U.S. Army Corps of Engineers. Regulatory Branch Program Overview

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1 Regulatory Branch Program Overview

2 REGULATORY BRANCH Special Projects Team Policy Issues Complex Permit Evaluations Mitigation Banks Surveillance and Enforcement Section Enforcement Jurisdictional Determinations Eastern, Central, and Western Evaluation Sections Permit Evaluations

3 DEPARTMENT OF THE ARMY REGULATORY AUTHORITY THE U.S. ARMY CORPS OF ENGINEERS REGULATORY AUTHORITY IS BASED UPON 1. SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 (RHA) AND 2. SECTION 404 OF THE CLEAN WATER ACT (CWA).

4 THE CORPS JURISDICTIONAL LIMITS THE LIMITS OF THE CORPS REGULATORY JURISDICTION ARE DEFINED AS: NAVIGABLE WATERS OF THE U.S. UNDER SECTION 10 OF THE RHA. WATERS OF THE U.S. UNDER SECTION 404 OF THE CWA.

5 NAVIGABLE WATERS OF THE US INCLUDE: 1.ALL WATERS WHICH ARE CURRENTLY USED, OR WERE USED IN THE PAST, OR MAY BE SUSCEPTIBLE TO USE IN INTERSTATE OR FOREIGN COMMERCE, 2.ALL WATERS SUBJECT TO THE EBB AND FLOW OF THE TIDE.

8 WATERS OF THE US INCLUDE: ALL NAVIGABLE WATERS, INTERSTATE WATERS, TRIBUTARIES TO NAVIGABLE AND INTERSTATE WATERS, WETLANDS AND OTHER SPECIAL AQUATIC SITES, AND TERRITORIAL SEAS.

9 U.S. Army Corps

10 SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 AUTHORIZES THE SECRETARY OF THE ARMY TO REGULATE ALL ACTIVITIES AND STRUCTURES IN NAVIGABLE WATERS OF THE UNITED STATES, INCLUDING CONSTRUCTION, EXCAVATION, OR DEPOSITION OF MATERIALS IN, OVER, OR UNDER SUCH WATERS, OR ANY WORK WHICH WOULD AFFECT THE COURSE, LOCATION, CONDITION, OR CAPACITY OF THOSE WATERS.

11 SECTION 404 OF THE U.S. Army Corps CLEAN WATER ACT (CWA) AUTHORIZES THE SECRETARY OF THE ARMY, ACTING THROUGH THE CHIEF OF ENGINEERS, TO ISSUE PERMITS, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC HEARING, FOR THE DISCHARGE OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED STATES AT SPECIFIC DISPOSAL SITES.

12 Jurisdiction Section 404 Clean Definitions: Water Act Fill Material any material that has the effect of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody or wetland; Examples of such fill material include, but are not limited to: rock, sand, soil, clay, plastics, construction debris, and wood chips. Discharge of Fill Material the addition of fill material into waters of the U.S.

13 Jurisdictional Determinations Only the Corps can make an official determination of waters of the US Biologists at the Corps use technical manuals, guidance documents, and court decisions to make official determinations 1987 Wetlands Delineation Manual 2001 SWANCC Decision 2006 Rapanos and Carabell Decisions 2008 Regional Supplement to Wetland Delineation Manual

14 How to request a Jurisdictional U.S. Army Corps Determination Complete a request form. Approved / Preliminary Include a vicinity map. (i.e. Google map, Streets and Trips, Quad map) A site boundary map, such as a site survey, subdivision plat, or a hand drawn map (to scale).

15 Regulatory Definition of Wetlands Wetlands are defined as: those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions CFR 328.3(b)

16 Three Criteria for Wetlands Hydrophytic Vegetation Wetland Hydrology Hydric Soils

17 U.S. Army Corps

20 Department of the Army Permitting

21 SECTION 404 PERMITS ARE REQUIRED FOR: ANY ACTIVITY THAT RESULTS IN A DEPOSITION OR REDISTRIBUTION OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED STATES, UNLESS THE ACTIVITY IS SPECIFICALLY IDENTIFIED AS EXEMPT.

24 SECTION 10 PERMITS ARE REQUIRED FOR: Any work or structures in or affecting the course, condition, location, or capacity of navigable waters.

26 Types of Permits Standard Permits (valid 5 yrs) General Permits (valid 5 yrs) Programmatic General Permits (projects located within State coastal zone boundary) Regional General Permits-projects outside the coastal zone Nationwide Permits (valid 2 yrs)-activities with minimal direct and cumulative impacts

27 Louisiana Coastal Zone

28 PERMIT APPLICATION Department of the Army Permit Application - ENG Form 4345 A vicinity map, a plan view and a cross section of the proposed work. Joint Corps/Coastal Zone Application Modified ENG Form 4345

29 INTERAGENCY U.S. Army Corps COORDINATION U.S. ENVIRONMENTAL PROTECTION AGENCY U.S. FISH AND WILDLIFE SERVICE NATIONAL MARINE FISHERIES SERVICE U.S. NATURAL RESOURCES CONSERVATION SERVICE U.S. Coast Guard LA DEPT. OF WILDLIFE AND FISHERIES LA DEPT. OF ENVIRONMENTAL QUALITY LA OFFICE OF COASTAL MANAGEMENT LA HISTORIC PRESERVATION OFFICE

30 MITIGATION SEQUENCING FOR REDUCTION OF IMPACT AVOIDANCE MINIMIZATION COMPENSATION

31 PERMIT EVALUATION Review the project with regard to public interest factors listed in 33 CFR These factors are: Conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people

32 EVALUATION Cont. We will also consider: Relative extent of public and private need of the project. Practicability of using alternative sites, designs, and methods. Extent and permanence of the anticipated beneficial and/or detrimental effects of the proposed work.

33 MITIGATION Compensatory mitigation is required under CWA provisions for projects that impact aquatic resources. SHOULD BE: IN KIND WITHIN SAME WATERSHED PROVIDE AT MINIMUM ONE FOR ONE FUNCTIONAL REPLACEMENT OF WETLAND IMPACTS

35 Modified Charleston Method Modified Charleston Method (MCM) is used to calculate required compensatory mitigation acreages. Began using this method May 2011.

37 RIBITS Website Regulatory in Lieu Fee and Bank Information Tracking System Contains the link for the MCM model Contains a Google location map Contains a list of all Corps approved banks and the available acreages

39 ENFORCEMENT

40 ENFORCEMENT GOALS Protect the integrity of regulated waters, human health and safety Deter violations Treat the regulated public fairly and equitably

41 ENFORCEMENT U.S. Army Corps AUTHORITY Rivers and Harbors Act of 1899: Prohibits the unauthorized obstruction of any navigable water of the U.S. Clean Water Act : Prohibits the unauthorized deposition of material into waters of the United States

42 Types of violations Unauthorized Activities - The commencement of a regulated activity without a Department of the Army (DA) permit. Non Compliance - Failure to comply with the specified terms and conditions of a DA permit.

43 POSSIBLE OUTCOMES RESTORATION SELF/RESTORATION PLAN PERMIT MODIFICATION AFTER-THE-FACT PERMIT (ATF) REFERRAL TO EPA / DOJ

44 KEY POINTS Section 10 of RHA Navigable Waters Section 10 covers structures and work within, under, and over navigable waters Section 404 of CWA Waters of the US Section 404 covers deposition of fill within Waters of the US

45 Key Points Department of the Army permit review process involves many facets in addition to wetlands Sequencing: Avoid, Minimize, Compensate

46 Useful Links NEW ORLEANS DISTRICT HOME PAGE: JURISDICTIONAL DETERMINATION REQUEST FORM: ARMY PERMIT APPLICATION: COASTAL USE / JOINT PERMIT APPLICATION: For additional information, contact us at:

47 Questions?

THE CORPS REGULATORY AUTHORITY

Regulatory Branch THE CORPS REGULATORY AUTHORITY THE U.S. ARMY CORPS OF ENGINEERS REGULATORY AUTHORITY IS BASED UPON 1. SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 (RHA) AND 2. SECTION 404 OF THE