The CWA established the permit structure for many activities related to water. Check the federal and state regulations to ensure you are in compliance. Federal permits can often be slow to process, so plan ahead when undertaking a new regulated activity.
Most of the permits related to CWA will fall under Sections 401, 402 (NPDES) or 404 as described above.
Section 402 NPDES
Projects that disturb one or more acres are subject to three major NPDES requirements:
- A permit application must be submitted prior to the start of construction
- An erosion and sediment control plan that includes specific plans of how erosion will be controlled must be approved and implemented before initiating any construction activities.
- A notice of termination must be submitted after meeting the following criteria:
- Final stabilization of the site has been achieved in accordance with the permit
- All temporary erosion control measures have been removed
- No potential remains for construction-related sediment discharge to surface waters
Check with your state agency for specific allowable levels and permits
Point source discharge is generally considered any discernible, confined and discrete conveyance, for example: a pipe, ditch, channel, tunnel, or other conduit. Operators of pesticide applications that result in point source discharges to waters of the United States need to obtain coverage under an NPDES permit to meet CWA requirements. For example, a pesticide sprayer would be a point source so when it is used on or over the water surface or within a distance close enough that a portion of the pesticide will unavoidably reach the water, is considered point source discharge. The NPDES permitting requirements under the CWA do not override or conflict with existing Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements for pesticides. NPDES permitting requirements are an addition to FIFRA requirements directed to certain pesticide applications that result in discharges to waters of the United States. As such, an NPDES permit does not negate the requirements under FIFRA to use registered pesticides consistent with product labeling.
EPA and many state permitting authorities can waive stormwater permitting requirements for small sites (less than 5 acres) with a low erosion potential. The EPA has online tools to help sites determine whether they qualify for the waiver.
States may regulate erosion control through the NPDES stormwater permitting system or they may have separate ordinances addressing the issue.
Section 404
The basic premise of the program is that no discharge of dredged or fill material may be permitted if:
- A feasible alternative exists that is less damaging to the aquatic environment or
- The nation's waters would be significantly degraded.
When you apply for a permit, you must first show that steps have been taken to avoid impacts to wetlands, streams and other aquatic resources; that potential impacts have been minimized; and that compensation will be provided for all remaining unavoidable impacts.
Proposed activities are regulated through a permit review process. An individual permit is required when there is potential for significant impacts. Individual permits are reviewed by the U.S. Army Corps of Engineers, which evaluates applications under a public interest review, as well as the environmental criteria set forth in Section 404. For discharges that are likely to have minimal adverse effects, a general permit may be acceptable. General permits are issued on a nationwide, regional, or state basis for particular categories of activities. The general permit process eliminates individual review and allows certain activities to proceed with little or no delay, provided that the general or specific conditions for the general permit are met.
States often also have a role in Section 404 decisions. State programs can provide general permits, water quality certification, or can completely assume the permitting authority for Section 404 regulation. As of August 2018, only New Jersey and Michigan have officially assumed permitting for their state, but other states are likely to join them. Also note that no permit may be granted if the state water quality cerification has been denied, so it is important to start at the state level.
Examples of practices that may impact CWA requirements:
- Management of stormwater runoff
- Dredging a body of water
- Filling or altering a wetland
- Constructing bridges
- Erosion control projects
- Spraying pesticides on or near a body of water to control insects or algae
- Stormwater discharges from construction projects