Using a Programmatic Permitting Approach to Move Through the Corps' Regulatory Process On Time and Under Budget June 2016
Overview for T oday’s Discussion Permitting Background Programmatic Permitting ESA Compliance In-Lieu Fee Programs
PERMITTING BACKGROUND
Corps Regulatory Program Goals • • • Provide strong protection to the Nation’s • aquatic environment, including wetlands Enhance the efficiency of the Corps administration of its regulatory program Ensure that the Corps provides the regulated public with fair and reasonable decisions
Jurisdiction
Jurisdiction – Section 10 • Navigable waters of the United States are those waters subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. • Ocean and coastal waters to 3 nautical miles seaward of baseline • Tidal waters shoreward to MHW • Non-tidal waters to OHWM and upstream to head of navigation and adjacent wetlands
Jurisdiction – Activities Regulated Under Section 10 Structures or work in, Structures: Weirs, Work: Excavation, over, or under navigable utility/power lines, dredging, filling, or waters of the U.S. tunnels, piers, wharves, modification ( § 10 of Rivers and dolphins, breakwaters, Harbors Act of 1899) booms, bulkheads, revetments, riprap, jetties, permanent mooring structures, aids to navigation, permanently moored floating facilities, pilings
Jurisdiction – Section 404 Includes all navigable waters of the U.S. Plus – Adjacent wetlands – Extent of jurisdiction • Territorial seas – from baseline seaward to three nautical miles • Tidal waters of the U.S. – landward limits extend to high tide line or to limit of adjacent wetlands • Non-tidal waters of the U.S. – jurisdiction extends to ordinary high water mark or to limit of adjacent wetlands
Jurisdiction – Activities Regulated Under Section 404 Discharge of dredged material means any Discharges of addition of dredged material into, including redeposit of dredged material other than dredged or fill incidental fallback within, waters of the US. material into all Discharge of fill material means material placed in waters of the United States where waters of the U.S. the material has the effect of: i.Replacing any portion of a water of the ( § 404 of the Clean US with dry land; or ii.Changing the bottom elevation of any Water Act of 1972) portion of a water of the US.
Permitting Process Sequential approach to decision making: • General Permits – Regional/Programmatic General Permit ( MOST EFFICIENT ) – Nationwide Permit (impacts minimal, supposed to be timely) • LOP/Abbreviated Individual Permit Process ( MOST EFFICIENT ) • Standard Individual Permit (a “one - off” permit, least simple, most time consuming)
Project Review Timelines • Nationwide Permits. – Corps estimates 45 Days to process. – Are supposed to allow certain activities with little delay and paperwork. – Read the PCN timing fine print. • Individual Permits. – Corps estimates 2-3 months to process a routine application involving a public notice. – Process in120 days.
Standard Permitting Review Process How long will it take?
PROGRAMMATIC PERMITTING
Programmatic Permitting Advantages Saves time (timeline certainty!) • Reduce agency review with pre- screening • Ground rules already established • Mitigation identified Saves Money • Eliminates redundancies • Studies and other project-by-project costs • Economies of scale with consolidated mitigation • Advanced mitigation lowers ratios
Programmatic Permitting Advantages Provides outcome certainty! • • – Helps regulatory agencies Efficiency • – • Time to spend on larger projects Better documentation and tracking • – • Better for the environment – • Planning at a watershed scale – Better project outcomes • • Better mitigation outcomes –
Setting Up a Programmatic Permit Think about: – Proposed activities – Geographic area – Which Permit(s)? (LOP or RGP or PGP) – What other agency permits? – CEQA and other technical studies
ENDANGERED SPECIES ACT COMPLIANCE
Endangered Species Act • Protection of endangered and threatened species and their habitats • Unlawful to “take” a listed animal without a permit. • Section 7 = for federal agencies • Section 10 (HCP) = non-federal landowners
ESA Coverage for Programmatic Permit Programmatic Section 7 Consultation OR Integration with Habitat Conservation Plan
Programmatic Section 7 Consultation Options Programmatic Determination of Not Likely to Adversely Affect (NLAA) • Establishes procedures and project criteria for the purposes of streamlining typical project-by-project ESA review for projects with negligible effects on listed species or designated Critical Habitat • USFWS/NMFS concurrence that projects complying with an agreed-upon set of criteria will be “not likely to adversely affect” – Applies to projects where effects are expected to be discountable, insignificant, or completely beneficial • No need for initiation of consultation on a project-by- project basis; programmatic concurrence, with advance notifications to USFWS/NMFS and annual reporting • Activity-specific conditions (e.g., project design criteria) and species-specific conditions must be met • Impact thresholds are pre-determined and generally within the range of General Permits • Renewable on a 5-year basis
Programmatic Section 7 Consultation Options (continued) Programmatic Biological Opinion • Provides a framework to streamline ESA approval of projects involving a federal permit, funding or action and where such projects “may adversely affect” listed species or critical habitat • Establishes pre-determined project design criteria and impact thresholds that must be met in order to qualify for coverage • Can be used for all types of projects and provides applicants up-front information to design projects to avoid affects on listed species • Generally addresses effects of multiple activities at larger scales and promotes more consistent application of conservation measures • Increases certainty in the following: 1. timeframes for project approval 2. project cost 3. overall conservation benefits/outcomes • Reduces regulatory burden and allows for more efficient use of agency staff time when compared to project-by-project approach
Integration with Habitat Conservation Plans Programmatic permits, such as RGPs and PGPs, when developed in concert with • HCPs can provide streamlined approval for covered activities under the HCP that also have impacts on waters of the U.S. Applies only to covered activities in waters of the U.S. within the plan area • Covered activities must comply with thresholds, terms and conditions established • under RGP/PGP and requirements of HCP Avoids the often redundant regulatory process typically involved with Section 7 • consultations triggered by the necessity of obtaining a 404 permit in an HCP area Ensures consistency in mitigation approach and requirements from the Corps • Allows for coordinated restoration, enhancement and conservation of waters of the • U.S. and associated functions at a landscape scale in conjunction with HCP conservation actions
Compliance with Other Laws • Section 106 of the National Historic Preservation Act • Coastal Zone Management Act
IN-LIEU FEE PROGRAMS
Mitigation Planning – the 3 Ms • Sequence: – Avoidance – Minimization – Compensatory Mitigation • Incorporate pre-identified compensatory mitigation planning • ILF well-suited to programmatic permitting
Mitigation Policy Background What is compensatory mitigation to the Corps? • Corps’ Mitigation Rule finalized April 2008 • Outcome-based mitigation to offset unavoidable impacts to waters of the United States • Mitigation measured by aquatic functions Restoration (Re-establishment/Rehabilitation) • Returning natural or historic functions to a degraded or former aquatic resource Establishment (a.k.a. creation) • Manipulate an upland site to create an aquatic resource Enhancement • Manipulate an existing resource to increase one or more specific functions Preservation • Remove a threat to an existing aquatic resource and provide management
Introducing In Lieu Fee What is an ILF? • Program involving restoration, establishment, enhancement, and/or preservation of aquatic resources through the collection of fees to satisfy mitigation requirements of permits Sponsors • Government or Non-Profit natural resources management entity can be sponsors; assumes responsibility for successful implementation of compensatory mitigation Use of Fees • Fees must be used to plan, design, and implement compensatory mitigation projects
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