Portland District Regulatory Branch Permit Streamlining for Restoration Projects
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1 Portland District Regulatory Branch Permit Streamlining for Restoration Projects Shawn Zinszer December 7, 2011 Carol Franson December 6, 2011 Regulatory Branch Portland District US Army Corps of Engineers
2 PORTLAND DISTRICT 2
3 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 PORTLAND DISTRICT 3
4 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 PORTLAND DISTRICT 4
5 Jurisdiction PORTLAND DISTRICT 5
6 Ordinary High Water The 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. PORTLAND DISTRICT 6
7 Jurisdictional Issues How Far Upstream Migratory Bird Rule Hydrology: Overflows during rain events? Perennial Intermittent Ephemeral Erosional Features Sheetflow or snowmelt Adjacent Wetlands: Proximity or Hydrology Hydrology: Direct & immediate subsurface infiltration (not groundwater)? No connection to Aquifer Ditches? Subsurface Flow (discrete)? Proximity: How far? How many berms? Groundwater (non-discrete)? Pipes? Sheetflow over upland? Pumps? Aquifer Storm Drain Systems? Included as Tributaries / Waters of U.S. PORTLAND DISTRICT 7
8 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 PORTLAND DISTRICT 8
9 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. PORTLAND DISTRICT 9
10 Avoid / Minimize Project must avoid or minimize aquatic impacts Application must include alternatives considered Water dependent? U.S. Army Corps of Engineers photo PORTLAND DISTRICT 10
11 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 PORTLAND DISTRICT 11
12 Permit Required Regulatory Process Diagram Pre-Application Meeting * No Permit Required No Submit Permit Application (or additional info) Application Complete? Yes Done with Corps Permit Process Corps Review Interagency Review Public Notice day Review (if applicable) Endangered Species Act - NMFS - USFWS Sec. 106 Historic Preservation Act - SHPO - Tribes Sec. 401 Water Quality - DEQ - EPA Sediment Evaluation - PRG - EPA Coastal Zone Management - DLCD Other (applicable) - Laws - Agencies Corps Determination Issue Permit PORTLAND DISTRICT 12 Deny Permit
13 Application Review Process Applicant Submits Permit Application Application Received Acknowledged and Processed Over ½ acre, Public Notice = Individual Permit < ½ acre, stakeholders= Nationwide Permit PORTLAND DISTRICT 13
14 Application Review Process Corps SEF DEQ/OSMB/CZM/DSL Federal Agencies Endangered Species Act Section 106 NHPA Recognized NA Tribes Individuals Application Reviewed PORTLAND DISTRICT 14
15 Application Review Process Public Hearing may be held Application Denied or Discretionary Authority taken Public Interest Factors Conservation Economics Cultural Resources Environmental Concerns Public Welfare Water Supply/Quality Navigation Mitigation Permit Issued Application Approved PORTLAND DISTRICT 15
16 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 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 PORTLAND DISTRICT 16
17 Regional General Permits RGP 3 Stream habitat restoration Large wood Boulders Spawning gravel Photo courtesy of National Oceanographic and Atmospheric Association PORTLAND DISTRICT 17
18 Regional General Permits Photo courtesy of Federal Highway Administration U.S. Army Corps of Engineers photo RGP 4 U.S. Forest Service, Bureau of Land Management aquatic restoration projects PORTLAND DISTRICT 18
19 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 county PORTLAND DISTRICT 19
20 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 PORTLAND DISTRICT 20
21 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 PORTLAND DISTRICT 21
22 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 PORTLAND DISTRICT 22
23 Corps Section 106 Process National Historic Preservation Act (NHPA) Executive Order 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 PORTLAND DISTRICT 23
24 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 PORTLAND DISTRICT 24
25 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 PORTLAND DISTRICT 25
26 Wetland Delineation Wetland delineation requires use of a three parameter test Manual Regional Supplements Arid West Region (2007) Western Mountains, Valleys, and Coast Region (2008) PORTLAND DISTRICT 26
27 Regional Supplements Note: Boundaries as shown are approximate PORTLAND DISTRICT 27
28 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 PORTLAND DISTRICT 28
29 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 PORTLAND DISTRICT 29
30 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 PORTLAND DISTRICT 30
31 Requirements for Permittee-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 PORTLAND DISTRICT 31
32 Mitigation questions? Contact: Ms. Jaimee Davis Mitigation Program Manager (503) PORTLAND DISTRICT 32
33 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 PORTLAND DISTRICT 33
34 During Construction Permit Compliance 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 PORTLAND DISTRICT 34
35 Joint Permit Application Form PORTLAND DISTRICT 35
36 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 PORTLAND DISTRICT 36
37 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? PORTLAND DISTRICT 37
38 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? PORTLAND DISTRICT 38
39 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? PORTLAND DISTRICT 39
40 Questions/Comments Q&A opportunities Consider a pre-application meeting for large projects Project Managers are assigned by county Customer survey asp PORTLAND DISTRICT 40
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