Presentation on theme: "Permitting and MVN MCM Overview"— Presentation transcript:
1 Permitting and MVN MCM Overview Regulatory BranchPermitting and MVN MCM Overview
2 DEPARTMENT OF THE ARMY REGULATORY AUTHORITY THE U.S. ARMY CORPS OF ENGINEERS REGULATORY AUTHORITY IS BASED UPONSECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 (RHA) ANDSECTION 404 OF THE CLEAN WATER ACT (CWA).
3 SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 AUTHORIZES THE SECRETARY OF THE ARMY TO REGULATE ALL ACTIVITIES AND STRUCTURES IN NAVIGABLE WATERS OF THE UNITED STATES, INCLUDING CONSTRUCTION, EXCAVATION, OR DEPOSITION OF MATERIALS IN, OVER, OR UNDER SUCH WATERS, OR ANY WORK WHICH WOULD AFFECT THE COURSE, LOCATION, CONDITION, OR CAPACITY OF THOSE WATERS.
5 SECTION 404 OF THE CLEAN WATER ACT (CWA) AUTHORIZES THE SECRETARY OF THE ARMY, ACTING THROUGH THE CHIEF OF ENGINEERS, TO ISSUE PERMITS, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC HEARING, FOR THE DISCHARGE OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED STATES AT SPECIFIC DISPOSAL SITES.
6 Jurisdiction – Section 404 Clean Water Act Definitions:Fill Material – any material that has the effect of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody or wetland; includes rock, soil, dirt or similar materials.Discharge of Fill Material – the addition of fill material into waters of the U.S.
9 THE CORPS JURISDICTIONAL LIMITS THE LIMITS OF THE CORPS REGULATORY JURISDICTION ARE DEFINED AS:NAVIGABLE WATERS OF THE U.S. UNDER SECTION 10 OF THE RHA.WATERS OF THE U.S. UNDER SECTION 404 OF THE CWA.
10 NAVIGABLE WATERS OF THE US INCLUDE: ALL WATERS WHICH ARE CURRENTLY USED, OR WERE USED IN THE PAST, OR MAY BE SUSCEPTIBLE TO USE IN INTERSTATE OR FOREIGN COMMERCE,ALL WATERS SUBJECT TO THE EBB AND FLOW OF THE TIDE.
11 WATERS OF THE US INCLUDE: ALL NAVIGABLE WATERS, INTERSTATE WATERS, TRIBUTARIES TO NAVIGABLE AND INTERSTATE WATERS, WETLANDS AND OTHER SPECIAL AQUATIC SITES, AND TERRITORIAL SEAS.
12 Department of the Army Permitting Determine JurisdictionDefine ProjectDetermine Work Type and Resource ImpactsDetermine Type of Permit
13 Jurisdictional Determinations Only the Corps of Engineers can make an official determination of waters of the USBiologists at the Corps use technical manuals, guidance documents, and court decisions to make official determinations, majority of which for wetlands1987 Wetlands Delineation ManualCourt Decisions (Rapanos and Carabell, SWANCC)2008 Regional Supplement to Wetland Delineation Manual
14 Regulatory Definition of Wetlands “Wetlands” are defined as:those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.CFR 328.3(b)
15 Three Diagnostic Characteristics of Wetlands Hydrophytic VegetationWetland HydrologyHydric Soils
20 Jurisdictional Determinations Typically if the jurisdictional request is submitted by non-commercial entities and the site size is less than 5 acres, the Corps will provide a Corps Issued Determination for the site.If the site size is 5 acres or more or the request is submitted by a commercial entity, then we may request data related to soils, vegetation, and hydrology necessary to identify wetlands. This field data is typically collected & submitted by a professional consultant.
21 TerminologyJurisdictional Determination (JD) - tells you if you are in a Section 10 waterway or if waters of the US are present on your site for which you would need to apply for a 404 permit. These are appealablePreliminary JD – Not Appealable, can use in permitting if applicant requests
22 JD Time FramesA Corps issued determination (or delineation) is good for 5 years.According to the most current information the New Orleans District is completing 60% of our determinations within 90 days or less.*It is recommended to receive an approved JD prior to submittal of an application
23 PERMIT APPLICATIONDepartment of the Army Permit Application - ENG Form 4345A vicinity map, a plan view and a cross section of the proposed work.Joint Corps/Coastal Zone Application – Modified ENG Form 4345Applications received are forwarded to the appropriate Section chiefs
24 Permit Evaluation Sections - Eastern : Jefferson, Orleans, PlaqueminesSt. Bernard, St. Charles, St. Tammany,Washington- Central : Ascension, St. John the Baptist,East Baton Rouge, TangipahoaEast Feliciana, West Baton RougeIberville, West Feliciana, LivingstonSt. Helena, St. James
25 Permit Evaluation Sections - Western : Acadia, Evangeline, St. Martin, Allen Iberia, St. Mary, Assumption Jefferson Davis, Vernon, Avoyelles Lafayette, Terrebonne, Beauregard Lafourche, Vermillion, Calcasieu Pointe Coupee, Cameron, Rapides Concordia, St. Landry
26 Evaluation SectionThe Section chiefs will make a preliminary determination on regulatory authority (CWA or RHA) and a cursory determination of permit type that may be applicableSection chiefs then assign the application to one of the project managers within the sectionThe project managers will validate regulatory authority and qualified permit type, and make a completeness determination.
27 TYPES OF PERMITS NATIONWIDE (NWP) REGIONAL/STATE PROGRAM GENERAL PERMITS (PGP)LETTER OF PERMISSION (LOP)INDIVIDUAL
28 NATIONWIDE PERMITSNationwide Permits are a type of general permit issued by the Chief of Engineers, and designed to regulate with little, if any, delay or paperwork certain activities with minimal impacts
29 Examples of Nationwide Permits NWP 3 – Maintenance of Existing StructuresNWP 12 – Utility Line ActivitiesNWP 27 – Aquatic Habitat Restoration
30 Regional General Permits General Permits are issued by the Corps District for certain similar activities that have minor impactsThe New Orleans District has 27 Regional General Permits
31 New Orleans District RGPs NOD-2 Trenasse MaintenanceNOD-3 Foundation Pads for Drilling Barges in Open WaterNOD-29 Small Boat Slips and Appurtenances
32 PROGRAMMATIC PERMITProgrammatic permits are a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication of that program. For the New Orleans District, PGPs in the Coastal Zone
33 Department of the Army Individual Permits Activities which do not comply with any of the abbreviated procedures must be evaluated under individual permitting procedures.
34 PERMIT PROCESSING FLOWCHART FOR INDIVIDUAL PERMITS JURISDICTIONAL DETERMINATION COMPLETED.PRE-APPLICATION CONSULTATION (IF NECESSARY).APPLICATION SUBMITTED WITH COMPLETE PLANS.PUBLIC NOTICE (PN) ISSUED.INTERAGENCY FIELD TRIP (IF NECESSARY).
35 PERMIT PROCESSING FLOWCHART FOR INDIVIDUAL PERMITS (cont) COMMENTS FROM PN SUBMITTED TO APPLICANT.EVALUATION OF COMMENTS AND OTHER INFORMATION BY REGULATORY PERSONNEL.ISSUANCE OR DENIAL OF PERMITS FROM THE LOUISIANA DEPARTMENTS OF ENVIRONMENTAL QUALITY AND COASTAL MANAGEMENT (WHERE APPLICABLE).
36 PUBLIC NOTICEA public notice will be issued for 15/20 days to allow the public, Federal and State agencies and other concerned parties an opportunity to comment on the proposed project.All public notices are now on the internet
37 PERMIT EVALUATIONReview the project with regard to public interest factors listed in 33 CFR These factors are:Conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people
38 EVALUATION …Cont. We will also consider: Relative extent of public and private need of the project.Practicability of using alternative sites and methods.Extent and permanence of the anticipated beneficial and/or detrimental effects of the proposed work.
39 SEQUENCING FOR REDUCTION OF IMPACT AVOIDANCEMINIMIZATIONCOMPENSATION
41 COMPENSATORY MITIGATION APPROACHES CONSOLIDATEDMITIGATION BANKSIN-LIEU FEEPERMITTEE RESPONSIBLEDESIGNED TO MITIGATE A SPECIFIC , USUALLY SINGLE, IMPACTIn addition to the various types of compensatory mitigation, there are a few different approaches:Project-specific - As name implies, a specific mitigation project designed to mitigate a specific project which we are currently evaluating. Permittee is accountable for implementation and success of mitigation.Consolidated mitigation - Mitigation designed to mitigate a number of different projects. Includes mitigation banks and in-lieu fee arrangements.Transfer of responsibility from permittee to sponsorConsolidated mitigation, and in particular, mitigation banking, is what all the excitement is about and the primary topic of this talk.
42 Mitigation Rule 33 CFR Part 332 “Compensatory Mitigation For Losses Of Aquatic Resources” Published in Federal Register/ Vol. 73, No. 70 / Thursday, April 10, 2008 / Rules and Regulations, pages – (111 pages)Effective date June 10, 2008Contains both the Corps of Engineers and the Environmental Protection Agency regulations.Preamble 76 pagesCorps regulations +17EPA regulations +17
43 Mitigation Rule Provides for: Greater predictability, transparencyImproved mitigation planning and site selectionImproved performance of compensatory mitigation projectsPossible reduction in permitting timeFlexibility of mitigation optionsIncreased public participationStrongly encourages watershed approach
44 Principles in Final Rule Mitigation sequence retainedavoid, minimize, compensatePreference hierarchy for mitigation options:Mitigation bank creditsIn-lieu fee program creditsPermittee-responsible mitigation under a watershed approachOn-site and/or in-kind permittee-responsible mitigationOff-site and/or out-of-kind permittee-responsible mitigation
45 Principles in Final Rule District engineer is the decision-makerMitigation bank or ILF – responsibility to provide compensatory mitigation is transferred to the sponsor when permittee secures creditsLong-term management may be transferred to another entityPerformance standards ecologically-drivenAdaptive management – make fixes for successful performance
46 Principles in Final Rule Watershed Approach (Recommended by National Research Council)Strategic site selection to improve or maintain watershed functionsUse available watershed planning informationConsider type of mitigation, landscape position, and other factors to provide desired functionsLevel of information and analysis commensurate with the scope of permitted activityMay use multiple sites – e.g., on-site for water quality, water storage; off-site for habitatAllows preservation, riparian areas, and buffers – ALLOWABLE IF RESTRICTIVE CRITERIA ARE MET WITH LIMITED CREDITS FOR THESE OPTIONS.Increases flexibility and options. Increased coordination with partners, applicants, local jurisdictions, agencies.
47 MVN MCM 2012Corps of Engineers, New Orleans District’s Modified Charleston Method (MVN MCM)Assessment model used to calculate adverse impacts to wetlandsMVN MCM is based on evaluation criteria weighted by their importance and selections within each factor.A variation of existing methodology, Charleston Method, which is a mitigation assessment technique.
48 MVN MCM 2012Based on methodology developed by the Charleston District included in their Standard Operating Procedure issued September 19, 2002.Modified to account forregional wetland type differences,CEMVN’s “Mitigation Standard Operating Procedures”, and33 CFR Part 332, “Compensatory Mitigation for Losses of Aquatic Resources”.
49 Applicability to Regulated Community Allows applicants/agents to estimate compensatory mitigation requirements for various project scenarios (avoidance and minimization).Provides a reliable tool for developers and planners to use in comparing mitigation options.Provides a single model applicable to all wetland types.Allows mixing of banking and permittee-responsible mitigation.Has a credit calculation and accounting method applicable to all mitigation types (e.g. restoration, enhancement, preservation and creation).Simplifies mixing of appropriate mitigation locations and types.
50 MVN MCM 2012 CEMVN prepared an MVN MCM Guidebook containing: Definitions of terms used in the modelDiscussions of the use of each worksheetDefinitions for each factor and option associated with that worksheet, andExamples using each worksheet.A copy of the MVN MCM Workbook and Guidebook can be obtained at RIBITS website, under Assessment Tools link for the New Orleans District (RIBITS link to follow)
51 MVN MCM StructureMVN MCM workbook is an excel spreadsheet consisting of four worksheets:“Summary Worksheet”,“Impacts Worksheet”,“Bank Worksheet”,“Restoration Worksheet” and,“Comments.”
52 Summary Worksheet No data entry required on the Summary Worksheet Information is pulled from the Impact, Bank, and Restoration Worksheets
54 Impacts WorksheetSee Guidebook for details on factors and their values or in Workbook, hold mouse over red triangleEnter Permit NumberEnter total number of acres impacted and select Impact HUC at the top of sheetEnter acres impacted at the bottom of each area column used (Size in Acres (AA)), the total must equal to that entered at the top of Worksheet
56 Bank Worksheet Select the Bank Select Yes or No if the Impact occurs within the Bank’s Service AreaSelect the Kind and Location Factors*The user should always utilize RIBITS to determine the credit availability at a Mitigation Bank
58 Restoration Worksheet Enter Mitigation Project NameEnter Mitigation Project Size including the acres for which the project will be requesting credit (roads, rights-of-way, drainage servitudes should not be included)Select HUCSimilar to the Impacts Worksheet, the acres of each area must be entered at the bottom of each Area column, the total must equal the acreage entered at the top
62 www.mvn.usace.army.mil/ops/regulatory/Mit_program.asp or, RIBITSRegulatory In-lieu fee and Bank Information Tracking SystemNationalized compensatory mitigation databaseNationalized reporting and information repositoryPermittees/Sponsors/Public has accessGo to our Compensatory Mitigation Pageor,
63 RIBITS NAVIGATIONNotice the Filter on the bottom left – Select New Orleans DistrictYou can click on “existing banks” to select a bank for which you would like to view credit availability or view other information available to the general public.
64 REGULATORY BRANCH Special Projects Team Policy IssuesComplex Permit EvaluationsMitigation BanksSurveillance and Enforcement SectionEnforcementJurisdictional DeterminationsEastern, Central, and Western Evaluation SectionsPermit Evaluations
65 KEY POINTS Section 10 of RHA – Navigable Waters (tidal) Section 404 of CWA – waters of the U.S.Section 10 covers structures and work within, under, and over navigable watersSection 404 covers deposition of fill within waters of the USSeveral types of permits – authorization dependant on impactMVN MCM 2012 utilized to calculate adverse impacts to wetlands
66 Key PointsDepartment of the Army permit review process involves many facets in addition to wetlandsSequencing: Avoid, Minimize, Compensate
67 Section Chief’s E-mail Eastern ---Michael V. FarabeeCentral ----Martin S. MayerWestern---Ronnie W. DukeSurveillance & Enforcement---Robert A. HeffnerSpecial Projects---James A. Barlow