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U.S. Army Corps of Engineers Regulatory Program

U.S. Army Corps of Engineers Regulatory Program. 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

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U.S. Army Corps of Engineers Regulatory Program

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  1. U.S. ArmyCorps of EngineersRegulatory Program

  2. Corps Regulatory ProgramPurposes • 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

  3. Corps Regulatory Program Goals • Protect the Aquatic Environment • Render Fair and Reasonable Decisions • Provide for Efficient Decision Making

  4. Clean Water Act “… to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

  5. Functions of Streams, Wetlands and 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

  6. 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

  7. Clean Water Act - Section 404 Regulatory Program • Geographic jurisdiction • Regulated activities • Permitting • General permits • Individual permits

  8. Waters of the United StatesTwo 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)

  9. 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 Waters of the United States

  10. 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 Waters of the United States

  11. Clean Water Act - Section 404 Regulatory Program • Geographic jurisdiction • Regulated activities • Permitting • General permits • Individual permits

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

  13. Clean Water Act - Section 404 Regulatory Program • Geographic jurisdiction • Regulated activities • Permitting • General permits • Individual permits

  14. General Permits • 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 andRegional 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

  15. Permitting Mechanisms • General Permits • Programmatic • Nationwide • Regional • Individual Permits • Letter of permission • Standard

  16. General Permit Examples • 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)

  17. 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

  18. 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) Corps Mitigation Policy

  19. 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

  20. 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

  21. Stream Management • 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)

  22. 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 Tips on Working with the Corps in the Regulatory Program

  23. 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 Tips on Working with the Corps in the Regulatory Program

  24. 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 Tips on Working with the Corps in the Regulatory Program

  25. Bottom Line • If you need a Department of the Army permit GET ONE !! • If you get a Department of the Army permit DO WHAT IT REQUIRES !!

  26. 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/

  27. 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 Fort Worth District Guidance

  28. Corps Contacts in Texas and Southwestern Division Fort Worth District (817)886-1731 Little Rock District (501)324-5296 Galveston District (409)766-3930 Tulsa District (918)669-7400 Albuquerque District (915)568-1359

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