404/401 Process & Wetlands Permitting Overview

1. FEDERAL AGENCIES: Army Corps of Engineers Natural Resources Conservation Service US Fish & Wildlife Service US Environmental Protection Agency STATE AGENCIES: Nebraska Department of Environmental Quality Nebraska Game & Parks Commission State Historical Preservation Office Who’s Who in the 404 Permit World:

2. Overview of this talk 404/401 Process: Is it a “water of the U.S.”? (USACE makes this call) Yes: 1. "Jurisdictional" - COE 404 Process - OR: 2. "Isolated" - NDEQ "Letter of Opinion" Process No: No further action needed

3. CLEAN WATER ACT SECTIONS 404 and 401

4. Is it a “water of the U.S.”? • Is it a stream, lake, or wetland? • Wetlands are not always wet • There doesn’t have to be standing water • When in doubt, have it checked out

5. Wetlands determinations are not arbitrary • Criteria are well-established • 1987 Wetlands Delineation Manual: • The “Bible” of wetlands professionals nation-wide

6. FIRST POINT OF CONTACT: • THE U.S. ARMY CORPS OF ENGINEERS • Nebraska Regulatory Office • 402-896-0896 • http://www.nwo.usace.army.mil/html/od-rne/NEhome.html • They’ll tell you if you’ve got a wetland or not.

7. If you do need a 404 permit, there are 3 kinds: • “Nationwide” Permits (NWPs) • “General” Permits (GPs) • “Individual Permits” (IPs) The Corps determines which category your project fits.

8. “Nationwide” General Permits • NWPs are general permits issued on a nationwide basis to authorize activities with minor impacts via little or no paperwork • Example: NWP 3, Maintenance of existing structure or fill, with certain qualifications • Example: NWP 14: Linear Transportation Projects

9. Regional “General” Permits • These are also intended to streamline permit process • These also often describe methods or designs required to qualify • So, they’re similar to the Nationwides except: • They’re tailored to a region, ecosystem, activity type, watershed, river basin, etc. by Nebraska agencies

10. “General” Permit Examples • GP 96-04 Flood Repair • GP 99-04 Bank Protection

11. NWPs and GPs • NWPs are re-visited by Corps, the public, and federal and state resource and regulatory agencies, every 5 years • “Pre-certified” for Water Quality • Qualifying projects usually don’t require inter-agency review (some exceptions) • GPs can be issued at any time and they also go through public notice

12. Individual Permits For projects whose scope, impacts, nature, or other aspects go beyond NWP or GP criteria

13. Submit application • The Corps will give you guidance on what information you need to supply with your application.

14. Individual Permit Process • Public Notice – jointly by Corps of Engineers and NDEQ • 21 days for COE • 30 days for NDEQ • Public can comment, and can request a hearing (may not get one) • Agencies review project, often do site visits (USEPA, NRCS, NGPC, NPS, USFWS, FHWA, SHPO, etc.)

15. Corps’ IP Review Covers Many Facets • Water quality impacts • Historical site impacts • Public Interest Review • Endangered Species • Several others

16. State’s Role in IPs NDEQ issues Water Quality Certification (“WQC”)… …after reviewing project for potential impacts to water quality.

17. Water Quality Certification Options • NDEQ certifies that the proposed project will not violate State Water Quality Standards (Title 117) • Or, that if certain conditions are met, it will not violate Title 117 • Denial of WQC: There is no way this project will fail to violate Title 117 regs

18. If NDEQ denies WQC, the 404 permit cannot be issued. This doesn’t happen very often. Usually the project gets modified to comply with water quality standards. NDEQ much prefers to work cooperatively with a project applicant.

19. Where are we now? • 404/401 Process: Is it a “water of the U.S.”? • (USACE makes this call) • Yes: • "Jurisdictional" - COE 404 Process • OR: • 2. "Isolated" - NDEQ "Letter of Opinion" Process

20. If your wetland or waterway is “isolated”…

21. …The Corps does not have jurisdiction over it.(COE determines this.)That means: no 404 permit is needed.However…

22. NDEQ still has jurisdiction. • Over all waters of the State, under Title 117 – Nebraska’s Surface Water Quality Standards. • There is no permit process, HOWEVER: • It’s possible to violate State water quality standards & incur penalties for doing so, BUT: • We have a “letter of opinion” process in place to provide both guidance and proof that you checked with the State before doing your project.

23. “Isolated Wetlands” process • You’ll get a COE letter saying “we have no jurisdiction, talk to Terry Hickman at NDEQ.” • Call me, or send me a description of your project (What I need: next slide) • I’ll review it • If I have questions, I will contact you…

24. Info needed for an “isolated” wetland impacts review: • Legal location (section, township, range, county) • Description of project, including impacts • Drawings or diagrams, including impacts • Maps/aerials (look on Terraserver.com) • Other documentation (photos; NRCS; mitigation plan, etc) • Contact information!!!

25. Product of this review: a “letter of opinion,” perhaps with suggestions about how to further avoid violating State water quality regulations.

26. 404/401 Contact: For surface water impact issues • Terry Hickman • Nebraska Dept. of Environmental Quality • POB 98922 • Lincoln, NE 68509 • 402-471-2875 • Terry.Hickman@ndeq.state.ne.us

27. Where to find Title 117 – Nebraska’s Surface Water Quality Standards http://www.deq.state.ne.us/ In Menu on left, click on: “Rules and Regulations” Scroll Down through the list & click on Title 117

28. The U.S. Army Corps of Engineers • 402-896-0896 • http://www.nwo.usace.army.mil/html/od-rne/NEhome.html Web site includes: • Public Notices - Floodplain info • NWP & GP descriptions - Consultant List • Permit Application forms - 404 Regulations • 1987 Wetland Delineation Manual - Other stuff