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Clean Water Act, Section 404
(a) The Secretary may issue permits, after notice and opportunity
for public hearings for the discharge of dredged or fill material into
the navigable waters at specified disposal sites. Not later than the fifteenth
day after the date an applicant submits all the information required to
complete an application for a permit under this subsection, the Secretary
shall publish the notice required by this subsection.
(b) Subject to subsection (c) of this section, each such disposal
site shall be specified for each such permit by the Secretary:
(1) through the application of guidelines developed by the Administrator,
in conjunction with the Secretary, which guidelines shall be based upon
criteria comparable to the criteria applicable to the territorial seas,
the contiguous zone, and the ocean under section 403(c), and
(2) in any case where such guidelines under clause (1) alone
would prohibit the specification of a site, through the application
additionally of the economic impact of the site on navigation and anchorage.
(c) The Administrator is authorized to prohibit the specification
(including the withdrawal of specification) of any defined area as a disposal
site, and he is authorized to deny or restrict the use of any defined
area for specification (including the withdrawal of specification) as
a disposal site, whenever he determines, after notice and opportunity
for public hearings, that the discharge of such materials into such area
will have an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas. Before making such determination, the
Administrator shall consult with the Secretary. The Administrator shall
set forth in writing and make public his findings and his reasons for
making any determination under this subsection.
(d) The term "Secretary" as used in this section means the Secretary
of the Army, acting through the Chief of Engineers.
(e)
(1) In carrying out his functions relating to the discharge
of dredged or fill material under this section, the Secretary may, after
notice of opportunity for public hearing, issue general permits on a
State, regional, or nationwide basis for any category of activities
involving discharges of dredged or fill material if the Secretary determines
that the activities in such category are similar in nature, will cause
only minimal adverse environmental effects when performed separately,
and will have only minimal cumulative adverse effects on the environment.
Any general permit issued under this subsection shall
(A) be based on the guidelines described in subsection (b)(l)
of this section, and
(B) set forth the requirements and standards which shall apply
to any activity authorized by such general permit.
(2) No general permit issued under this subsection shall be
for a period of more than five years after the date of its issuance
and such general permit may be revoked or modified by the Secretary
if, after opportunity for public hearing, the Secretary determines that
the activities authorized by such general permit have an adverse impact
on the environment or such activities are more appropriately authorized
by individual permits.
(f)
(1) Except as provided in paragraph (2) of this subsection,
the discharge of dredge or fill material -
(A) from normal farming, silviculture, and ranching activities
such as plowing, seeding, cultivating, minor drainage, harvesting
for the production of food, fiber, and forest products, or upland
soil and water conservation practices;
(B) for the purpose of maintenance, including emergency reconstruction
of recently damaged parts, of currently serviceable structures such
as dikes, dams, levees, groins, riprap, breakwaters, causeways, and
bridge abutments or approaches, and transportation structures;
(C) for the purpose of construction or maintenance of farm
or stock ponds or irrigation ditches, or the maintenance of drainage
ditches;
(D) for the purpose of construction of temporary sedimentation
basins on a construction site which does not include placement of
fill material into the navigable waters;
(E) for the purpose of construction or maintenance or farm
roads or forest roads, or temporary roads for moving mining equipment,
where such roads are constructed and maintained, in accordance with
best management practices, to assure that flow and circulation patterns
and chemical and biological characteristics of the navigable waters
are not impaired, that the reach of the navigable waters is not reduced,
and that any adverse effect on the aquatic environment will be otherwise
minimized;
(F) resulting from any activity with respect to which a State
has an approved program under section 1288(b)(4) of this title which
meets the requirements of subparagraphs (B) and (C) of such section,
is not prohibited by or otherwise subject to regulation under this
section or section 1311(a) or 1342 of this title (except for effluent
standards or prohibitions under section 1317 of this title).
(2) Any discharge of dredged or fill material into the navigable
waters incidental to any activity having as its purpose bringing an
area of the navigable waters into a use to which it was not previously
subject, where the flow or circulation of navigable waters may be
impaired or the reach of such waters be reduced, shall be required
to have a permit under this section.
(g)
(1) The Governor of any State desiring to administer its own
individual and general permit program for the discharge of dredged or
fill material into the navigable waters (other than those waters which
are presently used, or are susceptible to use in their natural condition
or by reasonable improvement as a means to transport interstate or foreign
commerce shoreward to their ordinary high water mark, including all
waters which are subject to the ebb and flow of the tide shoreward to
their mean high water mark, or mean higher high water mark on the west
coast, including wetlands adjacent thereto), within its jurisdiction
may submit to the Administrator a full and complete description of the
program it proposes to establish and administer under State law or under
an interstate compact. In addition, such State shall submit a statement
from the attorney general (or the attorney for those State agencies
which have independent legal counsel), or from the chief legal officer
in the case of an interstate agency, that the laws of such State, or
the interstate compact, as the case may be, provide adequate authority
to carry out the described program.
(2) Not later than the tenth day after the date of the receipt
of the program and statement submitted by any State under paragraph
(1) of this subsection, the Administrator shall provide copies of such
program and statement to the Secretary and the Secretary of the Interior,
acting through the Director of the United States Fish and Wildlife Service.
(3) No later than the ninetieth day after the date of the receipt
by the Administrator of the program and statement submitted by any State,
under paragraph (1) of this subsection, the Secretary and the Secretary
of the Interior, acting through the Director of the United States Fish
and Wildlife Service, shall submit any comments with respect to such
program and statement to the Administrator in writing.
(h)
(1) Not later than the one-hundred-twentieth day after the date
of the receipt by the Administrator of a program and statement submitted
by any State under paragraph (1) of this subsection, the Administrator
shall determine, taking into account any comments submitted by the Secretary
and the Secretary of the Interior, acting through the Director of the
United States Fish and Wildlife Service, pursuant to subsection (g)
of this section, whether such State has the following authority with
respect to the issuance of permits pursuant to such program:
(A) To issue permits which -
(i) apply, and assure compliance with, any applicable requirements
of this section, including, but not limited to, the guidelines established
under subsection (b)(l) of this section, and sections 307 and 403
of this Act;
(ii) are for fixed terms not exceeding five years; and
(iii) can be terminated or modified for cause including,
but not limited to, the following:
(I) violation of any condition of the permit;
(II) obtaining a permit by misrepresentation, or failure
to disclose fully all relevant facts;
(III) change in any condition that requires either a temporary
or permanent reduction or elimination of the permitted discharge.
(B) To issue permits which apply, and assure compliance with,
all applicable requirements of section 308 of this Act, or to inspect,
monitor, enter, and require reports to at least the same extent as
required in section 308 of this Act.
(C) To assure that the public, and any other State the waters
of which may be affected, receive notice of each application for a
permit and to provide an opportunity for public hearing before a ruling
on each such application.
(D) To assure that the Administrator receives notice of each
application (including a copy thereof) for a permit.
(E) To assure that any State (other than the permitting State),
whose waters may be affected by the issuance of a permit may submit
written recommendation to the permitting State (and the Administrator)
with respect to any permit application and, if any part of such written
recommendations are not accepted by the permitting State, that the
permitting State will notify such affected State (and the Administrator)
in writing of its failure to so accept such recommendations together
with its reasons for so doing.
(F) To assure that no permit will be issued if, in the judgement
of the Secretary, after consultation with the Secretary of the department
in which the Coast Guard is operating, anchorage and navigation of
any of the navigable waters would be substantially impaired thereby.
(G) To abate violations of the permit or the permit program,
including civil and criminal penalties and other ways and means of
enforcement.
(H) To assure continued coordination with Federal and Federal-State
water-related planning and review processes.
(2) If, with respect to a State program submitted under
subsection (g)(l) of this section, the Administrator determines
that such State -
(A) has the authority set forth in paragraph (1) of this
subsection, the Administrator shall approve the program and so
notify (i) such State, and (ii) the Secretary, who upon subsequent
notification from such State that it is administering such program,
shall suspend the issuance of permits under subsections (a) and
(e) of this section for activities with respect to which a permit
may be issued pursuant to such State program; or
(B) does not have the authority set forth in paragraph
(1) of this subsection, the Administrator shall so notify such
State, which notification shall also describe the revisions or
modifications necessary so that such State may resubmit such program
for a determination by the Administrator under this subsection.
(3) If the Administrator fails to make a determination with
respect to any program submitted by a State under subsection (g)(l)
of this section within one-hundred-twenty days after the date of
the receipt of such program, such program shall be deemed approved
pursuant to paragraph (2)(A) of this subsection and the Administrator
shall so notify such State and the Secretary who, upon subsequent
notification from such State that it is administering such program,
shall suspend the issuance of permits under subsection (a) and (e)
of this section for activities with respect to which a permit may
be issued by such State.
(4) After the Secretary receives notification from the Administrator
under paragraph (2) or (3) of this subsection that a State permit
program has been approved, the Secretary shall transfer any applications
for permits pending before the Secretary for activities with respect
to which a permit may be issued pursuant to such State program to
such State for appropriate action.
(5) Upon notification from a State with a permit program
approved under this subsection that such State intends to administer
and enforce the terms and conditions of a general permit issued
by the Secretary under subsection (e) of this section with respect
to activities in such State to which such general permit applies,
the Secretary shall suspend the administration and enforcement of
such general permit with respect to such activities.
(i) Whenever the Administrator determines after public hearing
that a State is not administering a program approved under section
(h)(2)(A) of this section, in accordance with this section, including,
but not limited to, the guidelines established under subsection (b)(l)
of this section, the Administrator shall so notify the State, and,
if appropriate corrective action is not taken within a reasonable
time, not to exceed ninety days after the date of the receipt of such
notification, the Administrator shall:
(1) withdraw approval of such program until the Administrator
determines such corrective action has been taken, and
(2) notify the Secretary that the Secretary shall resume
the programs for the issuance of permits under subsection (a) and
(e) of this section for activities with respect to which the State
was issuing permits and that such authority of the Secretary shall
continue in effect until such time as the Administrator makes the
determination described in clause (1) of this subsection and such
State again has an approved program.
(j) Each State which is administering a permit program pursuant
to this section shall transmit to the Administrator
(1) a copy of each permit application received by such State
and provide notice to the Administrator of every action related
to the consideration of such permit application, including each
permit proposed to be issued by such State, and
(2) a copy of each proposed general permit which such State
intends to issue. Not later than the tenth day after the date of
the receipt of such permit application or such proposed general
permit, the Administrator shall provide copies of such permit application
or such proposed general permit to the Secretary and the Secretary
of the Interior, acting through the Director of the United States
Fish and Wildlife Service. If the Administrator intends to provide
written comments to such State with respect to such permit application
or such proposed general permit, he shall so notify such State not
later than the thirtieth day after the date of the receipt of such
application or such proposed general permit and provide such written
comments to such State, after consideration of any comments made
in writing with respect to such application or such proposed general
permit by the Secretary and the Secretary of the Interior, acting
through the Director of the United States Fish and Wildlife Service,
not later than the ninetieth day after the date of such receipt.
If such State is so notified by the Administrator, it shall not
issue the proposed permit until after the receipt of such comments
from the Administrator, or after such ninetieth day, whichever first
occurs. Such State shall not issue such proposed permit after such
ninetieth day if it has received such written comments in which
the Administrator objects
(A) to the issuance of such proposed permit and such proposed
permit is one that has been submitted to the Administrator pursuant
to subsection (h)(l)(E), or
(B) to the issuance of such proposed permit as being outside
the requirements of this section, including, but not limited to,
the guidelines developed under subsection (b)(l) of this section
unless it modified such proposed permit in accordance with such
comments. Whenever the Administrator objects to the issuance of
a permit under the preceding sentence such written objection shall
contain a statement of the reasons for such objection and the
conditions which such permit would include if it were issued by
the Administrator. In any case where the Administrator objects
to the issuance of a permit, on request of the State, a public
hearing shall be held by the Administrator on such objection.
If the State does not resubmit such permit revised to meet such
objection within 30 days after completion of the hearing or, if
no hearing is requested within 90 days after the date of such
objection, the Secretary may issue the permit pursuant to subsection
(a) or (e) of this section, as the cause may be, for such source
in accordance with the guidelines and requirements of this Act.
(k) In accordance with guidelines promulgated pursuant to
subsection (i)(2) of section 304 of this Act, the Administrator is
authorized to waive the requirements of subsection (j) of this section
at the time of the approval of a program pursuant to subsection (h)(2)(A)
of this section or any category (including any class, type, or size
within such category) of discharge within the State submitting such
program.
(l) The Administrator shall promulgate regulations establishing
categories of discharges which he determines shall not be subject
to the requirements of subsection (j) of this section in any State
with a program approved pursuant to subsection (h)(2)(A) of this section.
The Administrator may distinguish among classes, types, and sizes
within any category of discharges.
(m) Not later than the ninetieth day after the date on which
the Secretary notifies the Secretary of the Interior, acting through
the Director of the United States Fish and Wildlife Service that
(1) an application for a permit under subsection (a) of
this section has been received by the Secretary, or
(2) the Secretary proposes to issue a general permit under
subsection (e) of this section, the Secretary of the Interior, acting
through the Director of the United States Fish and Wildlife Service,
shall submit any comments with respect to such application or such
proposed general permit in writing to the Secretary.
(n) Nothing in this section shall be construed to limit the
authority of the Administrator to take action pursuant to section
309 of this Act.
(o) A copy of each permit application and each permit issued
under this section shall be available to the public. Such permit application
or portion thereof, shall further be available on request for the
purpose of reproduction.
(p) Compliance with a permit issued pursuant to this section,
including any activity carried out pursuant to a general permit issued
under this section, shall be deemed compliance, for purposes of sections
309 and 505, with sections 301, 307, and 403.
(q) Not later than the one-hundred-eightieth day after the
date of enactment of this subsection, the Secretary shall enter into
agreements with the Administrator, the Secretaries of the Departments
of Agriculture, Commerce, Interior, and Transportation, and the heads
of other appropriate Federal agencies to minimize, to the maximum
extent practicable, duplication, needless paperwork, and delays in
the issuance of permits under this section. Such agreements shall
be developed to assure that, to the maximum extent practicable, a
decision with respect to an application for a permit under subsection
(a) of this section will be made not later than the ninetieth day
after the date the notice of such application is published under subsection
(a) of this section.
(r) The discharge of dredged or fill material as part of the
construction of a Federal project specifically authorized by Congress,
whether prior to or on or after the date of enactment of his subsection,
is not prohibited by or otherwise subject to regulation under this
section, or a State program approved under this section, or section
301(a) or 402 of the Act (except for effluent standards or prohibitions
under section 307), if information on the effects of such discharge,
including consideration of the guidelines developed under subsection
(b)(l) of this section, is included in an environmental impact statement
for such project pursuant to the National Environmental Policy Act
of 1969 and such environmental impact statement has been submitted
to Congress before the actual discharge of dredged or fill material
in connection with the construction of such project and prior to either
authorization of such project or an appropriation of funds for each
construction.
(s)
(1) Whenever on the basis of any information available to
him the Secretary finds that any person is in violation of any condition
or limitation set forth in a permit issued by the Secretary under
this section, the Secretary shall issue an order requiring such
persons to comply with such condition or limitation, or the Secretary
shall bring a civil action in accordance with paragraph (3) of this
subsection.
(2) A copy of any order issued under this subsection shall
be sent immediately by the Secretary to the State in which the violation
occurs and other affected States. Any order issued under this subsection
shall be by personal service and shall state with reasonable specificity
the nature of the violation, specify a time for compliance, not
to exceed thirty days, which the Secretary determines is reasonable,
taking into account the seriousness of the violation and any good
faith efforts to comply with applicable requirements. In any case
in which an order under this subsection is issued to a corporation,
a copy of such order shall be served on any appropriate corporate
officers.
(3) The Secretary is authorized to commence a civil action
for appropriate relief, including a permanent or temporary injunction
for any violation for which he is authorized to issue a compliance
order under paragraph (1) of this subsection. Any action under this
paragraph may be brought in the district court of the United States
for the district in which the defendant is located or resides or
is doing business, and such court shall have jurisdiction to restrain
such violation and to require compliance. Notice of the commencement
of such action shall be given immediately to the appropriate State.
(4)
(A) Any person who willfully or negligently violates any
condition or limitation in a permit issued by the Secretary under
this section shall be punished by a fine of not less than $2,500
nor more than $25,000 per day of violation, or by imprisonment
for not more than one year, or by both. If the conviction is for
a violation committed after a first conviction of such person
under this paragraph, punishment shall be by fine of not more
than $50,000 per day of violation, or by imprisonment for not
more than two years, or by both.
(B) For the purposes of this paragraph, the term "person"
shall mean, in addition to the definition contained in section
502(5) of this Act, any responsible corporate officer.
(5) Any person who violates any condition or limitation
in a permit issued by the Secretary under this section, and any
person who violates any order issued by the Secretary under paragraph
(1) of this subsection, shall he subject to a civil penalty not
to exceed $10,000 per day of such violation.
(t) Nothing in this section shall preclude or deny the right
of any State or interstate agency to control the discharge of dredged
or fill material in any portion of the navigable waters within the
jurisdiction of such State, including any activity of any Federal
agency, and each such agency shall comply with such State or interstate
requirements both substantive and procedural to control the discharge
of dredged or fill material to the same extent that any person is
subject to such requirements. This section shall not be construed
as affecting or impairing the authority of the Secretary to maintain
navigation.
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