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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT Appendix G Army Corps of Engineers Standard Operating Procedures for the Regulatory Program INTRODUCTION These Standard Operating Procedures (SOP) are comprised of three parts. The first part, “Policies and Procedures for Processing Department of the Army Permit Applications,” highlights critical portions of the U.S. Army Corps of Engineers implementing regulations to be used in reviewing permit applications. The second part, “Regulatory Program Priorities,” provides “above the line” and “below the line” guidance for districts to prioritize their Regulatory Program administration efforts. The third part, “Revised Quarterly Permit Data System (QPDS) Definitions,” provides clarification of definitions for inputting information into QPDS. The SOP has three purposes. First, by highlighting important existing procedures and policy, the SOP serves to facilitate consistent program implementation. Second, prioritizing Regulatory Program efforts helps to facilitate efficient national program direction to best achieve the three goals of the Regulatory Program: (1) Protect the environment; (2) Make reasonable decisions; and, (3) Enhance Regulatory Program efficiency. Third, clarification of the QPDS definitions is intended to unequivocally narrow the current gaps in their interpretation to provide an accurate data base that is essential to the analysis of workload, performance, and therefore, resource needs. When applied in conjunction with effective communication on budget needs and good workload indicators, the SOP serves to assure the most equitable distribution of funds proportionate to the district's respective workloads. The Corps must strive to implement
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT its Regulatory Program as consistently as possible across the country in fairness to the regulated public and individual districts in protection of the aquatic environment. STANDARD OPERATING PROCEDURES PART I INDEX Scope of Analysis Jurisdiction Wetland Delineations Forms of Permits Discretionary Authority Pre-Application Meetings Complete Application Project Purpose Preparing Public Notices Internal Coordination Permit Evaluation/Public Hearings Appropriate Level of Analysis-404(b)(1) Guidelines The Public Interest Determination Section 401 Certification and Coastal Zone Management Endangered Species Act Documentations-EA/SOF/Guidelines Compliance Conditioning Permits Compensatory Mitigation Duration of Permits Permit Modifications and Time Extensions Enforcement/Compliance File Maintenance Reporting PART I Policies and Procedures for Processing Department of the Army Permit Applications Part I highlights existing policies and procedures to be used in reviewing applications for Department of the Army (DA) permits under Section 404 of the Clean Water Act (CWA), Section 10 of the Rivers and Harbors Act (RHA) of 1899, and Section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972. It is not intended to be comprehensive or to replace the implementing regulations for the U.S. Army Corps
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT of Engineers Regulatory Program (33 CFR 320–330) or other official policy guidance contained in Memoranda of Agreement (MOA), Regulatory Guidance Letters (RGLs), etc. Part I simply highlights critical policies and procedures that are major factors in administering a consistent program nationwide. These critical policies and procedures, however, are those that the Major Subordinate Commands and CECW-OR will evaluate in our future consistency reviews. In addition, consistency with Part I will be a factor in responding to districts' requests for additional resources. 1. Scope of Analysis. - Corps determines scope - 33 CFR 325 Appendix B,C Scope of analysis has two distinct elements, determining the Corps Federal action area and how the Corps will evaluate indirect, or secondary, adverse environmental effects. The Corps determines its action area under 33 CFR 325 Appendix B and C. Generally, the action area includes all waters of the United States, as well as any additional area of non-waters where the Corps determines there is adequate Federal control and responsibility to include it in the action area. The action area always includes upland areas in the immediate vicinity of the waters of the United States where the regulated activity occurs. For example, the action areas for a road access to uplands for a residential development is the road crossing of waters of the United States and the upland area in the immediate vicinity of the road crossing. In a similar case where there is not only the road crossing, but also considerable additional impacts to waters within the residential development (interior road crossings, house fills, stormwater control berms/dams, etc.), then the Corps action area is the whole residential development. The Corps analyzes all adverse environmental effects within the action area. In addition, the Corps is responsible for analyzing the direct and indirect impacts of its permit decisions, within the action area once the scope of analysis (which defines the corresponding action area) is properly determined. Direct impacts are those that happen in direct response to the permitted activity (e.g., the direct impact of dam construction is the loss of habitat in the dam footprint). Indirect impacts, on the other hand, are those removed in time and/or distance in relation to the permitted activity (e.g., the indirect impact of dam construction is the inundation of the area behind the dam). Another example would be habitat and/or fisheries impacts downstream of the dam associated with hydroperiod changes. Both direct and indirect impacts must be evaluated within site-specific and cumulative impact contexts. It is appropriate for the Corps to evaluate these impacts and render final permit and
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT mitigation decisions based on its evaluation. It is not appropriate, however, for the Corps to consider indirect impacts that are beyond the action area in its regulatory decisionmaking, where those impacts would have occurred regardless of the Corps decision on the permit (e.g., habitat fragmentation, increases in traffic and noise could be judged as these types of impacts). 2. Jurisdiction. - 33 CFR Parts 323, 328, and 329 - Corps determines exemptions (if no special case) - Exemptions do not allow waters conversions Not every area that looks like a wetland or other waters of the United States is jurisdictional, and not all activities in jurisdictional waters are subject to regulation. Guidance on jurisdiction is found in the preamble to the 1986 consolidated regulation, 33 CFR Part 328 and in Parts 323.3, 328.3, and 329. Part 329 only addresses Section 10 navigable waters. These regulations provide guidance on jurisdictional determinations, as well as, on areas that are not regulated and on activities that are exempt from regulation. The preamble to 33 CFR Part 328 states that features excavated from uplands are not considered waters of the United States. For example, a drainage ditch excavated in the uplands, and/or located along a roadway, runway, or railroad that only carries water from upland areas, is not considered jurisdictional, even if it supports hydrophytic vegetation. Other common examples of non-jurisdictional areas excavated from uplands include stormwater or other treatment ponds, detention basins, retention ponds, sediment basins, artificial reflecting pools, and golf course ponds. Gravel pits excavated from uplands are not considered jurisdictional, so long as the areas in question have not been abandoned (i.e., the area is under some sort of management plan related to the gravel operation, including use as a water supply or water storage area). Wetlands that form on top of a landfill are not subject to Corps jurisdiction. Some activities taking place in jurisdictional waters of the United States are exempt from regulation. Definitions of discharges not requiring permits (i.e., exempt activities) are found in 33 CFR 323.4. Many of the exempt activities listed in this section are related to agriculture, forestry, or mining. For example, the list includes normal farming, siliviculture, and ranching activities that include plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products. As long as these activities are part of an established farming, silviculture, or ranching operation they are exempt from regulation under
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT Section 404 of the CWA. It is the responsibility of the Corps to determine if the activities are part of an ongoing operation, and therefore, are exempt unless the Environmental Protection Agency (EPA) declares a special case under the 1989 MOA on jurisdiction in advance of the Corps determination. Another common example of an exempt activity would be the discharge of sediment, removed from a roadside ditch, into waters of the United States when that ditch was constructed through waters of the United States, prior to the enactment of Corps regulation. The ditch and adjacent waters would be considered a jurisdictional area, however, the discharge of sediments removed from the ditch needed to restore the contours to original design is exempt from regulation under Section 404 (33 CFR 323.4 (a)(3)). None of the exemptions listed in 33 CFR 323.4 allow for the conversion of waters of the United States to dry land (beyond any conversion that was authorized by the original project that is being maintained) through filling or drainage activities. Plowing a wetland and maintenance of existing drainage (ditches, drain tiles, etc.) may be exempt from regulation, but discharges associated with the installation of a new drainage system to convert additional wetlands to uplands require a Section 404 permit. Pursuant to guidance provided on 11 April 1997, resulting from litigation on the Excavation Rule activities where incidental fallback of excavated materials is the only discharge are not regulated as a discharge of dredged material, pursuant to Section 404 of the CWA. However, activities that involve the discharge of the excavated material are regulated discharges where the material is sidecast, or otherwise discharged into waters of the United States. Examples include mechanized landclearing, and excavating a new drainage ditch where the material is sidecast into wetlands. Of course, navigational dredging continues to be regulated, pursuant to Section 10 of the RHA. The Corps regulates the discharge of dredged material into waters of the United States, pursuant to Section 404 and the transportation of dredged material for ocean dumping, pursuant to Section 103 of the Marine Protection, Research, and Sanctuaries Act. The term drainage ditch is defined as a linear excavation or depression constructed for the purpose of conveying surface runoff or groundwater from one area to another. The term drainage ditch does not include drainage systems which also serve to hold and manage water flow (flood control systems). If a drainage ditch is constructed entirely in uplands, it is not a water of the United States unless it becomes tidal or otherwise extends the ordinary high water mark of existing Section 10 navigable waters. However, if a ditch is excavated in waters of the United States, including wetlands, it remains a waters of the United States, even it if is highly manipulated (RGL 87–7, dated 17 August 1987).
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT 3. Wetland Delineations. - Prioritize “mom and pop” JDs - Advise the public via PN Field wetland delineations are essential to timely and accurate processing and evaluation of permit applications in these areas. However, delineations are time and resource intensive and, in some districts, require an inordinate amount of time that the district could be devoting to other aspects of the process. In addition, Corps workload is generally comprised of “mom and pop” applications, as well as those from applicants who could hire consultants to perform the field wetland delineation for the district to verify. For these reasons, districts should advise (e.g., via public notice (PN)) their respective constituencies that they will prioritize their efforts as follows. Conduct verification of applicant prepared delineations on all applications and conduct field wetland delineations for “mom and pop type operations” in conjunction with permit applications first. The remaining wetland delineations in conjunction with permit applications will be conducted second, and other delineations (not in accordance with permit applications) as resources and time allow. 4. Forms of Permits. - Use GPs/LOPs whenever possible - GPs can address ESA/NHPA issues - Develop GPs for periodic emergencies Permits. The overall goal of the Regulatory Program is to provide for a timely permit decision that protects the aquatic environment and is fair, reasonable, and flexible for the applicant. The Corps should evaluate projects using the least extensive and time consuming review process, while still providing protection for the aquatic environment. For projects that involve minimal net adverse effects on the aquatic environment, after consideration of compensatory mitigation, general permits (GP) or letter of permissions (LOPs) should be used rather than a standard permit (SP) review. GPs include nationwide permits (NWPs) and regional general permits (GPS). The use of GPs are encouraged, because GPs can be conditioned sufficiently to provide the same environmental protection as an SP (including conditions addressing endangered species and compensatory mitigation concerns), and are just as enforceable as an SP. Therefore, the district should not hesitate authorizing a project with GPs for fear that it will be unenforceable.
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT Projects which may cause more than minimal adverse effects to the aquatic environment, should receive an SP review. LOPs, that are subject to Section 10 of the RHA, should be used on a case-by-case basis to authorize activities where the work will have only minor individual or cumulative impacts on the environment or navigation, and where the work would encounter no appreciable opposition. LOPs in cases subject to Section 404 CWA (as well as Section 10 RHA), may be used to authorize projects that exceed the aforementioned thresholds, provided a PN has been issued establishing the suite of activities and geographic area where the LOP will be in effect. This process is essentially the same as establishing an RGP. Normally, coordination with applicable Federal and State agencies project by project is included in an LOP and adjacent property owners are notified. The short agency notification period, lack of need for a PN and the additional activity conditions associated with an LOP result in abbreviated documentation needed to authorize a project under an established LOP, which saves time over the preparation of an SP decision document. Emergency Procedures. Division engineers are authorized to approve special procedures in emergency situations. Each division should develop emergency permit authorization procedures. An “emergency” is defined in the regulations (33 CFR 325.2(e)(4)) as a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate unforeseen, and significant economic hardship if corrective action, requiring a permit, is not undertaken within a time period less than the normal time to process the application under standard procedures. In these situations, the district engineer explains the situation and the associated permit procedures to the division engineer then issues the permit after the division engineer concurs. This entire process may be verbal in extreme emergencies. Even in emergency situations, districts should make a reasonable effort to obtain comments from the involved Federal, State, local agencies, and the public. A decision document may be prepared after the fact and should include an environmental assessment (EA). In addition, districts should publish a notice regarding the special procedures and their rationale and prepare an EA and statement of findings (SOF) as soon as practicable after the emergency permit is issued. Districts should also maximize the use exemptions, as well as available regional, programmatic, and nationwide GPs in emergency situations. Some districts have developed GPs for emergency situations, which the district believes will periodically reoccur. This provides a more efficient, predictable permit mechanism to deal with the emergency when it reoccurs without reinventing the wheel, as well as an opportunity to efficiently coordinate with the involved agencies and the public. In any event, districts and divisions should establish procedures for the coordination of emergency permits whether or not GPs have been developed.
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT 5. Discretionary Authority. - Do not use discretionary authority just because project controversial Discretionary authority is a tool (33 CFR 330.8) used to assert a more rigorous review of projects eligible for a GP (NWP or RGP) due to perceived adverse impacts to the aquatic environment. Generally speaking, evaluators should carefully consider the need for asserting discretionary authority over a project that would otherwise qualify for a GP. It is inappropriate to assert discretionary authority over a project, merely because it is controversial. A RGP or NWP can be issued quickly and provide maximum environmental protection, through effective permit conditioning. It is also critical that when a NWP is moved into an SP review, the administrative record supports the Corps action, including all notification time constraints associated with the NWP program. If a project meets the requirements of a NWP or other GPs, the Corps should carefully examine the facts and options available, commence the processing of the application in the manner that is the most efficient and the one that provides adequate protection of the aquatic environment. Of course, the SP process is appropriate for proposed projects that do not meet applicable GPs criteria. 6. Pre-application Meetings. - Corps arranges - Not for minor impact projects - Be candid with applicants Pre-application meetings, whether arranged by the Corps or requested by permit applicants, are encouraged to facilitate the review of potentially complex or controversial projects, or projects which could have significant impacts on the human environment (see 33 CFR Part 325.9(b)). Pre-application meetings can help streamline the permitting process by alerting the applicant to potentially time-consuming concerns that are likely to arise during the evaluation of their project. Examples include historic properties issues, endangered species impacts, dredging contaminated sediments, 404(b)(1) compliance statements, mitigation requirements, etc. Pre-application meetings are not recommended for projects that will result in only minor adverse impacts to the aquatic environment. Each Corps district is responsible for determining if a pre-application meeting is necessary (not the applicant or another agency) and if so, who will host/facilitate the meeting. Applicants usually appreciate a candid dialogue on their project, even if the discussion means substantial modifi-
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT cation of the project may be necessary. It is vital to the success of the pre-application meeting to have knowledge of the project, prior to the meeting date and to be prepared to discuss ways to a void/minimize project impacts. It should be remembered that the issuance of a PN should not be delayed to obtain information necessary to evaluate an application (33 CFR 325.1(d)(9)). An application is determined to be complete when sufficient information is received to issue a PN (33 CFR 325.1(d) and 325.3(a)). See 7. below. 7. Complete Application. - Refer to 33 CFR 325.1(d) - 15 days to request information - 15 days to publish a PN The information needed to deem a permit application complete is listed in 33 CFR 325.1(d). Upon initial receipt of an application, the Corps has 15 days to review it for completeness (33 CFR 325.2 (a)(1)). The Corps will contact the applicant within 15 days if additional information is necessary. The Corps should encourage applicants to provide a wetland delineation as part of their permit application. In some instances, submission of a wetland delineation is required for a permit application to be considered as complete (e.g., some NWPs). While additional information may eventually be needed to complete the evaluation of the project (e.g., an alternative analysis under the Guidelines), only that information identified at 325.1(d) is required to publish a PN. Once an application is deemed complete, the next step is to determine what form of permit review is appropriate for the proposed project and issue a PN (for SPs), within 15 days (33 CFR 325.2(a)(2)). 8. Project Purpose. - Basic project purpose used for water dependency - Overall project purpose used for alternatives analysis - Corps determines Defining the project purpose is critical to the evaluation of any project and in evaluating project compliance with the Section 404(b)(1) Guidelines (Guidelines). As stated in HQUSACE's guidance resulting from the Section 404(q) elevation of the Twisted Oaks Joint Venture and Old Cutler Bay permits, defining the purpose of a project involves two determinations, the basic project purpose, and the overall project purpose. The Twisted Oaks project proposed impounding a stream, by constructing a
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT dam, to create a recreational amenity for a residential development proposed on adjacent uplands. HQUSACE agreed that, from a basic project purpose perspective, the dam was water dependent, but that the housing was not. Since the project included two elements, a project purpose excluding either was inappropriate. Therefore, it was concluded that the overall project purpose was a residential development with a water-related amenity. In Old Cutler Bay, the overall project purpose was properly determined to be “to construct a viable, upscale residential community with an associated regulation golf course in the south Dade County area.” This overall project purpose recognizes that an essential part of the upscale residential project was to include a full size (regulation) golf course, and identified a reasonable geographic area for the alternatives analysis. The basic purpose of the project must be known to determine if a given project is “water dependent.” For example, the purpose of a residential development is to provide housing for people. Houses do not have to be located in a special aquatic site to fulfill the basic purpose of the project, i.e., providing shelter. Therefore, a residential development is not water dependent. If a project is not water dependent, alternatives, which do not involve impacts to waters of the United States are presumed to be available to the applicant (40 CFR 320.10(a)(3)). Examples of water dependent projects include, but are not limited to, dams, marinas, mooring facilities, and docks. The basic purpose of these projects is to provide access to the water. Although the basic purpose of a project may be water dependent, a vigorous evaluation of alternatives under National Environmental Policy Act (NEPA) and the Guidelines will often be necessary due to expected impacts to the aquatic environment (e.g., a marina that involves substantial impacts to or the loss of marsh or sea grass bed). The overall project purpose is more specific to the applicant's project than the basic project purpose. The overall project purpose is used for evaluating practicable alternatives under the Section 404(b)(1) Guidelines. The overall project purpose must be specific enough to define the applicant's needs, but not so restrictive as to preclude all discussion of alternatives. Defining the overall project purpose is the responsibility of the Corps, however, the applicant's needs must be considered in the context of the desired geographic area of the development, and the type of project being proposed. Defining the overall purpose of a project is critical in its evaluation, and should be carefully considered. For example, a proposed road through wetlands or across a stream to provide access to an upland residential development would have an overall project purpose of “to construct road access to an upland development site. ” Based on this overall project purpose, the Corps would evaluate other potential access alternatives. However, the Corps would not consider alternatives
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT in any way for the residential community or otherwise “regulate” the upland housing. 9. Preparing Public Notices. - Refer to 33 CFR 325.3(a) - Include required information - No EAs or other extraneous info The information that must be referenced in a PN is defined in 33 CFR 325.3(a). An alternatives analysis will only be included in a PN if offered by the applicant. Applicants are not required to provide a mitigation plan for PN purposes, but if an applicant includes a mitigation plan in the application it should be included in the PN. The PN should contain a concise description of the project, the overall project purpose, and its anticipated impacts on the aquatic environment. It should contain the minimum number of exhibits needed to adequately illustrate the plan, and should be as brief as possible to minimize printing and mailing costs. PNs will be printed on both sides of the paper. The PN should also contain a preliminary assessment of project impacts on endangered species and historic properties, as well as an assessment on the need of an Environmental Impact Statement (EIS). The omission of a statement addressing the need for an EIS in the PN is by default a district preliminary determination that an EIS is not required for project review. If a statement is made in the PN that a given project “may effect” a federally listed species, the 90-day timeframe for consultation with the U.S. Fish and Wildlife Service (USFWS) and National Marine Fishery Service (NMFS)) under the Endangered Species Act (ESA) should begin immediately. All districts should establish agreements with the appropriate service (USFWS or NMFS) office to coordinate the preliminary review of proposed projects for the purposes of complying with the ESA. Districts will not publish an EA, or other unnecessary materials, in a PN. Inclusion of an EA in a PN is not required by the regulations, and does not represent economic stewardship. Districts should not expend any significant effort toward the preparation of an EA until after the close of the PN comment period, when sufficient information has been gathered to address the public interest factors. The PN comment period should be no more than 30 days, nor less than 15 days. The nature of the project and the geographic distribution of the notice are factors that should be used in determining how long to advertise the PN. In many cases, a PN of 15 to 21 days is sufficient time to allow the public to comment. To expedite the permit process, districts are
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT PUBLIC OUTREACH (0%–10%) ABOVE THE LINE Provide public information about the Regulatory Program on website, including Public Notices. Keep website updated/current. Encourage use of Public Meetings in lieu of Public Hearings. Use national survey to get feedback from the regulated public. Use P.A.O. more effectively to deal with media on regulatory matters. BELOW THE LINE Conduct regular meetings with applicant and public interest groups. Respond to all requests for speakers. Develop/update district's regulatory brochures. Develop extensive information on issues that are related to the regulatory program (e.g., plant guides brochures on wetlands). ENFORCEMENT (10%–25%) ABOVE THE LINE Assure permit conditions are enforceable. Implement self-reporting and certification for compliance. Prioritize compliance actions, on high quality environmental loss and navigation. Strive for environmental results in all enforcement actions, including extra mitigation for the loss prior to resolution. Prioritize on-going violations, and consider interim measures. BELOW THE LINE Low Priority for compliance on 401, CZM, and RPM conditions. Low priority for either unauthorized or compliance effort where low environmental loss is involved. Ensure that litigation and criminal actions are only initiated where clearly appropriate.
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT STAFF SUPPORT/PROGRAM ADMINISTRATION ABOVE THE LINE Provide effective training—for staff both Prospect and within district. Optimize use of Field Offices. Provide adequate travel budget for training and field visits. Report all QPDS data accurately and timely. Budget: Schedule 100%/Obligate 100%/Expend 96%. BELOW THE LINE Additional data entry (beyond that required for QPDS) requirements for PMs. More than two reviewers for NPR, NWPs, RGPs, LOPs, Denials w/o Prejudice. More than three reviewers for SPs, EISs, Denials w/Prejudice, MBIs, and SAMPs. MITIGATION ABOVE THE LINE Mitigation should be reasonable, practicable, commensurate with impacts, and what's best for the aquatic environment. Require and review monitoring reports on mitigation banks and other substantial mitigation, including in-lieu fee approaches to assure success. Encourage development/use of mitigation banks; and encourage in-lieu fee approaches, where responsible third parties are available, e.g., State and local agencies, conservation organizations. Corps determines appropriate type and level of mitigation and whether mitigation is required. Delegate MBI signature to district, and simplify MBIs. BELOW THE LINE Compliance inspections for all mitigation. Looking for mitigation options for non-mom and pop applicants. Multiple site visits to a mitigation site.
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT PART III Quarterly Permit Data System (QPDS) Reporting And Definitions QPDS Quarterly Regulatory Data A–1. On a quarterly basis, each district regulatory office will provide the information described herein. Use of the Quarterly Permit Data System (QPDS) is mandatory at both District and Division levels and is a critical tool in the Corps management of the Regulatory Program at all levels. Accuracy of the data, consistent with these definitions is of paramount importance in the assessment of district and division workloads. The same action should not be entered more than once in QPDS. For example, if a meeting is held at a project site, it should not be entered as both a site visit and a public information meeting in QPDS. Districts will enter data in QPDS and forward a copy of the quarterly data file to the division office within 10 calendar days of the end of each quarter. Divisions will prepare a consolidated data file and forward copies of the consolidated and each district data file to the Commander, USACE (ATTN: CECW-OR), within 15 calendar days of the end of each quarter. A–2. Data elements required for input into QPDS, are defined in Section A–3, paragraphs, 1 through 5. Data categories are: Evaluation Workload. Evaluation Days. Other Workload Items. Staffing. Enforcement Workload. A–3. Data Element Definitions. Evaluation Workload. Paragraphs A–3: 1(a) through 1(h) only apply to individual permit actions (i.e. standard permits, letters of permission (LOP), and denials) completed during the quarter and should not be used to account for general permits [regional general permits (RGPs), programmatic general permits (PGPs), state program general permits (SPGs), or nationwide permits (NWPs)]. All permit applications will be date stamped immediately upon receipt and logged into the district database [RAMS field = Date Received (table=dates, column=rcvd); RAMS II field = Date Activity Received”]. All applications will be reviewed to
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT determine the type of permit action and to determine completeness within 15 days of receipt. This review includes a conscious decision by a qualified regulator as to the anticipated type of final action. If an application is incomplete, requests for additional information must be made within the same 15 days. Applications should not be routinely logged in as an individual permit, later withdrawn and reentered as another type of permit. “Carryover”. QPDS generates by authority (Section 10, 404, 10/404, or 10/103), the number of pending individual permit applications at the beginning of the quarter. These figures will agree with the number reported for “Pending”, 1(h) on the previous quarterly report. If errors were made in the previous quarter, corrections will be made in the current quarter using the “Withdrawn”, A–3, 1(c) data element. “Received”. Enter by authority, the number of applications received for evaluation as an individual permit. An application need not be complete to be reported here. Applications that start out as an individual permit (i.e., entered in received category) but, because of project modifications, etc., are found to qualify for a general permit, will be entered in category A–3, 1(c) as withdrawn and reentered in category A–3: 1(i) or 1(j) as a general permit. However, this category will not be used to initially log in actions that clearly should be reviewed under a general permit (RGPs and NWPs). “Withdrawn”. Enter by authority, the number of individual permit applications withdrawn by the applicant or the Corps. This applies to both applications that were considered complete and those that were not. Withdrawal will occur only when: 1) requested by the applicant, 2) there is a conversion from an individual permit to a general permit (NWP, RGP, SPGP or PGP) or no permit required, or 3) there is a clear indication from the applicant that he/she does not intend to take further action. If the applicant responds within 45 days of a written request for information that he/she intends to provide the additional information, the application will not be withdrawn [(33 CFR 325.2(d)(5)]. Any application entered in this category that is resubmitted or reactivated will be considered a new application and entered as “Received”. Applications entered in this category are not considered when calculating evaluation times. This category is also to be used to correct errors from the previous quarter (This includes errors in totals due to applications coming in at the last minute, etc.). It is not to be used to report applications that are suspended and then reinstated without significant modifications. “Standard”. Enter, by authority, the number of standard permits issued (i.e., required a public notice). If portions of a project are also authorized by NWP, report each type of NWP used. See paragraph A–3, 1(j). “LOP”. Enter by authority, the number of LOP issued.
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT “Denials W/P”. Enter by authority the number of standard permits denied with prejudice. Denial “with prejudice” occurs when the permit is denied on its merits and the applicant has met all other necessary prerequisites. “Denials WO/P”. Enter by authority the number of standard permits denied without prejudice. Denial “without prejudice” occurs when the permit is denied because the applicant lacks a necessary prerequisite (denial of 401 certification or lack of consistency with the Coastal Zone Management Act). “Pending”. QPDS generates by authority, the number of individual permits in process at the end of the quarter. This figure is calculated using the data from A–3: 1(a) through 1(g). To check your input use the formula: h=[(a+b)−(c+d+e+f+g)]. “Regional”. Enter by authority, the number of RGP actions completed, by letter of verification, and the number of actions authorized by PGPs during the quarter. This is not an estimate and includes only those cases where formal contact, via letter, from the Corps has been established with the individual proposing work or the agency administering the PGP. Telephone contacts are not to be included. The issuance of the initial RGP or PGP is not entered. “NWP”. Enter by authority, the number of NWP actions completed, by letter of verification, during the quarter. This is not an estimate and includes only those NWP actions that result in written contact from the Corps with the individual proposing the work. Telephone contacts are not to be included. Per regulation, each type of NWP can only be used once in authorizing a single and complete project. However, two or more different NWPs can be used to authorize portions of a single and complete project. If portions of a project are authorized by more than one type of NWP, report each different type of NWP. Generally each stream crossing (or crossings of other waters of the U.S.) on linear projects (such as pipelines and highways) is considered as a single and complete project (33 CFR 330.2(j)). If NWP conditions are met in such cases, NWPs can be used and reported for each crossing of waters of the U.S. associated with the linear project. Therefore, if one or more NWPs can be used to authorize a linear project, then each crossing of waters of the U.S. should be reported separately in QPDS. Evaluation Days. Evaluation time (in calendar days) begins from the date an application is accepted as complete [33 CFR 325.1(d)(9)] until the date the permit, denial, or general permit verification letter is mailed to the applicant. For the purpose of calculating evaluation time on standard permits and LOP, the clock stops only when the unvalidated permit is mailed to the applicant for signature [33 CFR 325.2(a)(7)]. No other
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT APPENDIX G 279 action can stop the clock. An applicant's failure to sign or mail back the permit does not affect evaluation time. Withdrawn permits are not included in this calculation. For general permits (RGP, PGP, or NWP), the term “application” includes any request to perform work approved by a general permit. Evaluation time for general permits is calculated from the date the application is complete to the date of the letter of verification. A general permit application is considered completed when all the information required by the predischarge notification (PCN) has been received. If a PCN is not required, then an application is complete when adequate information has been received for the Corps to evaluate the activity. “Standard”. Enter by authority, the total number of evaluation days for the standard permits entered in A–3, 1(d). “LOP”. Enter by authority, the total number of evaluation days for the LOPs entered in A–3, 1(e). “Denied W/P”. Enter by authority, the total number of evaluation days for the permits denied with prejudice entered in A–3, 1(f). “Denied WO/P”. Enter by authority, the total number of evaluation days for the permits denied without prejudice entered in A–3, 1(g). “Regional”. Enter by authority, the total number of evaluation days for the RGP verifications entered in A–3, 1(i). “NWP”. Enter by authority, the total number of evaluation days for the NWP verifications entered in A–3, 1(j). “Standard & Denial”. Enter by range of processing time (0–60, 61–120, over 120) the number of standard permits issued and denied [A –3: 1(d) + “LOP”. Enter by range of processing time, the number of LOPs issued [A –3, 1(e)]. “Regional”. Enter by range of processing time, the number of RGP verifications [A–3, 1(i)]. “Nationwide”. Enter by range of processing time, the number of NWP verifications [A–3, 1(j)]. Primary Cause of Delay. Enter the primary cause of delay for all standard permits with an evaluation time of greater than 120 days. In cases involving more than one reason for delay, districts should make a determination and enter only the reason that was the most significant, chronologically, in contributing to the delay. Applicant (“Appl”). Cases where the applicant has delayed evaluation by not providing timely replies to information requests, or has requested a delay.
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT 401 Certification (“401 Cert”). Cases where the 401 certification process has delayed a permit decision. Coastal Zone Management (“CZM”). Cases where the CZM certification process has delayed a permit decision. Historic Properties (“Hist Prop”). Cases where compliance with the National Historic Preservation Act (See Appendix C to 33 CFR 325) has delayed a permit decision. Section 404(q) Memorandum of Agreement (MOA) informal delays (“404Q/Inf”). Cases resolved through the informal process at the District or Division level. Section 404(q) formal delays (“404Q/Formal”). Cases requiring formal notification or referral (404(q) MOA Part IV). Internal Delays (“Internal”). Cases where the cause for delay is a result of something under the control of the Corps but not included in the other categories. A supplemental report explaining the reasons for these delays is required. This category will also include delays related to the Endangered Species Act, until the QPDS report form is modified. “Total”. QPDS generates the total number of permits decisions delayed. This number should equal the total number of standard & denied permits that took over 120 days to evaluate. Other Workload Items. “No Permit Required”. Enter the total number of evaluations that result in a determination, by written verification, that there is no Corps jurisdiction or that result in a finding that no permit is required. Telephone contacts are not to be included. “Applications Modified”. Enter the total number of standard permits issued [A–3, 1(d)] that were substantially modified in order to reduce environmental, or other public interest factor impacts. Modifications can include changes in design, orientation, size and/or location that were made as a result of objections, the 404(b)(1) process, the Section 404 Mitigation MOA, preapplication meetings, etc. This would not include those applications where only minor changes were made that involved minimal effort. Compensatory and/or offsetting mitigation, as required by the sequencing process, is not considered to be a “modification ”. Multiple modifications to the same application are entered only once. “Permit Modified”. Enter the total number of previously issued individual permits, which were modified, at the request of a permittee, during the quarter. Modifications, which occur during permit evaluation, are entered in paragraph A–3, 3(b). Multiple modifications of the same
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT permit, at different times, should be entered and reported separately [Reference 33 CFR 325.7(b)]. “Site Visits”. Enter the total number of all site visits made during the quarter in connection with permit evaluations or jurisdictional determinations (JDs). Multiple visits to a single site are entered separately. Each site visit must be documented by field notes, memorandums for the record, photographs, etc. This category does not include verified JDs/ wetland delineations, preapplication meetings held on site, enforcement or compliance inspections which are entered in paragraph A–3: 3(g), 3(f), and 3(k). “EIS Pending”. Enter the number of regulatory EIS's that are currently being developed with the district as the lead agency. Report each quarter until the final EIS is issued. “EIS Commented On”. Enter the number of EIS's, including cooperating agency EISs, where the Regulatory office provided written comments to other agencies or offices. This includes any EIS's, not just ones requiring regulatory action. “Jurisdiction Determinations (Office)”. Enter the number of JDs made in the office, without recourse to a site visit. This includes verifying wetland delineations, ordinary high water determinations made in association with permit applications and enforcement actions. Determinations must be followed by written documentation. Only enter an application/project in this category once. If both office and field determinations are performed on a project, only the field JD will be reported in paragraph A–3, 3(h). “Jurisdiction Determinations (Field)”. Enter the number of jurisdiction determinations made through a field visit. This includes verification of wetland delineations, ordinary high water determinations made in association with permit applications and enforcement actions. Determinations must be followed by written documentation. Only enter an application/project in this category once. If both office and field determinations are performed on a project, only the field JD will be reported. “Public Hearings”. Enter the number of public hearings, as described in 33 CFR 327 that were held during the quarter. “Public Information Meetings”. Enter the number of public meetings held to publicize the Regulatory Program. This includes participation in workshops, seminars, and meetings on specific permit actions held in lieu of a public hearing. This category does not include routine meetings with applicants, such as preapplication meetings. “Pre-application Consultations”. Enter the number of pre-application consultations. This process may or may not involve other agencies. Telephone inquiries from potential applicants or telephone calls with other
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT agencies are not included. It is possible to have more than one pre-application consultation on a proposed project or enforcement action. Staffing. This section will be used to obtain information on regulatory full time equivalents (FTEs). FTE levels are to be reported quarterly. The numbers reported should be consistent with FORCON numbers. “FTE Allocated”. Enter the number of FTEs allocated by the District Engineer, or his designee, for the fiscal year. This number will include district and field regulatory staff only, and not counsel, planning, or other district elements. This number may or may not change from quarter to quarter, depending on senior management (above regulatory element level) and FORCON adjustments. “FTE Expended”. Enter the number of FTEs actually expended by the regulatory office (district and field regulatory staff only). This number will change from quarter to quarter and will reflect actual staffing levels through the current quarter; it is cumulative. The annual (5th quarter) report will be the same as the fourth quarter. Enforcement/Compliance Workload. “Carryover”. QPDS generates by authority (Section 10, 404, 10/404, 10/103), the number of unresolved, unauthorized activities (UA) files at the beginning of the quarter. These figures must agree with the numbers entered for “Pending,” A–3, 5(j), on the previous quarterly report. If errors were made in the previous quarter, corrections will be made in the current quarter using the “Other Resolution” data element. “Reported”. Enter by authority, the total number of UAs reported or detected. After-the-Fact (“ATF”). Enter by authority, the number of UAs resolved by acceptance of an ATF permit. The UA file should not be closed before a decision is reached on the ATF application. Voluntary Restoration (“REST”). Enter by authority, the number of UA files closed after obtaining voluntary restoration, without litigation. Litigation (“LIT”). Enter by authority, the number of UA cases closed after (1) obtaining a Federal court decision (e.g. consent decree, pre-trial settlement, court order, etc.), and (2) the completion of all required work. Since additional enforcement work will likely be required, do not close the file at the time it is sent to the Department of Justice (DOJ) for consideration of legal action. Penalty (“PEN”). Enter by authority, the number of UA cases closed after obtaining a penalty pursuant to Section 309 of the Clean Water Act. Administrative Closure (“ADMIN”). Enter by authority, those UA cases closed after DOJ, U.S. Environmental Protection Agency (USEPA),
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT and/or Corps Office of Counsel (OC) declines to take action. It is not necessary for the regulatory element to inquire on each and every case. Cases may be closed where it is known that DOJ, USEPA, and/or OC have not pursued this type of case in the past [33 CFR 326.5(e)]. Other Resolution (“OTHER”). Enter by authority, the total number of activities that do not result in an enforcement case but require an initial investigation, such as no jurisdiction, work covered by an existing authorization, or discretionary closure by the Corps. This data element is also used to correct any errors made in the previous quarterly report. “Total”. QPDS generates by authority, the number of UA cases resolved at the end of the quarter. This figure is calculated using the data from A–3: 5(a) through 5(h). To check your input use the formula: i=(c+ d+e+f+g+h). “Pending”. QPDS generates by authority, the number of UA cases unresolved at the end of the quarter. This figure is calculated using the data from A–3: 5(a) through 5(i). To check your input use the formula: j= [(a+b)−i]. Pending files include those submitted to DOJ, USEPA, or OC for legal action that have not been closed. “UA Site Visits”. Enter the total number of on-site visits made in conjunction with a reported or on-going enforcement action. This includes all site visits made in connection with enforcement actions. Multiple visits to a single site are entered separately. Documentation of each visit must be made in writing. This data element does not include verified JDs/wetland delineations, which should be entered in paragraph A –3, 3(g), or 3(h). “UAs Detected by COE”. Enter the number of UAs detected by the Corps. This number will constitute part of the total in data element A–3, 5(b). The number is not limited to those detected by Corps regulatory personnel, but includes all actions detected by any Corps personnel. “Carryover”. QPDS generates the total number of noncompliance (NC) cases unresolved by using data from the previous quarter. If errors were made in the previous quarter corrections will be made using the “Minor Resolution ” data element of the current quarter. Compliance Inspections (“Comp Insp”). Enter the total number of compliance inspections conducted during the quarter. This includes only the inspection of permitted activities. Multiple visits to the same site are entered separately. Documentation of each visit must be made in writing. Noncompliance (“Noncom”). Enter the total number of inspections that resulted in a determination of NC with the terms and/or conditions of a permit. “MOD”. Enter the total number of NC cases resolved through modification of the permit.
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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT Voluntary Restoration (“Vol Rest”). Enter the total number of NC cases resolved by voluntary restoration, without litigation. Litigation (“LIT”). Enter the total number NC cases resolved by legal action (e.g. court order, consent decree, fine, etc.) at the DOJ level. “Penalty”. Enter the total number of NC cases resolved through an administrative civil penalty. Minor Resolution (“Minor”). Enter the total number of NC cases closed based on a determination that neither the OC or DOJ will not pursue the case and the minor nature of the activity does not justify further administrative action. Cases may be closed where it is known that OC or DOJ has in the past, not taken this type of case. It is not necessary for the regulatory element to inquire on each and every case. This data element is also used to correct any errors made in the previous quarterly report and as a “catch all” for NC cases that are not resolved by one of the methods in paragraphs A–3: 5(p) through 5(s). “Pending”. QPDS generates the number of NC cases unresolved at the end of the quarter. This figure is calculated using the data with the formula: u=[(m+o)−(p+q+r+s+t)]. Pending files include those submitted to OC and/or DOJ for legal action, until the case is closed. Attached for reference are representations of the data entry screens as they appear when using the QPDS program.
Representative terms from entire chapter: