Compensating for Wetland Losses Under the Clean Water Act (2001) / Chapter Skim
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Appendix G: Army Corps of Engineers Standard Operating Procedures for the Regulatory Program
Appendix G: Army Corps of Engineers Standard Operating Procedures for the Regulatory Program
Pages 239-284
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From page 239... ...
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.
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From page 240... ...
~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)
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From page 241... ...
Generally, the action area includes all waters of the United States, as well as any additional area of nonwaters 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.
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From page 242... ...
- 33 CFR Parts 323, 32$ 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.
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From page 243... ...
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.
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From page 244... ...
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)
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From page 245... ...
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)
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From page 246... ...
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.
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From page 247... ...
- Basic project purpose usedfor water dependency - Overall project purpose usedfor alternatives analysis Corps detennines Defining the project purpose is critical to the evaluation of any project and in evaluating project compliance with the Section 404(b)
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From page 248... ...
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.
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From page 249... ...
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.
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From page 250... ...
Corps runs the permit process Corps determines public hearing need Do not hold public hearings just because project controversial Use public meetings and workshops The Corps is the Decision-maker. Always remember that the Corps is in charge of the Regulatory Program and is responsible and accountable for all aspects of the decision as well as the quality and efficiency of its
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From page 251... ...
The Corps Regulatory Program does not rely on reaching consensus, but relies on gathering sufficient information for the Corps to make its decision. The Corps determines the project purpose, the extent of the alternatives analysis, determination of which alternatives are practicable, which are less environmentally damaging, the amount and type of mitigation and all other aspects of the decisionmaking process (RGL 92-1~.
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From page 252... ...
Districts will receive numerous requests for public hearings, especially in connection with controversial projects with high public visibility. However, unless a public hearing would serve the aforementioned purpose, district commanders will deny the requests for public hearings.
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From page 253... ...
Corps determines appropriate level of Guidelines analysis Focus on environmental impacts, ensure rigor of alternatives analysis is commensurate with impacts to aquatic environment The amount of information needed to make such a determination and the level of scrutiny required by the Section 404(b)
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From page 254... ...
Districts should strive to communicate the Guidelines alternatives analysis requirements to the lead agency to enable that agency to conduct an analysis of alternatives to satisfy Guidelines requirements and avoid the need for the district to have to conduct a subsequent analysis. For example, State DOT prepare NEPA documents to analyze alternative corridor alignments for new highways.
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From page 255... ...
It is important to remember that the Corps can perform an alternatives analysis, and must require compensatory mitigation, or other conditions to address environmental impacts for all permits, including Section 10 only permits. For each application, a permit will be granted unless the district engineer determines that it would be contrary to the public interest to do so (33 CFR 320.4a.
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From page 256... ...
For projects that require Section 401 authorization and/or CZM consistency concurrence, all special conditions of the 401 and CZM certification must be incorporated into the DA permit. The incorporation of Section 401 and CZM conditions is a necessary part of the Corps permit program.
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From page 257... ...
. Corps determines scope of analysis Corps determines no effectlmay effect and no ieonardulieonardu Corps decides whether to include RPAs - Applicant must comply with take statement J I JO J / JO For the purpose of evaluating permit applications, the scope of analysis under the ESA is limited to boundaries of the permit area, plus any additional area outside Corps jurisdiction where there is sufficient Federal control and responsibility.
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From page 258... ...
RPAs will be required by the Corps only to the extent that they are necessary for the Corps to make its determination that the authorized activity is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. If the Corps decides to issue a permit without including the RPAs in the BO, the permit decision document must explain why the species will not be jeopardized.
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From page 259... ...
Nevertheless, all comments received need to be addressed in the decision document including the irrelevant ones and those that exceed the scope of the project under consideration. The farther an issue is removed from the area of jurisdiction or from the identified public interest factors (water quality, aquatic habitat, endangered species, navigable waters, historic resources, etc.)
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From page 260... ...
For example, under its mandate a State's natural resource agency may be interested in preserving upland habitat for game species or songbirds within a subdivision development. However, those upland concerns may not outweigh impacts to the aquatic environment that are germane to the Corps conclusions regarding the public interest and the Guidelines.
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From page 261... ...
Where a limited scope of analysis is involved, the Corps should describe briefly the basis of the scope of analysis in the decision document. Regarding the financing of EIS preparation, refer to the HQUSACE memorandum of 17 December 1997, from the Director of Civil Works to Major Subordinate Commanders and District Commanders, subject: Guidance on EIS Preparation, Corps Regulatory Program.
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From page 262... ...
The Corps is responsible for review and acceptance of required information, data, or drafts and must be especially vigilant in identifying and eliminating any bias that could exist in a draft NEPA document prepared by a contractor selected and supervised by an applicant. The district engineer (Corps Regulatory Branch)
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From page 263... ...
This should be followed with statements and summary information which conclude whether the project represents the least environmentally damaging, practicable alternative, whether the project complies with all applicable State and Federal criteria, whether the project will result in significant degradation of the aquatic environment, and whether appropriate and practicable mitigation has been required to offset the permitted loss of aquatic functions. A summary statement that the project complies or does not comply with the Guidelines should also be included.
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From page 264... ...
Section 401 and CZM conditions may not be appealed through the Corps administrative appeals process. Permit conditions should be developed so they are easily enforced, and relate to issues raised in the public interest review process (e.g., the aquatic environment, the ESA, navigation, cultural resources)
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From page 265... ...
Corps determines mitigation Replace lostfunctions Require pennittee reporting Compliance inspections essential Provide clear, enforceable permit conditions Use best professional judgement Mitigation is a critical part of the Corps Regulatory Program. The following is a focus on the mitigation policy and the source of that policy, under which the Corps should be operating the Regulatory Program, as well as some basic concepts that districts should consider in formulating compensatory mitigation.
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From page 266... ...
: The mitigation banking guidance provides detailed guidance on the formulation and management of mitigation banks. This guidance establishes criteria regarding both on site versus off site and in kind versus out of kind mitigation and concludes that the Corps should require the mitigation that is best for the aquatic environment (no a priori preferences)
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From page 267... ...
stipulate that the Corps will require compensatory mitigation to the extent necessary to ensure no more than minimal adverse environmental effects, both individually and cumulatively; (2) contain Condition 13, which has explicit requirements for mitigation to the extent that adverse effects on the aquatic environment are minimal; (3)
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From page 268... ...
compensatory mitigation to offset project impacts. To minimize field visits and the associated expenditure of resources, SPs and GPs with compensatory mitigation requirements should require applicants to provide periodic monitoring reports and certify that the mitigation is in accordance with permit conditions.
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From page 269... ...
Notification in such a case would be appropriately restricted to the State Historic Preservation Officer or to parties who commented on historic resource issues during the PN comment period. A brief supplemental decision document should be prepared for permit modifications since these are final permit decisions.
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From page 270... ...
Districts will prioritize inspections and subsequent actions based on compensatory mitigation, local hot spots, endangered/threatened species, cultural resources, navigation concerns, or other controversial issues which the district considers important (e.g., Corps enforcement of Section 401 or CZM conditions is discretionary)
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From page 271... ...
For example, for a single and complete project involving both a NWP 13 for several hundred feet of bank protection with a NWP 14 minor road crossing, report both the NWP 13 and 14. When using the same NWP to authorize portions of linear projects, report all NWPs and not just one corresponding to one overall project.
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From page 272... ...
However, all districts should perform the high priority work within each segment before expending resources on the lower priority work. In addition, the degree to which districts perform lower priority work, along with the associated resource implications, will be considered when responding to districts' requests for additional resources.
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From page 273... ...
5. Define overall project purpose and ensure alternatives analysis is commensurate with project impacts.
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From page 274... ...
3. Encourage use of Public Meetings in lieu of Public Hearings.
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From page 275... ...
MITIGATION ABOVE THE LINE 1. Mitigation should be reasonable, practicable, commensurate with impacts, and what's best for the aquatic environment.
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From page 276... ...
~. All permit applications will be date stamped immediately upon receipt and logged into the district database [RAMS field = Date Received (table=dates, column=rcvd)
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From page 277... ...
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.
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From page 278... ...
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)
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From page 279... ...
Enter by authority, the total number of evaluation days for the standard permits entered in A-3, lids.
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From page 280... ...
Cases where compliance with the National Historic Preservation Act (See Appendix C to 33 CFR 325) has delayed a permit decision.
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From page 281... ...
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.
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From page 282... ...
, 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.
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From page 283... ...
This data element does not include verified lDs/wetland delineations, which should be entered in paragraph A-3, 3(g)
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From page 284... ...
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)
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