2. U.S. Army Corps of Engineers Decision Authority l All permit decisions, scope of analysis, 404(b)(1), mitigation, alternatives, jurisdiction -- Corps l 404(q) MOA’s s Resource agencies request elevation s Corps makes final decision l 404© -- EPA

3. U.S. Army Corps of Engineers State Actions Controlling Issuance/Denial of Permits Permit MUST be denied (without prejudice) when a state Section 401 Water Quality Certification is denied! Permit MUST be denied (without prejudice) when a state Section 401 Water Quality Certification is denied! Permit MUST be denied (without prejudice) when a state Coastal Zone Management Consistency Certification is denied! Permit MUST be denied (without prejudice) when a state Coastal Zone Management Consistency Certification is denied! Permit MAY be denied (without prejudice) when other state/local approvals are denied. Permit MAY be denied (without prejudice) when other state/local approvals are denied.

4. U.S. Army Corps of Engineers Types of Permits l Standard Individual Permits s Public notice on specific project s Opportunity for public hearing s Activities with more than minimal impact l Letters of Permission s Individual authorization s Minor impacts, coordinate with agencies/neighbors

5. Types of Permits ( cont) l General Permits: net minimal adverse impacts after mitigation s Nationwide Permits--issued by HQUSACE; over 30% of most District’s workload s Regional General Permits--issued by Districts after public notice; tailored to District’s needs s State Program General Permits (SPGP)-- District issues based on existing State /local program; little review; “kickout” provided

6. U.S. Army Corps of Engineers Evaluation Criteria l Public Interest Review (PIR) s Done on all permit actions s Balance benefits against detriments s Issued unless “contrary to the public interest” s Conservation, Economics, Aesthetics, Wetlands, Historic properties, Fish and wildlife, Flood values, Land Use, Navigation, Shoreline protection, Recreation, Water supply, Water Quality, Energy needs, Safety, Food and fiber production, and Needs and welfare of people

7. Evaluation Criteria (cont) l NEPA--EA/FONSI or EIS on all actions l 404(b)(1) Guidelines (40 CFR 230.10(a)-(d)) s Developed by EPA but determined by Corps s Least environmentally damaging practicable alternative s Water dependency s Significant degradation (net after mitigation) s All appropriate and practicable mitigation

8. U.S. Army Corps of Engineers Scope of Analysis l Scope of Analysis is a critical determination s Alternatives, NEPA, ESA, and Section 106 analysis depend on scope s Scope is similar for all s “But for” test--what portion of project is dependent on the permit s Determines how much of uplands is included in permit review

9. U.S. Army Corps of Engineers Permit Area for Multiple Road Crossings Permit Area Waters of U.S. < 1mi., Road Segment = 5mi. 3 Permit Areas 5 mi. Waters of U.S. 3mi., Road Segment = 5mi. 1 Permit Area

10. U.S. Army Corps of Engineers Permit Area in Subdivisions Limited Direct Impacts Indirect Impacts Distant From Permitted Activity Indirect Impacts Not Closely Related to CWA Limited Federal Control Indirect Impacts Would Be Considered (May Cause Denial, But Not Permit Conditions) Permit Area = Historical / Cultural Resource = T/E Species / Critical Habitat

11. U.S. Army Corps of Engineers Permit Area in Subdivisions Limited Direct Impacts Indirect Impact Adjacent to Permitted Activity Permit Area = Historical / Cultural Resource = T/E Species / Critical Habitat

12. U.S. Army Corps of Engineers NATIONWIDE GENERAL PERMITS (NWP) Authorizes on a nationwide basis for commonly recurring activities that have minimal cumulative adverse impacts to the environment. All have standard conditions and may have special and/or regional conditions. Some require “Notification” (written application) to the District Engineer (DE) for verification that the work meets the terms and conditions of the permit.

13. U.S. Army Corps of Engineers Alternatives Analysis l Alternatives analysis important, expensive l Required under NEPA and Section 404(b)(1) s NEPA considers all alternatives, including ones applicant cannot produce s 404(b)(1) -- least damaging practicable test; must be available and practicable to applicant; avoid impacts, minimize impacts, and provide compensatory mitigation remaining impacts l Full alternatives analysis only on IP

14. l Individual permits s Consider alternatives, even other sites s Evaluation commensurate with impacts s Avoid impacts onsite l General permits s Never consider offsite alternatives s Avoid impacts onsite Alternatives Analysis ( cont)

15. U.S. Army Corps of Engineers MITIGATION MOA 1. Goal is to contribute to national goal of “No Net Loss” 2. Requires sequencing in permit decisions A. Avoidance of wetlands B. Minimizing impacts on wetlands C. Compensatory mitigation for impacts

16. U.S. Army Corps of Engineers MITIGATION MOA (con’d.) 3. On-site preferred over off-site 4. In-kind preferred over out-of-kind 5. Based on value 6. Restoration and enhancement preferred over creation over creation 7. Mitigation banking acceptable 8. Donation or preservation least acceptable

17. U.S. Army Corps of Engineers Mitigation Banking l Requires approval of the mitigation banking review team (MBRT) l Debiting on a case-by-case basis l Banks normally implemented and functioning prior to project impacts l Avoidance and minimization must still be shown prior to debiting

18. Mitigation Banking (cont) l Should address specific needs of the watershed l Use of a particular bank should be consistent with the nature of impacts of the project l Bank sponsor responsible for success of the bank