Section 408 Approval Process (New 408 Regional General Permit) Richard J. Muraski Jr. Colonel, Corps of Engineers Commander Fort Worth District

Overview 408 Approval Authority Flood Risk Paradigm Why Streamline? Streamlining Initiatives 408 RGP – What is it? Key Takeaways POCs / Resources Questions & Answers

How are they Applied? Stakeholder Projects Federal Project Waters of the US Federal Project RGP PEA Visualize the rectangle as representing the entire portfolio of stakeholder projects Some projects will impact jurisdictional WUS and are subject to Section 404 and/or Section 10 permitting requirements Some projects will impact, or have the potential to impact, existing Federal Flood Damage Reduction Projects Some projects will impact both For projects that impact both an existing Federal project and jurisdictional WUS the Fort Worth District has been proactive and we have implemented procedures such as Regional General Permit 12 and a Programmatic Environmental Assessment, which MAY assist in streamlining this process. 404 / 10 408

408 Approval Authority 33 USC 408 (Rivers & Harbors Appropriations Act of 1899) Title 33 – Navigation and Navigable Waters Section 408 – Taking possession of, use of, or injury to harbor or river improvements Unlawful for any person or persons to build upon, alter, deface work built by the US to prevent floods unless SecArmy grants permission based on determination that the proposed project will: Not be injurious to the public interest (NEPA Component) Not impair the usefulness of the Federal project

Flood Risk Paradigm THEN NOW Flood Damage Reduction (FDR) Paradigm: Federal Protection “We are Safe” Individual Agency Processes Project-by-Project Focus on reducing damages by managing floods Minimal consideration to future land use or other social effects Decisions based on reducing the potential for failure NOW Flood Risk Management (FRM) Paradigm: Shared Risk Reduction Integrated Agency & Stakeholder processes to buy-down risks to a tolerable level Focus on reducing probability of flooding & consequences should flooding occur Systems Approach (weakest link) Integrate environmental, social, and economic factors Self Explanatory?

Communication Levee Safety Program Activities

Why Streamline? Perception: Some projects have required multiple years for review Reality: Acquiring sufficient data for proper review & required Agency determination has sometimes been lengthy Contributing Factors Lack of Stakeholder understanding of roles, responsibilities and process Insufficient Corps Guidelines for technical and NEPA submittals Failure to coordinate/secure Sponsor review & approval Incomplete submittal packages Insufficient technical analysis Lack of sufficient environmental compliance documentation

Fort Worth District Streamlining Initiatives Developing Standard Business Process Regional General Permit Programmatic EA Section 214

Standard Business Process Developing Standard Business Process Increase efficiency & reliability Define Roles & Responsibilities Process Map / Responsibility Matrix Submittal Checklists Increase Clarity / Decrease Anxiety

408 RGP – What is it? Permit Name: Modification and Alterations of Corps of Engineers Projects Permit Number: CESWF-09-RGP-12 Issued 24 FEB 2010 Expires 23 FEB 2015 Purpose: Eliminate unnecessary duplication of work where the environmental consequences of the proposed action are individually and cumulatively minimal

Programmatic Environmental Assessment Certain Conditions must be met to use Must be a Minor Section 408 Only affect grassland habitats or be covered under a Nationwide Permit or the RGP Must not result in significant adverse impacts to cultural resources Must not impact threatened or endangered species

WRDA Section 214 Authority Legislation allows the Corps to accept funds from Non-Federal Public Entities to expedite 408 Actions & Regulatory Permits Program Must: Serve Public Interest with Accountability & Transparency Ensure Impartial Decision Making Expedite Permits NCTCOG & USACE entered into a MOA October 2008 to process Regulatory Permits COG is applicant & sets priorities for projects Completed 30 Permit Actions to Date; 31 Pending Projects Draft MOA being processed with NTCOG to process 408 Actions

Comparison of Section 214 Projects VS Regulatory Branch Performance in 2010 Section 214 - 100% of Individual Permits issued in 120 days Branch - 54.8% of Individual Permits issued in 120 days Section 214 – General Permit verification averaged 7.6 days Branch – General Permit verification averaged 25.7 days

Current Section 408 Actions Major Modifications No Major Section 408’s have been processed by the Ft Worth District for final approval by HQ Cities of Irving and Dallas have Section 408 100-year levee remediation projects in process May become minor Section 408’s if the modifications are determined to be insignificant Anticipate several upcoming bridge/roadway levee crossings will be major actions Estimated review & approval costs in the $150,000 range Minor Modifications Receiving numerous requests to modify DFW area projects Goal to process and approve actions within 30 days of final submittal package Review costs dependent on complexity but usually less than $10,000/ action

Key Takeaways USACE is standardizing the process Shared Risks – Shared Responsibility Help improve Stakeholder understanding – embrace the concept Early coordination with Sponsor by applicant will help reduce/minimize USACE review times. Better integration of engineering design with environmental impacts needed to comply with NEPA and CWA (404) and RHA (Sec 10) Ensure complete, comprehensive 408 submittal packages

POCs / Resources 408 Business Process (Primary Contact) Terry Bachim, Chief Maintenance Section Terry.bachim@usace.army.mil hyperlink Regional General Permit (RGP) Stephen Brooks, Chief Regulatory Branch Stephen.brooks@usace.army.mil http://www.swf.usace.army.mil/pubdata/environ/Regulatory/permitting/rgp/CESWF_09_RGP_12_Final_Signed.pdf Programmatic Environmental Assessment (PEA) Rob Newman, Chief Environmental Branch Rob.newman@usace.army.mil http://www.swf.usace.army.mil/pubdata/Notices/Minor408PEA/Final_Minor_408_PEA.pdf Section 214 Elston Eckhardt, Chief Civil Programs Elston.eckhardt@usace.army.mil

Q & A

Section 408 Challenges Due to the stringent review process, major Section 408’s typically require 9 months or longer for vertical approval There are inadequate Federal funds for District level review, which is currently delaying the timely processing of Section 408 actions Minor Section 408’s are approved by District Commander and typically require considerably less review time Not all Section 408 requests are approvable due to potential Irreparable harm Provided for your use, is hidden in presentation

Section 214 Benefits Dedicated PM & technical team readily available to evaluate project & permit actions and to participate in meetings and site visits. Offers improved, open Communications PM works with applicant to timely process the actions Results in reduced time for decisions Provided for your use, is hidden in presentation