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 CLEAN WATER ACT (CWA).
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.
NAVIGABLE WATERS OF THE U S 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.
WATERS OF THE U S INCLUDE: ALL NAVIGABLE WATERS, INTERSTATE WATERS, TRIBUTARIES TO NAVIGABLE AND INTERSTATE WATERS, WETLANDS AND OTHER SPECIAL AQUATIC SITES, IMPOUNDMENTS, AND TERRITORIAL SEAS.
SECTION 404 OF THE CLEAN WATER ACT (CWA)
CWA 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.
PERMITTING NEW ORLEANS DISTRICT
TYPES OF PERMITS NATIONWIDE (NW) REGIONAL/STATE PROGRAM GENERAL PERMITS (PGP) LETTER OF PERMISSION (LOP) EMERGENCY INDIVIDUAL
NATIONWIDE PERMITS
Regional General Permits General Permits are issued by the Corps District for certain similar activities that have minor impacts The New Orleans District has 27 Regional General Permits
PROGRAMMATIC PERMIT Programmatic permits are a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication of that program.
Department of the Army Individual Permits Activities which do not comply with any of the abbreviated procedures must be evaluated under individual permitting procedures.
PERMIT PROCESSING FLOWCHART FOR INDIVIDUAL PERMITS JURISDICTIONAL DETERMINATION COMPLETED. PRE-APPLICATION CONSULTATION (IF NECESSARY). APPLICATION SUBMITTED WITH COMPLETE PLANS. PUBLIC NOTICE (PN) ISSUED. INTERAGENCY FIELD TRIP (IF NECESSARY). COMMENTS FROM PN SUBMITTED TO APPLICANT. EVALUATION OF COMMENTS AND OTHER INFORMATION BY REGULATORY PERSONNEL. ISSUANCE OR DENIAL OF PERMITS FROM THE LOUISIANA DEPARTMENTS OF ENVIRONMENTAL QUALITY AND COASTAL MANAGEMENT (WHERE APPLICABLE).
PERMIT APPLICATION
PUBLIC NOTICE A public notice will be issued for 15/20 days to allow the public, Federal and State agencies and other concerned parties an opportunity to comment on the proposed project. All public notices are now on the internet
PERMIT EVALUATION Review the project with regard to public interest factors listed in 33 CFR 320.4. 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
EVALUATION Cont. We will also consider: Relative extent of public and private need of the project. Practicability of using alternative sites and methods. Extent and permanence of the anticipated beneficial and/or detrimental effects of the proposed work.
SEQUENCING AVOIDANCE MINIMIZATION COMPENSATION
COMPENSATORY MITIGATION RESTORATION ENHANCEMENT CREATION PRESERVATION
COMPENSATORY MITIGATION APPROACHES CONSOLIDATED MITIGATION BANKS IN-LIEU FEE PROJECT-SPECIFIC DESIGNED TO MITIGATE A SPECIFIC, USUALLY SINGLE, IMPACT
OTHER LAWS INVOLVED IN THE 404 PERMITTING PROCESS INCLUDE: COASTAL ZONE MANAGEMENT ACT. FOR PROJECTS LOCATED WITHIN THE BOUNDARIES OF THE LOUISIANA COASTAL ZONE, IT IS LIKELY THAT A PERMIT FROM THE LOUISIANA DEPARTMENT OF NATURAL RESOURCES, COASTAL MANAGEMENT DIVISION WILL BE REQUIRED. APPLICANTS MUST APPLY FOR A COASTAL USE PERMIT AS DESIGNATED BY SECTION 307 OF THE COASTAL ZONE MANAGEMENT ACT. SECTION 401 OF THE CLEAN WATER ACT. APPLICANT APPLYING FOR A SECTION 404 PERMIT MUST ALSO APPLY FOR A SECTION 401 PERMIT (WATER QUALITY CERTIFICATION) FROM THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY. ENDANGERED SPECIES ACT. PROJECTS AFFECTING FEDERALLY PROTECTED SPECIES WILL REQUIRE COORDINATION WITH EITHER THE U.S. FISH AND WILDLIFE SERVICE OR THE NATIONAL MARINE FISHERIES SERVICE UNDER THE ENDANGERED SPECIES ACT.
OTHER LAWS cont. THE FISH AND WILDLIFE COORDINATION ACT. REQUIRES CONSULTATION WITH FEDERAL AND STATE RESOURCE AGENCIES ON SECTION 404 PERMIT REQUESTS. MAGNUSON-STEVENS ACT-1996. ESSENTIAL FISH HABITAT One of the greatest long-term threats to the viability of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other aquatic habitats. THE NATIONAL HISTORIC PRESERVATION ACT. SECTION 404 PERMIT REQUESTS THAT AFFECT ARCHEOLOGICAL, CULTURAL OR HISTORICAL SITES MAY REQUIRE THAT CERTAIN PROCEDURES BE FOLLOWED UNDER THE NATIONAL HISTORIC PRESERVATION ACT THROUGH COORDINATION WITH THE LOUISIANA DEPT. OF CULTURE, RECREATION AND TOURISM.
AGENCIES INVOLVED IN THIS PROCESS IN THE NEW ORLEANS DISTRICT INCLUDE: U.S. ENVIRONMENTAL PROTECTION AGENCY U.S. FISH AND WILDLIFE SERVICE NATIONAL MARINE FISHERIES SERVICE U.S.D.A. NATURAL RESOURCES CONSERVATION SERVICE LOUISIANA DEPT. OF WILDLIFE AND FISHERIES LOUISIANA DEPT. OF ENVIRONMENTAL QUALITY LOUISIANA DEPT. OF NATURAL RESOURCES, COASTAL MANAGEMENT DIVISION LOUISIANA DEPT. OF CULTURE, RECREATION & TOURISM
APPEALS PROCESS FOR PERMIT DENIALS Complete appeals form and send to the Division Engineer within 60 days of notice.
ENFORCEMENT
ENFORCEMENT GOALS Protect the integrity of regulated waters, human health and safety Deter violations. Treat the regulated public fairly and equitably.
ENFORCEMENT 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
ENFORCEMENT AUTHORITY cont. Corps enforcement authority under CWA is shared with EPA. The lead enforcement agency is determined in accordance with our 1989 Memorandum of Agreement on enforcement.
Types of violations Non Compliance - Failure to comply with the specified terms and conditions of a Department of the Army (DA) permit. Unauthorized Activities - The commencement of a regulated activity without a DA permit.
ENFORCEMENT PROCESS STEP 1: COMPLAINT PROCESS STEP 2: INITIAL INVESTIGATION STEP 3: FORMAL NOTIFICATION STEP 4: RESOLUTION
1. Complaint Process Information about alleged violator Location and description of activity Initial Contact File assignment 2. Initial Investigation Does activity require a permit? Are there jurisdictional waters on site? Was activity previously permitted?
3. FORMAL NOTIFICATION Written C&D issued: lists possible consequences of enforcement action identifies statutory authority requests comments Initial Corrective Measures: Interim restoration may be ordered if additional damage is anticipated during the resolution phase.
4. RESOLUTION Comments received from violator. Concerns expressed by affected entities Possible resolution tracks: RESTORATION ADMINISTRATIVE CLOSURE AFTER-THE-FACT PERMIT (ATF) REFERRAL TO EPA LEGAL ACTIONS
Present Challenges A) Post-Katrina Increase B) Rapanos C) Regional Supplement D) Stimulus Package Projects MVN-OD-SS
Branch Actions A) Additional Staff B) Contract for Field Work C) Preliminary JDs D) New DOTD Position MVN-OD-SS
Questions? MVN
MORE INFO AVAILABLE AT OUR WEB SITE: Regulatory Branch www.mvn.usace.army.mil/ops/regulatory/index.asp