Regulatory Branch Permitting and MVN MCM Overview

1. Regulatory Branch Permitting and MVN MCM Overview

2. DEPARTMENT OF THE ARMY REGULATORY AUTHORITY THE U.S. ARMY CORPS OF ENGINEERS REGULATORY AUTHORITY IS BASED UPON SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 (RHA) AND SECTION 404 OF THE CLEAN WATER ACT (CWA).

3. SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 AUTHORIZES THE SECRETARY OF THE ARMY TO REGULATE ALL ACTIVITIES AND STRUCTURES IN NAVIGABLE WATERS OF THE UNITED STATES, INCLUDING CONSTRUCTION, EXCAVATION, OR DEPOSITION OF MATERIALS IN, OVER, OR UNDER SUCH WATERS, OR ANY WORK WHICH WOULD AFFECT THE COURSE, LOCATION, CONDITION, OR CAPACITY OF THOSE WATERS.

5. SECTION 404 OF THE CLEAN WATER ACT(CWA) AUTHORIZES THE SECRETARY OF THE ARMY, ACTING THROUGH THE CHIEF OF ENGINEERS, TO ISSUE PERMITS, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC HEARING, FOR THE DISCHARGE OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED STATES AT SPECIFIC DISPOSAL SITES.

6. Jurisdiction – Section 404 Clean Water Act • Definitions: • Fill Material – any material that has the effect of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody or wetland; includes rock, soil, dirt or similar materials. • Discharge of Fill Material – the addition of fill material into waters of the U.S.

9. THE CORPS JURISDICTIONAL LIMITS THE LIMITS OF THE CORPS REGULATORY JURISDICTION ARE DEFINED AS: NAVIGABLE WATERS OF THE U.S. UNDER SECTION 10 OF THE RHA. WATERS OF THE U.S. UNDER SECTION 404 OF THE CWA.

10. NAVIGABLE WATERS OF THE US INCLUDE: • ALL WATERS WHICH ARECURRENTLY USED, OR WERE USED IN THE PAST, OR MAY BE SUSCEPTIBLE TO USE IN INTERSTATE OR FOREIGN COMMERCE, • ALL WATERS SUBJECT TO THE EBB AND FLOW OF THE TIDE.

11. WATERS OF THE US INCLUDE: ALL NAVIGABLE WATERS, INTERSTATE WATERS, TRIBUTARIES TO NAVIGABLE AND INTERSTATE WATERS, WETLANDS AND OTHER SPECIAL AQUATIC SITES, AND TERRITORIAL SEAS.

12. Department of the Army Permitting • Determine Jurisdiction • Define Project • Determine Work Type and Resource Impacts • Determine Type of Permit

13. Jurisdictional Determinations • Only the Corps of Engineers can make an official determination of waters of the US • Biologists at the Corps use technical manuals, guidance documents, and court decisions to make official determinations, majority of which for wetlands • 1987 Wetlands Delineation Manual • Court Decisions (Rapanos and Carabell, SWANCC) • 2008 Regional Supplement to Wetland Delineation Manual

14. Regulatory Definition of Wetlands • “Wetlands” are defined as: • those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. - - 33 CFR 328.3(b)

15. Three Diagnostic Characteristics of Wetlands • Hydrophytic Vegetation • Wetland Hydrology • Hydric Soils

18. Jurisdictional Determinations http://www.mvn.usace.army.mil/ops/regulatory/request_form.doc

20. Jurisdictional Determinations Typically if the jurisdictional request is submitted by non-commercial entities and the site size is less than 5 acres, the Corps will provide a Corps Issued Determination for the site. If the site size is 5 acres or more or the request is submitted by a commercial entity, then we may request data related to soils, vegetation, and hydrology necessary to identify wetlands. This field data is typically collected & submitted by a professional consultant.

21. Terminology Jurisdictional Determination (JD) - tells you if you are in a Section 10 waterway or if waters of the US are present on your site for which you would need to apply for a 404 permit. These are appealable Preliminary JD – Not Appealable, can use in permitting if applicant requests

22. JD Time Frames A Corps issued determination (or delineation) is good for 5 years. According to the most current information the New Orleans District is completing 60% of our determinations within 90 days or less. *It is recommended to receive an approved JD prior to submittal of an application

23. PERMIT APPLICATION • Department of the Army Permit Application - ENG Form 4345 • A vicinity map, a plan view and a cross section of the proposed work. • Joint Corps/Coastal Zone Application – Modified ENG Form 4345 • Applications received are forwarded to the appropriate Section chiefs

24. Permit Evaluation Sections - Eastern : Jefferson, Orleans, Plaquemines St. Bernard, St. Charles, St. Tammany, Washington - Central : Ascension, St. John the Baptist, East Baton Rouge, Tangipahoa East Feliciana, West Baton Rouge Iberville, West Feliciana, Livingston St. Helena, St. James

25. Permit Evaluation Sections - Western : Acadia, Evangeline, St. Martin, Allen Iberia, St. Mary, Assumption Jefferson Davis, Vernon, Avoyelles Lafayette, Terrebonne, Beauregard Lafourche, Vermillion, Calcasieu Pointe Coupee, Cameron, Rapides Concordia, St. Landry

26. Evaluation Section The Section chiefs will make a preliminary determination on regulatory authority (CWA or RHA) and a cursory determination of permit type that may be applicable Section chiefs then assign the application to one of the project managers within the section The project managers will validate regulatory authority and qualified permit type, and make a completeness determination.

27. TYPES OF PERMITS NATIONWIDE (NWP) REGIONAL/STATE PROGRAM GENERAL PERMITS (PGP) LETTER OF PERMISSION (LOP) INDIVIDUAL

28. NATIONWIDE PERMITS • Nationwide Permits are a type of general permit issued by the Chief of Engineers, and designed to regulate with little, if any, delay or paperwork certain activities with minimal impacts

29. Examples of Nationwide Permits • NWP 3 – Maintenance of Existing Structures • NWP 12 – Utility Line Activities • NWP 27 – Aquatic Habitat Restoration • http://www.mvn.usace.army.mil/ops/regulatory/NWP_Table.htm

30. Regional General Permits • General Permits are issued by the Corps District for certain similar activities that have minor impacts • The New Orleans District has 27 Regional General Permits

31. New Orleans District RGPs • NOD-2 Trenasse Maintenance • NOD-3 Foundation Pads for Drilling Barges in Open Water • NOD-29 Small Boat Slips and Appurtenances • http://www.mvn.usace.army.mil/ops/regulatory/genperm.htm

32. PROGRAMMATIC PERMIT Programmatic permits are a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication of that program. For the New Orleans District, PGPs in the Coastal Zone

33. Department of the ArmyIndividual Permits Activities which do not comply with any of the abbreviated procedures must be evaluated under individual permitting procedures.

34. PERMIT PROCESSING FLOWCHART FOR INDIVIDUAL PERMITS • JURISDICTIONAL DETERMINATION COMPLETED. • PRE-APPLICATION CONSULTATION (IF NECESSARY). • APPLICATION SUBMITTED WITH COMPLETE PLANS. • PUBLIC NOTICE (PN) ISSUED. • INTERAGENCY FIELD TRIP (IF NECESSARY).

35. PERMIT PROCESSING FLOWCHART FOR INDIVIDUAL PERMITS (cont) • COMMENTS FROM PN SUBMITTED TO APPLICANT. • EVALUATION OF COMMENTS AND OTHER INFORMATION BY REGULATORY PERSONNEL. • ISSUANCE OR DENIAL OF PERMITS FROM THE LOUISIANA DEPARTMENTS OF ENVIRONMENTAL QUALITY AND COASTAL MANAGEMENT (WHERE APPLICABLE).

36. PUBLIC NOTICE • A public notice will be issued for 15/20 days to allow the public, Federal and State agencies and other concerned parties an opportunity to comment on the proposed project. • All public notices are now on the internet

37. PERMIT EVALUATION • Review the project with regard to public interest factors listed in 33 CFR 320.4. These factors are: • 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, considerations of property ownership, and in general, the needs and welfare of the people

38. EVALUATION …Cont. We will also consider: • Relative extent of public and private need of the project. • Practicability of using alternative sites and methods. • Extent and permanence of the anticipated beneficial and/or detrimental effects of the proposed work.

39. SEQUENCING FOR REDUCTION OF IMPACT • AVOIDANCE • MINIMIZATION • COMPENSATION

40. COMPENSATORY MITIGATION • Establishment • Re-establishment • Rehabilitation • Enhancement • Preservation

41. COMPENSATORY MITIGATIONAPPROACHES • CONSOLIDATED • MITIGATION BANKS • IN-LIEU FEE • PERMITTEE RESPONSIBLE • DESIGNED TO MITIGATE A SPECIFIC , USUALLY SINGLE, IMPACT

42. Mitigation Rule 33 CFR Part 332 “Compensatory Mitigation For Losses Of Aquatic Resources” • Published in Federal Register/ Vol. 73, No. 70 / Thursday, April 10, 2008 / Rules and Regulations, pages 19594 – 19705 (111 pages) • Effective date June 10, 2008 • Contains both the Corps of Engineers and the Environmental Protection Agency regulations. • Preamble 76 pages • Corps regulations +17 • EPA regulations +17

43. Mitigation Rule Provides for: • Greater predictability, transparency • Improved mitigation planning and site selection • Improved performance of compensatory mitigation projects • Possible reduction in permitting time • Flexibility of mitigation options • Increased public participation • Strongly encourages watershed approach

44. Principles in Final Rule • Mitigation sequence retained • avoid, minimize, compensate • Preference hierarchy for mitigation options: • Mitigation bank credits • In-lieu fee program credits • Permittee-responsible mitigation under a watershed approach • On-site and/or in-kind permittee-responsible mitigation • Off-site and/or out-of-kind permittee-responsible mitigation

45. Principles in Final Rule • District engineer is the decision-maker • Mitigation bank or ILF – responsibility to provide compensatory mitigation is transferred to the sponsor when permittee secures credits • Long-term management may be transferred to another entity • Performance standards ecologically-driven • Adaptive management – make fixes for successful performance

46. Principles in Final Rule • Watershed Approach (Recommended by National Research Council) • Strategic site selection to improve or maintain watershed functions • Use available watershed planning information • Consider type of mitigation, landscape position, and other factors to provide desired functions • Level of information and analysis commensurate with the scope of permitted activity • May use multiple sites – e.g., on-site for water quality, water storage; off-site for habitat • Allows preservation, riparian areas, and buffers – ALLOWABLE IF RESTRICTIVE CRITERIA ARE MET WITH LIMITED CREDITS FOR THESE OPTIONS.

47. MVN MCM 2012 • Corps of Engineers, New Orleans District’s Modified Charleston Method (MVN MCM) • Assessment model used to calculate adverse impacts to wetlands • MVN MCM is based on evaluation criteria weighted by their importance and selections within each factor. • A variation of existing methodology, Charleston Method, which is a mitigation assessment technique.

48. MVN MCM 2012 • Based on methodology developed by the Charleston Districtincluded in their Standard Operating Procedure issued September 19, 2002. • Modified to account for • regional wetland type differences, • CEMVN’s “Mitigation Standard Operating Procedures”, and • 33 CFR Part 332, “Compensatory Mitigation for Losses of Aquatic Resources”.

49. Applicability to Regulated Community • Allows applicants/agents to estimate compensatory mitigation requirements for various project scenarios (avoidance and minimization). • Provides a reliable tool for developers and planners to use in comparing mitigation options. • Provides a single model applicable to all wetland types. • Allows mixing of banking and permittee-responsible mitigation. • Has a credit calculation and accounting method applicable to all mitigation types (e.g. restoration, enhancement, preservation and creation). • Simplifies mixing of appropriate mitigation locations and types.

50. MVN MCM 2012 • CEMVN prepared an MVN MCM Guidebook containing: • Definitions of terms used in the model • Discussions of the use of each worksheet • Definitions for each factor and option associated with that worksheet, and • Examples using each worksheet. • A copy of the MVN MCM Workbook and Guidebook can be obtained at RIBITS website, under Assessment Tools link for the New Orleans District (RIBITS link to follow)