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US Army Corps of Engineers
BUILDING STRONG®
Sindulfo Castillo, P.E.
Chief, Antilles Regulatory Section
June 18, 2012
Corps Regulatory Overview
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BUILDING STRONG®
Authorities
Jurisdiction
Types of Permits
Permit Process
Evaluation
Key Points
Contacts
Agenda
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BUILDING STRONG®
Protect navigation and prevent obstructions
in the Nation’s waters.
Provide strong protection of the Nation's
aquatic environment, including wetlands.
Enhance the efficiency of the Corps
administration of its regulatory program.
Provide the regulated public with fair and
reasonable decisions.
Corps Regulatory
Program Goals
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BUILDING STRONG®
All structures or work in the navigable waters of the U.S. (Section 10, Rivers and Harbors Act of 1899)
Discharge of dredged or fill material in waters of the U.S. (Section 404, Clean Water Act of 1977)
Section 103 of the Marine Protection,
Research and Sanctuaries Act - prevents dumping of trash & sewage in waters of the United States
Regulatory Authorities
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BUILDING STRONG®
U.S. Army Corps of Engineers Regulatory
Program Regulations (33 CFR 320-331)
33 CFR Part 320 - General Regulatory
Policies
33 CFR Part 330 - Nationwide Permit
Program
33 CFR Part 331 - Administrative Appeal
Process
Program Regulation
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BUILDING STRONG®
40 CFR Part 230 - Section
404(b)(1) Guidelines
40 CFR Part 22 - Administrative
Assessment of Civil Penalties &
the Revocation or Suspension of
Permits
40 CFR Part 233 - State Program
Regulations
40 CFR Part 233G - Tribal
Regulations
40 CFR Part 1500 et seq -
Council on Environmental Quality
36 CFR Part 800-899 - Advisory
Council on Historic Preservation
50 CFR Parts 400-499 -
Endangered Species Regulations
Wild & Scenic Rivers Act
50 CFR Part 600 - Essential Fish
Habitat Regulations
Marine Protection Research and
Sanctuaries Act of 1972 - Section
302
Fish and Wildlife Coordination Act
Native American Graves
Protection and Repatriation Act
Clean Water Act - Section 401
Clean Water Act - Section 402
Coastal Zone Management Act of
1972
Endangered Species Act
Marine Mammal Protection Act
National Environmental Policy Act
National Historic
Preservation Act
Other Regulations and Laws
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BUILDING STRONG®
Corps Jurisdiction
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BUILDING STRONG®
Navigable Waters of the U.S. (33 CFR
Part 329)
Waters of the U.S. (33 CFR Part 328)
Open Waters
Wetlands
Corps Jurisdiction
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BUILDING STRONG®
A wetland delineation identifies the
boundaries of a wetland at a site; i.e.,
where is it located.
A jurisdictional determination identifies
the extent of Federal jurisdiction over
waters of the United States, which can
include wetlands.
Wetland Delineation versus
Jurisdictional Determination
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BUILDING STRONG®
Regulatory Jurisdiction
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BUILDING STRONG®
Waters that are 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 to use to
transport interstate or foreign commerce
Jurisdiction extends seaward to include all
ocean waters within a zone three nautical miles
from the coast line (the "territorial seas")
Waters of the U.S.
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BUILDING STRONG®
A wetland is an area that is
inundated or saturated at a
duration sufficient to support
and that under normal
circumstances supports a
prevalence of vegetation
typically adapted for life in
saturated soil conditions.
(33 CFR Part 328.3)
Wetlands
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BUILDING STRONG®
Definition 33 CFR 328.3(b)
Corps uses three parameters:
Vegetation - greater than 50% dominant species, considered hydrophytic.
Soils - must be hydric.
Hydrology - inundation or saturation within 12 inches of the surface for 5% of the growing season.
1987 Corps Manual – technical document defining wetlands
Wetlands
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BUILDING STRONG®
National wetland
delineation
guidance cannot
capture the
variability of
wetlands across
the entire United
States
Variability of Wetlands
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BUILDING STRONG®
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BUILDING STRONG®
Regional Supplement
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BUILDING STRONG®
Caribbean Regional
Supplement Content
Indicators:
►Hydrophytic Vegetation
• Guidance sampling & Analysis
►Hydric Soils
• Sampling Soils Procedures
►Wetland Hydrology
• Surface Waters/Saturated Soils/Inundation
Atypical Wetland Situations
►Land Use/Lack of Indicators
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BUILDING STRONG®
Hydric Soils Indicators
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BUILDING STRONG®
Wetlands Hydrology
Indicators
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BUILDING STRONG®
1972 Enacted
1974 Regulation
1975 NRDC vs.. Calloway. Interim regulation
1977 Regulation & Congressional Amendments
1979 Civiletti decision
1985 Riverside v. Bayview Homes
1986 Preamble on “Migratory Bird Rule”
1993 “Tulloch Rule”
1998 Overturn “Tulloch Rule”
2001 Supreme Court decision in SWANCC v. USACE
2003 ANPRM & Rulemaking
2004/5 GAO reports
2006 Rapanos & Carabell U.S. Supreme Court cases
CWA Section 404:
A Short History
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BUILDING STRONG®
Supreme Court decisions, along with statutes
and regulations, make up the law that the Corps
and the public are bound to follow.
In Rapanos, the Supreme Court addressed
where the Federal government can apply the
Clean Water Act, specifically by determining
whether a wetland or tributary is a “water of the
United States”.
Jurisdictional Determination
Is it a water of the U.S.?
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BUILDING STRONG®
New Terminology/Acronyms:
Traditional navigable waters (TNWs)
Relatively permanent waters (RPWs)
Non-Relatively permanent waters
(non-RPWs)
Abutting
Relevant Reach/Review Area
Significant nexus determination
(SND)
Rapanos Guidance
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BUILDING STRONG®
Waters of the U.S. include: TNWs, including territorial seas
Wetlands adjacent to TNWs
RPWs that flow directly or indirectly into TNWs
Wetlands directly abutting RPWs that flow directly or
indirectly into TNWs
Non-RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to but not directly abutting RPWs
that flow directly or indirectly into TNWs
Wetlands adjacent to non-RPWs that flow directly or
indirectly into TNWs
Jurisdictional
by definition
Significant
Nexus
Determination
required
CWA Section 404 Jurisdiction
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BUILDING STRONG®
The agencies will apply the
significant nexus standard as
follows:
A significant nexus analysis will assess the flow
characteristics and functions of the tributary itself and
the functions performed by all wetlands adjacent to
the tributary to determine if they significantly affect the
chemical, physical and biological integrity of
downstream traditional navigable waters
Significant nexus includes consideration of hydrologic
and ecologic factors
Rapanos Guidance
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BUILDING STRONG®
A significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or an insubstantial effect
Principal considerations when evaluating significant nexus include the volume, duration, and frequency of the flow of water in the tributary and the proximity of the tributary to a TNW, plus the hydrologic, ecologic, and other functions performed by the tributary and all of its adjacent wetlands
Rapanos Guidance
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BUILDING STRONG®
Types of Permits
Corps Regulatory Program
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BUILDING STRONG®
General Permits: Nationwide Permits (NWP)
Regional General Permits (RGP)
Programmatic General Permits (PGP)
Individual Permits: Standard Permits (SP)
Letters of Permission (LP)
Corps Regulatory Program
Types of Permits
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BUILDING STRONG®
There are 50 NWPs
WQC may be required
CZM may be required
Pre-Construction Notification may be
required
Subject to Discretionary Authority
Nationwide General Permits
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BUILDING STRONG®
Regional General Permits
Specific approach for specific area
Conditions deal with area issues
Programmatic General Permits
Take advantage of similar program
Reduce regulatory duplication
General Permits
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BUILDING STRONG®
Letter Of Permission Abbreviated permit procedure
Coordination letter in lieu of a public
notice
Minor Impacts
Standard Permit Public Notice
Full project review procedure
Individual Permits
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BUILDING STRONG®
The Permit Process
Corps Regulatory Program
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BUILDING STRONG®
The Joint Application for Dredging
and Filling in Waters of the U.S.
An Overview of…
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BUILDING STRONG®
This training module
will walk applicants
through filling out a
permit application,
and allow them to
print a copy of the
populated form for
submittal. The
module also
includes training
videos which
reenact typical pre-
application
meetings.
Permit Application Avatar
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BUILDING STRONG®
Page 1 Type of activity.
Page 2 Applicant and agent contact info. Size of parcel, acreage of
impact to waters of the US or wetlands.
Page 3 Project location, description, basic and overall purpose.
Page 4 Pre-application meeting, prior permits, adjacent property
owners.
Page 5 Signatures. (Agent signs area A, applicant signs areas B &
C or if no agent then applicant signs areas A & C.)
Section A
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BUILDING STRONG®
Signed Application (agent letter)
Project Description
Adjacent Property Owners Addresses
Statements on the Avoidance and Minimization of Wetland Impacts
Statement on Compensatory Mitigation, or why mitigation is not offered
One set of 8.5” x 11” drawings which include: a vicinity/
location map, overall site plan, plan with limits of wetlands and proposed wetland impact, and a cross section
PN posted
Items to include in submittal package to generate a Public Notice (PN)
Items for a Complete Application
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BUILDING STRONG®
Joint Permit App
Submittal to State App Received from State
Begin Processing
Public Notice
Corps
Individuals
Special Interests
Local Agencies
Federal Agencies
Application Reviewed
404(b)(1) Guidelines
Public Interest Review
NEPA
ESA, NHPA, EFH
State & Territorial Certifications
(CZM, WQC)
Application
Approved
Application
Denied
Decision
Document
Permit Review Process
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BUILDING STRONG®
ScreenIncomingRequests
Pre-ApplicationMeetings
0.20.1
N
No PermitRequiredLetter
(NPR)
Requestadditional
information6.1. 1
VerificationLetter
MemorandumforRecord
8. 5
8. 6
Initialreview& completenessdetermination
InteragencyCoordination
Process
ApplicationComplete?
8. 1
Y
N8.3
Y
N
8. 0
InitialReview& completenessdetermination
Analysis&Coordination
Requestadditional
information
LetterofPermission
RequestAdditional
Information
CoordinationLetters
ApplicationComplete?
DecisionMemo
6.1. 1
6. 1 6. 2 6.3
6. 4
6.2
Y
N
Y
N
6.0
Initial review& completenessdetermination
Analysis&Coordination
Requestadditional
information
PermitInstrumentorDenial Letter
RequestAdditional
Information
PublicNoticeApplicationComplete?
DecisionDocument(SOF)
5.1. 1
5. 1 5.2. 1 5.2 /.3/ .4 /.5
5.2. 1/2
5.6/ 7
Y
N
LetterofPermission?
StandardPermit
Review& completenessdetermination
Issue VerificationLetter
7. 1
WorkcoveredbyNWw/o PCN?
Y
7.0
QualifiesunderSPGP?
9. 2
Y
N
N
9. 0
Verify to Statethat is “Green”
9.1
WorkcoveredbySPGP?
WorkcoveredbyNW-GPw/PCN?
Review& completenessdetermination
YCoordinate
Federalissues
Is Requestforjust a JD?
Y
N
Deskor FieldDelineation
3.1/ 3.2
N
Analysisofproposed activity
N
Is ProposedActivity
Described?
N
Y
Y
Y
JurisdictionalDetermination
Letter
Documentbasisfor JD
3.3
3.3
Is Activityregulated?
Documentbasisfor JD
Is activity withingeographic
extent of JD?
EffectDetermination
Adverseeffect?
BiologicalAssessment
FormalConsultation
InformalConsultation
EFHEffectDetermination
Review/respondtoconservation
recommendations
NHPADeterminations
& Actions
Incorporated indecisions orverifications
Y
N
ESA
NHPA EFH
11. 4 11. 3
11. 2
11.5 a11.5 b
12.2/ 3
12. 113. x
Screen Incoming
Requests
Pre-Appl ication
Meetings
Publ ic
Notic e
preparation
Appl ic ation
Complete?
= Proc ess
= Opt iona l
= Preparation
= Dec ision
Com bined
Decision
Docum ent= Termi nation
Flowchart Symbols
Screen Incoming
Requests
Screen Incoming
Requests
Pre-Appl ication
Meetings
Pre-Appl ication
Meetings
Publ ic
Notic e
preparation
Publ ic
Notic e
preparation
Appl ic ation
Complete?
Appl ic ation
Complete?
= Proc ess
= Opt iona l
= Preparation
= Dec ision
Com bined
Decision
Docum ent
Com bined
Decision
Docum ent= Termi nation
Flowchart Symbols
Review process includes initiationof the JD, ESA,NHPAandEFH processes shown by “ “
( )
( )
( )
( )
( )
( )
( )
( )
( )
JD
( )
May affect? N
Y
Permit Review Process
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BUILDING STRONG®
Pre-application consultation Application received Initial review for completeness:
Additional information request (RAI) Application considered complete
Public notice (SP) or coordination letter (LP) 21 day comment period: Public notice coordinated with EPA, FWS, NMFS,
local agencies, adjacent property owners, and public mailing list
Comments received and permit evaluation
Overview of SP/LP
Permit Process
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BUILDING STRONG®
Comments provided to applicant or agent: Copies of public notice comments received
Corps recommendation for project modification
Corps requests for specific additional information
Receipt of applicant's response
Corps evaluates modifications and will
coordinate with commenting agencies
Corps evaluation of agency comments
Overview of SP/LP
Permit Process Continued
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BUILDING STRONG®
Final evaluation of all pertinent information
Decision document: Environmental assessment
Compliance with guidelines
Public interest factors
Final decision
Overview of SP/LP
Permit Process Continued
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BUILDING STRONG®
Evaluation
Overview of Permit Process
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BUILDING STRONG®
Project purpose Sequential process:
• Avoidance • Minimization • Compensation - Mitigation
Corps determines least environmentally damaging practicable alternative
Corps reviews mitigation proposal (No net loss of wetland acreage and function)
Evaluation
404(b)(1) Guidelines
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BUILDING STRONG®
Evaluation
404(b)(1) Guidelines LEDPA
“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 purpose.” The
Corps cannot authorize a discharge of dredged
or fill material into the waters of the United
States “…if there is a practicable alternative
which would have less adverse effect on the
aquatic ecosystem, so long as the alternative
does not have other significant adverse
environmental consequences”.
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BUILDING STRONG®
21 Public interest factors: Conservation use vs. preservation
Economics cost of project; cost of alternatives, tax gain, employment
gain, private vs. public gain;
Wetlands – unnecessary alternation or destruction is contrary to the
public interest
Fish and wildlife values comments from FWS, NMFS
Flood plain values & flood hazards - no increased flooding
potential up or down stream
Water supply and conservation – surface & ground water
quality & quantity
Land use – zoning & general compatibility w/need & welfare of
the people
Evaluation
Public Interest Review
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BUILDING STRONG®
Navigation – protect navigational channels
General environmental concerns
Safety – avoid hazards to health, life and property
Historic and Cultural resources – State & National
register
Shore erosion and accretion – prevent increased erosion
The Corps issues a permit unless the Corps
determines that the project is contrary to the public
interest
Evaluation
Public Interest Review
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Procedural
Ensures consideration of environmental impacts and alternatives for federal actions
Documentation Environmental Assessments (Determine Significance) Environmental Impact Statements
Evaluation
National Environmental
Policy Act (NEPA)
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BUILDING STRONG®
Endangered Species Act (ESA)
Magnuson-Stevens Act (Essential Fish
Habitat - EFH)
National Historic Preservation Act (NHPA)
Coastal Zone Management Act
Section 401 Of The Clean Water Act
Evaluation
Other Applicable Federal Laws
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BUILDING STRONG®
Pre-Application meetings
Interagency Meetings
Regulatory Sourcebook
RGL 08-03- Compensatory
Mitigation Requirements
Pending permit status search
Permit Process Tools
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BUILDING STRONG®
Protect important aquatic resources
Majority of permits issued with revised footprint
Mitigation does not make an unpermittable
project permittable
Corps fully mitigates unavoidable impacts
No net loss of aquatic functions and services
Large number of projects involve T&E Species,
Historic Properties, and EFH issues, which add
to the complexity of project evaluation
Corps Regulatory Key Points
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50
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USACE Web Page
Jacksonville District http://www.saj.usace.army.mil/Divisions/Regulatory/index.htm
National Headquarters http://www.usace.army.mil/CECW/Pages/Home.aspx
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Antilles Regulatory Section
• Tel: 787-729-6905/289-7034
• Fax 787-729-6906
• E-mail: [email protected]
Sindulfo Castillo x3054 Chief
Edgar Garcia x3059 Project Manager
Gisela Roman x3062 Project Manager
Deborah Cedeno x3061 Project Manager
Jose Cedeno x3063 Enforcement
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Thank You
Questions