Implementing section 404 of the CWA, 33 C.F.R. § 323(a) provides that generally, a USACE permit is required for the discharge of dredged or fill material into U.S. waters. Here, the Applicant has not produced documentation verifying it obtained a section 404 from USACE. Pursuant to prior second appeal decisions, the burden to substantiate claims rests with the applicant. Here, the Applicant asserts it satisfied the CWA by meeting all state environmental requirements, but does not cite to a specific Federal provision that exempted the Applicant from the section 404 permitting requirements.

The Applicant has not demonstrated it coordinated with USACE, obtained a permit from USACE as required under section 404 of the CWA, or satisfied an exception to the permitting requirements of that section. Accordingly, this appeal is denied.

33 U.S.C. §§ 1311, 1344, 1362. 2 C.F.R. §§ 200.300(a)-(b), 200.338(b)-(c), (f); 33 C.F.R. §§ 323(a), 330.1(c); 44 C.F.R. §§ 10.4(a), 206.206(a). FEMA Instruction 108-1-1, Instruction on Implementation of the Environmental Planning and Historic Preservation Responsibilities and Program Requirements, at 5, 24. PAPPG, at 8. Vill. of Waterford, FEMA-4020-DR-NY, at 3.