Section 404 and Section 408 Permits: What does that even mean?
Tuesday, January 10th, 2017
While the goal of the Beach Outfalls Challenge is to improve the water quality entering the Mississippi Sound, there are existing regulatory requirements that are in place to protect the environment and federal infrastructure projects that must be taken into account. There are two regulations that will specifically impact the implementation of the designs that win the Beach Outfalls Challenge: Section 404 of the Clean Water Act (Section 404) and 33 USC 408 (Section 408). Section 404 pertains to the aquatic environment, and Section 408 pertains to federal infrastructure projects.
Potential solutions must be in compliance with Section 404 of the Clean Water Act, which is jointly administered by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE). The Clean Water Act establishes the structure for regulating pollutant discharges into the waters of the United States. Section 404 states that no discharge activities can be permitted if 1) a more suitable alternative exists that is less damaging to the aquatic environment or 2) if an activity significantly degrades the aquatic environment. Activities that are regulated by Section 404 include water resource projects, infrastructure development, and wetland conversion. Therefore, the Beach Outfalls Challenge winning solutions cannot negatively impact the aquatic environment of the Mississippi coastal streams or the Gulf of Mexico.
The aquatic environment does not only pertain to water quality. Activities also cannot impact fish, wildlife, plants, or their habitats to be in compliance with Section 404. Potential solutions for the Beach Outfalls Challenge cannot negatively impact the plants and animals that live along the Mississippi Gulf Coast, especially endangered species such as the Gulf sturgeon (Acipenser oxyrhynchus desotoi), various sea turtle species, least terns (Sternula antillarum), and piping plover (Charadrius melodus). The U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and State resource agencies act along with the EPA and USACE in advisory roles to ensure compliance with the wildlife provisions outlined in Section 404. To receive a Section 404 permit, there must be evidence that steps were taken to avoid or minimize environmental impacts, as well as evidence that compensation will be provided for any unavoidable impacts to the environment.
Potential solutions must also be in compliance with Section 408. This provision allows for the alteration of any USACE project, such as the sand beach and the seawall, as long as the activity does not impact the function of the project. For a winning design to be implemented, it must comply with Section 408.
The reason Section 408 applies to the Beach Outfalls Challenge is because the Mississippi Gulf Coast sand beach and the seawall are federal projects. The seawall was built to protect U.S. Highway 90, and the sand beach was built to protect the seawall. The sand beach and the seawall were constructed and are maintained by the USACE with the assistance of the local county authorities.
Do I Need to Obtain a Permit for the Challenge?
To enter the Beach Outfalls Challenge you DO NOT have to have your design ideas permitted. After winning submissions are selected, MDEQ will begin the implementation process which includes permitting. The purpose of including compliance requirements in the Beach Outfalls Challenge Rules is to require participants to consider the ENTIRE process of improving the beach outfalls system. If you have any additional questions about Section 404 and Section 408 compliance, please read the MDEQ Beach Outfalls Challenge Rules and Technical Specifications or email [email protected].
Registration for the Beach Outfalls Challenge is now open! Learn more about the Beach Outfalls Challenge by visiting the ABOUT Page of this website. CLICK HERE to receive periodic updates about the Beach Outfalls Challenge.