Video: Clean Water Act Section 404 (b) (1) Guidelines
Video by Annie Chambers
This video is an introduction to Clean Water Act, Section 404(b)(1). For detailed information on this topic please visit the U.S. Army Corps of Engineers' website. Also available in high definition From its earliest days as the nation’s public engineering agency, the U.S. Army Corps of Engineers’ responsibilities included ensuring safe and accessible waterways for military and commercial navigation. Section 404 of the Clean Water Act of 1972 regulates the discharge of dredged or fill material into waters of the United States, including wetlands. According to guidelines issued under Section 404(b)(1) the Corps is responsible for evaluating applications for these activities and permits the least environmentally damaging practical alternative. By “practical alternatives,” we mean those that are: Available – considering the availability for obtaining, expanding, possessing, utilizing and managing; and those that are: Feasible – This considers cost, technology and logistics in light of the overall project purpose. The Corps determines the overall project purpose from the perspectives of both the applicant and the public. Only then does the Corps determines the range of practical alternatives. One consideration is whether or not the project is water dependent. During the evaluation process the Corps considers several aspects such as quality of waters, the physical and chemical aspects and the biological aspect. The Corps may not permit any discharge if it will cause or contribute to the significant loss of quality of waters of the United States. Loss of quality is evaluated from several perspectives, including human health and welfare, water supply, recreation, aesthetics and economic value. Other important quality factors include special aquatic sites such as wetlands, coral reefs, refuges, mudflats, sanctuaries, preserves and vegetated shallows. Aquatic and ecosystem diversity, productivity and life stages are also considered as important quality factors. Discharges will also not be permitted if they violate state water quality or toxic effluent standards. This also means that any discharge that jeopardizes endangered or threatened species, or violate a protected marine sanctuary, will not be permitted. The Corps evaluates the potential short-term and long-term effects – both individual and cumulative – of proposed discharge of dredged or fill material on the physical, chemical and biological components of the aquatic ecosystem. In terms of physical and chemical aspects, the Corps considers the substrate, or surface of the wetlands, turbidity, or particles of fine-grained minerals suspended in the water column, and water clarity, nutrients, pH and temperature, since all of this can contribute to the water body’s ability to sustain life. Biological aspects include the potential adverse impact to threatened or endangered species or their habitat; fish, crustaceans, mollusks and other organisms in the food chain; resident and transient mammals, birds, reptiles and amphibians. If the sustainability of any of these is compromised, due to the proposed project, a permit will not be granted by the Corps. In addition to considering the least environmentally damaging practical alternative, permit applicants are also required to minimize potential adverse impacts to aquatic ecosystems through a sequential process to avoid – then minimize – then compensate for – impacts. The ultimate goal is no net loss of wetland functions and services. Some of the actions that may be considered to minimize adverse effects on the aquatic environment include: Confining or limiting the amount of material to be discharged per unit of time; Selecting a disposal site with a substrate similar to that being discharged, such as discharging sand on sand or mud on mud; Discharging at sites where containment levees, sediment basins and cover crops help to reduce erosion; Using lined containment areas to reduce leaching; and Using silt curtains to control runoff. Significant damage could be done to sensitive and valuable ecosystems such as wetlands without the protective guidelines of Section 404(b)(1) of the Clean Water Act being applied within the Corps’ regulatory program. Unauthorized discharge of dredged or fill material could alter water circulation and light penetration. It can also create extremes in water inundation or change salinity patterns. These things, along with other undesirable and damaging effects, would have devastating consequences for fish, wildlife and people. The Corps strives to make fair, balanced and flexible decisions that meet both economic and environmental needs. In doing so, under this guidance, practical alternatives and cumulative impacts must be considered and potential adverse impacts to aquatic resources must be minimized and compensated for when those impacts are unavoidable.