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

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.

“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

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

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

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

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