St. Paul District U.S. Army Corps of Engineers Regulatory Branch program: an overview. Presented by Rebecca Gruber, Corps Regulatory Biologist, Waukesha Wisconsin January 2009, Wisconsin Transportation Builders Association/Wisconsin Department of Transportation Contractor Engineer Conference Disclaimer: The views contained in this presentation and handouts are the personal views of the presenter and do not necessarily reflect the views of the United States Army Corps of Engineers, the Department of Defense, or the United States of America. -DoD Joint Ethics Regulation, ¶ 2-207

Regulatory Program Goals Protect the Nation’s aquatic resources Take into consideration the views of other Federal, state & local agencies, interest groups, and the general public Achieve no net loss of wetland functions & values/offset adverse impacts to the aquatic environment with mitigation Make fair, equitable & balanced permit decisions Make timely permit decisions

Regulatory Authority – 2 types Construction and dredging (in FEDERAL navigable waters only): Section 10 Rivers and Harbors Act of 1899 Discharge of dredged and fill material into most aquatic resources (includes Federal navigable waters): Section 404 Clean Water Act, 1972 & 1977 (amended) Stress on S.404 for rest of presentation, any questions on S10 can be addressed individually or at end.

Jurisdictional aquatic resources are called Waters of the United States (WOUS), & typically include: Federally navigable waters (the Section 10 waters) Interstate waters/wetlands Navigable waters and abutting wetlands Relatively permanent tributaries to navigable waters Relatively permanent intrastate lakes, rivers and streams Intermittent streams, mudflats, wetlands, sloughs, potholes, wet meadows, playa lakes where degradation could affect interstate or foreign commerce Waters with industrial or commercial purposes (this could include select isolated wetlands) -Recent Supreme Court cases (SWANCC, Rapanos, Bayview) have added “nuance” to the jurisdictional determination process… determinations may be preliminary or approved. Discuss most aquatic resources regulated, but not all… Perhaps discuss non-JD resources, but indicate authority to determine lies with COE.

Section 404 Activities ___________ Discuss what constitutes a discharge of fill regulated under Section 404… include temporary impacts (construction matting, crossings, utility trenches). Also indicate that some construction situations require amendments to permit to address circumstance.

Issues the Corps must consider during permit application review (General Public Interest Factors) Conservation Economics Aesthetics Wetlands (ADID?) Historic Properties Flood Hazards Floodplain Issues Land Use Navigation Recreation Energy Needs Prime and Unique Farmland Safety Water Quality Fish and Wildlife Values Shore Erosion and Accretion Water Supply and Conservation Food and Fiber Production Property Rights Environmental Concerns Welfare of the People Mineral Needs Endangered Species Examples of things we consider during our review of public interest (in keeping with goals stated at beginning).

COE can only authorize “least environmentally damaging practicable alternative” (LEDPA) Determine the project purpose; assume non-wetland sites are available - if not water-dependent (must demonstrate avoidance of impacts to aquatic resources). Once site is selected, minimize project impacts to aquatic resources to the maximum extent practicable during design and/or construction processes. Provide compensatory mitigation for unavoidable impacts (typically over 10K square feet – at discretion of DE). Some permit types require public noticing to solicit comments from the public (typically a 30 day notice). If in public interest, must also be LEDPA. Discuss issues typically sought after to maintain LEDPA – exclusion fencing, restoration in temporary impact areas, limiting invasives, et.

Compensatory Mitigation Options for Lost Functions and Values Mitigation can be: In-kind – on-site or off-site Out-of-Kind -on-site or off-site Mitigation banks, applicant performs Can include some upland buffer Stream/Lake mitigation now required Ratios for mitigation vary by type of basin impacted, type of compensation, typically it is expensive. Touch on this? Perhaps indicate that additional impacts requested during construction may impact this – therefore stress coordination with permittee as well as our agency

Once the Permit is Issued The Corps views the permit as a “contract” between you and us as to how the project will be constructed If design plans change between when the permit was issued and when construction begins the changes should be coordinated with the Corps The Corps is not typically involved in the final design and planning if the permit has been issued

Once the Permit is Issued If a permit modification is required Coordinate well in advance of start of construction Provide specific information and revised design plans May require a public notice if changes are significant May require additional compensatory mitigation However, most modifications can be completed efficiently with little additional coordination or analysis

Constructing a Project Our top six concerns Improperly installed culverts Introduction of non-native species Failure to implement or maintain stormwater BMPs Encroachment into wetlands and inadequate buffers around wetlands Stream bank destabilization around crossings Poorly constructed compensatory mitigation

“We don’t do enforcement for enforcement’s sake, we do it for compliance’s sake”. (J.P. Suarez, Assistant Administrator, EPA) The integrity of the Section 404 program depends on active enforcement to ensure that unauthorized activities do not occur and that permittees comply with the conditions of their permits. The “scary” part of the program. Indicate COE responsibility to determine if activity is in violation of CWA – enforcement can be non-compliance or no authorization.

Resolution of Unauthorized Activities The Corps “Toolbox” Initial Corrective Measures After-the-fact Permit Application Legal Action Voluntary Restoration Corrective Actions

Resolution of Unauthorized Activities Initial Corrective Measures Order Issued by the District Engineer Based on Jeopardy to Life, Property, or Public Resources Could Resolve the Violation Does not Require a Corps Permit

Resolution of Unauthorized Activities After-the-fact Permit Application Must be Accepted Unless One of the Exceptions at 33 C.F.R § 326.2(e) Apply Applicant Must Sign a Tolling Agreement Processed in Accordance with Applicable Procedures Denial is a Possible Outcome

Resolution of Unauthorized Activities Legal Action Used to Obtain Penalties for Violations, Compliance with Orders and Directives Issued by the DE or Other Appropriate Relief District Criteria for Referral Considers Actions that are Willful, Repeat, Flagrant, or of Substantial Impact District Can Refer Cases to Local USDOJ, USEPA, or Office of the Chief of Engineers

Environmental Protection Agency EPA has sole legal authority to pursue enforcement of unpermitted fill activities. EPA can use Section 309 Administrative Orders to require correction of the violation or to assess civil penalties up to $137,500. EPA can use Section 308, which authorizes collection of information including accessing the property, collecting samples and evidence and issuance of information requests. Clarify EPA role. Discuss how COE coordinates with EPA.

Department of Justice Cases referred to DOJ typically result in civil penalties and injunctive relief (restoration) Once referred, decisions on penalty amounts are made by the U.S. Attorney or Main Justice, not by the Corps Penalty amounts up to $32,500 per day, per violation Tim: not sure what is open for DOJ as far as sentencing (clarify)? I’d also address that we’d prefer to resolve issues w/o EPA/DOJ elevation.

Resolution of Unauthorized Activities Voluntary Restoration Not Enforceable Unless Another Mechanism is Utilized Quickest and Most Straightforward Method Corrective Actions Only Available When an After-the-fact Permit Application has been denied Enforceable through Legal Action

Resolution of Unauthorized Activities Corrective Actions Only Available When an After-the-fact Permit Application has been denied Enforceable through Legal Action Process

Permit Noncompliance The Corps does not have the resources to inspect every project Permittees are responsible for complying with all terms and conditions of Corps authorizations The Corps has the authority to issue administrative penalties for permit noncompliance

Permit Noncompliance Class I Administrative Penalties may not exceed $11,000 per violation except that the maximum amount of any Class I penalty shall not exceed $27,500 Appropriateness of penalty takes into account importance of resource affected, importance of the violation, and history of the violator Penalty amount determined by degree of environmental harm and compliance importance

How to Stay Out of Trouble If work impacts a wetland or waterway in any way, chances are a permit is required Always obtain and READ permits for work in wetlands and waterways before beginning work Even if not required by permit, have sensitive areas flagged so they are avoided during construction Ask questions before, not after you begin work.

If You Get into Trouble… Report any unauthorized discharges or non-compliance issues to agency staff immediately Implement measures to control environmental harm as soon as possible while coordinating with agency staff Review site practices to insure it doesn’t happen again

What to Take Home We prefer to talk with you before the work rather than after it has been done (permit vs. violation) Make sure everyone has read and understands the permit issued for the work The Clean Water Act is a strict liability statute, the person responsible for the work (performing or directing) is liable The Section 404 program is based on voluntary compliance We take unauthorized activities associated with permitted activities and non-compliance issues seriously

Resources for more information Our District website: http://www.mvp.usace.army.mil/regulatory/ (info about local contacts, permit types, permit application forms, public notices of local projects and jurisdictional determinations). Our Headquarters website: http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx/ (info on national incentives, regulations).