Floodplain Jurisdiction 6/9/2014. Texas Floodplain Management Association May 29, 2014

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1 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 1

2 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 & 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. 2

3 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 3

4 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, 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; 4

5 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 5

6 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) 6

7 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 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. 7

8 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 8

9 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 months at least Can be substantially longer Compensatory Mitigation 2008 Mitigation Rule 2013 Stream Mitigation Method 9

10 2008 Mitigation Rule Established standards and criteria for the use of all types of compensatory mitigation 1 st 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. 10

11 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. 11

12 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 (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 permittee retains 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 12

13 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 13

14 Project Example Permittee Responsible Consolidated Mitigation Resolution Permittee Responsible Mitigation Public/public/private partnership NTMWD, USACE & Rosewood Multiple mitigation sites on USACE property Permittee responsible project self-mitigation on-site 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 14