Clean Water Act (CWA) Sections 401 and 404; Rivers and Harbors Act Section 10
The CWA Section 404 regulates the discharge of dredge and fill material into jurisdictional waters, including adjacent wetlands. The United States Army Corps of Engineers (USACE) is responsible for administrating the Section 404 permit process. Typical activities regulated under Section 404 are placing fill for development, water resources projects (levees and dams), infrastructure development (utility lines and roads), and mining operations, among others.
The Rivers and Harbors Act Section 10 has similar requirements to Section 404; however, it deals strictly with tidally influenced waters. The CWA Section 401 regulates water quality of return water from dredged material. In the State of Texas, Texas Commission on Environmental Quality (TCEQ) issues a Section 401 Water Quality Certification on all Section 404 permits.
There are two main types of Section 404 permits, a general permit and an individual permit. Activities deemed as having a minimal or temporary adverse impact to the environment and part of routine maintenance, typically meet the requirements of a general permit. Due to its minimal impacts the general permit process typically has reduced environmental review times which speeds up the overall permitting process.
Activities which will have greater adverse impacts to the environment require an individual permit. The individual permit process can vary greatly in length and is dependent on size and type of environmental impacts, project location (i.e. environmentally sensitive area), project opposition, environmental agency participation, etc. As part of the permit review process, other environmental resource agencies such as the United States Fish and Wildlife Service, Texas Parks and Wildlife Department, Texas Commission on Environmental Quality, and the Environmental Protection Agency, provide technical review and comments on permit applications prior to issuance. All comments must be addressed during the review process.
This permit process is complex and can be lengthy depending on regulatory knowledge and methodologies, biological and ecological processes, and current resource agency internal policy trends. Arroyo has years of experience working for and with regulatory staff at various resource agencies, as well as successfully completing both small and large permit processes. Our experience ranges from general permits for small bridge crossings to individual permits for large reservoir excavation activities.
The first step in the Section 404 permitting process is to identify if there are any Jurisdictional Waters (including wetlands) on the proposed project site. This preliminary assessment of the site will inform the client if a permit is required. If Jurisdictional Waters are found onsite a delineation must be performed even if these areas are avoided (must follow USACE delineation guidelines). Please see Wetlands for more information on jurisdictional delineations.