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