Clean Water Act Section 404

1. Clean Water Act Section 404 How it affects your airport during project implementation

2. What is Section 404 of the CWA? • Program to regulate the discharge of dredged or fill materials into Waters of the United States. • Jointly administered by the U.S. Army Corps of Engineers and the EPA. • Fundamental rationale of the program is that no dredge or fill material should be permitted if there is a less damaging alternative.

3. “Jurisdiction” • Landmark case, Rapanos v. United States • Development required the fill of three isolated wetlands for a shopping center • Michigan Department of Environmental Quality warned that the areas were protected under the CWA • EPA issued numerous cease and desist orders which the developer ignored until the U.S. filed suit

4. Jurisdiction Post Rapanos • Jurisdictional • Navigable waters and wetlands located adjacent to navigable waters • Relatively permanent non-navigable tributaries of navigable waters and wetlands with a continuous connection to tributaries • Certain adjacent wetlands and non-navigable tributaries that are not permanent (significant nexus test) • Not Jurisdictional • Swales or erosion features • Ditches excavated in and draining only uplands

5. Airport Development and Section 404 • All changes to ALP require FAA environmental determination. • If project is impacting a ditch or a wetland feature need to see if Section 404 applies. • Impacts require a permit

6. Permits • Nationwide • NW 14, linear transportation crossings, impacts below ½ acre • No PCN if impacts below 1/10th of an acre. • NW 39, commercial and industrial developments, impacts below ½ acre or 300 linear feet • Individual • General

7. Legal Sensitivities • If project doesn’t require PCN, still need to populate a project file. • Section 404 permitting often begins during the NEPA/CEQA documentation process. • Strong purpose and need • Robust alternatives • Agency involvement early to prevent future permit challenges