National Institute of Standards and Technology | U.S. Department of Commerce 1

CHIPS for America

Overview of Clean Water Act Section 404 Permitting

August 24, 2023
National Institute of Standards and Technology | U.S. Department of Commerce 2

Today’s Speakers

Komal "Komie" Jain

Director, Environmental 

Division

Joe McMahan

Program Manager

USACE HQ Regulatory 

Program

Tim Dodson

Archaeologist

HQ Detailee

Shannon White

Project Manager 

HQ Detailee

A.J. Kitchen

Lead Project Manager

HQ Detailee
USACE REGULATORY

Overview of Section 404 and Section 10 

Permitting

Presented to CHIPS for America, Department 

of Commerce

August 24, 2023
REGULATORY PROGRAM MISSION

Mission: To protect the Nation’s aquatic resources 

and navigation capacity, while allowing reasonable 

development through fair and balanced permit 

decisions

Mission End State: Balanced, timely, predictable, 

consistent, and transparent regulatory decisions, 

rooted in sound science and compliant with 

applicable laws
REGULATORY PROGRAM ORGANIZATION

Decentralized Organization: USACE Regulatory Program execution is 

focused at the District level, with policy oversight at higher levels 

(Division, Headquarters). Permit decision-making occurs in Districts.

• Military Leadership & mostly civilian staff

• 38 USACE Districts within 8 USACE Divisions

• Corps Regulatory and Civil Works district 

boundaries may be different in some districts

• USACE District Regulatory Office Locator Map:

https://regulatory.ops.usace.army.mil/offices/
RELEVANT STATUTORY AUTHORITIES

Section 10 of the Rivers and Harbors Act of 1899: Structures or work in or affecting navigable 

waters of the United States.

Navigable waters of the United States are waters subject to the ebb and flow of the tide and/or are 

presently used, have been used, or may be used to transport interstate or foreign commerce.

Section 404 of the Clean Water Act: Discharges of dredged or fill material into waters of the 

United States.

Waters of the United States may include:

• Tidal waters, the territorial seas, and navigable waters of the United States

• Interstate waters, including interstate wetlands - cross national or state lines

• Intrastate lakes and ponds under certain circumstances

• Impoundments of waters of the United States

• Tributaries

• Wetlands
GEOGRAPHIC SCOPE OF WATERS OF THE U.S.

Jurisdictional Determinations: Used to determine the geographic areas that are subject to 

regulation under Section 10 and/or Section 404.
TYPES OF USACE PERMITS

Individual Permits

• Standard Permits:

Most lengthy process; for reviews with more than minimal impacts to the environment

• Letters of Permission (LOP):

Can authorize projects with minor impacts; LOPs are categorically excluded from 

NEPA (404 CWA LOPs are district-specific)

General Permits 

• Streamlined authorization process for categories of activities that are similar in nature 

with no more than minimal adverse environmental effects

• Issued for no more than 5 years

• Nationwide Permits, Regional General Permits, & Programmatic General Permits

Complexity
LEVEL OF COMPLEXITY

Individual Permits

• Standard Permits:

 Public Notice, NEPA, 404(b)(1) Guidelines analysis (if 404 CWA authorization is required), Public Interest 

Review, Alternatives Analysis, Cumulative Effects analysis required for each permit review

• Letters of Permission (LOP):

 Coordination with state/Federal fish & wildlife agencies; Public Interest Review, 404(b)(1) Guidelines 

analysis (if a 404 CWA LOP) required for each permit review

General Permits

Public notice, NEPA, 404(b)(1) Guidelines analysis, Public Interest Review, Alternatives Analysis, Cumulative 

Effects analysis completed up front when the general permit is developed by Corps HQ or a Corps District, 

allowing for a streamlined review process

• Nationwide Permits:

 Issued nationally by Corps HQ with general conditions; may have regional conditions

• Regional General Permits & Programmatic General Permits: 

 Issued by districts with conditions that vary by district

Complexity
NATIONWIDE PERMITS (NWP)

NWPs authorize categories of activities that are similar in nature with no more than minimal adverse 

environmental effects. When reporting is required by terms & conditions of the NWP, there is a 

streamlined review process for NWP applications (called “preconstruction notifications” or PCNs). 

Currently 57 different activity-specific NWPs.

Built-in, consistent processes for protection of water resources, endangered species, Tribal interests, 

and historic properties.

Multiple layers of Conditions

1. National General Conditions

2. NWP specific Conditions 

3. Regional Conditions (varies by District)

4. Special Conditions on case-by-case review of “PCN”
OTHER FEDERAL REQUIREMENTS THAT MAY APPLY

Section 106, National Historic Preservation Act

Section 7, Endangered Species Act

Magnuson-Stevens Fishery Conservation Management Act (EFH)

Tribal Trust responsibilities

Section 401 Clean Water Act

Coastal Zone Management Act

2008 Federal Mitigation Rule

National Environmental Policy Act

Wild and Scenic Rivers Act

33 U.S.C 408
OTHER USACE REQUIREMENTS THAT MAY APPLY

Real Estate: SF-299 for Easements on Federal Lands and Property

Civil Works: Section 14 of the Rivers and Harbors Act (33 U.S.C. Section 408), for 

alterations or use of Corps Civil Works Projects (e.g., levees, navigation channel, flood control 

projects, etc.); when both a Section 408 permission and a Corps Regulatory permit are required, 

the Section 408 review must be completed before the 

Corps Regulatory Program can issue a permit.
CONTACT INFORMATION

USACE Headquarters: +1 (202) 761-5903

Joe McMahan

Joseph.A.Mcmahan@usace.army.mil

Tim Dodson

Timothy.S.Dodson@usace.army.mil

A.J. Kitchen

Anthony.J.Kitchen@usace.army.mil

Shannon White

Shannon.C.White@usace.army.mil
National Institute of Standards and Technology | U.S. Department of Commerce 14

Next Steps

• Visit CHIPS.gov for resources, including:

• Applicant guides and templates

• FAQs and fact sheets

• Register for future webinars

• August 28: National Pollution Discharge Elimination 

System Permitting with EPA

• Join our mailing list

• Contact us

• askchips@chips.gov – General inquiries

• apply@chips.gov – Application-related inquiries
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Questions
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Thank you