Clean Water Act - Section 404

The Federal Water Pollution Control Act Amendments of 1972 established a comprehensiveprogram of regulations and permits to control water pollution within the United States. Section 404 of the Clean Water Act (CWA) was created as a part of the above-mentioned amendments, and has become the principal regulatory mechanism to control discharges into wetlands and waters of the United States.

Both the U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) have assigned authorities under Section 404 of the CWA. The Corps has the authority to issue permits for the discharge of fill materials after notice and an opportunity for comment.

The EPA, in conjunction with the Corps, has the authority to develop substantive water protection criteria as a part of the guidelines that individuals must meet when applying for a permit from the Corps. Enforcement authority with regard to Section 404 is divided between the two agencies.

Jurisdictional Waters of the U.S. Assessment – aci consulting biologists routinely conduct jurisdictional waters of the U.S. (waters) assessments in order to determine the extent and location of potential jurisditional waters. During the assessments, aci’s field personnel measure the width of the ordinary high water mark as well as the length of the channel for all potential waters within the subject area.

Wetland Determination and Delineation – aci consulting biologists are certified by the Wetland Training Institute conduct both wetland determinations and delineations for areas suspected of containing the three characteristics of wetlands: wetland vegetation, hydric soils, and water during a substantial percentage of the growing season. Both determinations and delineations are precursory steps to the permitting process through the U.S. Army Corps of Engineers.

Wetland determinations involve the process of field verifying the three characteristics of wetlands within the subject area. Wetland determinations verify the presence/absence of wetland characteristics and do not specify the perimeter of the potential wetland.

Wetland delineations are more in-depth and time-consuming than determinations. Delineations involve the process of mapping the specific perimeter and area of the potential wetland area.

Jurisdictional Waters of the U.S. Impacts Analysis – Upon completion of the Jurisdictional Waters of the U.S. assessment and/or wetland delineation and determination, an impacts analysis is conducted. The analysis determines the acreage of impacts proposed by the project based on the engineering plans and area of jurisdictional waters. For some impacts totaling less than 0.1 acre, a post-construction notification is required. For many impacts ranging from 0.1 acre to 0.5 acre, a nationwide permit must be submitted to and approved by the U.S. Army Corps of Engineers prior to the initiation of construction. For impacts greater than 0.5 acre, an individual permit or letter of permission (type of application is determined by the U.S. Army Corps of Engineers) must be submitted to and approved by the U.S. Army Corps of Engineers prior to the initiation of construction.

Nationwide Permit Application – aci consulting is very experienced in submitting and obtaining nationwide permits through the U.S. Army Corps of Engineers. The application includes the purpose and need of the proposed project, a description of the proposed project, a description of the subject area, a jurisdictional waters of the U.S. impacts analysis, a description of the presence/absence of endangered and/or threatened species, cultural resources, an alternatives analysis, and a description of the proposed mitigation.

Individual Permit Application – aci consulting is very experienced in submitting and obtaining individual permits through the U.S. Army Corps of Engineers. Because individual permits are required for projects involving potentially significant impacts, the individual permit process is more in-depth and time-consuming than the nationwide permit process. The individual permit process includes an environmental assessment and statement of findings, permit evaluation, public notice, and comment period public hearing. The environmental assessment includes the purpose and need of the proposed project, a description of the proposed project, a description of the subject area, a jurisdictional waters of the U.S. impacts analysis, a description of the presence/absence of endangered and/or threatened species, cultural resources, an alternatives analysis, and a compensatory mitigation plan.

Compensatory Mitigation Plans – aci consulting has experience in preparing compensatory mitigation plans, which compensate for unavoidable adverse impacts to natural resources. The mitigation plans involve restoration, creation, enhancement, and/or preservation of wetlands and/or other aquatic resources. aci performs the maintenance and monitoring and prepares the compliance reports required by the mitigation plan.