Publications

Back to Publications

Clean Water Act Permitting Overview: Sections 402 and 404

Zach C. Miller, Federal Regulation of Cultural Resources, Wildlife, and Waters of the U.S.

The federal Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”), is one of the cornerstones of American environmental law and is the central program for regulating water quality and wetlands in the United States. Two of the central features of the CWA are its Section 404 and 402 permitting programs, which respectively regulate the discharge of “fill material” (under 404) and all other “pollutants” (under 402) from a “point source” to any regulated “water of the United States.”

This paper provides an overview of these Section 402 and 404 permitting programs by briefly describing: (1) the historical evolution of the CWA; (2) the key programs and structure of the CWA; (3) the basic requirements and restrictions of the Section 402 and 404 Permit Programs; (4) related CWA programs setting water quality standards used in Section 402 permitting; (5) the related CWA compliance and enforcement mechanisms; (6) the relationship of EPA, the States, and U.S. Army Corps of Engineers (“Corps”) in implementing and enforcing these programs; (7) current hot topics related to the 402 and 404 Programs; and (8) recommendations for staying out of hot water in this area.

II. HISTORICAL EVOLUTION OF CLEAN WATER ACT

The CWA in its modern form was adopted in 1972, after previous ineffective attempts to regulate water quality.

A. 1899 Rivers and Harbors Act (aka “Refuse