There are a few activities which involve the placement of fill in a waterway that are not subject to the Section 404 regulatory program. Section 404(f) of the Clean Water Act provides a list of activities exempt from regulation. If an activity involves the discharge of dredged or fill material into waters of the U.S. and falls within one of these activity categories, a Department of the Army Permit is not required (see Exceptions). These exemptions do not apply to any activity within a navigable water of the U.S. which requires a permit under Section 10 of the Rivers and Harbors Act of 1899. These exempted activities are briefly described below, and located in the regulations at 40 CFR 232.3.
If any discharge of dredged or fill material resulting from the activities listed below contains any toxic pollutant listed under section 307 of the Act, such discharge shall be subject to any applicable toxic effluent standard or prohibition, and shall require a section 404 permit.
Any discharge of dredged or fill material into waters of the United States incidental to any of the activities identified below must have a permit if it is part of an activity whose purpose is to convert an area of the waters of the United States into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernable alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration.