US Army Corps of Engineers

U.S. Army Corps of Engineers Regulatory Program

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Corps Regulatory Program

Purposes

• • •

Protect Navigation:

Sections 9 and 10 of the Rivers and Harbors Act of 1899

Restore and maintain the physical, chemical and biological integrity of the Nation's waters:

Section 404 of the Clean Water Act

Protect marine resources associated with ocean disposal of dredged material:

Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Corps Regulatory Program Goals

•

Protect the Aquatic Environment

•

Render Fair and Reasonable Decisions

•

Provide for Efficient Decision Making

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Clean Water Act

“…

to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters

.”

One Corps Serving The Army and the Nation

Functions of Streams, Wetlands and

US Army Corps of Engineers

Other Waters of the United States

• • • • • • • • • Water quality Fish and wildlife habitat Food chain production Flood storage Shoreline protection Streamflow maintenance Groundwater recharge/discharge Natural products for economy Recreation and aesthetics

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Clean Water Act Section 404

Requires authorization from the U.S. Army Corps of Engineers to discharge dredged or fill material into waters of the United States

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Clean Water Act Section 404 Regulatory Program

• Geographic jurisdiction • Regulated activities • Permitting – General permits – Individual permits

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Waters of the United States Two Primary Elements

• Exhibits specific physical features – Presence of ordinary high water mark in open non-tidal waters – High tide line in open tidal waters – Presence of appropriate hydrology, soils, and vegetation in wetlands • Meets definition of “waters of the United States” in 33 CFR 328.3(a)

One Corps Serving The Army and the Nation

Waters of the United States

US Army Corps of Engineers

• The term “waters of the United States” includes (33 CFR 328.3 (a)): – (1) Navigable waters – – (2) Interstate waters (3) All other waters (intrastate lakes, rivers, streams, mudflats, wetlands, sloughs, wet meadows, playa lakes, etc.), the use, degradation, or destruction of which could affect interstate or foreign commerce • Used or could be used by interstate or foreign travelers for recreational or other purposes • From which fish or shellfish are or could be taken and sold in interstate or foreign commerce • Used or could be used for industrial purpose by industries in interstate commerce

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Waters of the United States

• • The term “waters of the United States” includes (cont.): – (4) Impoundments of waters of the United States – – – (5) Tributaries of waters identified above (6) Territorial seas (7) Wetlands adjacent to waters identified above Waste treatment systems designed to meet the requirements of the Clean Water Act (other than cooling ponds) are

not

waters of the United States

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Clean Water Act - Section 404 Regulatory Program

• Geographic jurisdiction • Regulated activities • Permitting – General permits – Individual permits

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Regulated Activities

Permit required from the Corps for discharges of dredged or fill material into waters of the United States (33 CFR Part 323)

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Clean Water Act - Section 404 Regulatory Program

• Geographic jurisdiction • Regulated activities • Permitting – General permits – Individual permits

One Corps Serving The Army and the Nation

General Permits

US Army Corps of Engineers

• Issued nationwide or regionally for a category or categories of activities which are either: – –

Similar in nature

and cause only

minimal individual and cumulative adverse impacts

(

Nationwide and Regional General Permits

) or Result in

avoiding unnecessary regulatory control exercised by another federal, state, or local agency

provided the activity would cause only

minimal individually and cumulatively adverse effects

(

Programmatic General Permits

) • • Always Include terms and conditions for compliance May require pre-construction notification to the Corps

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Permitting Mechanisms

• General Permits – Programmatic – Nationwide – Regional • Individual Permits – Letter of permission – Standard

One Corps Serving The Army and the Nation

General Permit Examples

US Army Corps of Engineers

• Nationwide Permit – Maintenance (NWP 3) – – – – – Utility Lines (NWP 12) Bank Stabilization (NWP 13) Linear Transportation Crossings (NWP 14) Surface Coal Mining (NWP 21) Wetland and Riparian Restoration and Creation Activities (NWP 27)

One Corps Serving The Army and the Nation

US Army Corps of Engineers

NWP 27 - Stream and Wetland Restoration Activities

• Authorized activities: – Restoration of former tidal and non-tidal waters – Enhancement of degraded tidal and non-tidal wetlands and riparian areas – Creation of tidal and non-tidal wetlands and riparian areas – Restoration and enhancement of non-tidal streams and non-tidal open waters

One Corps Serving The Army and the Nation

Corps Mitigation Policy

US Army Corps of Engineers

• • • • Regulatory Program mitigation policy (33 CFR 320.4 (r)) – last updated in regulations effective in 1987 and in policy in Regulatory Guidance Letter 02-2 (December 2002) (see also 1995 mitigation bank guidance and 2000 in-lieu fee mitigation guidance) Applies to all permits, including general permits Avoiding, minimizing, rectifying, reducing, and/or compensating for resource loss must be considered Corps may require all appropriate and practicable mitigation necessary to insure the action will not be contrary to the public interest and meet other legal requirements, e.g., 404(b)(1)

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Corps & EPA Mitigation MOA

• • • • Signed February 6, 1990 Guidance for determining type and level of mitigation necessary to comply with the 404(b)(1) guidelines Mitigation defined as a

sequential

process of

avoiding

,

minimizing

, and

compensating

for adverse impacts to the aquatic ecosystem Mitigation banking may be an appropriate form of compensatory mitigation

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Preapplication Coordination

• Preapplication coordination encouraged but not required • Applicant presents proposed project to Corps and/or resource agencies before submitting a permit application or PCN • Preferably presented in planning stage of project when changes are easier to make • May include meeting(s) and/or site visit(s) • Provides opportunity for early feedback to applicant to hopefully avoid sensitive areas and resolve issues

One Corps Serving The Army and the Nation

Stream Management

US Army Corps of Engineers

• • Concern by Corps and resource agencies about individual and cumulative adverse impacts of urban development and other projects on streams and riparian areas Fort Worth District sponsoring and encouraging guidance, workshops and demonstration projects in association with numerous other participating agencies (EPA, FWS, NRCS, TCEQ, TPWD, local agencies)

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps of Engineers

One Corps Serving The Army and the Nation

US Army Corps

Tips on Working with the Corps in

of Engineers

the Regulatory Program

• • • • • Get to know the personnel in the District(s) you work with and become familiar with their procedures Think like the Corps and other natural resource agencies on protecting the aquatic environment Develop resources for proven, as well as new and innovative, ways to protect the aquatic environment and use them when appropriate. Share such plans with other parts of your organization Seek the advice of a good environmental consultant when appropriate If at first you don’t succeed, read the instructions

One Corps Serving The Army and the Nation

US Army Corps

Tips on Working with the Corps in

of Engineers

the Regulatory Program

• • • • • Provide detail commensurate with the complexity of the case Use simple, clearly-reproducible drawings with complete legends Make sure that your submittals would make sense to an uninformed third-party (don’t make assumptions) Check submittals for accuracy (math, consistency among multiple sections – including drawings - of the report Develop good, well-thought-out plans and then follow them

One Corps Serving The Army and the Nation

US Army Corps

Tips on Working with the Corps in

of Engineers

the Regulatory Program

• • • • • Suggest ways for the process to go more smoothly Conduct pre-application coordination when appropriate Use

all

of the Corps Regulatory websites as resources Acknowledge the heavy Regulatory Program workload

Avoid

,

minimize

, and

compensate

– ensure that protection of the aquatic environment is integrated into the planning process of all projects to the maximum extent practicable

One Corps Serving The Army and the Nation

Bottom Line

US Army Corps of Engineers

• If you need a Department of the Army permit

GET ONE !!

• If you get a Department of the Army permit

DO WHAT IT REQUIRES !!

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Regulatory Program Information

• • • • • National Regulatory Program Home Page: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/ Fort Worth District Regulatory Home Page: http://www.swf.usace.army.mil/pubdata/environ/regulatory/index.asp

Galveston District Regulatory Home Page: www.swg.usace.army.mil/reg/ Tulsa District Regulatory Home Page: www.swt.usace.army.mil/permits/permits.cfm

Albuquerque District Regulatory Home Page: www.spa.usace.army.mil/reg/

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Fort Worth District Guidance

• • • • • • • • • Regulatory Program Overview General Recommendations for Department of the Army Submittals Procedures for Jurisdictional Determinations Individual Permit Application Checklist 404(b)(1) Alternative Analyses Mitigation Mitigation Banking In-lieu Fee Mitigation Emergency Procedures

One Corps Serving The Army and the Nation

US Army Corps of Engineers

Corps Contacts in Texas and Southwestern Division

Fort Worth District Little Rock District Galveston District Tulsa District Albuquerque District (817)886-1731 (501)324-5296 (409)766-3930 (918)669-7400 (915)568-1359

One Corps Serving The Army and the Nation