Under the ESA § 7 and FEMA’s PA Guide, any time a project has the potential to affect a threatened or endangered species or its habitat, FEMA must consult with NOAA’s NMFS before approving funding for that project. NOAA’s NMFS issued a biological opinion in 2016 finding the work completed by the Applicant did not have an adverse effect on any species or habitat in the harbor where construction occurred. 44 C.F.R. Section 10.4(a) requires FEMA assure that it carries out its responsibilities in a manner consistent with national environmental policies. Accordingly, pursuant to both § 404 of the CWA and FEMA’s PA Guide, an applicant must obtain a permit in any situation where dredging or filling is a component of a project. Where a USACE permit is required for a PA project, FEMA places a requirement in the PW stating the applicant is responsible for obtaining the permit. FEMA inserted the condition into PW 747 that the Applicant must obtain a § 404 permit. The Applicant obtained such a permit in June 2014.

: The National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NMFS) issued a biological opinion in September 2016, stating that the Long Beach Port Commission’s (Applicant) construction had only an insignificant or discountable impact to critical habitat in its harbor, effectuating compliance with the Endangered Species Act (ESA). In addition, the Applicant obtained a permit from the U.S. Army Corps of Engineers (USACE) as required under the Clean Water Act (CWA). As such, the work is eligible for Public Assistance (PA).

44 C.F.R. § 10.4(a). ESA § 7. CWA § 404. PA Guide, at 130, 132.