REGULATORY JURISDICTION OF THE U.S. ARMY, CORPS OF ENGINEERS
IN ALL WATERS OF THE UNITED STATES
HOW CAN JERRY M. NAHAS & ASSOCIATES (JMNA) HELP WITH THE USCOE PERMITTING PROCESS THAT WILL ASSURE COMPLIANCE WITH ALL FEDERAL & STATE APPLICABLE STATUTES (INVOLVING ALL WATERS OF THE UNITED STATES, INCLUDING REGULATED INLAND LAKES AND STREAMS)?
Answer: JMNA will serve as your agent and acquire all required Federal and State permits within JURISDICTIONAL LIMITS OF THE FEDERAL OR STATE GOVERNMENTAL BODIES. This would include design consultation, permitting plans preparation, submittal of all required applications to the varying agencies, coordination with agencies and all other entities affected by proposed work, objection resolution resulting from public notice comments, and any necessary modifications of plans and maintenance of issued permits.
The U.S. Army, Corps of Engineers Guidelines for Public Compliance Follows:
WHAT IS THE CORPS REGULATORY AUTHORITY?
Answer: THE REGULATORY AUTHORITY OF THE U.S. ARMY, CORPS OF ENGINEERS IS BASED ON SECTION 10 OF THE RIVERS AND HARBORS ACT AND SECTION 404 OF THE CLEAN WATER ACT.
WHAT SPECIFIC AUTHORITY DOES THE CORPS MANDATE UNDER SECTION 10?
Answer: SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 AUTHORIZES THE SECRETARY OF THE ARMY THROUGH THE CHIEF OF ENGINEERS TO REGULATE ALL ACTIVITIES AND STRUCTURES IN NAVIGABLE WATERS OF THE UNITED STATES, INCLUDING CONSTRUCTION, EXCAVATION, OR DEPOSITION OF MATERIALS IN, OVER, OR UNDER SUCH WATERS, OR ANY WORK WHICH WOULD AFFECT THE COURSE, LOCATION, CONDITION, OR CAPACITY OF THOSE WATERS.
Clarification: Those waters that are subject to the ebb and flow of the tide and/or Great Lakes Basin waters up to the Head of Navigation on connecting tributaries throughout the connecting channels and Great Lakes Basin, and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. The shoreward limit of jurisdiction extends to the mean or high water mark on Navigable Waters of the United States and/or the Ordinary High Water Mark (OHWM) on regulated lakes or streams up to the Head of Navigation.
WHAT SPECIFIC AUTHORITY DOES THE CORPS MANDATE UNDER SECTION 404?
Answer: SECTION 404 OF THE CLEAN WATER ACT AUTHORIZES THE SECRETARY OF THE ARMY, ACTING THROUGH THE CHIEF OF ENGINEERS, TO ISSUE PERMITS, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC HEARING, FOR THE DISCHARGE OF DREDGED OR FILL MATERIAL INTO WETLANDS AND OTHER WATERS OF THE UNITED STATES AT SPECIFIC DISPOSAL SITES.
Clarifiation: Authority of the Corps includes all Waters of the United States, but are not limited to: Navigable waters, tributaries to navigable and interstate waters, lakes, rivers, streams, mudflats, wetlands, sloughs, impoundments, and territorial seas.
Further Clarification: Regulatory Definition of Wetlands “Wetlands” are defined as: those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions (33 CFR 328.3(b)).
WETLANDS ARE CHARACTERISTIC OF LANDS THAT ARE SUBJECT TO PERIODIC FLOODING OR ARE LOCATED IN THE TIDAL ZONE: WETLANDS ARE CHARACTERISTIC OF LANDS THAT ARE SUBJECT TO PERIODIC FLOODING OR ARE LOCATED IN THE TIDAL ZONE. WETLANDS THAT ARE UNDER THE CORPS JURISDICTION EXHIBIT: HYDROPHYTIC VEGETATION HYDRIC SOILS WETLAND HYDROLOGY.
WHERE DOES THE CORPS JURISDICTION BEGIN AND END?
Answer: ALL WATERS AND CONTIGUOUS WETLANDS THROUGHOUT ALL DISTRICTS REGULATING ALL WATERS OF THE UNITED STATES AND ADJACENT WETLANDS, INCLUDING ALL CONNECTING LAKES AND STREAMS UPTO TRIBUTARIES AT HEADWATERS AT ANNUAL FLOW OF 5CFS.
WHAT TYPES OF PERMITS DOES THE CORPS OF ENGINEERS ISSUE?
Answer: TYPES OF PERMITS: NATIONWIDE REGIONAL/STATE PROGRAM GENERAL PERMITS LETTER OF PERMISSION EMERGENCY INDIVIDUAL
NATIONWIDE PERMITS DEFINED: Nationwide Permits are a type of general permit issued by the Chief of Engineers, and are designed to regulate with little, if any, delay or paperwork certain activities with minimal impacts .
Regional General Permits: General permits are issued by the Corps District for certain similar activities that have minor impacts.
PROGRAMMATIC PERMIT: Programmatic permits are a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication of that program. 33CFR325.5(c)(3)
Programmatic General Permit: Programmatic General Permits (PGP’s) are general permits, written by the Corps, which rely upon an existing state program. Category I up to .5 of an acre. This may vary state to state. The PGP relies upon the Coastal Management Division to conduct the bulk of permit evaluations for activities which comply with the PGP. Category II 2 acres of non-tidal , 3 acres of tidal (non oil & gas) 3.5 acres oil & gas.
Department of the Army Individual Permits: Activities which do not comply with any of the abbreviated procedures must be evaluated under individual permitting procedures.
PERMIT PROCESSING FLOWCHART INDIVIDUAL PERMITS: JURISDICTIONAL DETERMINATION COMPLETED. PRE-APPLICATION CONSULTATION (IF NECESSARY). APPLICATION SUBMITTED WITH COMPLETE PLANS. PUBLIC NOTICE (PN) ISSUED. INTERAGENCY FIELD TRIP (IF NECESSARY). COMMENTS FROM PN SUBMITTED TO APPLICANT. EVALUATION OF COMMENTS AND OTHER INFORMATION BY REGULATORY PERSONNEL. ISSUANCE OR DENIAL OF PERMITS FROM DEPARTMENTS OF ENVIRONMENTAL QUALITY AND COASTAL MANAGEMENT (WHERE APPLICABLE).
PERMIT APPLICATION: Department of the Army Permit Application - ENG Form 4345 A vicinity map, a plan view and a cross section of the proposed work. Joint Corps/Coastal Zone Application – Modified ENG Form 4345.
PUBLIC NOTICE: A public notice will be issued for 30 days to allow the public, Federal and state agencies and other concerned parties an opportunity to comment on the proposed project. All public notices are now on the Internet.
PERMIT EVALUATION: Review the project with regard to public interest factors listed in 33 CFR 320.4. These factors are: Conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people; as follows: a) Relative extent of public and private need of the project b) the practicability of using alternative sites and methods c) the extent and permanence of the beneficial and/or detrimental effects which the proposed work is likely to have on the public interest.
COMPENSATORY MITIGATION APPROACHES: COMPENSATORY MITIGATION APPROACHES VARY DEPENDING UPON THE ECO SYSTEM IMPACTED. IF AUTHORIZED, SPECIFIC DESIGNS TO MITIGATE IMPACT WILL BE DETERMINED PER THE SECTION 404 (B)(1) GUIDELINES, IF PERMITTABLE BY THE CORPS REGULATORY FUNCTIONS OFFICE.
GENERAL PROCEDURES FOR PROCESSING PERMIT APPLICATIONS: ESTABLISH PURPOSE AND NEED ALTERNATIVE ANALYSIS ENVIRONMENTAL ASSESSMENT PUBLIC INTEREST REVIEW MITIGATION PERMIT DECISION.
WHAT IS THE CORPS ULTIMATE GOAL AND RESPONSIBILITY TO THE PUBLIC TRUST?
Answer: “The Corps will strive to avoid adverse impacts and offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, AND will strive to achieve a goal of no overall net loss of values and functions.”: USACOE Goal: “The Corps will strive to avoid adverse impacts and offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will strive to achieve a goal of no overall net loss of values and functions.”
OTHER LAWS INVOLVED IN THE 404 PERMITTING PROCESS INCLUDE: FOR PROJECTS LOCATED WITHIN THE BOUNDARIES OF THE STATE’S COASTAL ZONE, IT IS LIKELY THAT A PERMIT FROM THE GIVEN STATE DEPARTMENT OF NATURAL RESOURCES, COASTAL MANAGEMENT DIVISION WILL BE REQUIRED. APPLICANTS MUST APPLY FOR A COASTAL USE PERMIT AS DESIGNATED BY THE GIVEN COASTAL ZONE MANAGEMENT AUTHORITY. AN APPLICANT APPLYING FOR A SECTION 404 PERMIT MUST ALSO APPLY FOR A SECTION 401 PERMIT (WATER QUALITY CERTIFICATION) FROM THE VARIOUS STATE ENVIRONMENTAL OFFICES.
THE ENDANGERED SPECIES ACT: PROJECTS AFFECTING FEDERALLY PROTECTED SPECIES WILL REQUIRE COORDINATION WITH EITHER THE U.S. FISH AND WILDLIFE SERVICE OR THE NATIONAL MARINE FISHERIES SERVICE UNDER THE ENDANGERED SPECIES ACT.
THE FISH AND WILDLIFE COORDINATION ACT: THE FISH AND WILDLIFE COORDINATION ACT REQUIRES CONSULTATION WITH FEDERAL AND STATE RESOURCE AGENCIES ON SECTION 404 PERMIT REQUESTS.
ESSENTIAL FISH HABITAT Magnuson-Stevens Act-1996 “One of the greatest long-term threats to the viability of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other aquatic habitats.”
THE NATIONAL HISTORIC PRESERVATION ACT: SECTION 404 PERMIT REQUESTS THAT AFFECT ARCHEOLOGICAL, CULTURAL OR HISTORICAL SITES MAY REQUIRE THAT CERTAIN PROCEDURES BE FOLLOWED UNDER THE NATIONAL HISTORIC PRESERVATION ACT THROUGH COORDINATION WITH ALL REGULATING STATES DEPT. OF CULTURE, RECREATION AND TOURISM.
AGENCIES INVOLVED IN THIS PROCESS: AGENCIES INVOLVED IN THE PERMITTING PROCESS INCLUDE ALL OVERLAPPING JURISDICTION, INCLUDING, BUT NOT LIMITED TO : U.S. ENVIRONMENTAL PROTECTION AGENCY U.S. FISH AND WILDLIFE SERVICE NATIONAL MARINE FISHERIES SERVICE U.S. NATURAL RESOURCES CONSERVATION SERVICES OF WILDLIFE AND FISHERIES OF VARYING STATE DEPTS. OF ENVIRONMENTAL AFFAIRS AND COASTAL MANAGEMENT CONCERNS OF CULTURE, RECREATION & TOURISM INDUSTRIES.
APPEALS PROCESS FOR PROFFERED INDIVIDUAL PERMITS/LOP’S: OBJECT TO THE INITIAL PROFFERED PERMIT OR LOP: 2 AVENUES: 1. Request appropriate modifications to the proffered permit and return to the District Engineer within 60 days of notice. 2. Decline proffered permit and appeal the decision by completing the appeals form and returning to the Division Engineer within 60 days of notice.
Sunday, May 22, 2011
Following the Requirements of the USACE regulatory maze
Prudent protocol for acquisition of 33 & 40 CFR Governmental Permits from the USACE and associated Environmental Agencies.
Author: Jerome M. Nahas, September 2010
SUMMARY: The 33 & 40 CFR statutes dictate that the necessary acquisition of dredge, fill, or construction permits be duly obtained prior to initiating any work within the jurisdictional confines defined by Waters of the United States and/or contiguous wetlands. Applicants should perform due diligence studies (careful planning, environmental impact and/or no prudent alternative analysis and provide support documentation), prior to submittal through the standard permitting process procedures.
REGULATORY RATIONALE: The U.S. Army, Corps of Engineers (USACE) Regulatory Functions Branch or appropriately titled permitting offices (including sister regulatory agencies of the State DNR, F&WLS, EPA and commenting Environmental Interest Groups) exercise extreme governing discretion when measuring the 33 & 40 CFR environmental impact criteria of proposed construction, dredge and/or fill operations in our nations waterways; including regulated lakes and streams and associated wetlands. Thus, allowable permitting under 33 CFR 320-330 Section 10 of the River and Harbor Act and/or 40 CFR 230 Section 404 of the Clean Water Act are a function of: (1) whether the work will take place below the OHWM or contiguous wetlands, (2) the intended Basic Project Purpose, (3) the associated quantity of work in its relationship to the basic project purpose and the overall public interest (i.e., the quantity of dredge and fill in its relationship to the basic project purpose and its relative ecological benefit or detriment), (4) whether the project is in the overall public interest, and (5) the short/long term and/or cumulative impact or ramifications of the work; which ultimately governs what type of permit will be issued - if indeed permittable, and whether mitigation is acceptable or required.
As such, permitting becomes a special sensitive matter when aquatics, wetlands, and/or wildlife/fish habitat regions are potentially adversely affected by various dredge, fill or construction operations. Any proposed work that ultimately impacts the natural balance of the environment and wildlife habitat, although appearing short term in nature, may not be permittable.
REGULATORY CONSULTANTS provide the necessary guidance and subsequent administratively complete permit application submittals of carefully crafted plans and technical know-how that demonstrate sound BMPs, quantities analysis and QA/QC support evaluations, written explanations, and construction sequence and events planning, necessary; in order to acquire the governmental permits.
Any Proposed Work Requiring Environmental Resource Protection Permitting … no matter where you go in the USA addresses the same question over and over: namely; “Is the work which one proposes within the jurisdictional boundaries of the governing agency(s) in the overall public interest, abiding to the best method of developmental execution, while ultimately assuring the least impact to our resources and wildlife?” This should be the focus, which you as a permit applicant need to address, when submitting applications and related correspondence to the Federal, State and Local governments for regulated work.
Author: Jerome M. Nahas, September 2010
SUMMARY: The 33 & 40 CFR statutes dictate that the necessary acquisition of dredge, fill, or construction permits be duly obtained prior to initiating any work within the jurisdictional confines defined by Waters of the United States and/or contiguous wetlands. Applicants should perform due diligence studies (careful planning, environmental impact and/or no prudent alternative analysis and provide support documentation), prior to submittal through the standard permitting process procedures.
REGULATORY RATIONALE: The U.S. Army, Corps of Engineers (USACE) Regulatory Functions Branch or appropriately titled permitting offices (including sister regulatory agencies of the State DNR, F&WLS, EPA and commenting Environmental Interest Groups) exercise extreme governing discretion when measuring the 33 & 40 CFR environmental impact criteria of proposed construction, dredge and/or fill operations in our nations waterways; including regulated lakes and streams and associated wetlands. Thus, allowable permitting under 33 CFR 320-330 Section 10 of the River and Harbor Act and/or 40 CFR 230 Section 404 of the Clean Water Act are a function of: (1) whether the work will take place below the OHWM or contiguous wetlands, (2) the intended Basic Project Purpose, (3) the associated quantity of work in its relationship to the basic project purpose and the overall public interest (i.e., the quantity of dredge and fill in its relationship to the basic project purpose and its relative ecological benefit or detriment), (4) whether the project is in the overall public interest, and (5) the short/long term and/or cumulative impact or ramifications of the work; which ultimately governs what type of permit will be issued - if indeed permittable, and whether mitigation is acceptable or required.
As such, permitting becomes a special sensitive matter when aquatics, wetlands, and/or wildlife/fish habitat regions are potentially adversely affected by various dredge, fill or construction operations. Any proposed work that ultimately impacts the natural balance of the environment and wildlife habitat, although appearing short term in nature, may not be permittable.
REGULATORY CONSULTANTS provide the necessary guidance and subsequent administratively complete permit application submittals of carefully crafted plans and technical know-how that demonstrate sound BMPs, quantities analysis and QA/QC support evaluations, written explanations, and construction sequence and events planning, necessary; in order to acquire the governmental permits.
Any Proposed Work Requiring Environmental Resource Protection Permitting … no matter where you go in the USA addresses the same question over and over: namely; “Is the work which one proposes within the jurisdictional boundaries of the governing agency(s) in the overall public interest, abiding to the best method of developmental execution, while ultimately assuring the least impact to our resources and wildlife?” This should be the focus, which you as a permit applicant need to address, when submitting applications and related correspondence to the Federal, State and Local governments for regulated work.
Subscribe to:
Comments (Atom)