CORPS OF ENGINEERS REGULATORY PROGRAM PUBLIC INTEREST REVIEW (33 CFR Part 320) August 12, 2005

1. CORPS OF ENGINEERS REGULATORY PROGRAM PUBLIC INTEREST REVIEW (33 CFR Part 320) August 12, 2005

2. Public Interest Evaluation Public Interest… the people’s concerns or rights over the (protection and wise use of) waters of the U.S.

3. Factors to Consider • Cumulative impacts • 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 • Private property ownership • Needs and welfare of the people

4. Public Interest EvaluationHistorical Perspective Zabel v. Tabb 430 F. 2D 199 (5th Cir. 1970) • Dec. 31, 1966 - Denial recommendation • Feb. 28, 1967 - Permit Denied • May 10, 1967 - Lawsuit filed • Dec. 18, 1968 -“Public Interest” added to Reg. Program • Feb. 17, 1969 - District Court ruled against Corps • Jul. 16, 1970 - 5th Circuit court upheld Corps denial RESULT: PUBLIC INTEREST REVIEW A VALID CORPS PROCEDURE

5. Public Interest EvaluationZabel v. Tabb

7. Balancing Test • Benefits versus detriments • Public and private need • Extent and permanence of benefits and detriments

8. Where’s the Corps Regulatory Program… Must first define Scope of Analysis

9. Scope of Analysis • Determine the Corps Federal action area (permit area) • Determine how the Corps will evaluate indirect (secondary) adverse environmental effects as well as cumulative effects

10. Scope of AnalysisPermit Area • All waters of the United States, as well as any additional area of non-waters where the Corps determines there is adequate federal control and responsibility • Area of jurisdiction + Areas where impacts are caused by (or “a product of”) the Corps permitted activity

11. Permit Area Permit Area for a Simple Road Crossing •No Federal Involvement Other Than Corps Permit • No Other Impacts in Waters of U.S. •Permit Area Limited to Directly-Affected Waters of U.S., and Uplands in Immediate Vicinity Affecting/Affected by Regulated Activity (e.g., Adjacent Road Alignments, Clearing for Staging Area, Equipment Access, etc.)

12. Permit Area for Multiple Road Crossings NWR 5 mi. Permit Area • Substantial Federal Control (Corps permit + NWR Land) • Substantial Impacts (Waters of U.S., Endangered Species, Cultural Resources) • Large Permit Area

13. Public Interest Factors • In Dec. 1968, there were 7 public interest factors • navigation, fish and wildlife, conservation, pollution, aesthetics, ecology, general public interest • In Nov. 1986 (current regs) - 22 public interest factors • Not limited to just these public interest factors - must consider all relevant factors

14. Public Interest Evaluation What criteria must be considered on every application ? • Public and private need • Alternatives when unresolved conflict exists • Extent and permanence of benefits and detriments on public and private uses Source: 33 CFR 320.4(a)(2)(i)-(iii)

15. Factors to Consider • Cumulative impacts • 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 • Private property ownership • Needs and welfare of the people

16. Factor Importance • Weighted according to relevance • Some factors more important than others • Wetlands - Part 320.4 (b)(4) • Water Quality – Part 320.4(d) • Property Ownership – Part 320.4(g) • Mitigation - Part 320.4(r)

17. Factor: Wetlands • Regs assume most wetlands are valuable, and unnecessary destruction contrary to public interest • Permit granted in important wetlands only if benefits outweigh damages (320.4(b)(4)) • Must apply 404(b)(1) Guidelines to discharges in wetlands • Unique and scarce wetlands to region or local area considered important wetlands (320.4(b)(2)(viii)) • Must consider cumulative impacts

18. Factor: Water Quality • State 401 certification or waiver required for 404 discharges • 401 denial is grounds for denial without prejudice • Point source AND non-point source pollution considered • 401 certification conditions will become special conditions to Corps permit

19. Factor: Property Ownership • Protection of property will usually receive favorable consideration • Consider ALTERNATIVES if protection will affect other public interest factors • Interference with navigation is grounds for permit denial • Consider alternatives if it interferes with authorized Federal project (RGL 84-17).

20. Factor: Mitigation • Mitigation is an important aspect of the review and balancing process on many permit applications • Consideration of mitigation will occur throughout the permit application process • Includes avoiding, minimizing, rectifying, reducing, or compensating for resource losses • Mitigation may be required as a result of the public interest review process

21. Decision • A permit will be issued unless the project is contrary to the public interest • Compliance with 404(b)(1)/NEPA • Resolution of NHPA/ESA/State issues • Decision • Permit issued as proposed • Permit issued with special conditions • Permit denied

22. Questions? James M. Townsend Chief, Regulatory Branch Louisville District P.O. Box 59 Louisville, KY 40201-0059 502-315-6675