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What is wetland (section 404) permitting?
  • The Corps regulates wetlands by administering the CWA section 404 permit program for activities that impact wetlands.
  • For most discharges that will have only minimal adverse effects, a general permit may be suitable.

Wetlands, commonly called swamps, marshes, fens, bogs, vernal pools, playas, and prairie potholes, are a subset of “waters of the United States,” as defined in section 404 of the Clean Water Act (CWA). The placement of dredge and fill material into wetlands and other water bodies (i.e., waters of the United States) is regulated by the United States Army Corps of Engineers (Corps) under 33 CFR Part 328. The Corps regulates wetlands by administering the CWA section 404 permit program for activities that impact wetlands. These permits must be obtained before beginning any project that could affect a wetland, including roads, bridges, and new facilities.

Section 404 of the 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 applying for a permit, first show that steps have been taken to avoid impacts to wetlands, streams and other aquatic resources;
  3. That potential impacts have been minimized; and that
  4. 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 Corps, which evaluates applications under a public interest review, as well as the environmental criteria set forth in CWA Section 404(b)(1) guidelines. Some states have assumed this permitting authority and regulate these activities.

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.