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US Army Corps of EngineersBUILDING STRONG®
Portland District Regulatory Branch Permit Streamlining for Restoration
Projects
Shawn Zinszer
December 7, 2011
Carol Franson
December 6, 2011Regulatory BranchPortland District
BUILDING STRONG®PORTLAND DISTRICT 2
BUILDING STRONG®PORTLAND DISTRICT 3
Regulatory Mission
To protect the nation's aquatic resources, while allowing reasonable development through
fair, flexible and balanced permit decisions.
U.S. Army Corps of Engineers photo
BUILDING STRONG®PORTLAND DISTRICT 4
Primary Regulatory Authorities
Section 10 – Rivers & Harbors Act (1899)► Maintain navigability for commerce
Section 404 – Clean Water Act (1972)► Passed by Congress “to restore and maintain the
chemical, physical and biological integrity of the Nation’s waters”
BUILDING STRONG®PORTLAND DISTRICT 5
Jurisdiction
BUILDING STRONG®PORTLAND DISTRICT 6
Ordinary High WaterThe term ordinary high water mark means that line on the
shore established by the fluctuations of water and indicated by physical characteristics such as:
• clear, natural line impressed on the bank, • shelving, • changes in the character of soil, • destruction of terrestrial vegetation,• the presence of litter and debris, • or other appropriate means that consider the
characteristics of the surrounding areas.
BUILDING STRONG®PORTLAND DISTRICT 7
Jurisdictional Issues
EphemeralIntermittent
Erosional Features
Sheetflow or snowmeltPerennial
Pumps? Pipes?
Sheetflow over upland?
Storm Drain Systems?
Subsurface Flow (discrete)?
How Far Upstream
Included as “Tributaries”/ Waters of U.S.
Ditches?
Groundwater (non-discrete)?
Hydrology: Overflows during rain events?
Aquifer
Adjacent Wetlands: Proximity or Hydrology
Proximity: How far?How many berms?
Hydrology: Direct & immediate subsurface infiltration (not groundwater)? No connection to Aquifer
Migratory Bird Rule
BUILDING STRONG®PORTLAND DISTRICT 8
Draft Clean Water Act Guidance
Based on the agencies interpretations of the statute, implementing regulations and relevant case law, the following waters are protected by the Clean Water Act:
Traditional navigable waters Interstate waters Wetlands adjacent to either traditional navigable waters
or interstate waters Non-navigable tributaries to traditional navigable waters
that are relatively permanent, meaning they contain water at least seasonally
Wetlands that directly abut relatively permanent waters
BUILDING STRONG®PORTLAND DISTRICT 9
Generally Not Waters of the U.S.(paraphrased from preamble to 33 CFR 328.3)
- Drainage and irrigation ditches excavated on dry land- Artificially irrigated areas which would revert to upland if the irrigation ceased- Artificial ponds created in dry land and used exclusively for stock watering, irrigation, settling basins, or rice growing- Artificial reflecting or swimming pools created in dry land- Waterfilled depressions created in dry land for mineral extraction, unless waterbody meets definition of Water of U.S. after being abandoned.Subject to case-by-case determinations by Corps and EPA, informed by case law.
BUILDING STRONG®PORTLAND DISTRICT 10
Avoid / Minimize
Project must avoid or minimize aquatic impacts
Application must include alternatives considered
Water dependent?
U.S. Army Corps of Engineers photo
BUILDING STRONG®PORTLAND DISTRICT 11
Types of Permits
General Permits► For minimal adverse effects on aquatic environment► Activity specific ► 45 day review**
Standard Permits► Activities with more than minimal impact ► 120 day review**
** Review times may be longer
BUILDING STRONG®PORTLAND DISTRICT 12
Pre-Application Meeting *
Submit Permit Application(or additional info)
Corps Review
Interagency Review
Sec. 106 Historic Preservation Act- SHPO- Tribes
Endangered Species Act- NMFS- USFWS
Sec. 401 Water Quality- DEQ- EPA
Coastal Zone Management- DLCD
Done with Corps Permit Process
Public Notice15-30 day Review
(if applicable)
Corps Determination
Issue Permit Deny Permit
Application Complete?No
Yes
No Permit RequiredPermit Required
Regulatory Process Diagram
Sediment Evaluation- PRG- EPA
Other(applicable)- Laws- Agencies
BUILDING STRONG®PORTLAND DISTRICT 13
Application Review Process
Applicant SubmitsPermit Application
Application Received
Acknowledged and
Processed
Over ½ acre, Public Notice = Individual
Permit < ½ acre, Email stakeholders=
Nationwide Permit
BUILDING STRONG®PORTLAND DISTRICT 14
Application Review Process
Corps SEF
DEQ/OSMB/CZM/DSL
Federal Agencies
Individuals
Endangered Species Act
Section 106 NHPARecognized NA Tribes
Application Reviewed
BUILDING STRONG®PORTLAND DISTRICT 15
Application Review Process
Application Denied or
Discretionary Authority taken
Public Hearingmay be held
Application Approved
Public Interest Factors• Conservation• Economics• Cultural Resources• Environmental Concerns• Public Welfare• Water Supply/Quality• Navigation• Mitigation
Permit Issued
BUILDING STRONG®PORTLAND DISTRICT 16
Nationwide Permit 27 Aquatic Habitat Restoration, Establishment and
Enhancement Activities► Restoration, enhancement and establishment of tidal
and non-tidal wetlands and riparian areas ► Restoration and enhancement of non-tidal streams
and other nontidal open waters► Proposed 2012 - Rehabilitation or enhancement of
tidal streams, tidal wetlands, and tidal open waters► All activities must demonstrate a net increase in
aquatic resource functions and services
BUILDING STRONG®PORTLAND DISTRICT 17
Regional General Permits
RGP 3 – Stream habitat restoration►Large wood►Boulders►Spawning gravel
Photo courtesy of National Oceanographic and Atmospheric Association
BUILDING STRONG®PORTLAND DISTRICT 18
Regional General Permits
Photo courtesy of Federal Highway Administration
RGP 4 – U.S. Forest Service, Bureau of Land Management aquatic restoration projects
U.S. Army Corps of Engineers photo
BUILDING STRONG®PORTLAND DISTRICT 19
Value of the Pre-App
Review and understand:► 404(b)(1) Guidelines► Endangered Species Act – early project design
considerations to reduce impacts to listed species► Section106 - National Historic Preservation Act► Sediment Evaluation Framework► Single & Complete Project
Project Managers are assigned by countywww.nwp.usace.army.mil/regulatory/home.asp
BUILDING STRONG®PORTLAND DISTRICT 20
Programmatic Biological Opinions
Provides incidental take for specific activities Shortens ESA consultation timelines
► Determine if a Programmatic Biological Opinion is an option
► Design your project to meet requirements ► May submit the Programmatic Notification form with
permit application
BUILDING STRONG®PORTLAND DISTRICT 21
SLOPES IV “Restoration”
Restoration Projects► Large wood and boulder placement► Fish passage restoration► Piling removal► Off- and side-channel habitat restoration► Set-back of existing berms, dikes and levees► Spawning gravel restoration► Streambank restoration► Water control structure removal
BUILDING STRONG®PORTLAND DISTRICT 22
SLOPES IV “Transportation”
Maintenance or Improvement of Road, Culvert, Bridge and Utility Line ► Major Hazard Response► Streambank and Channel Stabilization► Maintenance, Rehabilitation and Replacement► Utility Line Stream Crossings
BUILDING STRONG®PORTLAND DISTRICT 23
Corps Section 106 Process
National Historic Preservation Act (NHPA)
Executive Order 13175 – Consultation and Coordination with Indian Tribal Governments
Preamble – Department of Defense American Indian and Alaska Native Policy
36 CFR Part 800 – Protection of Historic Properties
33 CFR Part 325 – Appendix C
Appropriate State Statutes
BUILDING STRONG®PORTLAND DISTRICT 24
SHPO/Tribal Coordination
Effects to cultural resources Historic preservation
► Sec. 106 National Historic Preservation Act ► Federal trust responsibilities with Native Americans
State Historic Preservation Office www.oregon.gov/OPRD/HCD/ARCH/index.shtml
BUILDING STRONG®PORTLAND DISTRICT 25
Investigate Cultural Resources
Previous surveys conducted? Detailed plan sheets, USGS location map:
► Area/depth of impact► Staging and mitigation sites, material sources,
stockpiles State Historic Preservation Office database
BUILDING STRONG®PORTLAND DISTRICT 26
Wetland Delineation
Wetland delineation requires use of a three parameter test.
• 1987 Manual
• Regional Supplements
• Arid West Region (2007)
• Western Mountains, Valleys, and Coast Region (2008)
BUILDING STRONG®PORTLAND DISTRICT 27
Regional Supplements
Note: Boundaries as shown are approximate
BUILDING STRONG®PORTLAND DISTRICT 28
Mitigation
First – Avoidance Second – Minimization Third – Compensatory Mitigation
Compensatory mitigation is:► “restoration, establishment, enhancement and/or in certain
circumstances the preservation of aquatic resources for the purpose of offsetting unavoidable adverse impacts”
BUILDING STRONG®PORTLAND DISTRICT 29
Mitigation
Mitigation bank credits In-Lieu Fee program
credits Permittee-responsible
mitigation ► watershed approach► On-site, in-kind or
off-site, out-of-kind Photo courtesy of Oregon Department of Transportation
BUILDING STRONG®PORTLAND DISTRICT 30
Mitigation Rule
Goal – level playing field (permittee, Mitigation Banks, ILFs) to the maximum extent practicable
Performance Standards – ecologically-driven, equivalent/effective standards, best available science
Compliance – increase compliance visits, establish enforceable success criteria, prescribed monitoring reports
Mitigation Sequence Preserved - avoid, minimize, compensate for unavoidable impacts and lost aquatic functions
Does not change when mitigation is required Does change where and how
BUILDING STRONG®PORTLAND DISTRICT 31
Requirements forPermittee-Responsible Mitigation
Site selection based on a watershed approach, or
On-site / in-kind mitigation, or
Off-site / out-of-kind
Provide draft mitigation plan
Level of information must be commensurate with the scope and scale of the impacts
BUILDING STRONG®PORTLAND DISTRICT 32
Mitigation questions?
Contact:Ms. Jaimee DavisMitigation Program [email protected](503) 808-4390
BUILDING STRONG®PORTLAND DISTRICT 33
Nationwide Permits
Current permits expire March 18, 2012► If under contract to do work, have 1 additional year
(i.e. 3/18/13) 2012 Nationwide Permits
► Goal – seamless transition
BUILDING STRONG®PORTLAND DISTRICT 34
Permit Compliance During Construction
► In-water work window► Erosion control► Scope of work► Restoration of temporary impact areas► Remove construction debris
Post-construction compliance reporting► Submit as-builts► Complete mitigation, ensure maintenance/monitoring
Transfer Permit
BUILDING STRONG®PORTLAND DISTRICT 35
Joint Permit Application Formhttps://www.nwp.usace.army.mil/regulatory/home.asp
BUILDING STRONG®PORTLAND DISTRICT 36
Complete Application Project Description
Location Latitude/Longitude Volumes and Acreages of all Fill/Removal Activities in
Waterway (Linear measurement) Permanent/Temporary Impacts How the project will be accomplished (i.e. describe
construction methods, equipment, site access) Describe changes the project may make to the hydraulic and
hydrologic characteristics
BUILDING STRONG®PORTLAND DISTRICT 37
Complete Application Location Map (USGS Quad Map) Site Plan included -
Entire project site and activity areas Existing and proposed contours Location of OHWM Map scale or dimensions and north arrow Location of Staging Areas Location of Construction Access Drawings (legible) – Plan View, Cross Section
How are you going to construct the site?
BUILDING STRONG®PORTLAND DISTRICT 38
Complete Application
Description of Resources in Project Area
Channel and bank conditions Type and condition of riparian wetlands Hydrological conditions (e.g. stream flow, period of
use, significance of site) Fish and wildlife (type, abundance, period of use,
significance of site) Adjacent Wetlands?
BUILDING STRONG®PORTLAND DISTRICT 39
Complete Application
Description of Resources in Project Area
Channel and bank conditions Type and condition of riparian wetlands Hydrological conditions (e.g. stream flow, period of
use, significance of site) Fish and wildlife (type, abundance, period of use,
significance of site) Adjacent Wetlands?
BUILDING STRONG®PORTLAND DISTRICT 40
Questions/Comments
Q&A opportunities Consider a pre-application meeting for large
projects► Project Managers are assigned by county
www.nwp.usace.army.mil/regulatory/home.asp Customer surveyhttps://www.nwp.usace.army.mil/regulatory/home.
asp