Section 404 of the Clean Water Act (CWA) regulates the discharge of dredged or fill material into waters of the United States (WOTUS). Typically, this means companies must obtain a water quality certification from the state along with a permit from the U.S. Army Corps of Engineers before construction or other work is performed in those areas. However, the Clean Water Act does not define waters of the United States. Instead, it has allowed the Environmental Protection Agency (EPA) and the Corps to define waters of the United States through regulations. As a result, this definition has been refined and revised several times. Most recently as a result of the August 30 federal district court decision in Pasqua Yaqui Tribe v. EPA. This recent court case has changed how the agencies are interpreting what water features are considered to be WOTUS. This has left many people wondering if their construction projects now require a Section 404 permit.
Does this change affect my construction project?
The EPA and the Corps are currently working to craft a durable definition of waters of the United States. In the meantime, the agencies have reverted to the pre-2015 regulatory framework which means the 2020 Navigable Waters Protection Rule is no longer in effect.
According to the EPA, approved jurisdictional determinations (AJD) remain valid until the expiration date unless new information justifies a revision. However, pending CWA permit applications or those received after the court’s decision will be completed based on the pre-2015 regulations.
What counts as WOTUS?
This recent change once again broadens the definition of WOTUS to include areas that are not always easy to clearly define or identify. As always, sizable bodies of water, such as seas, lakes, and rivers are considered to be waters of the United States. However, it also includes less obvious bodies of water like wetlands, wet meadows, and even prairie potholes. Additionally, this change means that property adjacent to traditional navigable bodies of water are included in the definition again. These areas can be even harder to identify, but, in general, they include ephemeral tributaries, man-made ditches that act as tributaries, and other water features that only flow during and shortly after rainfall or other types of precipitation.
While this is not a comprehensive list, it illustrates how easy it is to misinterpret this rule and how it affects your project. Consulting an environmental services expert who is experienced with the Section 404 permitting process can help you navigate this complex and confusing process.
How do I get a Section 404 permit?
Two types of Section 404 permits are available—general and individual permits. General permits, also known as Nationwide (NWP) or Regional General (RGP) permits, are designed to cover activities that are generally minor in scope and substantially similar in nature. In most cases, completing a pre-construction notification (PCN) is all that is needed to confirm your project qualifies for nationwide authorization. However, you should contact the appropriate Corps field office to obtain a Regional authorization or to determine if there are any regional conditions that restrict a nationwide permit. In general, this process takes an estimated 60 days.
If the project is not covered by a Nationwide or Regional permit, you will need to apply for an individual permit. To be eligible for an individual permit, the proposed activity must be feasible and the least environmentally damaging alternative. This is in addition to the requirement that you have plans in place to avoid, minimize, or compensate for any impacts. The individual permit process typically requires a Public Notice. This can substantially increase the amount of time it takes to complete the review and approval process with many applications taking anywhere from four months to a year to finalize.
What if I don't get a Section 404 permit?
Anyone who continues with construction without a required Section 404 permit or who violates the terms of a permit may face civil and criminal penalties. The Corps and EPA may also put a stop to the project and could potentially make the developer restore the property to its natural condition.
What is the best way to identify and prevent potential problems?
Ideally, developers should consult with an environmental services expert prior to land acquisition or as early as possible in the planning process to help you determine if a property potentially contains waters of the United States. By involving an expert who has a thorough understanding of federal, state, and local environmental regulations—including the Section 404 permitting process—they can provide you with important information during the design and scoping phases about how potential issues could affect the estimated timeline and cost of the project. Perhaps most importantly, this evaluation will provide you with guidance based on your specific circumstances and property. They can even suggest design alternatives that avoid impacting jurisdictional waters. However, if an individual permit is required, an expert can also help you avoid unexpected budget and schedule overruns due to delays or denial due to insufficient or incorrect information.
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Our Environmental Services team has more than 40 years of combined experience evaluating construction projects that require environmental compliance and permitting—including Section 404 of the Clean Water Act. Our services also include wetland evaluations, delineations, and mitigation plans that meet Clean Water Act standards. Our environmental team works alongside our water resource engineers to ensure everything is planned, permitted, and installed correctly to achieve state and federal regulatory compliance for transportation, aviation, power, and land development projects.
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