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A Guide to Wetlands Management & Development

Section 404

Waters of the United States

Section 404 of the federal Clean Water Act requires a permit from anyone, including a government agency, political subdivision, landowner, or developer who is conducting activities that discharge "dredged or fill material" into the "waters of the United States." The term "discharge" includes "all mechanized land clearing, ditching, channelization and other excavation activities that would have the effect of degrading or destroying waters of the United States." The term "waters of the United States" includes all lakes, waterways, rivers, streams and wetlands.

Nationwide vs. Individual 404 Permit

Questions have arisen concerning basic differences between general permits and individual 404 permits. There are two similar but different types of general permits: (a) regional general permits and (b) nationwide general permits. While there are many factors considered by the US Army Corps of Engineers, the basic distinction between the types of 404 permits is as follows:

Section 404 1. Regional General Permits: The US Army Corps of Engineers is authorized to issue, after notice and opportunity for public hearing, general permits on a regional or statewide basis for any category of activities that are similar in nature, similar in their impact on water quality and the aquatic environment, and cause only minimal adverse impact both individually and cumulatively. The purpose of the general permit is to allow certain minimal impact activities to occur with little, if any, delay or paperwork. These permits may be issued to a specific group, entity, or agency or to the public in general. Some of the
regional general permits currently in effect include water intakes, fish habitat structures, wetland enhancement activities and artificial reefs, etc.

2. Nationwide General Permits: Nationwide general permits are very similar to regional general permits in applicability and purpose. They are issued to the general public every five years and are applicable anywhere (with some special limitations) in the United States. There are currently 39 different categories of activities authorized under this permit program. Some of the activities require notification to the US Army Corps of Engineers prior to implementation and some require submittal of a wetland delineation if the project is proposed to be constructed within a wetland. All nationwide general permits have restrictions based on activity, project size, area impacted, construction method, etc. Some of the nationwide general permits currently in effect include bank stabilization, boat ramps, utility line crossings, minor road crossings, etc.

3. Individual Permits: These permits are the basic form of authorization under the US Army Corps of Engineers' permit program. Individual permits are required in cases where a proposed project does not meet the terms and/or conditions of either a regional or nationwide general permit due either to the type of activity, size of project, or when it is probable that the project will cause more than minimal impact to the aquatic environment.

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