Navigating US Wetlands Law: CWA Section 404 and Permitting

Wetlands are some of the most ecologically productive and legally complex ecosystems in the United States. They provide essential services like flood control, water purification, and wildlife habitat. For any project involving land development, construction, or even certain farming activities, understanding US wetlands law is not just a matter of compliance—it is critical for protecting assets and avoiding severe civil or criminal penalties.

The Foundation of Federal Wetlands Law: The Clean Water Act (CWA)

While various federal and state laws contribute to wetland protection, the primary legal authority rests with the Federal Water Pollution Control Act of 1948, commonly known as the Clean Water Act (CWA), as amended. The CWA’s primary goal is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.

Section 404: The Primary Regulatory Program

The most significant provision concerning wetlands is Section 404 of the CWA. This section establishes a federal program to regulate the discharge of dredged or fill material into “Waters of the United States” (WOTUS), which explicitly includes many wetlands.

The Two Key Federal Agencies

The Section 404 program is jointly administered by the Department of the Army, through the U.S. Army Corps of Engineers (USACE), and the U.S. Environmental Protection Agency (EPA).

US Army Corps of Engineers (USACE)

The USACE is the primary permitting authority. Their responsibilities include:

• Administering the day-to-day permit program, including decisions on Individual and General Permits.
• Conducting or verifying jurisdictional determinations (whether an area is WOTUS).
• Performing a “public interest review” on permit applications.

Environmental Protection Agency (EPA)

The EPA provides high-level oversight and guidance. Their roles include:

• Developing and interpreting the policy and environmental criteria used in evaluating permit applications (the Section 404(b)(1) Guidelines).
• Determining the scope of geographic jurisdiction and applicability of exemptions.
• Having the ultimate authority to veto, prohibit, or restrict the use of any defined area as a disposal site (Section 404(c) authority).

The Permitting and Mitigation Process

The core principle of the Section 404 program is that a permit should not be issued if a practicable alternative exists that is less damaging to the aquatic environment, or if the nation’s waters would be significantly degraded.

The Three-Step Mitigation Sequence

When applying for a permit, the applicant must demonstrate that they have followed the sequential process of avoidance, minimization, and compensation.

Step	Requirement	Goal
1. Avoidance	Relocating the project to avoid the wetland entirely.	Eliminate all impacts to WOTUS.
2. Minimization	Reducing the extent of disturbance through design changes (e.g., using smaller footprint).	Lessen unavoidable impacts.
3. Compensatory Mitigation	Replacing the destroyed wetland through creation, restoration, or enhancement of another wetland area, adhering to the “No Net Loss” policy.	Offset all remaining unavoidable impacts.

Types of Permits

The USACE issues different permits depending on the scope of the project:

• Individual Permits (Standard Permits): Required for projects with potentially significant environmental impacts. These involve a full public notice and a comprehensive public interest review by the USACE.
• General Permits (Nationwide Permits – NWPs): Issued for categories of activities that are determined to have only minimal individual and cumulative adverse effects on the environment. These streamline the process and often require only a pre-construction notification (PCN) rather than a full review.

Exemptions and Compliance Strategy

Not all activities in wetlands require a Section 404 permit. The CWA provides specific exemptions, primarily for certain activities that do not change the existing use of the land, provided they meet specific criteria (Best Management Practices):

• Normal farming, ranching, and silviculture (forestry) activities such as plowing, seeding, cultivating, and harvesting.
• Maintenance of currently serviceable structures like dams, dikes, and levees.
• Construction or maintenance of farm roads or forest roads, constructed in accordance with best management practices.

Summary of Wetlands Law Compliance

Navigating wetlands law requires a disciplined approach to planning and compliance. The key steps for due diligence are:

1. Identify Jurisdiction: Determine if the proposed project site contains Waters of the United States (WOTUS) by hiring a wetlands expert for delineation.
2. Secure a Determination: Obtain a formal Jurisdictional Determination (JD) from the USACE.
3. Apply the Sequence: Design the project using the “avoid, minimize, and compensate” mitigation sequence.
4. Select Permit Type: Determine whether an Individual Permit or a General Permit (such as a Nationwide Permit) is appropriate for the scale of the unavoidable impact.
5. Obtain Certification: Ensure compliance with state-level water quality regulations, often requiring a CWA Section 401 Water Quality Certification before the USACE can issue the 404 permit.

Frequently Asked Questions (FAQ)

Clean Water Act, Section 404, Waters of the United States, WOTUS, US Army Corps of Engineers, USACE, EPA, Dredged or Fill Material, Wetlands Mitigation, CWA Permit Program, Federal Wetland Law, Navigable Waters Protection Rule, Property Rights, Regulatory Compliance, Individual Permit, Nationwide Permit, Jurisdictional Waters, Wetlands Delineation, Wetland Protection, Environmental Law