Portland District Regulatory Branch Permit Streamlining ... · Project Description Location...

US Army Corps of EngineersBUILDING STRONG®

Portland District Regulatory Branch Permit Streamlining for Restoration

Projects

Shawn Zinszer

December 7, 2011

Carol Franson

December 6, 2011Regulatory BranchPortland District

BUILDING STRONG®PORTLAND DISTRICT 2


Regulatory Mission

To protect the nation's aquatic resources, while allowing reasonable development through

fair, flexible and balanced permit decisions.

U.S. Army Corps of Engineers photo

Presenter

Presentation Notes

Sec 404 – dredge & fill activities in Waters of U.S. such as roads, utility lines, outfall structures, bank protection, housing developments, etc. Sec 10 – Activities in, over, under Navigable waters (i.e. dredging, marinas, piers, docks/boat ramps, pilings, etc.)


Primary Regulatory Authorities

Section 10 – Rivers & Harbors Act (1899)► Maintain navigability for commerce

Section 404 – Clean Water Act (1972)► Passed by Congress “to restore and maintain the

chemical, physical and biological integrity of the Nation’s waters”

Presenter

Presentation Notes

A permit must be obtained from the Corps prior to discharging dredged or fill material into “waters of the United States” including wetlands or any work in a Section 10 water.


Jurisdiction


Ordinary High WaterThe term ordinary high water mark means that line on the

shore established by the fluctuations of water and indicated by physical characteristics such as:

• clear, natural line impressed on the bank, • shelving, • changes in the character of soil, • destruction of terrestrial vegetation,• the presence of litter and debris, • or other appropriate means that consider the

characteristics of the surrounding areas.


Jurisdictional Issues

EphemeralIntermittent

Erosional Features

Sheetflow or snowmeltPerennial

Pumps? Pipes?

Sheetflow over upland?

Storm Drain Systems?

Subsurface Flow (discrete)?

How Far Upstream

Included as “Tributaries”/ Waters of U.S.

Ditches?

Groundwater (non-discrete)?

Hydrology: Overflows during rain events?

Aquifer

Adjacent Wetlands: Proximity or Hydrology

Proximity: How far?How many berms?

Hydrology: Direct & immediate subsurface infiltration (not groundwater)? No connection to Aquifer

Migratory Bird Rule

Presenter

Presentation Notes

-Graphic depiction of the confusing nature of jurisdictional determinations taking into account several Supreme Court Rulings.


Draft Clean Water Act Guidance

Based on the agencies interpretations of the statute, implementing regulations and relevant case law, the following waters are protected by the Clean Water Act:

Traditional navigable waters Interstate waters Wetlands adjacent to either traditional navigable waters

or interstate waters Non-navigable tributaries to traditional navigable waters

that are relatively permanent, meaning they contain water at least seasonally

Wetlands that directly abut relatively permanent waters

Presenter

Presentation Notes

-Proposed guidance will make jurisdictional determinations easier. -Proposed guidance is similar to our guidance pre-SWANCC (2001).


Generally Not Waters of the U.S.(paraphrased from preamble to 33 CFR 328.3)

- Drainage and irrigation ditches excavated on dry land- Artificially irrigated areas which would revert to upland if the irrigation ceased- Artificial ponds created in dry land and used exclusively for stock watering, irrigation, settling basins, or rice growing- Artificial reflecting or swimming pools created in dry land- Waterfilled depressions created in dry land for mineral extraction, unless waterbody meets definition of Water of U.S. after being abandoned.Subject to case-by-case determinations by Corps and EPA, informed by case law.


Avoid / Minimize

Project must avoid or minimize aquatic impacts

Application must include alternatives considered

Water dependent?



Types of Permits

General Permits► For minimal adverse effects on aquatic environment► Activity specific ► 45 day review**

Standard Permits► Activities with more than minimal impact ► 120 day review**

** Review times may be longer


Pre-Application Meeting *

Submit Permit Application(or additional info)

Corps Review

Interagency Review

Sec. 106 Historic Preservation Act- SHPO- Tribes

Endangered Species Act- NMFS- USFWS

Sec. 401 Water Quality- DEQ- EPA

Coastal Zone Management- DLCD

Done with Corps Permit Process

Public Notice15-30 day Review

(if applicable)

Corps Determination

Issue Permit Deny Permit

Application Complete?No

Yes

No Permit RequiredPermit Required

Regulatory Process Diagram

Sediment Evaluation- PRG- EPA

Other(applicable)- Laws- Agencies

Presenter

Presentation Notes

-Emphasize the interagency review that is required as part of the Regulatory Permit process.


Application Review Process

Applicant SubmitsPermit Application

Application Received

Acknowledged and

Processed

Over ½ acre, Public Notice = Individual

Permit < ½ acre, Email stakeholders=

Nationwide Permit

Presenter

Presentation Notes

Here is a very simple diagram of the review process for standard permits. Please note if there are cultural resources or endangered species on the project site the Corps must review the proposal, and may conduct requisite consultations. Please refer to our website for details on each NWP and reporting requirements at https://www.nwp.usace.army.mil/op/g/NWP.asp



Corps SEF

DEQ/OSMB/CZM/DSL

Federal Agencies

Individuals

Endangered Species Act

Section 106 NHPARecognized NA Tribes

Application Reviewed



Application Denied or

Discretionary Authority taken

Public Hearingmay be held

Application Approved

Public Interest Factors• Conservation• Economics• Cultural Resources• Environmental Concerns• Public Welfare• Water Supply/Quality• Navigation• Mitigation

Permit Issued


Nationwide Permit 27 Aquatic Habitat Restoration, Establishment and

Enhancement Activities► Restoration, enhancement and establishment of tidal

and non-tidal wetlands and riparian areas ► Restoration and enhancement of non-tidal streams

and other nontidal open waters► Proposed 2012 - Rehabilitation or enhancement of

tidal streams, tidal wetlands, and tidal open waters► All activities must demonstrate a net increase in

aquatic resource functions and services

Presenter

Presentation Notes


Regional General Permits

RGP 3 – Stream habitat restoration►Large wood►Boulders►Spawning gravel

Photo courtesy of National Oceanographic and Atmospheric Association

Presenter

Presentation Notes


Regional General Permits

Photo courtesy of Federal Highway Administration

RGP 4 – U.S. Forest Service, Bureau of Land Management aquatic restoration projects



Value of the Pre-App

Review and understand:► 404(b)(1) Guidelines► Endangered Species Act – early project design

considerations to reduce impacts to listed species► Section106 - National Historic Preservation Act► Sediment Evaluation Framework► Single & Complete Project

Project Managers are assigned by countywww.nwp.usace.army.mil/regulatory/home.asp

Presenter

Presentation Notes

Contact Us – Current county assignments by Project Manager in your packet, check our website for changes


Programmatic Biological Opinions

Provides incidental take for specific activities Shortens ESA consultation timelines

► Determine if a Programmatic Biological Opinion is an option

► Design your project to meet requirements ► May submit the Programmatic Notification form with

permit application


SLOPES IV “Restoration”

Restoration Projects► Large wood and boulder placement► Fish passage restoration► Piling removal► Off- and side-channel habitat restoration► Set-back of existing berms, dikes and levees► Spawning gravel restoration► Streambank restoration► Water control structure removal


SLOPES IV “Transportation”

Maintenance or Improvement of Road, Culvert, Bridge and Utility Line ► Major Hazard Response► Streambank and Channel Stabilization► Maintenance, Rehabilitation and Replacement► Utility Line Stream Crossings


Corps Section 106 Process

National Historic Preservation Act (NHPA)

Executive Order 13175 – Consultation and Coordination with Indian Tribal Governments

Preamble – Department of Defense American Indian and Alaska Native Policy

36 CFR Part 800 – Protection of Historic Properties

33 CFR Part 325 – Appendix C

Appropriate State Statutes


SHPO/Tribal Coordination

Effects to cultural resources Historic preservation

► Sec. 106 National Historic Preservation Act ► Federal trust responsibilities with Native Americans

State Historic Preservation Office www.oregon.gov/OPRD/HCD/ARCH/index.shtml

Presenter

Presentation Notes

Corps must consider effects to cultural resources Historic preservation laws Sec. 106 National Historic Preservation Act Federal trust responsibilities with Native Americans Check State Historic Preservation Office website for cultural resource procedures and guidelines

http://www.oregon.gov/OPRD/HCD/ARCH/index.shtml�


Investigate Cultural Resources

Previous surveys conducted? Detailed plan sheets, USGS location map:

► Area/depth of impact► Staging and mitigation sites, material sources,

stockpiles State Historic Preservation Office database

Presenter

Presentation Notes

Identify if previous surveys have been conducted in the project area Provide detailed plan sheets and USGS location map so that SHPO and Tribes can tell: how much of an area will be impacted, how deep, and include areas like staging, mitigation sites, and material sources and stockpiles Have an Archaeologist check the SHPO database (if possible)


Wetland Delineation

Wetland delineation requires use of a three parameter test.

• 1987 Manual

• Regional Supplements

• Arid West Region (2007)

• Western Mountains, Valleys, and Coast Region (2008)


Regional Supplements

Note: Boundaries as shown are approximate


Mitigation

First – Avoidance Second – Minimization Third – Compensatory Mitigation

Compensatory mitigation is:► “restoration, establishment, enhancement and/or in certain

circumstances the preservation of aquatic resources for the purpose of offsetting unavoidable adverse impacts”


Mitigation

Mitigation bank credits In-Lieu Fee program

credits Permittee-responsible

mitigation ► watershed approach► On-site, in-kind or

off-site, out-of-kind Photo courtesy of Oregon Department of Transportation

Presenter

Presentation Notes


Mitigation Rule

Goal – level playing field (permittee, Mitigation Banks, ILFs) to the maximum extent practicable

Performance Standards – ecologically-driven, equivalent/effective standards, best available science

Compliance – increase compliance visits, establish enforceable success criteria, prescribed monitoring reports

Mitigation Sequence Preserved - avoid, minimize, compensate for unavoidable impacts and lost aquatic functions

Does not change when mitigation is required Does change where and how


Requirements forPermittee-Responsible Mitigation

Site selection based on a watershed approach, or

On-site / in-kind mitigation, or

Off-site / out-of-kind

Provide draft mitigation plan

Level of information must be commensurate with the scope and scale of the impacts


Mitigation questions?

Contact:Ms. Jaimee DavisMitigation Program [email protected](503) 808-4390


Nationwide Permits

Current permits expire March 18, 2012► If under contract to do work, have 1 additional year

(i.e. 3/18/13) 2012 Nationwide Permits

► Goal – seamless transition


Permit Compliance During Construction

► In-water work window► Erosion control► Scope of work► Restoration of temporary impact areas► Remove construction debris

Post-construction compliance reporting► Submit as-builts► Complete mitigation, ensure maintenance/monitoring

Transfer Permit


Joint Permit Application Formhttps://www.nwp.usace.army.mil/regulatory/home.asp

Presenter

Presentation Notes

Can use either provided the information provided constitutes a complete permit application


Complete Application Project Description

Location Latitude/Longitude Volumes and Acreages of all Fill/Removal Activities in

Waterway (Linear measurement) Permanent/Temporary Impacts How the project will be accomplished (i.e. describe

construction methods, equipment, site access) Describe changes the project may make to the hydraulic and

hydrologic characteristics

Presenter

Presentation Notes

Simpler permit review process = NWPs or RGPs Use conservation measures to minimize impacts to listed species; could save you consultation time and require less mitigation. Minimization measures (from 404(b)(1) guidelines): discharge location, material discharged (e.g., controlling liquid discharged), post-discharge controls (e.g., cover crop), dispersion method (e.g., silt curtain/boom); best technology (e.g., mats, enviro dredge bucket), measures affecting plant/animal populations (e.g., work in dry), measures affecting human use (recreation/aesthetics) The impacts/effects to the species would need to get to the level of insignificant, discountable or wholly beneficial. informal versus formal or programmatic formal


Complete Application Location Map (USGS Quad Map) Site Plan included -

Entire project site and activity areas Existing and proposed contours Location of OHWM Map scale or dimensions and north arrow Location of Staging Areas Location of Construction Access Drawings (legible) – Plan View, Cross Section

How are you going to construct the site?

Presenter

Presentation Notes



Complete Application

Description of Resources in Project Area

Channel and bank conditions Type and condition of riparian wetlands Hydrological conditions (e.g. stream flow, period of

use, significance of site) Fish and wildlife (type, abundance, period of use,

significance of site) Adjacent Wetlands?

Presenter

Presentation Notes



Questions/Comments

Q&A opportunities Consider a pre-application meeting for large

projects► Project Managers are assigned by county

www.nwp.usace.army.mil/regulatory/home.asp Customer surveyhttps://www.nwp.usace.army.mil/regulatory/home.

asp

https://www.nwp.usace.army.mil/regulatory/home.asp�

https://www.nwp.usace.army.mil/regulatory/home.asp�

Portland District Regulatory Branch Permit Streamlining ... · Project Description Location...

Documents

Transcript of Portland District Regulatory Branch Permit Streamlining ... · Project Description Location...