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 Department 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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