Federal legislation for water-related activities in regard to transportation has been around since 1899 when the Rivers and Harbors Act was passed (Title 23 of the U.S. Code).

This law, amended by the Department of Transportation Act of 1966, requires the U.S. Coast Guard to approve the plans for construction of any bridge over navigable waters.

Accordingly, the required process, generally referred to as a Section 9 Permit from the applicable portion of the act, protects navigation activities from being affected by other transportation modes.

In 1972, Section 404 was added to the Federal Water Pollution Control Act. This required a permit (called a 404 permit) from the U.S. Army Corps of Engineers for any filling, dredging, or realignment of a waterway.

For smaller projects that do not pass established threshold limits, a general permit may be issued.

The Federal Water Pollution Act was changed in 1977 and issued as the Clean Water Act. This act reflected the desire to protect water quality and regulated the discharge of storm water from transportation facilities. Also included in this law was the option for the Corps of Engineers to transfer 404 permitting to the states.

The 404 permitting process also includes required assessments of potential wetland impacts. The amount of wetlands affected, the productivity (especially as related to endangered or protected species), overall relationship to regional ecosystems, and potential enhancements during the design of the project must all be considered.

Executive Order 11990, “Protection of Wetlands,” issued in 1977, required a public-oriented process to mitigate losses or damage to wetlands as well as to preserve and enhance natural or beneficial values. This has led to a policy of wetlands being avoided and replacement required if destruction occurs.

The Federal Highway Administration has released guidelines to help during this phase of the project.56 In addition, FHWA has also released a memorandum entitled “Funding for Establishment of Wetland Mitigation Banks” on October 24, 1994, to help state DOTs meet requirements when wetlands must be taken and replaced.

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