1. CORPS OF ENGINEERS SECTION 404 INDIVIDUAL PERMIT EVALUATION PROCESS July 22, 2005

4. Typical IP Process Pre-application meetings Application Submitted Incomplete Public Notice Issued (15 days) Public/Agency Comments Received & Evaluated Applicant Coordination Is Public Hearing Needed? Applicant Responds Corps Evaluates Response Decision Time NEPA 404(b)(1) Public Interest Other Legal Requirements

5. Individual Permit Evaluation Process Application Completeness Review Scope of Analysis Public Notice Purpose and Need Alternatives Assessment 404(b)(1) Guidelines Public Hearing Mitigation Water Quality Certification Cultural Resources Threatened and Endangered Species Public Interest Evaluation

6. Complete Application Review information submitted Within 15 days, determine if complete or request additional information Application complete when sufficient information is received to prepare the Public Notice.

7. Complete Application Information needed for complete application –Name & address of applicant/agent –Description of proposed activity –Wetland delineation (if applicable) –Adjacent landowners –Project location –Completed work –Signature of applicant agent –Drawings, plans, sketches

8. Scope of Analysis Determine the Corps Federal action area (permit area) Determine how the Corps will evaluate indirect (secondary) adverse environmental effects as well as cumulative effects

9. Scope of Analysis Permit Area All waters of the United States, as well as any additional area of non- waters where the Corps determines there is adequate federal control and responsibility Area of jurisdiction + Areas where impacts are caused by (or “a product of”) the Corps permitted activity

10. Permit Area Factors NEPA (App. B) Activity “merely a link” in corridor type project Nearby upland facility location affects location of permitted activity (& visa versa) Extent of entire project in Corps jurisdiction Extent of cumulative Federal control and responsibility

11. Permit Area Factors NHPA (App. C) Upland activity integrally related to permitted activity in waters of United States Activity Directly associated with activity in waters of the U.S. Project couldn’t occur “but for” a Corps permit

12. Permit Area Permit Area for a Simple Road Crossing No Federal Involvement Other Than Corps Permit No Other Impacts in Waters of U.S. Permit Area Limited to Directly-Affected Waters of U.S., and Uplands in Immediate Vicinity Affecting/Affected by Regulated Activity (e.g., Adjacent Road Alignments, Clearing for Staging Area, Equipment Access, etc.)

13. 5 mi. Permit Area for Multiple Road Crossings NWR Substantial Federal Control (Corps permit + NWR Land) Substantial Impacts (Waters of U.S., Endangered Species, Cultural Resources) 1 Permit Area Permit Area

14. Permit Area in Subdivisions - Case A Limited Direct Impacts Limited Indirect Impacts Limited Federal Control No Other Impacts to Waters of U.S. Permit Area

15. Permit Area in Subdivisions - Case D Permit Area = Historical / Cultural Resource = T/E Species / Critical Habitat Substantial Direct Impacts Indirect Impacts Close to Permitted Activities Several Activities Require Permits Federal Control Over Much of Project

16. Public Notice The Public Notice is the primary method of advising all interested parties of a proposed activity for which a permit is sought. The Public Notice solicits agency and public comment for input in the decision making process.

17. Public Notice The PN must contain: –Statutory Authority –Name and address of the applicant –Location –Project description –Plan and cross-section drawings –Other regulatory authorizations –Statement on endangered species –Statement on cultural resources

18. Public Notice (Con’t): –Statement on need for an Environmental Impact Statement (EIS) –Evaluation factors –Length of comment period (15-30 days) –Statement on public hearing –Additional information to assist reviewer

19. Public Notice Public Notices must be distributed to: –Post office in the vicinity of the project –Applicant –Applicable government agencies –Congressional representatives –Adjacent property owners –Specific individuals or organizations –In-house support

20. Purpose and Need What’s the applicant What should be done trying to accomplish to address a problem? Purpose Need

21. Purpose and Need Project Purpose Fundamental, Essential, or Irreducible purpose of proposed project Used to determine if project is water dependent Required to be addressed as part of 404(b)(1) analysis and NEPA evaluation Examples –to provide housing –to provide sufficient water supply –to increase the capacity of the school system –to provide/improve transportation efficiency

22. Purpose and Need Project Need Required to be addressed during public interest review Corps generally defers to state or other government agency’s decision to spend money Corps may make independent review of public need

23. Alternatives Assessment Regulations CEQ NEPA regulations: reasonable alternatives Corps NEPA regulations: reasonable alternatives –must be feasible –must accomplish purpose and need –alternatives that are reasonable and feasible need not necessarily be available to the applicant 404(b)(1) Guidelines: practicable alternatives –available and capable of being done taking into consideration cost, existing technology, and logistics in light of overall project purposes

24. Alternatives Assessment Types No-Build (permit denial) On-Site –Avoidance –Minimization –Reconfiguration Off-Site –Alternate sites

25. SUBPART A - PROCEDURES EPA’s Recommended Sequence Alternatives Technical Evaluations Subparts C-F Technical Evaluations Subparts C-F Disposal Site Minimize Impacts (Subpart H) Minimize Impacts (Subpart H) Factual Determination Factual Determination Document Compliance Document Compliance Review Subparts B & H Review Subparts B & H Contaminant Determination (Subpart G) Contaminant Determination (Subpart G) Alternatives Assessment 404(b)(1) Analysis Taken from Procedures section of Subpart A of the Guidelines

26. 404(b)(1) Guidelines Rebuttal Presumptions When discharge doesn’t require siting within special aquatic site to achieve basic purpose (i.e., not "water dependent"), practicable alternatives not involving special aquatic sites are presumed available, unless clearly demonstrated otherwise by the applicant Practicable alternatives not involving special aquatic sites are presumed to have less adverse impact on aquatic ecosystem, unless clearly demonstrated otherwise

27. 404(b)(1) Guidelines Practicability An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered

28. 404(b)(1) Guidelines Restrictions No discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.”

29. Public Hearing A public proceeding to acquire information or evidence to be considered when evaluating a DA permit Requests for hearing come from public notice process Option – informal public meeting

30. Public Hearing Requirements Meeting location in vicinity of project Public notice at least 30 days before hearing –Time, place, nature of hearing, legal authority, availability of documents Official transcript Statements only – not a Q&A session Incorporate written statements Comment period after hearing of at least 10 days

31. Mitigation No net loss of wetlands/aquatic resources 1990 Mitigation MOA with USEPA –Avoidance, minimization, compensation RGL 02-2 –Watershed approach, long-term protection

32. Mitigation Types of Compensation Methods –Preservation –Enhancement –Restoration –Creation Concepts –Project-specific mitigation –Banking –In-lieu fee

33. Mitigation Plan Requirements Baseline Information Goals and Objectives Implementation Plan Success Criteria Monitoring Contingency Plan

34. Water Quality Certification Section 401 of the Clean Water Act Certification or Waiver required for permit issuance Decision by State agency within 60 days (can extend up to one year)

35. Cultural Resources Section 106 of the NHPA –Federal law 36 CFR Part 800 –Implementing regulations by ACHP Appendix C –Corps regulations –Uses “permit area”

36. Cultural Resources Types Historic structures Historic properties Historic districts Subsurface deposits Traditional Cultural Properties

37. Cultural Resources Coordination Entities –State Historic Preservation Office –Advisory Council on Historic Preservation –Federally recognized tribes Process –Public Notice –Consultation

38. Cultural Resources Findings Eligibility Determination –National Register of Historic Places –Made by Keeper –Listed in or eligible for… Effect Determination –Made by District Engineer –No effect –No adverse effect –Adverse effect Resolution MOA

39. Threatened and Endangered Species Section 7 of the Endangered Species Act Ensure that any Federal action is not likely to jeopardize the continued existence of a T/E species or result in the destruction or adverse modification of critical habitat of the T/E species

40. T/E Species Coordination Entities –U.S. Fish and Wildlife Service –KDFWR Process –Public Notice –Formal Consultation

41. T/E Species Findings No effect May affect Not likely to adversely affect Jeopardy Opinion Authorized Take

42. Public Interest Evaluation 20+ factors reviewed –Floodplain –Economics –Aesthetics –Habitat –Cumulative impacts –Weighted according to relevance Balancing test/Public interest –Benefits versus detriments –Public and private need –extent and permanence

43. Decision A permit will be issued unless the project is contrary to the public interest Compliance with 404(b)(1)/NEPA Resolution of NHPA/ESA/State issues Documentation –SOF/EA/FONSI –ROD/EIS –Denial

44. Questions? James M. Townsend Chief, Regulatory Branch Louisville District P.O. Box 59 Louisville, KY 40201-0059 502-315-6675