u.s. army corps of engineers regulatory program wilmington district march 13, 2008

U.S. Army Corpsof Engineers

REGULATORY PROGRAMREGULATORY PROGRAMWILMINGTON DISTRICTWILMINGTON DISTRICT

March 13, 2008March 13, 2008


Regulatory ProgramRegulatory Program

Regulatory Program GoalsRegulatory Program Goals

Protect the aquatic environmentProtect the aquatic environment

Enhance program efficiency through Enhance program efficiency through timeliness and accountabilitytimeliness and accountability

Professional, honest, and respectful Professional, honest, and respectful

Make fair and reasonable decisionsMake fair and reasonable decisions

U.S. Army Corpsof Engineers HistoryHistory

•1899 Rivers and Harbors Act1899 Rivers and Harbors Act

- Section 10 Corps permit required for any work - Section 10 Corps permit required for any work or construction in navigable waters or construction in navigable waters

- 1899 to 1935, decisions navigation only- 1899 to 1935, decisions navigation only

- 1935, permit denied on alternatives and - 1935, permit denied on alternatives and aesthetics; aesthetics; Supreme Court upholdsSupreme Court upholds

- Corps Counsel opinion: can deny for fish - Corps Counsel opinion: can deny for fish and wildlife concerns and wildlife concerns


History, cont’dHistory, cont’d

• 1972 Federal Water Pollution Control Act Amendments1972 Federal Water Pollution Control Act Amendments• 1977 Clean Water Act (amended 1972 FWPCA)1977 Clean Water Act (amended 1972 FWPCA)• 1993 Tulloch Rule; permits for excavation1993 Tulloch Rule; permits for excavation• 1997 Tulloch Rule vacated by Circuit Court1997 Tulloch Rule vacated by Circuit Court • 2001 Solid Waste Agency of Northern Cook County 2001 Solid Waste Agency of Northern Cook County

(SWANCC) Supreme Court Decision(SWANCC) Supreme Court Decision• 2006 Rapanos Supreme Court Decision2006 Rapanos Supreme Court Decision


Authorities – Section 10Authorities – Section 10(33 U.S.C. 401, et seq.)(33 U.S.C. 401, et seq.)

Section 10 Rivers and Section 10 Rivers and Harbors Act of 1899Harbors Act of 1899Regulates activities that Regulates activities that

affect course, location, affect course, location, and navigable capacityand navigable capacity

Prohibits unauthorized Prohibits unauthorized obstruction or alteration obstruction or alteration of any navigable water of any navigable water of U.S.of U.S.

All work (dredging, All work (dredging, docks, pilings, marinas, docks, pilings, marinas, fill, etcfill, etc) )

U.S. Army Corpsof Engineers AuthoritiesAuthorities - Section 10 - Section 10

• Geographic jurisdiction includes all navigable Geographic jurisdiction includes all navigable waters of the U.S. defined (33 CFR Part 329) as waters of the U.S. defined (33 CFR Part 329) as “those waters that are subject to the ebb and “those waters that are subject to the ebb and flow of the tide and/or are presently used, or flow of the tide and/or are presently used, or have been used in the past, or may be have been used in the past, or may be susceptible to use to transport interstate or susceptible to use to transport interstate or foreign commerce.” foreign commerce.”

U.S. Army CorpsU.S. Army Corpsof Engineersof EngineersWilmington DistrictWilmington District


Authorities – Section 404Authorities – Section 404(33 U.S.C. 1344)(33 U.S.C. 1344)

Section 101.(a) The objective of the Clean Section 101.(a) The objective of the Clean Water Act is to restore and maintain the Water Act is to restore and maintain the chemical, physical, and biological integrity chemical, physical, and biological integrity of the Nation’s waters. Section 404 of the Nation’s waters. Section 404 established a permit program to be established a permit program to be administered by the U.S. Army Corps of administered by the U.S. Army Corps of Engineers. Engineers.

U.S. Army Corpsof Engineers Authorities – Section 404Authorities – Section 404

Section 404, Clean Section 404, Clean Water Act (1972)Water Act (1972)All waters of the All waters of the

U.S. (including all U.S. (including all wetlands)wetlands)

Discharge of Discharge of dredged or fill dredged or fill material (including material (including mechanized mechanized landclearing)landclearing)

U.S. Army Corpsof Engineers AuthoritiesAuthorities - Section 103 - Section 103

• Section 103 Marine, Protection, Research Section 103 Marine, Protection, Research and Sanctuaries Act (1972) and Sanctuaries Act (1972) Ocean waters outside of territorial seasOcean waters outside of territorial seas Disposal of dredged material in Disposal of dredged material in

designated sites designated sites

U.S. Army CorpsU.S. Army Corpsof Engineersof EngineersWilmington DistrictWilmington District


Related Laws Affecting Permit Related Laws Affecting Permit Procedures and PolicyProcedures and Policy

• Section 401, Clean Water ActSection 401, Clean Water Act

• Endangered Species ActEndangered Species Act

• Section 307©, Coastal ZoneSection 307©, Coastal Zone

Management ActManagement Act

• National Environmental Policy Act,National Environmental Policy Act,

19691969

• Fish and Wildlife Coordination ActFish and Wildlife Coordination Act


Definition of WetlandsDefinition of Wetlands33CFR 328.3(b)33CFR 328.3(b)

““The term ‘wetlands’ means those The term ‘wetlands’ means those areas that are inundated or saturated areas that are inundated or saturated by surface or ground water at a by surface or ground water at a frequency and duration sufficient to frequency and duration sufficient to support, and that under normal support, and that under normal circumstances do support, a circumstances do support, a prevalence of vegetation typically prevalence of vegetation typically adapted for life in saturated soil adapted for life in saturated soil conditions.”conditions.”


Three Parameters for Identifying Three Parameters for Identifying WetlandsWetlands

Hydrophytic Vegetation - The area Hydrophytic Vegetation - The area must have a dominance of facultative must have a dominance of facultative or wetter plant species.or wetter plant species.

Hydric Soils - The area must be Hydric Soils - The area must be underlain with hydric soils.underlain with hydric soils.

Wetland Hydrology - The area must Wetland Hydrology - The area must be saturated/inundated for at least be saturated/inundated for at least 5% of the growing season.5% of the growing season.


TimelinesTimelines

Public Notices issued within 15 days of Public Notices issued within 15 days of complete applicationcomplete application

Public Notice comment no more than 30 Public Notice comment no more than 30 days nor less than 15 daysdays nor less than 15 days

Decisions on permits within 60 days of Decisions on permits within 60 days of Public Notice datePublic Notice date

Extensions of Public Notice comment Extensions of Public Notice comment period up to 30 daysperiod up to 30 days


Public HearingsPublic Hearings

Whenever needed for making decision on Whenever needed for making decision on application/projectapplication/project

Public opportunity to present views, informationPublic opportunity to present views, information DE may determine issues insubstantial or no valid DE may determine issues insubstantial or no valid

interest served and may deny requestinterest served and may deny request DE, DDE, or other designated person may presideDE, DDE, or other designated person may preside Legal adviser optionalLegal adviser optional Oral or written statement acceptedOral or written statement accepted Time limits can be imposed on speakersTime limits can be imposed on speakers No cross-examinationNo cross-examination Transcript requiredTranscript required


Decision DocumentsDecision Documents

Environmental Assessment (EA)-project Environmental Assessment (EA)-project not have a significant impact on the quality not have a significant impact on the quality of the human environment (FONSI), SOFof the human environment (FONSI), SOF

Environmental Impact Statement (EIS)-Environmental Impact Statement (EIS)-project has significant impact on the quality project has significant impact on the quality of the human environment, RODof the human environment, ROD

Section 404(b)(1) analysisSection 404(b)(1) analysis Decision documents may be combined into Decision documents may be combined into

one documentone document


Individual permitsIndividual permits Consider alternatives, even other sitesConsider alternatives, even other sites Evaluation commensurate with impactsEvaluation commensurate with impacts Avoid impacts onsiteAvoid impacts onsite

General permitsGeneral permits Never consider offsite alternativesNever consider offsite alternatives Avoid impacts onsiteAvoid impacts onsite

Alternatives Analysis (Alternatives Analysis (cont)cont)


Regional General PermitsRegional General Permits

Authorizations effective within a region (i.e Authorizations effective within a region (i.e North Carolina) for commonly recurring North Carolina) for commonly recurring activities that have minimal cumulative activities that have minimal cumulative adverse impacts to the environmentadverse impacts to the environment

All have general and special conditions All have general and special conditions Some require notification (written Some require notification (written

application to the DE) for verification that application to the DE) for verification that the work meets the terms and conditions the work meets the terms and conditions of the permitof the permit


Regional General Permit Regional General Permit ExamplesExamples

Maintenance dredging of existing Maintenance dredging of existing channels and canalschannels and canals

Bulkheads, rip-rap, and other shoreline Bulkheads, rip-rap, and other shoreline stabilizationstabilization

Boat rampsBoat ramps Specified activities in TVA or power Specified activities in TVA or power

company reservoirscompany reservoirs Ongoing commercial sand miningOngoing commercial sand mining


Nationwide General Permits Nationwide General Permits (NWP)(NWP)

Authorization on a nationwide basis for Authorization on a nationwide basis for commonly recurring activities that have commonly recurring activities that have minimal cumulative adverse impacts to the minimal cumulative adverse impacts to the environmentenvironment

All have standard conditions and many have All have standard conditions and many have special and/or regional conditionsspecial and/or regional conditions

Some require notification (written application) Some require notification (written application) to the DE for verification that the work meets to the DE for verification that the work meets the terms and conditions of the permitthe terms and conditions of the permit


Nationwide Permit ExamplesNationwide Permit Examples

Aids to navigationAids to navigation Utility line backfill and beddingUtility line backfill and bedding Road crossings (minor)Road crossings (minor) Boat rampsBoat ramps Farm buildingsFarm buildings Residential housesResidential houses Residential subdivisions and commercial Residential subdivisions and commercial

developmentdevelopment


Conditions of Nationwide Conditions of Nationwide PermitsPermits

Must have Water Quality Certification from Must have Water Quality Certification from the Statethe State

No activity jeopardizing the continued No activity jeopardizing the continued existence of a threatened or endangered existence of a threatened or endangered speciesspecies

No activity which may adversely affect No activity which may adversely affect historic propertieshistoric properties

Discharge must be free of toxic materialsDischarge must be free of toxic materials Etc.Etc.


Regional Conditions for Regional Conditions for Nationwide PermitsNationwide Permits

Notification to DE prior to use affecting Notification to DE prior to use affecting State designated “Outstanding Resource State designated “Outstanding Resource Waters”, “High Quality Waters”, “Primary Waters”, “High Quality Waters”, “Primary Nursery Areas”, barrier islands, bogsNursery Areas”, barrier islands, bogs

Notification to DE prior to use for Notification to DE prior to use for construction of animal waste facilitiesconstruction of animal waste facilities

Notification to DE prior to use in trout Notification to DE prior to use in trout waters within 25 designated countieswaters within 25 designated counties

Etc. Etc.


Section 404(f) ExemptionsSection 404(f) Exemptions

Normal farming, silviculture, and ranching activities, Normal farming, silviculture, and ranching activities, including minor drainageincluding minor drainage

Maintenance of currently serviceable structuresMaintenance of currently serviceable structures Construction/maintenance of farm/stock Construction/maintenance of farm/stock

ponds/irrigation ditches, or maintenance of drainage ponds/irrigation ditches, or maintenance of drainage ditchesditches

Construction of temporary sedimentation basins on Construction of temporary sedimentation basins on construction sites where no fill material in the construction sites where no fill material in the navigable watersnavigable waters

Construction or maintenance of farm/ forest roads or Construction or maintenance of farm/ forest roads or temporary roads for moving mining equipmenttemporary roads for moving mining equipment


Corps asserts CWACorps asserts CWA jurisidiction where jurisidiction where (significant nexus determination not (significant nexus determination not

required)required)

• A TNW is present– Wetlands Adjacent (abutting and not abutting) to

TNW’s– Non-Navigable tributaries of TNW’s that are

relatively permanent (RPW) where the tributaries flow year round or have continuous flow at least seasonally (3 months).

– Wetlands that directly abut such tributaries


A Significant Nexus A Significant Nexus determination is required where:determination is required where:

• Non-Navigable tributaries that are not relatively permanent (e.g. flow less than 3 months).

• Wetlands adjacent to non-navigable tributaries that are not relatively permanent.

• Wetlands adjacent to but that do not abut a relatively permanent non-navigable tributary.– **NOTE: Wetlands for which we cannot establish a

significant nexus are not isolated, they are simply not jurisdictional under the CWA.


RAPANOSRAPANOS AND CARABELLAND CARABELL