Section 404 Permit

US Army Corps of Engineers (USACE) - Section 404 (Clean Water Act) Dept. of the Army Permit

Activities

Permit Types

There are four types of permits for Section 404 authorization:

  • Nationwide Permit – permits for certain types of activities with minimal adverse effects to waters of the United States. To read more about Nationwide Permits, click here.
  • Regional General Permit – a programmatic permit created by the regional district of USACE. To view the Sacramento District regional general permits, click here.
  • Individual Permit – a standard permit for projects not qualifying for a Nationwide Permit or Regional General Permit. Typically includes a public notice and comment period and the need to prepare an alternatives analysis document (pursuant to Section 404[b][1] guidelines) to demonstrate that the proposed project is the least environmentally damaging practicable alternative (LEDPA). To read more about the Individual Permit process, click here.
  • Letter of Permission – an abbreviated version of a standard permit. Under a Letter of Permission (LOP), the public notice is not required. Therefore, the time frame for LOP approval is shorter than for a standard permit. To read about the details of the LOP process in California, click here.

Section 404 Permit General Process and Steps

To apply for a Section 404 Department of the Army Permit, one typically follows the steps below:

  1. Prepare and submit to USACE a jurisdictional delineation of waters of the United States, including wetlands, that is prepared in accordance with the USACE’s minimum standards – The delineation should be conducted to determine the extent of waters of the United States, including wetlands, within the project action area. It is recommended that the delineation cover an area slightly larger than the project area (possibly all the way to the edge of the floodplain) to account for potential effects to waters of the United States from access, temporary staging, laydown areas, and storage areas as well as the direct project work area. When submitting the delineation report to USACE, request a verification visit with USACE on the delineation area. It is always recommended that the delineation be verified prior to preparation of the application for permits. A permit, if required, must be acquired before work can begin.
  2. Prepare a project description – Prepare a written description of the project that covers the project features and activities and proposed construction methods in detail. The project description typically contains information about the location of the activity, what the project features and activities will consist of, how the activities will be conducted, what equipment and materials will be needed for the activities, how access to the site will be achieved, and the schedule of activities. It is during the preparation of the project description that avoidance and minimization measures can be incorporated into the project. Based on the preliminary delineation results and the proposed project plans, one can design the project to avoid and minimize adverse effects to waters of the United States to the maximum extent. This can be advantageous to allow a project to qualify for the Nationwide Permit or, for an Individual Permit, to document that the proposed project is the best (least environmentally damaging) practicable alternative pursuant to Section 404(b)(1).
  3. Prepare location maps of the project site – prepare maps showing the project site with a clear project boundary relative to a USGS topographic quadrangle or aerial photograph, including landmark information like street names or other features to identify the location. Include the USACE delineation data/information on the maps if available.
  4. Set up a pre-application meeting with USACE – attending a pre-application meeting with USACE is highly recommended to discuss the specific project with USACE representatives. They can comment and provide feedback on the project to help design the project to minimize adverse effects to waters of the United States and provide guidance on the Section 404 application process. To learn more about requesting a pre-application meeting click here.
  5. Prepare the Section 404 permit applicationNOTE: If there is potential for adverse effects to federally listed species and you need a Section 404 permit, USACE is obligated to conduct Section 7 consultation with USFWS and NMFS, if applicable. Section 7 consultation can be expedited if you prepare a biological assessment for USACE to submit to USFWS and NMFS, if applicable. NOTE: A cultural resources and historic properties record search, surveys, and consultation with appropriate Native American representatives will be required as part of USACE’s requirement to comply with Section 106 of the National Historic Preservation Act.

Timeline

The Section 404 regulations include timelines for USACE staff to issue Section 404 permits. However, there are many factors that can affect the time it takes to receive a Section 404 permit. The timeline below is an estimate based on recent experience.

Applicants can typically expect a Section 404 permit to be issued by USACE within 6 months to 1.5 years after USACE acknowledges receipt of a complete permit application. This timeline depends greatly on whether consultation with other agencies (e.g., U.S. Fish and Wildlife Service, State Historic Preservation Officer) is required for the project. For Nationwide or Regional General Permits, the timeline is typically on the shorter end of the spectrum. Individual Permits typically take the longest to approve.