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Texas Floodplain Management Association

May 29, 2014

Loretta E Mokry, PWS

Craig T. Maske, P.E., CFM

Alan Plummer Associates, Inc.

Who really “owns” the floodplain?

What do I have to do to use/develop the floodplain?

How do I know that I’ve done everything I’m

supposed to have done?

Can I get in trouble if I wasn’t even aware of the

regulation?

Can’t I just lay low and stay below the radar?

Floodplain Jurisdiction Project impacts regulated under multiple federal

programs

Require coordination between multiple agencies

Various environmental permit requirements

Mitigation requirements

Changing rules may affect permitting timelines and

mitigation costs

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Floodplain Jurisdiction Typical floodplain projects that may be affected by

other environmental permit programs

Fill and development

Levees

Bridges/Crossings

Stream realignments/channelization

Erosion repairs and stabilization

Storm/Sanitary sewer projects

…and more

Regulations to Consider Section 404 – Clean Water Act (1972)

Section 10 – Rivers and Harbors Act (1899)

National Environmental Policy Act

Section 401 – Clean Water Act

Section 307 – Coastal Zone Management Act

The Endangered Species Act

The Fish and Wildlife Coordination Act

The National Historic Preservation Act

Executive Orders No. 11988 & 12630

Clean Water Act Applies to Waters of the United States (U.S.)

Section 404 pertains to dredge and fill activities in

WoUS; overlaps Section 10 requirements which

pertain specifically to navigable waters of the U.S.

U.S. Army Corps of Engineers (USACE) administers

the Section 404 permitting program as well as the

Section 10 program

U.S. Environmental Protection Agency sets policy

and performs review functions and shares

enforcement authority with USACE.

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Section 404/10 Permitting Program U.S. Fish and Wildlife Service (USFWS) comments on

permit applications and has power to elevate permit

decisions (T&E species issues)

State agencies decide whether the proposed activity

would violate state water quality standards and often

comment generally on permit applications

TCEQ administers Section 401 (CWA) – water quality cert.

TPWD comments re: endangered, threatened, or rare

species

GLO & NMFS comment re: coastal & marine impacts

THC comments re: cultural resources

Section 404/10 Permitting Program Permit application submitted to the USACE

USACE coordinates review with other federal and

state agencies (i.e., EPA, USFWS, NMFS, TCEQ,

THC, TPWD, GLO)

Must provide documentation that fills within 100-year

floodplain comply with applicable FEMA-approved

state or local floodplain requirements

Must provide documentation re: coordination with

USFWS for potential adverse impacts to protected

species

Must provide documentation that no potential effects

to historic resources

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What are waters of the U.S.? Good question!

Supreme Court Cases

Riverside Bayview

SWANCC

Rapanos

Carabell

Traditional navigable waters (TNWs)

Other defined waters (tributaries to TNWs)

Adjacent wetlands

Significant nexus

What are waters of the U.S.?

New Rule proposed to clarify aquatic resources

subject to jurisdiction under CWA

Based on draft report from Science Advisory Board

titled “Connectivity of Streams and Wetlands to

Downstream Waters”

Published in Federal Register April 21, 2014

90 day comment period ends July 21, 2014

Waters of the United States All waters which are currently used, were used in the

past, or may be susceptible to use in interstate or

foreign commerce, including all waters subject to the

ebb and flow of the tide;

All interstate waters, including interstate wetlands;

The territorial seas;

All impoundments of a traditional navigable water,

interstate water, the territorial seas or a tributary;

All tributaries of a traditional navigable water,

interstate water, the territorial seas or impoundment;

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Waters of the United States All waters, including wetlands, adjacent to a

traditional navigable water, interstate water, the

territorial seas, impoundment or tributary; and

On a case-specific basis, other waters, including

wetlands, provided that those waters alone, or in

combination with other similarly situated waters,

including wetlands, located in the same region, have

a significant nexus to a traditional navigable water,

interstate water or the territorial seas.

In particular, agencies are requesting comments,

scientific and technical data, case law, and other

information that would further clarify “other waters”

Section 404/10 Permitting Sequencing Process

Avoid – Take all appropriate and practicable measures

to avoid those adverse impacts to aquatic resources

that are not absolutely necessary.

Minimize – Take all appropriate and practicable

measures to minimize those adverse impacts to

aquatic resources that cannot be reasonably avoided

Compensate – Implement appropriate and practicable

measures to compensate for adverse project impacts

to aquatic resources that cannot be reasonably

avoided or minimized (aka compensatory mitigation).

Types of USACE Permits Nationwide permits (NWPs)

Regional general permits

Letter of permission

Individual permit

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Nationwide Permits (NWPs) Promulgated for specific activities

Limited impacts (<1/2 acre)

Pre-construction notification required if impacts over

specified threshold (>1/10 acre; discharge into

special aquatic site including wetlands)

Comply with extensive general conditions

Section 401 Water Quality certification – Tier I

checklist

Require compliance with National Historic

Preservation Act; Endangered Species Act; FEMA

Compensatory mitigation required for impacts

exceeding 1/10 acre

Regional General Permits Similar to NWPs but authorized for common

activities within a specific District or multiple Districts

Require pre-construction notification

Compliance with extensive general conditions

Section 401 Water Quality certification – Tier I

checklist

May also have project specific permit conditions

Require compliance with National Historic

Preservation Act; Endangered Species Act; FEMA

Compensatory mitigation required for impacts

exceeding 1/10 acre

Programmatic General Permits Type of general permit- issued to avoid unnecessary

duplication of regulatory control exercised by another

federal, state, or local agency.

With a PGP, a permit applicant generally must only

apply to one agency rather than applying to both

agencies for permits for the same work.

One PGP is available in the Fort Worth District

Activities Authorized by Lower Colorado River

Authority Lakewide Permits (CESWF-10-PGP-2)

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Letter of Permission Form of individual permit, but with abbreviated

processing procedure – for “minor” work in waters of the

U.S.

Coordination with Federal and state fish and wildlife

agencies; EPA, TCEQ (for Section 401 WQ cert.), state

Coastal Zone Management Agency (when appropriate)

Public interest evaluation but no individual public notice

published

General conditions and project-specific conditions, where

appropriate

CESWF-97-LOP-1 – Activities at Certain Reservoirs and

Federal and State Sponsored Projects

CESWF-95-LOP-2 - Excavation Activities

Standard Individual Permit Activities that do not qualify under General Permit or

LOP

More than minimal impacts to waters of the U.S.

Require more thorough review of potential

environmental and socioeconomic effects

Checklist of information required for submittal with

application

USACE issues joint Public Notice for Section 404

and Section 401 Water Quality certification

15-30 day Public Notice comment period

Opportunity for Public Hearing

National Environmental Policy Act Requires all Federal agencies to, among other

things:

Assess the environmental impacts of major Federal

projects, decisions such as issuing permits, spending

Federal money, or actions on Federal lands.

Consider the environmental impacts in making

decisions.

Disclose the environmental impacts to the public.

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NEPA Review Documents Categorical Exclusions for small, routine projects

where the agency has a record that demonstrates

that these types of projects characteristically do not

result in significant environmental impacts.

Environmental Assessments (EA) are prepared for

proposed actions when the agency needs to study

the issues before determining whether an EIS is

necessary.

Environmental Impact Statements (EIS) are

prepared for proposed actions with the potential for

significant impacts.

Permitting Timelines Being proactive facilitates timely permitting!

Initial environmental studies should include:

Preliminary Jurisdictional Determination (Delineation)

Threatened and Endangered Species Survey

Cultural Resources Archival Review (at minimum)

Cultural Resources Survey (permit required from THC

to perform field work – usually takes few days to

couple of weeks before field work can begin)

For complex or significant projects, a pre-application

meeting with the USACE is recommended

Permitting Timelines Activities authorized under General Permits typically

processed within 4-6 months; sometimes less

USACE has 30 days to determine if submittal is

complete and proposed project meets conditions for

general permit

Then 45 days for coordinated review and processing

for verification of authorization with activity-specific

conditions that state the mitigation requirements

Mitigation plan must be approved prior to

commencement of project activities

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Permitting Timelines Projects authorized under LOP typically processed

within 6-9 months, plus or minus

Very important to submit information required for

coordinated review with Federal and state agencies

Submittal requirements specific for each LOP

Proposed mitigation plan

Permitting Timelines Projects authorized under Individual Permit typically

require processing timeline of at least 12 months;

may be substantially longer

If NEPA documentation is required, concurrent

review periods can be employed

Should anticipate 15-24 months at least

Can be substantially longer

Compensatory Mitigation2008 Mitigation Rule

2013 Stream Mitigation Method

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2008 Mitigation Rule Established standards and criteria for the use of all

types of compensatory mitigation

1st Preference: Mitigation bank credits

In-lieu fee program credits

Permittee-responsible mitigation

Project sequencing still required

Equivalent ecological standards applied to all three

types of compensatory mitigation

Mitigation Banks Mitigation banks have primary and secondary

service areas based on watersheds

Some areas well served with multiple banks

Some areas minimally served

Some areas not within currently approved mitigation

bank service area

Stream Mitigation Method Fort Worth District – Effective date October 2, 2013

Compensation mitigation requirements must be

commensurate with amount and type of aquatic

resource impacts associated with permit actions.

Appropriate implementation further supports national

program goals of no net loss of aquatic resource

functions

Continued use of upland buffer and wetland

enhancement activities results in further net loss of

overall stream functions.

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Stream Mitigation Method Method applies on evaluation side only; no changes

to existing MBI’s required.

Definitions of different types of credits:

Riparian Buffer Credits (RBC): Credits generated from

enhancement activities in stream buffer areas only.

In-Channel Credits (ICC): Credits generated from

specific activities within stream channels.

Stream Credits (SC): Certain credits generated from

non-riparian buffer, non-in-channel activities; not

generated in newer banks; only in “legacy” banks.

Stream Mitigation Method (cont.)

Definitions (cont.)

In-Channel Work (ICW): Minimum 50% of TXRAM lift

for each stream assessment reach (SAR) occurs from

in-channel metrics (i.e., without Riparian Buffer

Condition metric included)

In-Kind Mitigation (IKM): Perennial and intermittent

stream impacts should be mitigated with in-kind

replacement relative to stream type. Ephemeral

stream impacts may be mitigated with either

ephemeral or intermittent stream mitigation.

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Exceptions to SMM In accordance with the 2008 Mitigation Rule, the

USACE maintains a preference for use of mitigation

banks to achieve compensatory mitigation.

However, if applicants are able to clearly

demonstrate to the satisfaction of the USACE that

permittee responsible mitigation would result in

greater ecological value, as compared to use of a

mitigation bank, the USACE may allow use of

permittee responsible mitigation. However, any

permittee responsible mitigation permitted would be

held to the same standards as those required for

mitigation banks. (See 33 CFR Part 332.2 (b)(2).

Permittee-Responsible

Mitigation Aquatic resource restoration, establishment,

enhancement, and/or preservation activity undertaken by the permittee (or an authorized agent or contractor) to provide compensatory mitigation for which the permitteeretains full responsibility

Watershed approach

Through on-site and in-kind mitigation

Through off-site and/or in-kind or out-of-kind mitigation

Consolidated or joint-project compensatory mitigation projects

Provides opportunities to “master plan”

Can significantly facilitate project permitting

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Project Example – Permittee Responsible

Consolidated Mitigation Location – Irving, TX

Client – Dallas County Utility & Reclamation District

(DCURD)

Project – Las Colinas Development

Challenge – Multiple projects requiring 404 permits. Permit

approval process delays.

Project Example (DCURD) Resolution

Coordinated with USACE proposed

development of environmental

master plan

Conducted baseline surveys

Identified 32 potential projects and

33 potential mitigation areas

Permit authorization was expedited

via letter of permission and multiple

general permits

Designed & monitored permittee

responsible mitigation areas

Project Example – Permittee Responsible

Consolidated Mitigation

Location – Kaufman/Rockwall/Collin Counties, Texas

Client – North Texas Municipal Water District (NTMWD)

Project – East Fork Raw Water Supply Project

Challenge – Fast track water supply project needed to

meet critical water demands of 500,000 people

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Resolution – Permittee Responsible Mitigation

Public/public/private partnership – NTMWD, USACE &

Rosewood

Multiple mitigation sites on USACE property

Permittee responsible project self-mitigation on-site

Project Example– Permittee Responsible

Consolidated Mitigation

Summary Compliance with environmental regulations can be

challenging and time-consuming (start early!!)

Rules keep changing (evolving)

Mitigation requirements – first priority is purchase of

mitigation bank credits (if available)

Permittee responsible mitigation still an option and

maybe necessary but will be held to same ecological

standards and require site protection instrument and

financial assurance

To meet mitigation requirements, may require a

combination of both

Questions