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 1/10th 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