PowerPoint Presentation

Laws Affecting Non-Living Resources

Environmental Compliance IssuesChapter 3 HO #s 6-91ENVIRONMENTAL PLANNING

1Federal sovereign immunity given up in cases where state has assumed jurisdiction such as CAA and CWA 404 programs.Laws Affecting Non-living ResourcesObjective: To introduce the student to the environmental resource laws expected to be encountered during the Civil Works Planning Process.

22Laws Affecting Non-Living ResourcesMajor Environmental Laws Include: Clean Water ActClean Air Act (CAA)Coastal Zone Management Act (CZMA)Wild and Scenic Rivers Act Marine Protection, Research & Sanctuaries Act (MPRSA)Farm Protection and Policy Act (FPPA)

33Clean Water Act 1977, PL 95-217Placement of Fill in Waters of the US4What are the Waters of the US?http://www.epa.gov/regulations/laws/cwa.htmlClean Water Act 1977, PL 95-217The Clean Water Act is the principle law governing pollution control and water quality of the nations waterways.

The main purpose is to restore/maintain the chemical, physical and biological integrity of the nations waters.5Clean Water Act 1977, PL 95-217The Act specifically defines USACE responsibilities for regulating discharge of dredged and fill material in waters of the United States including jurisdictional wetlands.The Corps regulatory role differs from the civil works activities although ultimately requirements for compliance are the same.6Clean Water Act 1977, PL 95-217Enacted as the Federal Water Pollution Control Act. 1948, PL 80-845.Revised numerous times.Current name provided in 1977.1972 Amendments, PL 92-500, added Section 404 regulating the discharge of fill into the waters of the US (Rivers and Harbors Act of 1899).

77* Historical notes. The Corps has been a player in water pollution abatement since the 1899 Rivers and Harbors Act that gave us authority to control the discharge of refuse into navigable waters. This authority has since been superseded by permit authority provided to the USEPA.Clean Water Act 1977, PL 95-217Goals: Eliminate pollutant discharge.Make waters safe for fish, shellfish, wildlife and people.The Act includes numerous provisions.We will concentrate on Sections 102 (b), 401, 402, and most importantly Section 404.88Section 404 is the more significant to planners, because it requires an evaluation of impacts that support permit application and water quality certifications for civil works actions. Clean Water Act 1977, PL 95-217Section 102(b). Requires the consideration of storage for the regulation of stream flows in reservoir planning.Section 401. (Water Quality Certification)Federal sovereign immunity is waived.State certification required for a project to be in compliance with established effluent limitations and water quality standards. 99Water quality standards are set by the State or in some cases by interstate regulatory commissions charged with responsibility for major streams exhibiting interstate geography. ORSANCO in the case of the Ohio River.Proscriptive not advisory!Clean Water Act 1977, PL 95-217Section 402.Establishes discharge requirements under National Pollutant Discharge Elimination System (NPDES).Replaced 1899 refuse discharge authority of the Corps of Engineers.Construction sites over 1 acre are considered a Section 402 point source discharge (effective March 2003).

1010EPA responsibility. Trend in last few years to delegate to states. Your responsibility to find out who has the ball!Clean Water Act 1977, PL 95-217Section 404.Regulates the discharge of dredged or fill material into the waters of the U.S.Corps projects must comply with the 404(b)1 guidelines.Significant regulatory role for the Corps of Engineers http://www.usace.army.mil/inet/functions/cw/cecwo/reg/index.htm.Can be a major point of controversy between agencies-mitigation ratios.1111Waters of the U.S.: anything you can float a stick in! Includes wetlands! Even during the dry season! Major point of contention between agencies and the public regarding what constitutes a wetland. Exhibit C-1 page 48 Appendix C of ER 1105-1-200Exemptions under 404 (f) Regulatory: Corps administers permit program pursuant to agreement with EPA. Major mission for the Corps. MOU is regulatory. Civil works goal is to mitigate to the extent justified. New REGLE on Mitigation.Clean Water Act 1977, PL 95-217Section 404 (cont)404 (b)(1) Guidelines.40 CFR Part 230 Guidelines for the Specification of Disposal Sites for Dredged or Fill Material, FR Vol. 45, Wed Dec 24, 1980.Format: Exhibit C-1 page 48 Appendix C of ER 1105-2-100.1212A briefer check off format will be used in FOR CLASS PURPOSES.FR FEDERAL REGISTERClean Water Act 1977, PL 95-217404 (b)(1) Guidelines (cont).Requires sequential avoidance, minimization and compensation where practicable.The 404 (b)(1) format lays out a list of items that must be addressed in the analysis of impacts associated with the placement of the fill.Opportunity to incorporate with analyses required by NEPA. See 40 CFR 1502.25.HO # 7 &7a1313Without a 404 fill activity the state has no jurisdiction to issue a 401 WQC.404(r). Exemption of State Water Quality Certification.Requires inclusion of the 404(b)(1) in the EIS.EIS is submitted to Congress prior to any discharge or authorization of the project.

Clean Water Act 1977, PL 95-217404 (b)(1) Guidelines (cont).Basis for a request of 401 Water Quality Certification from the state regulatory agency.Without a 404 fill activity the state has no jurisdiction to issue a 401 WQC.Inclusion in an EIS going to Congress triggers 404(r) exemption. Use limited in states with control of 404 process.Corps Policy is to apply for 401 Certificate.

1414Without a 404 fill activity the state has no jurisdiction to issue a 401 WQC.404(r). Exemption of State Water Quality Certification.Requires inclusion of the 404(b)(1) in the EIS.EIS is submitted to Congress prior to any discharge or authorization of the project.Assumption of 404 program by states limits use of 404 approach. New Jersey is an example.

Clean Water Act 1977, PL 95-217Ocean Issues:Disposal will be addressed under the Marine Protection Research and Sanctuaries Act.Fill is addressed under the Clean Water Act. Non-Point Source Pollution.Program (Section 319). Corps projects must be consistent with EPA approved State programs.1515Clean Water Act 1977, PL 95-217Classroom Activity Conduct a 404(B)(1) analysisHandout compliance tableReview for Field ExerciseSee Handout #s 7 & 816Clean Air Act 1970, PL 91-604General Conformity Rule17The purpose of this act is to protect public health and welfare by the control of air pollution at its source. http://www.epa.gov/ebtpages/air.html

17Most metropolitan have problems meeting conformity with regulations. Did you know the volcano on the Big Island of Hawaii creates a non-attainment zone on the island.

The public law you have cited is not just applicable to general conformity, but rather addresses other clean air act issues. The CAA amendments of 1990 were very sweeping in nature and added many additional requirements to the CAA. You might want to delete the General Conformity Rule from this slide and add it to slide six to indicate it is part of the overall clean air act the one portion you are actually covering in these slides.Critical Air Pollutants Based on Scientific Health Effects Criteria Ozone (NOx & VOC, which are both ozone precursors) Carbon Monoxide (CO)Particulate Matter (PM-10; 2.5)Nitrogen Dioxide (NO2)Sulfur Dioxide (SO2)Lead (Pb) http://epa.gov/airquality/greenbk/1818National Ambient Air Quality Standards for Critical Pollutants19Sulfur Dioxide (SO2)Annual Arithmetic Mean24-Hour Average3-Hour Average0.03 PPM0.14 PPMNoneNoneNone0.50 PPMParticulate Matter (PM 10)24-Hour Average150 g/m3150 g/m3Particulate Matter (PM 2.5)Annual Arithmetic Mean24-Hour Average (2006 Std)15 g/m335g/m315 g/m335 g/m3Carbon Monoxide (CO)8-Hour Average1-Hour Average9 PPM35 PPMNoneNoneOzone (03)8-Hour Average (1997 Std)8-Hour Average (2008 Std)1-Hour Average (revoked)0.084 PPM0.075 PPM0.12 PPM0.084 PPM0.075 PPM0.12 PPMNitrogen Dioxide (NO2)Annual Arithmetic Mean0.053 PPM0.053 PPMLead (Pb)3-Month Arithmetic Mean1.5 g/m31.5 g/m3Averaging PeriodCritical PollutantPrimary StandardSecondary StandardEmission limits generally associated with new sources. Bob Kelly EPA Region 2 212-637-3709. 19Clean Air Act 1970, PL 91-604

Applicable in all areasWe will emphasize those listed as non-attainment or as maintenanceareas for National Ambient Air Quality Standards (NAAQS) requiring General Conformity.40 CFR 93

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20The clean air act actually applies to ALL areas, both attainment and non-attainment. The Act addresses all the major programs such as NAAQS, NSPS, NESHAPS, PSD, NSR, Ozone Protection, etc. Perhaps you could title this slide as general conformity, give the CFR citation for requirements.

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2222Clean Air Act 1970, PL 91-604 Requires the States to develop Implementation Plans to obtain and maintain compliance with National Ambient Air Quality Standards (NAAQS).State Implementation Plan (SIP).Strategy by which the state plans to meet and maintain (NAAQS) requirements.Budgets emission quotas for various sources.EPA approval required.Federal Agencies Conform to this plan

2323IF SIPs fail you will have to comply with a FIP Federal Implementation Plan prepared by EPAAs of now, all states have functioning SIPS. however, various Federal requirements may not yet be incorporated or approved by EPA, in which case, the federal regulation applies.Types of ConformityTransportation Conformity (TC)Federal Highway Administration funded projectsFederal Transit Act projectsFerries are included in TCGeneral ConformityEverything else involving federal fundingMutually exclusive2424Ferries are covered under General ConformityWhat is General Conformity?It is the federal governments attempt to ensure that federal actions do not cause or contribute to a state failing to meet NAAQS.Requires the federal government to take a major role in meeting the clean air standardsHow does one do that?2525How to Determine if Emissions are Above Threshold levels?Prepare an Emission Analysis (on annual basis)Sum of Total Direct and Indirect Emissions for ActionDirectCaused by the actionIndirectRemoved in time or space from actionReasonably foreseeable Why would you want to know if you exceed threshold emission levels?

2626A good example for direct and indirect emissions for a navigation project might be something like this:The direct emissions are those emissions actually generated by the project. This includes emissions from dredges, support vessels, trucks, equipment, etc. The indirect emissions are those that might result from increased vessel traffic as a result of the improved channel. So, the emissions from those vessels would have to be estimated when determining the quantity of indirect emissions. Add the two together and if the threshold/de minimis levels are exceeded, the conformity requirements will apply.y27 CRITERIA ANDPRECURSOR POLLUTANTSTYPE (NONATTAINMENT OR MAINTENANCE)AND SEVERITYOF NONATTAINMENT AREATONS PER YEARTHRESHOLDEmission RatesOzone (precursors VOC or NOR)Serious nonattainment50Severe nonattainment25Extreme nonattainment10Ozone (NOR)Marginal and moderate nonattainment inside an ozone transport regions100Maintenance100Ozone (VOC)Marginal and moderate nonattainment inside an ozone transport region50Maintenance within an ozone transport region50Maintenance outside an ozone transport region100Carbon monoxide (CO)All nonattainment & maintenance100Sulfur dioxide (SO2)All nonattainment & maintenance100Nitrogen dioxide (NO2)All nonattainment & maintenance100Fine particulate matter (PM 2.5)Serious nonattainment70Moderate nonattainment and maintenance100Course particulate matter (PM10)(precursors VOC, NOR, NH3, and SOR)All nonattainment and maintenance_100Determining Conformity of General Federal Actions De Minimis Levels 40 CFR Part 93.153If a project is in an nonattainment or maintenance area then offsets may be required. Historical origin was we think it may be significant. Now stds are related to some extent to the AAQS with the exception of Ozone which has an atmospheric chemistry that affects any relationship. You still have to be aware of the NAAQS stds. Bob Kelly EPA Reg 2 212-637-3709 93.153 Applicability.(b) For Federal actions not covered by paragraph (a)(transportation) of this section, a conformity determination is required for each criteria pollutant or precursor where the total of direct and indirect emissions of the criteria pollutant or precursor in a nonattainment or maintenance area caused by a Federal action would equal or exceed any of the rates in paragraphs (b)(1) or (2) of this section (Threshold Emission or De Minimis rates shown above).(c) The requirements of this subpart shall not apply to the following Federalactions:(1) Actions where the total of direct and indirect emissions are below theemissions levels specified in paragraph (b) of this section. (2) Actions which would result in no emissions increase or an increase in emissions that is clearly de minimis:27General Conformity RequirementsPrepare an analysis of your projects compliance with NAAQS*Report your findings (40 CFR 93.155)Preparation a Statement of Conformity (SOC) *Provide public Notice to EPA and state and local agencies.Becomes part of your Feasibility StudyRemember the SOC is not the EPA Section 309 NEPA review*HO #6 (on disk)*http://www.epa.gov/air/criteria.html

2828Depending on location, air shed analyses and modeling may be required could take 2 years and >$$$. This is very true modeling can be a very expensive effort and may indeed be a requirement.

Most of the requirements on this slide are from federal regulations (CFR) and not statutory requirements (from the actual law). Recommend you retitle the slide to something like, GC Requirements General Conformity Requirements

Circulation (40 CFR 93.156).Legal notice in Newspaper allowing 30 days for written comments.Comments and responses must be available within 30 days of the draft conformity determination.Can run concurrent with NEPA reviews.

2929Air QualityDocumentationRecord of Non Applicability (RONA)Action generates regulated pollutants below a SIPs threshold limits.Statement of Conformity (SOC)Action generates regulated pollutants which exceed 10% of the threshold limits listed in the States SIP. Action exceeds SIP Threshold or De Minimis Levels described as Emission Rates

30HO # 6CAA Conformity Process Flow Chart31Nonattain. OrMaint. Area?No Further ACReview RequiredImplementActionTransportation Project?De Minimus EmissionsExceeded?General ConformityAnalysisSIPConformity?TransportationConformityAnalysisAction CannotProceedyesyesnoyesnoyesProject locationnono31De Minimus Emissions are ceiling on releases that requires preparation of SOC.Air Quality- Take Away PointsSection 176(c) CAA requires Federal activity compliance with the states SIP. Statement of Conformity (SOC)(40 CFR 93.158) or Record of Non Applicability (RO|NA)(40 CFR 93.153(c)). Analysis of projects compliance with the SIP & NAAQS.Should be incorporated into the NEPA document (40 CFR 1502.25). Federal Sovereign immunity is waived. the king can do no wrong32

32Analysis may require some calculations of quantities of materials being discharged. National Standards established by USEPA. Should be performed during feasibility phase. Permit process can be a time consumer.Proscriptive rather than advisory!Coastal Zone Management Act 1972, PL 92-583http://coastalmanagement.noaa.gov/czm/czm_act.html33 Determination of ConsistencyCoastal Zone Management Act 1972 PL 92-583Purpose: Preserve, protect, develop, restore and enhance the resources of the nations coastal zone for current and future generations.34

34Section 10 Permits of the R&H Act dealt with Navigation in coastal waters.Coastal Zone Management Act 1972 PL 92-583Definitions:Coastal Zone- coastal waters to the limits of territorial seas or international boundaries.Coastal Waters- Great Lakes, connecting waters, and waters adjacent to shorelines; i.e. bays and estuaries.Coastal States - includes those states bordering the Great Lakes.

3535Section 10 Permits of the R&H Act dealt with Navigation in coastal waters.Coastal Zone Management Act 1972 PL 92-583NOAA authorized to provide grants to 30 states and four territories to develop management plans.Special Area Management Plans (SAMPs) are an opportunity for planners to collaborate with state CZM staff.Important Sections:Section 302.Declares national interest in coastal zone.Delegates primary responsibility to states.3636Intrusion of federal law into private lands was big issue with this law.NOAA-National Oceanic Atmosphere AdministrationSAMP e.g. Port or Harbor PlanExample of loss of federal sovereign immunity.

Coastal Zone Management Act 1972 PL 92-583Section 303.Federal agencies shall cooperate with state and local governments to effect the purpose of the law.Federal sovereign immunity waived.Applicable out to 3 mile limit.3737Assurance is to the maximum extent practicable. The Corps makes the Call on what is practicable. Example-policy of no hardened structures, if the NMFS wants something different you will have to provide it. The Corps makes the final call.Coastal Zone Management Act 1972 PL 92-583Section 307.Federal Agencies required to assure projects are consistent with the approved State Management Plans to the maximum extent practical.Preparation of a Coastal Consistency Determination (CCD) by the Federal agency proposing the action.

3838Assurance is to the maximum extent practicable. The Corps makes the Call on what is practicable. Example-policy of no hardened structures, if the NMFS wants something different you will have to provide it. The Corps makes the final call.Coastal Zone Management Act 1972 PL 92-583 CCD (continued).Includes an evaluation of the relevant provisions of the States Management Plan, project description, project effects and supporting data for the conclusions of the CCD.Agency call on conformity.Should be included in NEPA document. See 40 CFR 1502.25.

3939Add to appropriate NEPA document and circulateCoastal Zone Management Act 1972 PL 92-583CCD (continued). State Response required within 45 days following receipt of CCD.Extension of time-15 day maximum can be make upon request.No delay of project if agency considers it to be consistent with States Coastal Management Plan.

4040This has recently been changed to 60 days plus a 15 day extension. I think it is important to point out that this differs from the NEPA review time requirements.

Coastal Zone Management Act 1972 PL 92-583Conflict Resolution Process.Mediation process chaired by Secretary of Commerce with cabinet level agency representation.4141State program funded by federal dollars. Reason for Sec Commerce mediation of resolution of conflicts.CZM Process Flow Chart42No Further CZ Review RequiredImplement ActionLead Agency Makes Consistency Determination in Consultation w/State CZ AgencyApplicant MustSecure ConcurrenceOf State CZ AgencyAddressInconsistencyAffectsCoastal Zone?Consistent?RequiresPermits?noyesnoyesnoyesWild & Scenic Rivers Act 1968 PL 90-542http://www.rivers.gov/wildriverslist.html43Preservation and Protection of Rivers for Future Generations43Wild & Scenic Rivers Act 1968 PL 92-542

Definitions:Wild Rivers--Primitive, free flowing, inaccessible except by trails. Scenic River Areas--Free flowing, shorelines and watershed largely primitive, accessible in places by roads.Recreational River Areas--Readily accessible by road or rail with some development and possible past impoundment or diversion.

4444(1) Question: Are the Corps, BLM and USFW included in the administration of the system since they are now managing river segments? The Bureau of Land Management, National Park Service, U.S. Fish & Wildlife Service, and U.S. Forest Service administer wild and scenic rivers. The ACOE does not administer WSRs; however, they are 'owners' on a few rivers and as such manage those lands for which they are responsible.There are 160. Rivers in the NPS Inventory. For a designated river, the federal agency must consult/notifythe managing agency of the project. The managing agency would then conductan analysis of impacts under Section 7 of the Act and determine if theproject can be allowed, allowed with modification, or denied. In the case of an NRI river,the answer is the construction (and/or permitting/funding) agency should consult with theNPS, or other Federal land manager if appropriate, to identify means for eliminating orReducing the adverse effects to an NRI river. The results of this consultationwould be described in the NEPA document.Wild & Scenic Rivers Act 1968 PL 92-542

Purpose: To protect free flowing streams.Established the National Wild and Scenic River System.Currently 203 Rivers totaling 12,560 Miles in the system in 40 states . 6,157 miles designated as wild. 2,749 miles designated as scenic. 3,654 miles designated as recreational.

4545(1) Question: Are the Corps, BLM and USFW included in the administration of the system since they are now managing river segments? The Bureau of Land Management, National Park Service, U.S. Fish & Wildlife Service, and U.S. Forest Service administer wild and scenic rivers. The ACOE does not administer WSRs; however, they are 'owners' on a few rivers and as such manage those lands for which they are responsible.There are 160. Rivers in the NPS Inventory. For a designated river, the federal agency must consult/notifythe managing agency of the project. The managing agency would then conductan analysis of impacts under Section 7 of the Act and determine if theproject can be allowed, allowed with modification, or denied. In the case of an NRI river,the answer is the construction (and/or permitting/funding) agency should consult with theNPS, or other Federal land manager if appropriate, to identify means for eliminating orReducing the adverse effects to an NRI river. The results of this consultationwould be described in the NEPA document. Six agencies; COE, BLM, NPS, USFWS and USFS manage these river segments. Administered by National Park Service, and Forest Service. Corps Activities are subject to review by responsible agency.

Wild & Scenic Rivers Act 1968PL 92-542

46Review and Consultation Requirements. Consult list of rivers segments in project area. Coordinate and consult with managing. agency during the scoping process. Determine if project would foreclose classification of the inventory segment as wild, scenic or recreational.

Wild & Scenic Rivers Act 1968PL 92-542

47Review Consultation Requirements (cont). Include analysis of impacts on ecological values of river segment in the NEPA document. Include appropriate mitigation consistent with agencys authorities. Opportunity to incorporate in analyses required by NEPA. See 40 CFR 1502.25. Wild & Scenic Rivers Act 1968PL 92-542

48Wild & Scenic Rivers Process Flow Chart49May Affect Inventoried River?WaterResourceAction?No Further WSRReview RequiredImplement ActionEvaluate for Consistencyw/Characteristics;Consult w/Lead Agency For RiverDevelop MitigationConsistent?yesnonoyesnoyesMarine Protection Research & Sanctuaries Act 1972, PL 92-53250Ocean Disposal of Dredged Material3 mile limithttp://www.epa.gov/history/topics/mprsa/50Marine Protection Research & Sanctuaries Act 1972, PL 92-532Purpose is to regulate ocean dumping.Targets degradation of the marine environment.Provides permit process for dredge material disposal.Establishes Marine Sanctuary Program to preserve and or restore ecological, recreational or aesthetic values.

5151Section 302 Secretary of Commerce ResponsibilityMarine Protection Research & Sanctuaries Act 1972, PL 92-532Section 102.Charges the Administrator of EPA to:Promulgate Ocean Disposal Criteria.Designate Ocean Disposal Sites.Authorizes the SEC Army to issue permits for transportation and disposal of dredge material meeting EPA criteria.

5252There is an option for a one time designation by the Corps.Marine Protection Research & Sanctuaries Act 1972, PL 92-532Compliance Requirements:Disposal must be evaluated under Section 103 of MPRSA.Evaluation procedures are in Testing Manual - Evaluation of Dredged Material Proposed for Ocean Disposal (EPA/COE-503/8-91/001).Regional Implementation Manuals.

5353RIMs Regional Implementation Manual can apply. Farmland Protection Policy Act 1981Conversion of Farmland to Nonagricultural Uses

54 http://www.nrcs.usda.gov/programs/fppa/54Farmland Protection Policy Act 1981Purpose: To minimize farmland conversions.Administered by Natural Resources Conservation Service (NRCS).Contact NRCS for listing of prime and unique farmlands.Complete Farmland Conversion Impact Rating Form (Form AD 1006).Include analysis in NEPA document.

55Prime Farmlands Process Flow Chart56AffectingAg Lands?Delineate AgLandsAg Lands Converted?Complete AD 1006;Provide to NCRSEvaluate Impacts on AgLands/ResourcesNo Further AgLand ReviewRequiredImplement ActionnoyesyesnoLaws Affecting Non-Living Resources57Take Away Points.There are numerous environmental laws affecting non-living resources. Weve only touched on a few of the more common ones relative to the Corps Civil Works planning process.CAA Statement of Conformity for SIPs in non-attainment areas.CWA 404 (b)(1) Evaluation for placement of dredged or fill material into water of the U.S.FPPA- Farmland Conversion Form AD 1006.

Laws Affecting Non-Living Resources58Take Away Points (cont.)CZMA Prepare a Coastal Consistency Determination to assure projects consistency with the State Management Plans.W&SRA-Consult with managing agency.***These regulations can have permitting aspects either directly or indirectly as a result of the adoption of recommendations by permitting agencies. See HO # 9 for Checklist