Issue Resolution Procedures: Clean Water Act/Section 404(q)
Under Section 404 of the Clean Water Act,
the U.S. Army Corps of Engineers (Corps) has the primary authority for determining
whether or not to issue a permit for the discharge of dredged or fill materials.
In making a permit decision, the Corps solicits and considers the views
of the public as well as State and Federal resource agencies. At times,
EPA may oppose the Corps' intent to issue a Section 404 permit for a
particular project. This fact sheet describes the process to resolve these
differences.
The process and time frame for resolution are spelled out in the Section
404(q) Memorandum of Agreement signed by EPA and the Department of the
Army in August of 1992. Under this Agreement, EPA may request that a certain
permit application receive a higher level of review within the Department
of the Army, as shown at right.
In addition to this process, either the Corps or EPA can also formally
raise issues related to Section 404 general program policies and procedures.
Because this kind of review does not directly relate to a specific permit,
it does not delay the review of pending permit applications.
Process for Resolving Section 404(q) Permit Issues
EPA objection
EPA formally determines that issuance of the permit will result in unacceptable
adverse effects to Aquatic Resources of National Importance.
Notice of intent to proceed
The Corps District Engineer notifies the EPA Regional Administrator if
the Corps intends to issue the permit over EPA objections. The EPA Regional
Administrator has 15 days to respond to the request.
Case elevation
The EPA Regional Administrator recommends to EPA's Assistant Administrator
for Water that the permit application be reviewed at a higher level within
the Depart ment of the Army.
Review of Corps decision
Within 20 days of receiving the EPA Regional Administrator's request,
the EPA Assistant Administrator decides whether to seek higher level review
of the District permit decision by the Assistant Secretary of the Army
(Civil Works).
Army review
EPA Headquarters' case elevation is reviewed by the Assistant Secretary
of the Army (Civil Works). That review results in either a determination
that the decision will be made at a higher level than the District Engineer,
or the Assistant Secretary can issue policy guidance applicable to the
case under review.
Case Elevation Statistics: Since the 1992 Section 404(q) Memorandum of
Agreement was signed, EPA has asked for a higher review by the Department
of the Army on seven individual permit cases. Under the previous Section
404(q) Memorandum of Agreement of 1985, EPA elevated sixteen individual
permit cases to the Department of the Army.
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