CORPS OF ENGINEERS SECTION 404 INDIVIDUAL PERMIT EVALUATION

CORPS OF ENGINEERS SECTION 404 INDIVIDUAL PERMIT EVALUATION PROCESS July 22, 2005

Typical IP Process Pre-application meetings Application Submitted Public Notice Issued (15 days) Incomplete Decision Time NEPA 404(b)(1) Public Interest Other Legal Requirements Corps Evaluates Response Applicant Coordination Applicant Responds Public/Agency Comments Received & Evaluated Is Public Hearing Needed?

Individual Permit Evaluation Process • • • Application Completeness Review Scope of Analysis Public Notice Purpose and Need Alternatives Assessment 404(b)(1) Guidelines Public Hearing Mitigation Water Quality Certification Cultural Resources Threatened and Endangered Species Public Interest Evaluation

Complete Application • Review information submitted • Within 15 days, determine if complete or request additional information • Application complete when sufficient information is received to prepare the Public Notice.

Complete Application • Information needed for complete application – – – – Name & address of applicant/agent Description of proposed activity Wetland delineation (if applicable) Adjacent landowners Project location Completed work Signature of applicant agent Drawings, plans, sketches

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

Scope of Analysis Permit Area • All waters of the United States, as well as any additional area of nonwaters 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

Permit Area Factors NEPA (App. B) • Activity “merely a link” in corridor type project • Nearby upland facility location affects location of permitted activity (& visa versa) • Extent of entire project in Corps jurisdiction • Extent of cumulative Federal control and responsibility

Permit Area Factors NHPA (App. C) • Upland activity integrally related to permitted activity in waters of United States • Activity Directly associated with activity in waters of the U. S. • Project couldn’t occur “but for” a Corps permit

Permit Area for a Simple Road Crossing Permit Area • 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. )

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) • 1 Permit Area

Permit Area in Subdivisions - Case A • Limited Direct Impacts • Limited Indirect Impacts • Limited Federal Control • No Other Impacts to Waters of U. S. Permit Area

Permit Area in Subdivisions - Case D Permit Area • Substantial Direct Impacts • Indirect Impacts Close to Permitted Activities • Several Activities Require Permits • Federal Control Over Much of Project = Historical / Cultural Resource = T/E Species / Critical Habitat

Public Notice • The Public Notice is the primary method of advising all interested parties of a proposed activity for which a permit is sought. • The Public Notice solicits agency and public comment for input in the decision making process.

Public Notice • The PN must contain: – Statutory Authority – Name and address of the applicant – Location – Project description – Plan and cross-section drawings – Other regulatory authorizations – Statement on endangered species – Statement on cultural resources

Public Notice • (Con’t): – Statement on need for an Environmental Impact Statement (EIS) – Evaluation factors – Length of comment period (15 -30 days) – Statement on public hearing – Additional information to assist reviewer

Public Notice • Public Notices must be distributed to: – Post office in the vicinity of the project – Applicant – Applicable government agencies – Congressional representatives – Adjacent property owners – Specific individuals or organizations – In-house support

Purpose and Need Purpose What’s the applicant trying to accomplish Need What should be done to address a problem?

Purpose and Need Project Purpose • Fundamental, Essential, or Irreducible purpose of proposed project • Used to determine if project is water dependent • Required to be addressed as part of 404(b)(1) analysis and NEPA evaluation • Examples – to provide housing – to provide sufficient water supply – to increase the capacity of the school system – to provide/improve transportation efficiency

Purpose and Need Project Need • Required to be addressed during public interest review • Corps generally defers to state or other government agency’s decision to spend money • Corps may make independent review of public need

Alternatives Assessment Regulations • CEQ NEPA regulations: reasonable alternatives • Corps NEPA regulations: reasonable alternatives – must be feasible – must accomplish purpose and need – alternatives that are reasonable and feasible need not necessarily be available to the applicant • 404(b)(1) Guidelines: practicable alternatives – available and capable of being done taking into consideration cost, existing technology, and logistics in light of overall project purposes

Alternatives Assessment Types • No-Build (permit denial) • On-Site – Avoidance – Minimization – Reconfiguration • Off-Site – Alternate sites

Alternatives Assessment 404(b)(1) Analysis SUBPART A - PROCEDURES EPA’s Recommended Sequence Review Subparts B&H Factual Determination Document Compliance Alternatives Disposal Site Minimize Impacts (Subpart H) Technical Evaluations Subparts C-F Contaminant Determination (Subpart G) Taken from Procedures section of Subpart A of the Guidelines

404(b)(1) Guidelines Rebuttal Presumptions • When discharge doesn’t require siting within special aquatic site to achieve basic purpose (i. e. , not "water dependent"), practicable alternatives not involving special aquatic sites are presumed available, unless clearly demonstrated otherwise by the applicant • Practicable alternatives not involving special aquatic sites are presumed to have less adverse impact on aquatic ecosystem, unless clearly demonstrated otherwise

404(b)(1) Guidelines Practicability • An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered

404(b)(1) Guidelines Restrictions • No discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. ”

Public Hearing • A public proceeding to acquire information or evidence to be considered when evaluating a DA permit • Requests for hearing come from public notice process • Option – informal public meeting

Public Hearing Requirements • Meeting location in vicinity of project • Public notice at least 30 days before hearing – Time, place, nature of hearing, legal authority, availability of documents • • Official transcript Statements only – not a Q&A session Incorporate written statements Comment period after hearing of at least 10 days

Mitigation • No net loss of wetlands/aquatic resources • 1990 Mitigation MOA with USEPA – Avoidance, minimization, compensation • RGL 02 -2 – Watershed approach, long-term protection

Mitigation Types of Compensation • Methods – – Preservation Enhancement Restoration Creation • Concepts – Project-specific mitigation – Banking – In-lieu fee

Mitigation Plan Requirements • • • Baseline Information Goals and Objectives Implementation Plan Success Criteria Monitoring Contingency Plan

Water Quality Certification • Section 401 of the Clean Water Act • Certification or Waiver required for permit issuance • Decision by State agency within 60 days (can extend up to one year)

Cultural Resources • Section 106 of the NHPA – Federal law • 36 CFR Part 800 – Implementing regulations by ACHP • Appendix C – Corps regulations – Uses “permit area”

Cultural Resources Types • • • Historic structures Historic properties Historic districts Subsurface deposits Traditional Cultural Properties

Cultural Resources Coordination • Entities – State Historic Preservation Office – Advisory Council on Historic Preservation – Federally recognized tribes • Process – Public Notice – Consultation

Cultural Resources Findings • Eligibility Determination – National Register of Historic Places – Made by Keeper – Listed in or eligible for… • Effect Determination – – Made by District Engineer No effect No adverse effect Adverse effect • Resolution • MOA

Threatened and Endangered Species • Section 7 of the Endangered Species Act • Ensure that any Federal action is not likely to jeopardize the continued existence of a T/E species or result in the destruction or adverse modification of critical habitat of the T/E species

T/E Species Coordination • Entities – U. S. Fish and Wildlife Service – KDFWR • Process – Public Notice – Formal Consultation

T/E Species Findings • • • No effect May affect Not likely to adversely affect Jeopardy Opinion Authorized Take

Public Interest Evaluation • 20+ factors reviewed – – – Floodplain Economics Aesthetics Habitat Cumulative impacts Weighted according to relevance • Balancing test/Public interest – Benefits versus detriments – Public and private need – extent and permanence

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 • Documentation – SOF/EA/FONSI – ROD/EIS – Denial

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