EPPC Status Report on 404 Task Force

In late 2004, Governor Ernie Fletcher asked the state to evaluate the benefits of state administration of the federal Clean Water Act (CWA) Section 404 program with the goal of improving efficiency and enhancing environmental protection. This job fell to the Environmental and Public Protection Cabinet (EPPC).

An important element of the EPPC's assessment of state assumption was the creation of the Section 404 Task Force. Believing that the best regulatory decisions are transparent, participatory and informed by the public, then-Secretary LaJuana S. Wilcher convened a stakeholder group to review the federal CWA Section 404 program with the goal of exploring components of a federally approvable, state 404 program that streamlines the permitting process and enhances the state's protection of the environment. Task force members were selected based on their diverse interests relative to 404 permitting and on their ability to work collaboratively.

In a comprehensive, broad-based state review of the federal 404 program, the group heard more than 28 presentations from attorneys, federal and state regulators, scientists and task force members. They also observed a field demonstration of wetlands delineation, visited stream restoration sites and made other site visits to areas affected by the 404 program. At the end of this review, the task force developed recommendations for possible improvements that could be made in the 404 program should it be administered by the state. These recommendations, which are attached as Appendix A to the report, provide a starting point for discussion concerning the content of potential regulations.

On Dec. 29, 2005, EPPC released its "Status Report to the General Assembly on the Kentucky Clean Water Act Section 404 Task Force." This report summarizes the current status of the state's ongoing assessment of the benefits of state administration of the federal Clean Water Act Section 404 Program.

Read the report here. (This is a PDF document.  You will need Adobe Acrobat Reader to view it. Download the free Acrobat Reader.)

Overview of Section 404 of the Clean Water Act

Section 404 of the CWA establishes a program to regulate the discharge of dredged and fill material into waters of the United States. The term "waters of the United States" defines the extent of geographic jurisdiction of the Section 404 program. The term includes such waters as rivers, lakes, streams and most wetlands. Regulated activities include fills for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) and conversion of wetlands to uplands for farming and forestry. Section 404(f) exempts some activities from regulation under Section 404. These activities include many ongoing farming, ranching and silviculture practices. In order to be exempt, the activities cannot be associated with bringing a wetland into agricultural production or converting an agricultural wetland to a nonwetland area.

What does Section 404 require?

Section 404 requires a landowner to obtain a permit from the U.S. Army Corps of Engineers (USACE) or a state with an EPA-approved program, prior to beginning any nonexempt activity involving the placement of dredged or fill material into waters of the United States, including wetlands.

The basic premise of the program is that no discharge of dredged or fill material can be permitted if a practicable alternative exists that is less damaging to the aquatic environment or if the nation's waters would be significantly degraded. In other words, when you apply for a permit, you must show that you have:

• taken steps to avoid wetland/stream impacts where practicable.
• minimized potential impacts to wetlands/streams.
• provided compensation for any remaining, unavoidable impacts.
• thorough activities to restore or create wetlands/streams.

Who's involved in regulation?

The CWA vests USACE, or a state with an EPA-approved program, with the authority to issue Section 404 permits. USACE administers the day-to-day program, including permit decisions and jurisdictional determinations, develops policy and guidance and enforces Section 404 provisions.

The EPA develops and interprets environmental criteria used in evaluating permit applications, determines the scope of geographic jurisdiction, approves and oversees state assumption, identifies activities that are exempt and reviews/comments on individual permit applications. The EPA has authority to veto the USACE's permit decisions.

What types of Section 404 permits are issued by USACE?

Individual permits are issued to a single entity (individuals or companies) to authorize specific activities. Once a complete permit application is received by USACE, a public notice is issued that describes the proposed project. USACE evaluates all comments received and makes a final permit decision.

General permits are issued to the public at large to authorize specific activities that have minimal environmental impacts such as bank stabilization activities or construction of farm buildings. A general permit can be issued on a state, regional or nationwide basis. Activities authorized by a general permit require less review than an individual permit would require.

See list of Clean Water Act Section 404 Abbreviations and Acronyms.