St. Paul District U.S. Army St. Paul District U.S. Army Corps of Engineers Regulatory Corps of Engineers Regulatory Branch program: an overview.Branch program: an overview.

Presented by Rebecca Gruber, Corps Presented by Rebecca Gruber, Corps Regulatory Biologist, Waukesha WisconsinRegulatory Biologist, Waukesha Wisconsin

January 2009, Wisconsin Transportation January 2009, Wisconsin Transportation Builders Association/Wisconsin Department of Builders Association/Wisconsin Department of

Transportation Contractor Engineer Transportation Contractor Engineer ConferenceConference

Disclaimer:Disclaimer:The views contained in this presentation and handouts are the The views contained in this presentation and handouts are the personal views of the presenter and do not necessarily reflect personal views of the presenter and do not necessarily reflect the views of the United States Army Corps of Engineers, the the views of the United States Army Corps of Engineers, the

Department of Defense, or the United States of America.Department of Defense, or the United States of America.-DoD Joint Ethics Regulation, ¶ 2-207-DoD Joint Ethics Regulation, ¶ 2-207

Regulatory Program GoalsRegulatory Program Goals

Protect the Nation’s aquatic resourcesProtect the Nation’s aquatic resources Take into consideration the views of other Take into consideration the views of other

Federal, state & local agencies, interest Federal, state & local agencies, interest groups, and the general publicgroups, and the general public

Achieve no net loss of wetland functions & Achieve no net loss of wetland functions & values/offset adverse impacts to the values/offset adverse impacts to the aquatic environment with mitigationaquatic environment with mitigation

Make fair, equitable & balanced permit Make fair, equitable & balanced permit decisionsdecisions

Make timely permit decisionsMake timely permit decisions

Regulatory Authority – 2 Regulatory Authority – 2 typestypes

Discharge of dredged and fill material into most aquatic resources (includes Federal navigable waters):

Section 404 Clean Water Act, 1972 & 1977 (amended)

Construction and dredging (in FEDERAL navigable waters only):

Section 10 Rivers and Harbors Act of 1899

Jurisdictional aquatic resources Jurisdictional aquatic resources are called Waters of the United are called Waters of the United

States (WOUS), & States (WOUS), & typicallytypically include:include:

Federally navigable waters (the Section 10 waters)Federally navigable waters (the Section 10 waters) Interstate waters/wetlandsInterstate waters/wetlands Navigable waters and abutting wetlandsNavigable waters and abutting wetlands Relatively permanent tributaries to navigable watersRelatively permanent tributaries to navigable waters Relatively permanent intrastate lakes, rivers and Relatively permanent intrastate lakes, rivers and

streamsstreams Intermittent streams, mudflats, wetlands, sloughs, Intermittent streams, mudflats, wetlands, sloughs,

potholes, wet meadows, playa lakes where potholes, wet meadows, playa lakes where degradation could affect interstate or foreign degradation could affect interstate or foreign commercecommerce

Waters with industrial or commercial purposes (this Waters with industrial or commercial purposes (this could include select isolated wetlands)could include select isolated wetlands)

-Recent Supreme Court cases (SWANCC, Rapanos, -Recent Supreme Court cases (SWANCC, Rapanos, Bayview) have added “nuance” to the Bayview) have added “nuance” to the jurisdictional determination process… jurisdictional determination process… determinations may be preliminary or approved.determinations may be preliminary or approved.

Section 404 Section 404 ActivitiesActivities

______________________

Issues the Corps must consider Issues the Corps must consider during permit application during permit application

review (General Public Interest review (General Public Interest Factors)Factors)

ConservationConservation EconomicsEconomics AestheticsAesthetics Wetlands (ADID?)Wetlands (ADID?) Historic PropertiesHistoric Properties Flood HazardsFlood Hazards Floodplain IssuesFloodplain Issues Land UseLand Use NavigationNavigation RecreationRecreation Energy NeedsEnergy Needs Prime and Unique Prime and Unique

FarmlandFarmland

SafetySafety Water QualityWater Quality Fish and Wildlife ValuesFish and Wildlife Values Shore Erosion and Shore Erosion and

AccretionAccretion Water Supply and Water Supply and

ConservationConservation Food and Fiber ProductionFood and Fiber Production Property RightsProperty Rights Environmental ConcernsEnvironmental Concerns Welfare of the PeopleWelfare of the People Mineral NeedsMineral Needs Endangered SpeciesEndangered Species

COE can only authorize “least COE can only authorize “least environmentally damaging environmentally damaging

practicable alternative” (LEDPA)practicable alternative” (LEDPA)•Determine the project purpose; assume non-wetland sites are available - if not water-dependent (must demonstrate avoidance of impacts to aquatic resources).

•Once site is selected, minimize project impacts to aquatic resources to the maximum extent practicable during design and/or construction processes.

•Provide compensatory mitigation for unavoidable impacts (typically over 10K square feet – at discretion of DE).

•Some permit types require public noticing to solicit comments from the public (typically a 30 day notice).

Compensatory Mitigation Compensatory Mitigation Options for Lost Functions Options for Lost Functions

and Valuesand ValuesMitigation can be:Mitigation can be: In-kind – on-site or off-siteIn-kind – on-site or off-site Out-of-Kind -on-site or off-siteOut-of-Kind -on-site or off-site Mitigation banks, applicant performs Mitigation banks, applicant performs Can include some upland bufferCan include some upland buffer Stream/Lake mitigation now requiredStream/Lake mitigation now required

Ratios for mitigation vary by type of basin Ratios for mitigation vary by type of basin impacted, type of compensation, impacted, type of compensation, typically it is expensive.typically it is expensive.

Once the Permit is Once the Permit is IssuedIssued

The Corps views the permit as a The Corps views the permit as a “contract” between you and us as to “contract” between you and us as to how the project will be constructedhow the project will be constructed

If design plans change between when If design plans change between when the permit was issued and when the permit was issued and when construction begins the changes construction begins the changes should be coordinated with the Corpsshould be coordinated with the Corps

The Corps is not typically involved in The Corps is not typically involved in the final design and planning if the the final design and planning if the permit has been issuedpermit has been issued

Once the Permit is Once the Permit is IssuedIssued

If a permit modification is requiredIf a permit modification is required Coordinate well in advance of start of constructionCoordinate well in advance of start of construction Provide specific information and revised design Provide specific information and revised design

plansplans May require a public notice if changes are May require a public notice if changes are

significantsignificant May require additional compensatory mitigationMay require additional compensatory mitigation

However, most modifications can be However, most modifications can be completed efficiently with little additional completed efficiently with little additional coordination or analysiscoordination or analysis

Constructing a ProjectConstructing a Project

Our top six concernsOur top six concerns Improperly installed culvertsImproperly installed culverts Introduction of non-native speciesIntroduction of non-native species Failure to implement or maintain Failure to implement or maintain

stormwater BMPsstormwater BMPs Encroachment into wetlands and Encroachment into wetlands and

inadequate buffers around wetlandsinadequate buffers around wetlands Stream bank destabilization around Stream bank destabilization around

crossingscrossings Poorly constructed compensatory mitigationPoorly constructed compensatory mitigation

““We don’t do enforcement for We don’t do enforcement for enforcement’s sake, we do it for enforcement’s sake, we do it for

compliance’s sake”.compliance’s sake”.(J.P. Suarez, (J.P. Suarez, Assistant Administrator, EPA)Assistant Administrator, EPA)

The integrity of the The integrity of the Section 404 program Section 404 program

depends on active depends on active enforcement to ensure enforcement to ensure

that unauthorized that unauthorized activities do not occur and activities do not occur and

that permittees comply that permittees comply with the conditions of with the conditions of

their permits. their permits.

Resolution of Resolution of Unauthorized ActivitiesUnauthorized Activities

The Corps “Toolbox”The Corps “Toolbox”• Initial Corrective MeasuresInitial Corrective Measures• After-the-fact Permit After-the-fact Permit ApplicationApplication

• Legal ActionLegal Action• Voluntary RestorationVoluntary Restoration• Corrective ActionsCorrective Actions

Resolution of Resolution of Unauthorized ActivitiesUnauthorized Activities

Initial Corrective MeasuresInitial Corrective Measures

• Order Issued by the District Order Issued by the District EngineerEngineer

• Based on Jeopardy to Life, Based on Jeopardy to Life, Property, or Public ResourcesProperty, or Public Resources

• Could Resolve the ViolationCould Resolve the Violation• Does not Require a Corps PermitDoes not Require a Corps Permit

Resolution of Resolution of Unauthorized ActivitiesUnauthorized Activities

After-the-fact Permit ApplicationAfter-the-fact Permit Application

• Must be Accepted Unless One of the Must be Accepted Unless One of the Exceptions at 33 C.F.R § 326.2(e) Exceptions at 33 C.F.R § 326.2(e) ApplyApply

• Applicant Must Sign a Tolling Applicant Must Sign a Tolling AgreementAgreement

• Processed in Accordance with Processed in Accordance with Applicable ProceduresApplicable Procedures

• Denial is a Possible OutcomeDenial is a Possible Outcome

Resolution of Resolution of Unauthorized ActivitiesUnauthorized Activities

Legal ActionLegal Action

• Used to Obtain Penalties for Violations, Used to Obtain Penalties for Violations, Compliance with Orders and Directives Compliance with Orders and Directives Issued by the DE or Other Appropriate Issued by the DE or Other Appropriate ReliefRelief

• District Criteria for Referral Considers District Criteria for Referral Considers Actions that are Willful, Repeat, Actions that are Willful, Repeat, Flagrant, or of Substantial Impact Flagrant, or of Substantial Impact

• District Can Refer Cases to Local District Can Refer Cases to Local USDOJ, USEPA, or Office of the Chief of USDOJ, USEPA, or Office of the Chief of EngineersEngineers

Environmental Environmental Protection AgencyProtection Agency

EPA has sole legal authority to pursue EPA has sole legal authority to pursue enforcement of unpermitted fill activities.enforcement of unpermitted fill activities.

EPA can use Section 309 Administrative EPA can use Section 309 Administrative Orders to require correction of the Orders to require correction of the violation or to assess civil penalties up to violation or to assess civil penalties up to $137,500. $137,500.

EPA can use Section 308, which EPA can use Section 308, which authorizes collection of information authorizes collection of information including accessing the property, including accessing the property, collecting samples and evidence and collecting samples and evidence and issuance of information requests.issuance of information requests.

Department of JusticeDepartment of Justice

Cases referred to DOJ typically Cases referred to DOJ typically result in civil penalties and result in civil penalties and injunctive relief (restoration)injunctive relief (restoration)

Once referred, decisions on Once referred, decisions on penalty amounts are made by the penalty amounts are made by the U.S. Attorney or Main Justice, U.S. Attorney or Main Justice, not by the Corpsnot by the Corps

Penalty amounts up to $32,500 Penalty amounts up to $32,500 per day, per violation per day, per violation

Resolution of Resolution of Unauthorized ActivitiesUnauthorized Activities

Voluntary RestorationVoluntary Restoration• Not Enforceable Unless Another Not Enforceable Unless Another

Mechanism is UtilizedMechanism is Utilized• Quickest and Most Quickest and Most

Straightforward MethodStraightforward MethodCorrective ActionsCorrective Actions• Only Available When an After-Only Available When an After-

the-fact Permit Application has the-fact Permit Application has been deniedbeen denied

• Enforceable through Legal ActionEnforceable through Legal Action

Resolution of Resolution of Unauthorized ActivitiesUnauthorized Activities

Corrective ActionsCorrective Actions

• Only Available When an After-Only Available When an After-the-fact Permit Application has the-fact Permit Application has been deniedbeen denied

• Enforceable through Legal Enforceable through Legal Action ProcessAction Process

Permit NoncompliancePermit Noncompliance

The Corps does not have the The Corps does not have the resources to inspect every projectresources to inspect every project

Permittees are responsible for Permittees are responsible for complying with all terms and complying with all terms and conditions of Corps authorizationsconditions of Corps authorizations

The Corps has the authority to issue The Corps has the authority to issue administrative penalties for permit administrative penalties for permit noncompliance noncompliance

Permit NoncompliancePermit Noncompliance Class I Administrative Penalties may not Class I Administrative Penalties may not

exceed $11,000 per violation except that exceed $11,000 per violation except that the maximum amount of any Class I the maximum amount of any Class I penalty shall not exceed $27,500penalty shall not exceed $27,500

Appropriateness of penalty takes into Appropriateness of penalty takes into account importance of resource affected, account importance of resource affected, importance of the violation, and history importance of the violation, and history of the violator of the violator

Penalty amount determined by degree of Penalty amount determined by degree of environmental harm and compliance environmental harm and compliance importanceimportance

How to Stay Out of How to Stay Out of TroubleTrouble

If work impacts a wetland or waterway in If work impacts a wetland or waterway in any way, chances are a permit is requiredany way, chances are a permit is required

Always obtain and READ permits for work Always obtain and READ permits for work in wetlands and waterways before in wetlands and waterways before beginning workbeginning work

Even if not required by permit, have Even if not required by permit, have sensitive areas flagged so they are sensitive areas flagged so they are avoided during constructionavoided during construction

Ask questions before, not after you begin Ask questions before, not after you begin work.work.

If You Get into Trouble…If You Get into Trouble…

Report any unauthorized discharges Report any unauthorized discharges or non-compliance issues to agency or non-compliance issues to agency staff immediatelystaff immediately

Implement measures to control Implement measures to control environmental harm as soon as environmental harm as soon as possible while coordinating with possible while coordinating with agency staffagency staff

Review site practices to insure it Review site practices to insure it doesn’t happen againdoesn’t happen again

What to Take HomeWhat to Take Home We prefer to talk with you before the work We prefer to talk with you before the work

rather than after it has been done (permit vs. rather than after it has been done (permit vs. violation)violation)

Make sure everyone has read and Make sure everyone has read and understands the permit issued for the workunderstands the permit issued for the work

The Clean Water Act is a strict liability The Clean Water Act is a strict liability statute, the person responsible for the work statute, the person responsible for the work (performing or directing) is liable(performing or directing) is liable

The Section 404 program is based on The Section 404 program is based on voluntary compliancevoluntary compliance

We take unauthorized activities associated We take unauthorized activities associated with permitted activities and non-compliance with permitted activities and non-compliance issues seriouslyissues seriously

Resources for more Resources for more informationinformation

Our District website: Our District website: http://http://www.mvp.usace.army.milwww.mvp.usace.army.mil/regulatory//regulatory/

(info about local contacts, permit types, (info about local contacts, permit types, permit application forms, public notices of permit application forms, public notices of local projects and jurisdictional local projects and jurisdictional determinations).determinations).

Our Headquarters website: Our Headquarters website: http://www.usace.army.mil/CECW/Pages/cehttp://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx/cwo_reg.aspx/ (info on national (info on national incentives, regulations).incentives, regulations).