetland delineation report. To avoid delays during the application review process, such information should be provided to USACE as early as practicable.

NOTE: Readers should be aware of the recent Supreme Court decision in Sackett v. EPA and proposed rules on this matter and continue to monitor the issue at the state and national level. On November 18, 2021, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced the signing of a proposed rule to revise the definition of “Waters of the United States,” effectively revoking the Navigable Waters Protection Rule. The final rule was published on January 25, 2023 and became effective March 25, 2023. On April 12, 2023, a district court judge in the federal district of North Dakota issued a preliminary injunction of the WOTUS rule in 24 states, preventing the administration of the rule in those states. An additional two states were affected by a previous injunction of the rule, bringing the total number of states in which the rule is stayed to 26. Concurrent to the development of the WOTUS rule, the Supreme Court of the United States granted Certiorari in Sackett v. EPA. In the case, a dispute over the fill of a wetland, the Ninth Circuit Court of Appeals applied the significant nexus test to find that the wetland was covered by the Clean Water Act. The test used by the Court of Appeals, based on Supreme Court precedent, is largely codified by the Final Rule. The sole issue on appeal in Sackett was whether this significant nexus test was the correct test to apply for determining jurisdiction over wetlands or whether some other test should be used. On May 25, 2023, the Supreme Court rejected the significant nexus test. The Court held that federal jurisdiction over wetlands applies only to those wetlands that have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is demarcation between ‘waters’ and wetlands. In light of this decision the EPA and Department of the Army are developing a proposed rule to amend the rule for the “Waters of the United States” definition. The proposed rule is expected to be published in fall 2023. Readers should continue to monitor the issue at the state and national level.

Waters of the United States

In the states of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, the new definition of "Waters of the United States" went into effect on March 25, 2023. Under the new rule, “Waters of the United States” are defined as:

The territorial seas, and waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
Tributaries;
Lakes and ponds, and impoundments of jurisdictional waters; and
Adjacent wetlands. 33 C.F.R. § 328.3(a).

Tributaries must be relatively permanent, standing or continuously flowing bodies of water; or, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of downstream waters that are subject to the Clean Water Act. 33 C.F.R. § 328.3(a)(3).

Similarly, Wetlands must be relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to jurisdictional waters; or, either alone or in combination with similarly situated waters in the region, must significantly affect the chemical, physical, or biological integrity of waters subject to the Clean Water Act. 33 C.F.R. § 328.3(a)(4). “Wetlands” are defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” 33 C.F.R. § 328.3(c)(1).

For both tributaries and wetlands, “Significantly affect” means “A material influence on the chemical, physical, or biological integrity of waters” subject to the Clean Water Act. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters, the following factors must be assessed:

Contribution of flow;
Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants);
Retention and attenuation of floodwaters and runoff;
Modulation of temperature in waters identified in paragraph (a)(1) of this section; or
Provision of habitat and food resources for aquatic species located in waters subject to the Clean Water Act.

In addition, the following factors must be considered:

The distance from a water subject to the Clean Water Act;
Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow;
The size, density, or number of waters that have been determined to be similarly situated;
Landscape position and geomorphology; and
Climatological variables such as temperature, rainfall, and snowpack.

33 C.F.R. § 328.3(c)(6).

In the states of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming, federal district courts have enjoined the EPA's new definition of Waters of the United States. Therefore, in these states, the old definition of "Waters of the United States" currently applies. This definition of "Waters of the United States" includes:

The territorial seas, and waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
Tributaries;
Lakes and ponds, and impoundments of jurisdictional waters; and
Adjacent wetlands. 33 C.F.R. § 328.3(a).

Tributaries must be perennial or intermittent within a typical year, which the rule defines as a year "when precipitation and other climatic variables are within the normal periodic range for the geographic area of the applicable aquatic resource based on a rolling thirty-year period." 33 C.F.R. § 328.3(c)(13).

"Waters of the United States" do not include:

Waters or water features that are not identified in paragraph (a)(1), (2), (3), or (4) of this section;
Groundwater, including groundwater drained through subsurface drainage systems;
Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
Diffuse stormwater run-off and directional sheet flow over upland;
Ditches that are not waters identified in paragraph (a)(1) or (2) of this section, and those portions of ditches constructed in waters identified in paragraph (a)(4) of this section that do not satisfy the conditions of paragraph (c)(1) of this section;
Prior converted cropland;
Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6) of this section;
Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
Waste treatment systems. 33 C.F.R. § 328.3(b).

Clean Water Act Section 404 Permit Process

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