Permitting Marine Projects

1. Permitting Marine Projects Presented to UW Environmental Law and Regulation Students Presented by Katie Chamberlin and Heather Page October 31, 2007

2. Rivers and Harbors Act of 1899 – Section 10 • The purpose of this section of the Act was to prohibit the obstruction or alteration of navigable waters of the U.S. • Navigable waters of the U.S. defined as “those waters that are subject to the ebb and flow of the tides and/or are presently used, or have been used in the past, or maybe susceptible to use to transport interstate or foreign commerce” • A Section 10 Permit is required for any work in, over, or under navigable waters • Approval issued as an Individual Permit, Nationwide Permit, or Regional Permit

3. Clean Water Act of 1972, amended in 1977 • CWA established the basic structure for regulating discharges of pollutants into the waters of the U.S. • Provided EPA the authority to implement pollution control programs such as setting wastewater standards for industry and setting water quality standards for all contaminants in surface waters • CWA made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions

4. CWA – Section 404 • Established a program to regulate the discharge of dredged or fill material into waters of the U.S. • CWA built on the definition of navigable waters, and defined “waters of the U.S.” to include tributaries to navigable waters, interstate wetlands, wetlands which could affect interstate or foreign commerce, and wetlands adjacent to other waters of the U.S. • Definition of the extent of “waters of U.S.” continues to be in flux, based on court rulings

5. CWA – Section 404 (cont.) • 404 Program jointly administered by the U.S. Army Corps of Engineers (Corps) and the EPA • Program permit review and issuance encourages avoidance of impacts, followed by minimizing impacts and, finally, requiring mitigation for unavoidable impacts to the aquatic environment. This sequence is described in the guidelines at Section 404(b)(1) of the CWA. • Approval issued as an Individual 404 Permit, Nationwide 404 Permit (NWP), or Regional Permit

6. CWA – Section 401 • Required of any applicant for a federal license or permit to conduct any activity that may result in a discharge into navigable waters • 401 Certifications are made by the state in which the discharge originates and declare that the discharge will comply with applicable provisions of the Act, including water quality standards requirements

7. CWA – Section 401 (cont.) • In this state, administered by the Washington State Department of Ecology (Ecology) • Approval can be issued in the form of a 401 Water Quality Certification (WQC), Letter of Verification, or No Further Action clause (issued by the Corps in their 404 Permit)

8. CWA – Section 402 • National Pollutant Discharge Elimination System (NPDES) • NPDES program controls water pollution by regulating point sources that discharge pollutants into waters of the U.S. Industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. • It is an EPA program, typically administered by states • In this state, administered by Ecology

9. CWA – Section 402 (cont.) • Many different NPDES Permits: • Aquatic Pesticides General Permit • Boatyard General Permit • Construction Stormwater General Permit • Fresh Fruit Packing General Permit • Individual Permit • Industrial Stormwater General Permit • Municipal Stormwater General Permit • Sand and Gravel Site Permit

10. Coastal Zone Management Act of 1972 • Established the national policy to preserve, protect, develop, and restore the Nation’s coastal zones. • Provides for various grants to coastal states for development of coastal zone management plans and management of various programs • In this state, administered by Ecology via their Section 401 review process

11. Endangered Species Act of 1973 • Conservation of threatened and endangered fish, wildlife, and plant species • Administered by National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (USFWS) • Projects with a federal nexus that could affect listed species trigger Section 7 consultation

12. Section 7 Consultation Process • Biological assessmentsanalyze the potential effects of projects on listed species and critical habitat, and justify particular effect determinations • “Consultation” versus “Conference” with NMFS and USFWS • Informal versus formal consultation

13. Section 106 Process • Initiating Review • Does the project affect historical or archaeological resources ? • Early coordination with Tribes • Identifying Cultural Resources • Identify area of potential effect (APE) • Prepare Cultural Resource Report • Assessing Effects on Cultural Resources • Avoid, minimize, or mitigate adverse effects

14. Section 106 Process • Obtain SHPO Concurrence on “No Adverse Effect” • Resolving Adverse Effects • Reach agreement with the SHPO/Tribal Historic Preservation Officer on measures to deal with adverse effects • Mitigation may include active preservation in place for future study or other use, recovery or partial recovery of archaeological data, public interpretive display, etc.

15. Washington Hydraulic Code (Chapter 220-110 WAC) • Hydraulic Project Approval (HPA) is required of any activity that uses, diverts, obstructs, or changes the natural flow or bed of any of the salt or fresh waters of state • Work requiring an HPA also includes… • Administered by the Washington Department of Fish and Wildlife (WDFW)

16. Washington Department of Natural Resources (DNR) Permits • Aquatic Use Authorization • Required of any activity that takes place on state-owned aquatic lands, consistent with Chapter 79.105 RCW • Site Use Authorization • Required to dispose of dredged material at one of DNR’s unconfined open-water dredged material disposal sites • Administered through DNR and the Dredged Material Management Program (DMMP)

17. State Environmental Policy Act (SEPA) • Enacted in 1971; modeled after National Environmental Policy Act (NEPA) • Phased process, not a permit, that culminates in a threshold determination (WAC 197-11) • Any proposal that requires a state or local agency decision to license, fund, or undertake a project, or the proposed adoption of a policy, plan, or program can trigger environmental review under SEPA

18. SEPA Process • Determine whether SEPA is required • Determine the lead agency • Set up pre-application meeting • Prepare SEPA Documentation • Lead agency evaluates proposal • Assess significance and issue a threshold determination

19. Shoreline Management Act • Enacted in 1971 (Chapter 90.58 RCW) • Local government has the primary responsibility for initiating the planning required by the SMA and administering the regulatory program (Shoreline Master Program [SMP]) • Ecology acts primarily in a supportive and review capacity with an emphasis on providing assistance to local government and on ensuring compliance with the policy and provisions of the SMA

20. SMA Development Permit • Development projects within 200 feet of a regulated water body must be consistent with the local SMP • Shoreline permit exemptions • Substantial Development Permits • Conditional Use Permit and Variances

21. Washington State Department of Transportation’s I-405, Bellevue Nickel Improvement Project

22. WSDOT I-405 Project Office • Co-located WSDOT/consultant team • Primarily design-build projects vs. design bid build projects • All 405 Projects permitted through the WSDOT- funded Multi-Agency Permitting (MAP) Team • Many phases and stages, based off state and federal funding availability

23. I-405, Bellevue Nickel Improvement Project Goals • Reduce congestion and increase travel speeds into and out of Bellevue by adding lanes to I-405 • Improve merging conditions and safety near I-90 by: • Reconfiguring the northbound on-ramps from I-90 so traffic will not have to merge together before merging onto I-405 • Extending the southbound HOV lane on the west side of I-405 to I-90 so drivers have more time to merge • Enhance wetlands and wildlife habitat by creating a wetland at Bellevue's Kelsey Creek Park to mitigate for wetland impacts from the project • Improve water quality by treating highway stormwater runoff

24. Project Impacts to Sensitive Areas (Winter 2005) • Permanent impact to approximately 32,000 ft2 (0.74 acre) of Category 3 and 4 wetlands • Permanent impact to approximately 11,000 ft2 (0.25 acre) of one stream

25. Permit Strategy • Section 404 Individual Permit • Section 401 Water Quality Certification • Coastal Zone Management Act Consistency Determination • Section 402 NPDES Construction Stormwater General Permit • Section 106 SHPO Concurrence • NMFS and USFWS Concurrence • SEPA Threshold Determination • Hydraulic Project Approval • Shoreline Substantial Development Permit

26. Design Change #1 Negotiations between BNSF, King County, and WSDOT led to an agreement in which a major design constraint, the Wilburton Tunnel, could be removed!

27. Project Impacts to Sensitive Areas (Summer 2006) • Permanent impact to approximately 7,000 ft2 (0.16 acre) of Category 3 and 4 wetlands • Permanent impact to approximately 3,500 ft2 (0.08 acre) of one stream • Mitigation was tailored to meet the compensation requirements, although wetland mitigation site would have surplus restoration area • Permits were issued based off these impact numbers and the required mitigation respective to these impacts

28. Permit Strategy #2 • Section 404 Nationwide Permit • Section 401 Letter of Verification • No Coastal Zone Management Act Consistency Determination – part of LOV process • Section 402 NPDES Construction Stormwater General Permit • Section 106 SHPO Concurrence • NMFS and USFWS Concurrence • SEPA Threshold Determination • Hydraulic Project Approval • Shoreline Substantial Development Permit

29. Design Change #2 • Contract awarded in February 2007 • Design-build contractor successfully minimized both wetland and stream impacts: • Wetland impacts now total 2,700 ft2 (0.07 acre) • Stream impacts now total 725 ft2 (0.02 acre)

30. Design Change #2 (cont.) • Reduction in impacts meant a revised permit strategy • Needed to modify wetland mitigation plan to indicate that less of the restoration would be allocated to this project • Needed to significantly scale back stream mitigation plan • Needed to re-verify the NWP 404 Permit • Needed an amended HPA

31. Design Build Impact Minimization in this Project • Wetland impacts went from approximately 32,000 ft2 (0.74 acre) to 2,700 ft2 (0.07 acre) – 84% reduction • Stream impacts went from approximately 11,000 ft2 (0.25 acre) to 725 ft2 (0.02 acre) – 66% reduction

32. Gig Harbor Eddon Boatyard Sediment Cleanup Project

34. Existing Pier and Marine Rails

35. Existing Bulkhead

36. Permit Strategy • Individual Section 404 Permit (not a NWP 38) • Section 10 Permit • 401 Water Quality Certification • Coastal Zone Management Act Consistency Determination • Hydraulic Project Approval • Section 106 SHPO Concurrence • NMFS Concurrence (no USFWS Concurrence) • Shoreline Substantial Development Permit • SEPA Threshold Determination • Floodplain Permit • Certificate of Appropriateness from City Design Review Board • No DNR Aquatic Use Authorization

37. Permit Strategy (cont.) • Joint Agency Meeting set up through Office of Regulatory Assistance • Meeting with WDFW and NMFS to address concerns raised at Joint Agency Meeting • Pre-application meeting with City of Gig Harbor Planning Department

38. End Results • Submitted all permit documentation within one month of Joint Agency Meeting • Received minimal comments from Ecology, WDFW, the Corps • Received SEPA MDNS and SSDP • ESA concurrence issued to Corps • Next steps

39. References Clean Water Act Act of 1972, amended 1977: http://www.epa.gov/region5/water/cwa.htm Section 404: http://www.epa.gov/owow/wetlands/regs/sec404.html Section 401: http://www.epa.gov/owow/wetlands/facts/fact24.html Section 402: http://www.epa.gov/owow/wetlands/laws/section402.html Washington Hydraulic Code Chapter 220-110 WAC: http://apps.leg.wa.gov/WAC/default.aspx?cite=220-110 DNR Permits Site Use Authorization: http://www.dnr.wa.gov/htdocs/aqr/dmmp/index.html Aquatic Use Authorization:http://apps.leg.wa.gov/RCW/default.aspx?cite=79.105

40. References Endangered Species Act Act of 1973: http://www.fws.gov/Endangered History of ESA Act: http://www.fws.gov/endangered/ESA/esasum.html USFWS: http://www.fws.gov/Endangered/ NMFS (NW Office): http://www.nwr.noaa.gov/ Preparing Biological Assessments http://www.wsdot.wa.gov/Environment/Biology/BA/default.htm#BAManual Section 106 Working with Section 106: http://www.achp.gov/work106.html Consulting with Indian Tribes:http://www.achp.gov/regs-tribes.html

41. References SEPA SEPA Handbook: http://www.ecy.wa.gov/programs/sea/sepa/handbk.htm SEPA Rules: http://apps.leg.wa.gov/WAC/default.aspx?cite=197-11 Shoreline Management Act SMA of 1971: http://apps.leg.wa.gov/RCW/default.aspx?cite=90.58