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.