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State oversight of 404 permits

Section 401 of the Clean Water Act requires states to review water quality impacts of all federal permits or licenses, including 404 permits, within their boundaries. Under Section 401, states and tribes can review all activities that require federal permits or licenses for compliance with applicable water quality standards. They can approve, condition or deny certification of a 404 permit (including general nationwide permits) or waive the right to review it altogether.

By requiring this review, Section 401 of the Act offers veto authority to states and tribes on any 404 permit. If the state denies the 401 certification, the 404 permit cannot be issued.

For more information about the 401 water quality certification process, see Lesson 5: State Oversight of Federal Permits.

U.S. EPA's role in the 404 process

The EPA shares the duty of enforcing Section 404 with the Corps (and the states that have taken over parts of the program). It develops and interprets environmental criteria used in evaluating permit applications, oversees state authority, identifies activities that are exempt from regulation, and reviews and makes comments on individual permit applications. Section 404(c) of the Clean Water Act also authorizes the EPA to override a Corps decision based on “unacceptable adverse effect” on municipal water supplies, shellfish beds and fishery areas, wildlife or recreational areas. If the EPA believes unacceptable adverse effects will occur, it informs the Corps that it may veto the permit in question. The EPA says it has issued very few vetoes.

Other agencies' roles in the 404 process

The granting of a 404 permit (including a general permit) is a “federal action” for purposes of the Endangered Species Act. Thus, if a listed species may be affected, a 404 permit request triggers the need for a consultation with the relevant agency (either NOAA Fisheries or U.S. Fish and Wildlife Service) under Section 7 of the Endangered Species Act, even on private land. State wildlife agencies also may comment on permit applications.

Federal grant funds to the states for wetlands protection

The State Wetlands Protection Grant Program was initiated in 1990. It provides money to states for the development of wetland water quality standards, and Section 401 certification programs. Section 319 money can also be applied to improve wetland protection. Look for ways that you can influence the use of these funds to improve wetland functions in your watershed.