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The Corps Regulatory Program: Section 404 Permits and Section 10 Permits : 

The Corps Regulatory Program: Section 404 Permits and Section 10 Permits

What Does the Corps Regulatory Program Do?: 

What Does the Corps Regulatory Program Do? Three primary statutory areas of responsibility: The Rivers and Harbors Act of 1899 The Clean Water Act Section 404 The Marine Protection, Research, and Sanctuaries Act (also referred to as the Ocean Dumping Act) Corps must apply guidelines and substantive requirements of the Clean Water Act and other environmental laws to Corps activities

What Are the Requirements of the Clean Water Act Section 404 Program?: 

What Are the Requirements of the Clean Water Act Section 404 Program? Section 404(a) “The Secretary [of the Army] may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.”

Is there “dredged” or “fill” material? : 

Is there “dredged” or “fill” material?

Is there a “discharge”? : 

Is there a “discharge”?

Are there “navigable” waters? : 

Are there “navigable” waters?

Regulatory Definition of “Waters”: 

Regulatory Definition of “Waters” All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide All interstate waters including interstate wetlands All other waters and wetlands, the use, degradation or destruction of which could affect interstate or foreign commerce All impoundments of waters Tributaries of above The territorial seas Wetlands adjacent to waters (other than waters that are themselves wetlands) above Waste treatment systems

Isolated Waters?: 

Isolated Waters? Migratory Bird Rule no longer valid, under U.S. Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers As of February 2000, guidance from Corps/EPA on regulating isolated wetlands in progress

Can States Assume Section 404 Regulation?: 

Can States Assume Section 404 Regulation? States may assume regulation of Section 404 activities State assumption is effectively limited to inland waters. EPA determines state program sufficiency and has an ongoing oversight role Only Michigan and New Jersey have assumed authority More than half of the states have some kind of state-level wetlands laws

How Do General Permits Under Section 404(e) Work? : 

How Do General Permits Under Section 404(e) Work? CWA Section 404(e) authorizes the Corps to issue “general permits,” as opposed to individual permits for activities similar in nature, and activities that will cause only minimal adverse environmental effects when considered separately or cumulatively There are three types of general permits: State Program, Regional, and Nationwide (NWP)

State Program: 

State Program State Program permits are general permits that allow Corps oversight of applications for state permits equivalent to Section 404 permits. This situation is distinct from where a state takes over permitting authority from the Corps pursuant to EPA approval

Nationwide Permits: 

Nationwide Permits Division Engineers may set local conditions States may in effect veto or condition NWPs by denying or conditioning a Section 401 certification, or CZMA consistency NWP categories include fish and wildlife harvesting devices (duck blinds, lobster pots, eel traps), mooring buoys, bank stabilization activities in certain conditions, and discharges incidental to building Coast Guard-permitted bridges

Replacement Permits: 

Replacement Permits History: On March 9, 2000, Corps replaced Nationwide Permit (NWP) 26 with five new NWPs, and six modified existing NWPs. New: Residential, Commercial, and Institutional Developments (NWP 39Agricultural Activities (NWP 40), Reshaping Existing Drainage Ditches (NWP 41), Recreational Facilities (NWP 42), Stormwater Management Facilities (NWP 43), Mining Activities (NWP 44) Modified NWPs: Maintenance, Outfall Structures and Maintenance, Utility Activities, Linear Transportation Crossings, Stream and Wetland Restoration Activities.

Why Are Wetlands Important?: 

Why Are Wetlands Important?

Functions and Values: 

Functions and Values Nutrients for multiple forms of wildlife and plants Important habitat for many species Natural products for human use Store water and slowly release it Help control runoff in urban areas Buffer shorelines against erosion Help improve water quality Provide recreation opportunities

Regulatory Definition of Wetlands: 

Regulatory Definition of Wetlands “[T]hose 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. Wetlands generally include swamps, marshes, bogs, and similar areas.” This means that there are three tests: (1) hydrology (2) vegetation (3) soil Wetlands are delineated using the 1987 Corps Wetlands Delineation Manual

Limits Under Law: 

Limits Under Law Under Section 301 of the Clean Water Act, unpermitted discharges into jurisdictional wetlands are unlawful.

Statutory Exceptions: 

Statutory Exceptions normal farming, silviculture, and ranching activities maintenance construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches temporary sedimentation basins on a construction site for the purpose of construction or maintenance or farm roads or forest roads, or temporary roads for moving mining equipment resulting from any activity with respect to which a state has an approved program, under section 208(b)(4)

What Do the Section 404(b)(1) Guidelines Require? : 

What Do the Section 404(b)(1) Guidelines Require? Set the substantive standards for permit decisions (supplemented by a public interest review) Designed to protect aquatic ecosystems and wetlands Require a rigorous examination of alternatives Presume availability of alternatives for non-water dependent projects Require permit denial where significant degradation of aquatic resource will result Impose stringent mitigation requirements

Overview of Substantive 404(b)(1) Requirements: 

Overview of Substantive 404(b)(1) Requirements The issuance of a Section 404 permit generally is prohibited if there are practicable alternatives to the discharge that will accommodate the basic project purpose and that will not result in more significant adverse effects. The basic premise of the Guidelines is to accomplish this goal by allowing permits under a three-part test, for a.      the least environmentally damaging b.      practicable alternative c. that will accomplish the basic project purpose

The Practicable Alternatives Test: 

The Practicable Alternatives Test “[N]o discharge may be permitted where there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative doesn’t have other significant adverse environmental consequences.” As part of the practicable alternatives analysis, the Corps looks at both on-site and off-site alternatives. A practicable alternative is one that: fulfills the basic project purpose; and is available and capable of being done, taking cost, existing technology, and logistics into account.

Basic Project Purpose: 

Basic Project Purpose Louisiana Wildlife Federation, Inc. v. York Plantation Landing Resort, Inc. 404(q) elevation decision Hartz Mountain Development Corporation 404(q) elevation decision


Availability A practicable alternative must be available and capable of being done, taking into account cost, existing technology, and logistics To Whom: Applicant doesn’t have to own the site, but it does need to be realistically “available” to the applicant Where: look at alternatives within an area that is appropriate to the economic market that trying to serve When: “market entry” approach creates an incentive for developers to avoid choosing wetlands at the time that it matters most


Cost Regulatory guidance letter (93-2) notes that the preamble underlying the Guidelines states that “[i]f an alleged alternative is unreasonably expensive to the applicant, the alternative is not ‘practicable’” “The determination of what constitutes an unreasonable expense should generally consider whether the projected cost is substantially greater than the costs normally associated with the particular type of project.”

Other Significant Adverse Environmental Consequences:: 

Other Significant Adverse Environmental Consequences: An otherwise practicable alternative may be rejected if it has significant adverse environmental consequences (e.g., impacts on endangered species, the site is an old landfill that catches fire periodically, etc.)

More on Practicable Alternatives: 

More on Practicable Alternatives Two Key (Rebuttable) Presumptions for Practicable Alternatives The existence of practicable alternatives is presumed for projects that are not water dependent Alternatives that do not involve the filling of wetlands are presumed to be less environmentally damaging There is some flexibility with small projects

Bar on Significant Degradation: 

Bar on Significant Degradation  Guidelines preclude discharges that would: Cause or contribute to a violation of water quality standards Violate toxic effluent standards under the Clean Water Act Jeopardize the continued existence of any threatened or endangered species Violate any requirement imposed under Title III of the Marine Protection Research and Sanctuaries Act Otherwise cause or contribute to significant degradation of the waters of the United States

Other Consistency Requirements: 

Other Consistency Requirements CZMA Certification Clean Air Act Conformity Distinguish between “direct” and “indirect” emissions Definition of “federal action”

What Mitigation Requirements Exist?: 

What Mitigation Requirements Exist? The Guidelines require “appropriate and practicable” mitigation as a precondition to discharge. Sequencing: The Corps first determines potential impacts have been avoided to the maximum extent practicable; remaining unavoidable impacts then mitigated to the extent appropriate and practicable by requiring steps to minimize impacts and, finally, compensate for aquatic resource values. Compensatory Mitigation: In those situations where compensatory mitigation is appropriate, the MOA establishes the following guidelines: The goal is one-to-one replacement of functional values Prefer in-kind, on-site compensation Restoration and enhancement preferred over creation

What Are Mitigation Banks?: 

What Are Mitigation Banks? Federal Guidance for the Establishment, Use, and Operation of Mitigation Banks Definition Advantages Mitigation Banking Instruments Bank Sponsor Applicability Long-Term Management and Protection: Monitoring and Remedial Action Financial Assurance In-Lieu Fee Mitigation

What is Required to Satisfy the Public Interest Review?: 

What is Required to Satisfy the Public Interest Review? All factors relevant to the proposal must be considered (along with the cumulative effects thereof), including 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. Loose presumption that projects satisfying the 404(b)(1) guidelines are in the public interest

What Is Involved in the Permit Issuance Process?: 

What Is Involved in the Permit Issuance Process? All Corps permits governed by a single set of regulations Determine within 15 days whether the application is complete. Public notice and comment Public hearing Decision deadlines Administrative appeals process

NEPA and Section 404: 

NEPA and Section 404 Usually an EA is all that is required Sometimes not even an EA is required Corps can take mitigation into account when determining need for EIS Usually EIS only required where project is “federalized”

“Federalization” : 

“Federalization” Corps is generally to consider those portions of the project over which it has sufficient control and responsibility to warrant federal review Corps will consider non-federal aspects where the federal involvement is deemed sufficient to turn an essentially private action into a federal action

The Role of Comment Agencies: 

The Role of Comment Agencies Agencies must consult with other agencies whose areas of expertise are superior to their own, and federal law requires EPA to always review. Agencies must also seek comments from state and local agencies and Indian Tribes. Lead agencies must respond to comments in one of five specific ways: Modify alternatives Develop new ones Improve the analysis Make factual corrections or Explain why no response is necessary

What is EPA’s Oversight Role?: 

What is EPA’s Oversight Role? Comment Agency Not General Jurisdictional Determinations 404(q) Elevations 404(c) Veto Authority EPA may veto a permit issued by the Corps if EPA, after notice and comment, determines that the discharge would have “an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreation areas.” 33 U.S.C. § 1344(c). EPA construes this provision as allowing it to veto permits not issued in accordance with the 404(b)(1) Guidelines.

How is Section 404 Enforced?: 

How is Section 404 Enforced? General Policy: “discourag[e] activities that have not been properly authorized,” to “requir[e] corrective measures, where appropriate to ensure [the waters of the United States] are not misused and to maintain the integrity of the program.” EPA and Corps Share Authority, and under the 1989 Memorandum of Agreement EPA takes the enforcement lead for unpermitted discharges. The Corps takes the lead for permit violations. Private citizens also have an important role in enforcement.

Administrative Appeal Requirements: 

Administrative Appeal Requirements Permit denials/conditions and “jurisdictional determinations” can be challenged by landowners Similar process for denied and declined permits Slightly different process for appeals of Jurisdictional Determinations

Administrative Level Enforcement: 

Administrative Level Enforcement Corps Notifications of Violation (NOV), Initial Corrective Measure Orders After-the-Fact Permits, Administrative Penalty Actions Under Section 309(g) EPA Administrative Orders Administrative Penalty Actions Under Section 309(g)

Judicial Enforcement: 

Judicial Enforcement Through lawsuits filed by Department of Justice. Factors Considered: Quality of the Waters Affected Impact of the Discharge Culpability of Violator Deterrence Value Benefit from Violation Equitable Considerations Test for Requiring Restoration confer maximum environmental benefits; be achievable as a practical matter; and bear an equitable relationship to the degree and kind of wrong which it is intended to remedy.

Criminal Enforcement: 

Criminal Enforcement Knowing Endangerments Knowing Violations Negligent Violations Material Misrepresentations

Citizen’s Suits: 

Citizen’s Suits

Corps Regulatory Branch 

Corps Regulatory Branch

EPA Office of Water, Wetlands 

EPA Office of Water, Wetlands

USFWS National Wetlands Inventory 

USFWS National Wetlands Inventory

Corps Regulatory: 

Corps Regulatory Topic Summary Points: 1. Permit required for discharge of dredged or fill material into the waters of the United States. 2. EPA has role 3. Fill material changes bottom level of a waterway or replaces aquatic area with dry land; “discharge” means to place material, but excludes including de minimis movement of earth incidental to clearing, ditching, or channelling. 4. “Waters of the United States” means any waters that Congress can constitutionally reach. The Migratory Bird Rule no longer valid.

Corps Regulatory: 

Corps Regulatory Topic Summary Points, Cont. 5. Corps' 1987 Delineation Manual requires a wetland to be characterized by three conditions: wetlands hydrology, hydric soil, and hydrophytic vegetation. 6. Statutory exceptions exist 7. Section 404 permits can be general permit (state, regional or nationwide) or individual 8. NWPs are general permits that cover activities classes 9. 404(b)(1) Guidelines allow permits only for the least environmentally damaging practicable alternative that will accomplish the basic project purpose. A practicable alternative is one that: (1) fulfills the basic project purpose; and (2) is available and capable of being done, taking cost, existing technology, and logistics into account.

Corps Regulatory: 

Corps Regulatory Topic Summary Points, cont. 10. Even if no alternative is available, the Guidelines require permit denial where the project will result in significant degradation of the aquatic resource. 11. Stringent mitigation requirements attempt to replicate the functions and values 12. Section 404(c) gives EPA the authority to “veto” a permit 13. The Corps and EPA have concurrent enforcement authority over wetlands violations.

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