Montana Audubon

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404 Wetlands Law

The first major U.S. law to address water pollution was the Federal Water Pollution Control Act of 1948. When this act was amended in 1972, the law became commonly known as the Clean Water Act.

Section 404 of the Clean Water Act regulates the “discharge of dredged or fill material” into “waters of the United States, including wetlands.” Because of our interest in wetlands, Montana Audubon monitors how Section 404 is used in the state of Montana.


2015 Definition: “Waters of the United States”

In 2015 the Environmental Protection Agency (EPA) and Army Corps of Engineers issued a rule to clarify the definition of “Waters of the United States” under the Clean Water Act. This rule was issued because regulations protecting our country’s streams and wetlands became confusing and complex because of two main Supreme Court decisions. For information about the 2015 EPA rule, we prepared this fact sheet: Waters of US – Fact Sheet – MT Audubon – 10-2015.


404 Report404_pub_cover

In order to better understand the threats to wetlands and streams, Montana Audubon researched and published Impacts of the 404 Permit Program on Wetlands and Waterways in Montana and Recommendations for Program Improvement in August 2005.

Given the importance of wetlands and waterways in protecting public health and safety, providing flood protection, protecting water quality, and providing critical habitat for fish and wildlife, it is important for resource managers and citizens to understand the effects of the program that regulates the development of these resources: Section 404 of the Clean Water Act.

Section 404 regulates the “discharge of dredged or fill material” (soil, gravel, rocks, or other fill material) into “waters of the United States” (rivers, lakes,certain wetlands, streams, and intermittent streams). The Section 404 permit program is administered by the U.S. Army Corps of Engineers (Corps).

The Corps tracks 404 permit requests using a database. For our 2005 report, Montana Audubon evaluated Montana-specific information contained in the Corps’ database for a 13-year period between 1990 and 2002. A few of the study’s highlights include:

404 map Figure05

  • During the study period, the Corps approved 6,261 Section 404 permits and denied 11 (a 99.8% approval level). Permits authorized impacts to almost 179 miles of streams and rivers and the filling of 899 acres of wetlands (see map above).
  • Of the 3 types of 404 permits issued in Montana—Individual, Nationwide, and General—the most significant resource impacts were caused by Nationwide Permits: the alteration of 134 miles of rivers and streams and the filling of 675 acres of wetlands during the 13-year study period. Nationwide permits have no site-specific environmental assessment and no public oversight, causing concern over resource impacts being authorized by these increasingly used permits.
  • Bank stabilization projects are the most controversial projects authorized by the 404 program in Montana. During the study period, these projects accounted for more than 105 miles of impacts to streams and rivers; the Corps documented mitigation for less than 2 miles of these impacts. Montana Audubon is concerned about bank stabilization projects because of their effect on natural stream process; more information on this subject appears under Bank Stabilization on our website HERE.

The report contains several recommendations. In particular, the Corps should require mitigation for all resource impacts caused by 404 projects. Between 1990 and 2002, mitigation was documented for only 271 of the permits (4.3%) that resulted in resource impacts.


Get Montana Audubon’s 404 Report

There are two ways to obtain our guide to Section 404 wetlands law:

  • Download the download the PDF version here; or
  • Request that a copy be mailed to you. To obtain a FREE copy by mail, send your name, address, by email to [email protected]; OR write Montana Audubon, P.O. Box 595, Helena, MT 59624-0595; OR call (406) 443-3949. Ask for our 2005 report, Impacts of the 404 Permit Program on Wetlands and Waterways in Montana and Recommendations for Program Improvement.

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    P.O. Box 595
    Helena, MT 59624

    [email protected]

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