To: Melissa Trosclair Daigle and Jim WilkinsFrom: Jennifer MayberyRe: Mississippi River Diversion Project PermittingDate: September 24, 2012

A large-scale diversion project moving sediment-rich water from the Mississippi River into neighboring coastal wetlands for the purpose of restoration would be treated as a dredge and fill operation under the Clean Water Act (CWA), and would therefore trigger the same permit requirements as other development projects planned at sites on or near wetlands where developers are adding or removing soil.

kmh: Not correct on “removing;” that’s Tuloch I & II. Corps lacks the power to require a permit for excavation. Doesn’t matter what the biologists say or how much their lawyers will back them up. This is law school and the students need to know the actual law. Recongnizing bootleg/rogue operations is a valuable skill which everyone needs to acquire in all walks of life – but IMHO it’s of particular importance for new lawyers to spot thumbs on scales.

Permits for dredge and fill operations are governed by §404 of the CWA and are issued by the Army Corps of Engineers (COE or Corps).1 The Corps in New Orleans directs that §404 dredge and fill permits issued for projects within the

Me again: “directs” is not a good word choice. Consistency allows DNR to trump Corps in CZ. It’s more like “DNR and the Corps agreed to a joint permitting scheme for projects in the CZ. Every application in the CZ must first be submitted to DNR. Every project in the CZ must either (a) be exempted by DNR or a parish (b) or permitted by one of them and (c) may or may not require a separate Corps permit in addition to the state/parish permit.

coastal zone will first require a state Coastal Use Permit (CUP) issued by the Louisiana Department of Natural Resources Office of Coastal Management (OCM) under the Louisiana State and Local Coastal Resources Act of 1978.2 Projects with fill being deposited into wetlands also require a water quality certification by the Louisiana Department of Environmental Quality (DEQ) under the CWA and the Louisiana Environmental Quality Act.3 The COE 404 permit and the CUP permit issued by the OCM offer the option of a joint application, as many of the criteria me: it’s NOT an option

133 U.S.C. § 1344.2 La. R.S. 49:214.26 (1989) establishes the coastal management program within the Department of Natural Resources. 3 La. R.S. 30:2001 et.seq. (1984).

for permit issuance from the different agencies overlap. The OCM also acts as a liaison between applicants and the DEQ, and reviews joint applications before forwarding them to these other agencies. Each permit will be evaluated separately here to highlight the different concerns each agency represents.

In addition to the COE, DNR and DEQ permits, a sediment removal and fill

Me: No, any and all “major federal actions” trigger a NEPA review, where getting ANY federal permit is a “major” action. An FCC license for a cel tower is a NEPA review if it were built on top of the Superdome. A 404 permit is just one of a zillion federal actions which require a NEPA screen. A site can be 100% dry and still trigger NEPA.

project could also trigger the preparation of an Environmental Impact Statement under the National Environmental Policy Act (NEPA). Regulations for implementing NEPA are administered by the federal Council for Environmental Quality (CEQ).4The EIS is then used as a procedural tool to help determine whether a permit is going

me: Too strongly worded. NEPA does not affect whether or not something will happen. NEPA only requires agencies to think about various factors. It does NOT suggest in any way whether or not the agency will do or allow the action.

to be issued, and if so, what special conditions may be attached.

A. Army Corps of Engineers Dredge and Fill Permits

1. Statutory Authority for Regulation

Dredge and fill projects generally fall under the jurisdiction of the US Army Corps of Engineers. The COE may issue permits for the alteration of obstruction of the navigable waters of the United States5 under §10 of the Rivers and Harbors Act of 1899.6 The COE jurisdiction was expanded to include permitting for the discharge of dredge and fill materials into the waters of the United States7 by the Clean Water Act, § 404.8The COE also has permitting jurisdiction over the dumping of dredged material into ocean waters under §103 of the Marine Protection, Research and

442 U.S.C. § 4321.5The term “navigable waters of the United States” generally refers to those waters susceptible to use for transport in interstate and foreign commerce. 33 C.F.R. 329.4.6 33 U.S.C. § 403. 7 The term “waters of the United States” generally includes those waters adjacent to the navigable waters of the United States, like wetlands and tributaries, and other waters used in interstate and foreign commerce. 33 C.F.R. § 328.3.833 U.S.C. 1344.

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Sanctuaries Act.9 To apply for a permit from the COE, parties can fill out the Engineer Form 4345.10

Me: for the size of the things your students are considering, this is probably OK and the 4345 can be used to apply for anything the Corps does. However, it’s not the only way to apply for a Corps permit. If an activity is Section 10 only, the Corps may issue an “LOP,” a Letter or Permission. For all the nationwides – and there are about three dozen of them - a simple letter containing all of the items listed in the current edition of the FR notice can make up a “PCN,” a pre-construction notice.

In some jurisdictions, modified forms are used so applications can be processed jointly with other state agencies. For example, in Louisiana, the Office of Coastal Management offers the option of joint processing for COE and OCM permits.11

2. The Application Process

Section 404 of the CWA gives the COE jurisdiction over the dumping of fill materials into “the waters of the United States, including wetlands.”12

Me: not quite correct. “Wetlands” are not in the CWA’s text. This has been described as “judicial acquiescence to bureaucratic fiat.” The whole edifice of the wetland program rests on courts approving the regs the Corps wrote implementing a law which does not speak to wetlands. SWANCC struck down a reg as overbroad, not a law. Ditto Rapanos.

For a typical dredge and fill 404 permit,

Me 1: I’m assuming the authors intentionally exclude nationwides and PGPs and Generals as not being “typical.” If they want to go that route I suggest they instead say “a typical dredge and fill 404 individual permit.”

the Corps of Engineers would first make a wetlands determination at the site

Me 2: more typically the Corps reviews the delineation made by a private consultant and then makes a determination based upon a desk check of the private report or its own field investigation. The Corps manning and workload do not allow it to make very many “from scratch” field investigations on its own. Even New Orleans will tell you to go hire someone. Many Corps districts have “we don’t bless” lists of names on its web site.

933 U.S.C. 1413.10http://www.mvn.usace.army.mil/ops/regulatory/regProcess123.htm.11http://dnr.louisiana.gov/assets/OCM/permits/JPA2010Fillable.pdf.1233 U.S.C 1344.

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of the proposed activity to determine whether the area is a wetlands and therefore falls under the COE jurisdiction.

Me 3: Until 2001, SWANCC (for all of the US except the 4th Cir) and from 1998 (Wilson but only in the 4th Cir) until SWANCC , “Is it wet?” was the same thing as “Is it jurisdictional?” This language is only OK before those dates. After SWANCC, being wet is necessary but not enough. Now the site must further be jurisdictional, which is applied according to a binding set of non-binding “guidance” letters NOT promulgated under the APA.

The wetlands determination request form can be found on the COE website.13

Once the wetlands determination is complete and it is determined that the COE has jurisdiction over a dredge and fill project, an informal pre-application consultation is recommended for large, complex projects in order to alleviate avoidable delays in the application process. At this point it can be determined whether an individual or general permit is required, as opposed to a nationwide permit, which is a pre-approved activity for certain routine or common projects in a designated area. Individual permits are evaluated on a case-by-case basis.14

Following the wetlands determination and the pre-application meetings the formal application review process begins, starting with submission of ENG Form 4345.The application is extensive, and will require specific planning information. The requirements include the following:

Contact information, and a designated agent or agents for the application process (Block 10 and 11)

Name of the project (Block 12) Directions to the site, in lieu of a street address (Blocks 15 and 16) Description of project; here, indicate that the project is a dredge and fill

project (Block 18) Description purpose and need of project in general; provide target start and

finish dates (Block 19) Specific purpose for discharge (Block 20, with “erosion control” being the

example provided in the application instructions) Type and quantity of fill material being discharged; each type of fill should be

indicated in cubic yards (Block 21) Surface area of wetlands to be filled. Identify means used to fill. (Block 22) Describe any means of avoidance or minimization of impact to waters of the

United States, and explain how such impact to the waters of the United States will be compensated. (Block 23)

Names and addresses of all property owners, adjacent property owners and lessees (Block 25)

13http://www.mvn.usace.army.mil/ops/regulatory/reg_wetland_request_deter.asp.1433 C.F.R. § 323.2(g).

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Information on other permits; this is going to include OCM Coastal Use Permits, DEQ Water Quality Permit and a NEPA Environmental Impact Statement (Block 26)

Attached -- any illustrations needed for Block 15, 16,17, 18 and 21, including a Vicinity Map, zoomed-out to include the nearest town; a Plan View Map, and a Cross-Section Map.

Following completion of form ENG 4345, the application is assigned an ID number by the Corps of Engineers and public notice is issued, usually in conjunction with other permitting agencies. The purpose of the public notice is to give adjacent landowners and other interested community members an opportunity to voice any concerns about a project for the consideration of the permitting agency. Following the public notice, the COE allows up to 30 days for submissions of comments from interested parties and agencies and then the district engineer will follow up with the applicant to address comments submitted. A public hearing will then be held prior to the engineer issuing a decision on whether to issue the 404 permit.

Me; Hearings are almost NEVER held. I’ll bet New Orleans averages less than 1 a year.

3. Guidelines for Permit Issuance

The COE will compile all information taken from the applicant and public notice comments and review the probable impact of the proposed activity on the surrounding area.

The following factors will be considered for every COE permit application:

the relative extent of public and private need for the proposed structure or work;

the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure where there are unresolved conflicts as to resource use; and

the extent and permanence of the beneficial and detrimental effects which the proposed structure or work is likely to have on the public and private uses to which it is suited.15

The following factors may be relevant to a specific project, and the COE decision maker must balance the benefits and detriments of a proposed work taking those relevant factors into consideration:1533 C.F.R. § 320.4 and 40 CFR 230 - SECTION 404(B)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES FOR DREDGED OR FILL MATERIAL, Authority: Secs. 404(b) and 501(a) of the Clean Water Act of 1977 (33 U.S.C. 1344(b) and 1361(a) ). Source: 45 FR 85344, Dec. 24, 1980, unless otherwise noted.kmh added: these guidelines are a BIG deal, especially the “not water dependent” part.

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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 general needs and welfare of the people

When issuing individual permits for small projects, the COE may issue a permit by a Letter of Permission.

Me; I’ve been told by many Corps troops in several districts many times that LOPs are for Sec 10 only, not 404 . . . but I’ve looked for a cite.

For a larger or more complex project, the COE will issue a standard permit by ENG Form 1721. The permit will state authorization for the work, including a project description and conditions. The COE may reevaluate the permit decision if, for example, there is a failure to comply with conditions, a finding that application information entered is false, changes in circumstances, or if other new pertinent information comes to light that would effect the project decision.16

The COE also shares jurisdiction for dredge and fill permits with the Environmental Protection Agency (EPA). The CWA gives the EPA Administrator the authority to review and overturn any COE § 404 decisions for disposal sites for fill material based on information gathered by the COE throughout the application process.17The Administrator may overturn a permit site if he determines the project will have an unacceptable adverse effect on:

1633 C.F.R. § 325.7(a).1733 U.S.C. § 1344(c).

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municipal water supplies shellfish beds and fishery areas wildlife recreational areas18

B. The Office of Coastal Management – Coastal Use Permit

The Office of Coastal Management offers the option of a joint permit for

Me: Caldwell did not think it was optional, and many Corps troops have told me for years that they can do nothing until the state first decides to permit or exempt. For example, the Corps cannot issue a nationwide within the CZ unless the state or the parish has exempted the project from the coastal zone.

both the OCM and the COE permits, and this application may be submitted online. While the Office of Coastal Management represents a greater interest in conservation of Louisiana’s Coastal resources, where the COE’s jurisdiction originates with navigation, the differing interests of agencies involved overlap, and

don’t me started on “navigation!!!”

many of the requirements for permits with each agency are similar.

1. Statutory Authority for Regulation

The coastal management program was established within the Louisiana Department of Natural Resources by the State and Local Coastal Resources Management Act of 1978.19 The Office of Coastal Management has the authority to issue Coastal Use Permits20 for activities qualifying as uses of state or local concern within the coastal zone.21 Uses of state concern include those which will directly and significantly effect coastal waters such as dredge and fill projects intersecting more than one water body, projects using state land or water bottoms, state publicly funded projects, national interest projects, mineral and pipeline activities and energy activities.22 Uses of local concern are those effecting coastal waters, including dredge and fill projects not intersecting more than one water body, bulkheads, piers, camps, and publicly or privately funded projects which are not

18Id.19 LA R.S. 49:214.26(A)(1).20 LA R.S. 49:214.26(B)(1).21 LA R.S. 49:214.30. The boundaries of the coastal zone are defined by LA R.S. 214.24, and have been updated by Act No. 588 of the 2012 legislative session; 2012 La. Sess. Law Serv. Act 588 (H.B. 656)(WEST). 22 LA R.S. 49:214.25(A)(1)(a-i).

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uses of state concern.23 Permitting for uses of state concern go directly through OCM, and I’d replace “and” with “while” permitting for uses of local concern are handled by local coastal management programs, which are subject to periodic review by the OCM.24

2. The Application Process

Applications for CUP permits are found on the OCM website. 25 The CUP application requires much of the same information for submission as the OCE form ENG 4345. The applicant will need to specify all other permits requested from other agencies, and any other information about pre-application meetings or wetlands determinations. Applicants must provide names and addresses of all adjacent landowners, a name for the project, location and directions to the project, and proposed start and end dates for the project. The application requires a detailed project description, including the volume of the excavation area, and the volume and type of each fill material to be used. A vicinity map, a plan view map and a cross section map must be provided, just as with the OCE application. Mapping services provided by the OCM staff help to determine the location and amount of acreage that would be affected by each project.26

Once the application is submitted, the OCM will determine whether the permit requested is a use of local concern and will be handled by a Parish coastal permitting office -- if there is a local office servicing the area in question -- or if it is a use of state concern, which will be reviewed by the state OCM office. Added: If there is no approved local program in that parish, the state will process the permit even though it is a “local” concern. A permit staff member from the OCM is assigned to assist in the application process for each case. A Joint Public Notice Coordinator helps with interagency communications between the COE, OCM and DEQ throughout the permit process. The OCM will issue a public notice and then determine, based on community feedback, whether a public hearing is necessary.

3. Permitting Guidelines

The OCM will not approve any activities that would violate other laws and regulations governing air or water quality in the area,27and works to avoid violations of the terms of grants or donations.28 The purpose of the OCM is to

23 LA R.S. 49:214.25(A)(2)(a-k).24 LA R.S. 49:214:28(A).25http://dnr.louisiana.gov/assets/OCM/permits/JPA2010Fillable.pdf.26 These criteria are used to evaluate whether the project falls within the guidelines for CUP permits set out in La. Admin Code. tit. 43, pt.I, § 701, which are the guidelines applicable to all projects. Some projects will require more specific guidelines, such as dredge projects, which are addressed in § 707.27La. Admin Code. tit. 43, pt.I, § 701(B).28 La. Admin Code. tit. 43, pt.I, § 701(E).

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enforce these regulations in conjunction with other legislation, projects, and state interests. The following general factors are to be considered when reviewing each permit application:

type, nature and location of use elevation, soil, and water conditions and flood and storm hazard

characteristics of the site construction, operation and maintenance techniques existing drainage patterns: flow, circulation, quality, quantity and salinity are

considered, and any foreseeable impact resulting from the use availability of feasible alternative sites or methods of implementing the use designation of the area for certain uses as part of a local program economic need for and economic impact of use public and private benefits coastal water dependency of the use infrastructure available and pubic costs resulting from use impact on traditional uses impact on natural features (beaches, barrier islands, wildlife habitats, e.g.) regional, state and national interests served by use proximity to special areas or areas of particular concern for state or local

programs secondary and cumulative impacts impact to public historic, recreational, or cultural lands or resources impact on navigation, fishing, public access, and recreational opportunities compatibility with natural and cultural setting extent of long term benefits or adverse impacts29

The following factors are to be avoided to the maximum extent practicable: reductions in the natural supply of sediment and nutrients to the coastal

system by alterations of freshwater flow adverse economic impacts on the locality of the use and affected

governmental bodies detrimental discharges of inorganic nutrient compounds into coastal waters alterations in the natural concentration of oxygen in coastal waters destruction or adverse alterations of streams, wetland, tidal passes, inshore

waters and waterbottoms, beaches, dunes, barrier islands, and other natural biologically viable areas or protective coastal features

adverse disruption of existing social patterns alterations of the natural temperature regime of coastal waters detrimental changes in existing salinity regimes detrimental changes in littoral and sediment transport processes adverse effects of cumulative impacts detrimental discharges of suspended solids into coastal waters, including

turbidity resulting from dredging

29La. Admin Code. tit. 43, pt.I, § 701(F).

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reductions or blockage of water flow or natural circulation patterns within or into an estuarine system or a wetland forest

discharges of pathogens or toxic substances into coastal waters adverse alteration or destruction of archaeological, historical, or other

cultural resources fostering of detrimental secondary impacts in undisturbed or biologically

highly productive wetland areas adverse alteration or destruction of unique or valuable habitats, critical

habitat for endangered species, important wildlife or fishery breeding or nursery areas, designated wildlife management or sanctuary areas, or forestlands

adverse alteration or destruction of public parks, shoreline access points, public works, designated recreation areas, scenic rivers, or other areas of public use and concern

adverse disruptions of coastal wildlife and fishery migratory patterns land loss, erosion, and subsidence increases in the potential for flood, hurricane and other storm damage, or

increases in the likelihood that damage will occur from such hazards reduction in the long term biological productivity of the coastal ecosystem30

The first set of guidelines are factors for consideration for the permitting issuance. Permits are not generally denied according to one single factor, but rather, a balancing test of the benefits and adverse impacts is applied with these factors in mind.31For the second set of guidelines, those modified by “maximum extent practicable,” a use which would NOT comply with any of these modified standards may be approved only if the permitting authority finds, upon balancing the relative significance of all factors, the benefits from the proposed use would outweigh adverse impacts of the use, and there are no practicable alternatives. Approval for uses which are not in compliance with any of these modified standards will further require one of the following:

a. significant public benefits will result from the use, orb. the use would serve important regional, state, or national interests,

including the national interest in resources and the siting of facilities in the coastal zone identified in the coastal resources program, or

c. the use is coastal water dependent.32

C. Department of Environmental Quality – Louisiana Pollutant Discharge Elimination System (LPDES)

1. Statutory Authority for Regulation

30La. Admin Code. tit. 43, pt.I, § 701(F).31 La. Admin Code. tit. 42, pt.I, § 701(H).32La. Admin Code. tit. 43, pt.I, § 701(H).

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The Louisiana Department of Environmental Quality issues LPDES permits under the Clean Water Act33 and the Louisiana Environmental Quality Act.34 There are a variety of general permits. For a large-scale dredge-and-fill diversion project, the appropriate general permit is the CSW-G.35

2. The Application Process

The LPDES Permit Application Notice of Intent (NOI) form requires information about the site itself and the parties involved. Other information as to the potential for impact to endangered species or to any historic properties is also required. Applications for coverage must be submitted by a party having operational control over construction plans and specifications, and/or a party having day-to-day operational control over those activities and can ensure compliance with permit conditions. Applicants must submit a storm water pollution prevention plan (SWPPP) and a completed NOI form. The SWPPP must comply with all applicable state and local sediment or erosion plans. The NOI will require the following information:

site owner contact information construction site location whether site is on Indian Lands certification of SWPPP for during and post-construction location and contact information where SWPPP may be viewed (should not

be included with the NOI) projected start and completion dates, number of acres of soil to be disturbed,

and type of facility to be constructed name of receiving water bodies; determine, using NOI addenda, whether

runoff from the site will flow directly into a waterbody listed as an Outstanding Natural Resource Water – if discharge enters a Scenic Stream36

Determine, using NOI addenda, whether any endangered species are in proximity to storm water discharges37

whether site is a State Historic Preservation Site38

whether there are any other LPDES permits from the site

33 33 U.S.C. 1251 et. seq.34LSA-R.S. 30:2074 (B)(3) and (B)(4). 35 Master General Permit No. LAR100000, referred to also as the CSW-G, states “Construction activities regulated under this permit include clearing, grading, excavation operations, and/or adding fill material that result in the disturbance of five acres of land or more.” Emphasis added. General Permit for Discharges of Storm Water from Construction Activities Five Acres or More, Part I, A., ¶2. 36Id. NOI Addendum C; for runoff to Scenic Streams, applicant will be instructed to contact Wildlife and Fisheries.37Id. NOI Addendum A.38Id. NOI Addendum D, State Historic Preservation Office may have to help determine eligibility.

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Applications are to be submitted to the Louisiana Department of Environmental Quality.

Louisiana Department of Environmental QualityOffice of Environmental ServicesP.O. Box 4313Baton Rouge, LA 70821-4313Attn: Water Permits Division

As part of the NOI, applicants must determine whether an endangered species or their critical habitats will be effected by the discharge permitted. This determination is a multi-step process, beginning with whether the construction site is in the vicinity of federally listed or threatened endangered species or critical habitats. If the answer is yes, then the analysis continues.

1. Is Construction Site inVicinity of Federally Listed Endangered Species or Habitat?

YES NO operator is eligible

2. Are Endangered Species Found “In Proximity” to the Construction

Activity’s Storm Water Discharge?

YES NO operator is eligible

3. Would Species or Critical Habitat be Adversely Effected? This includes changes in salinity, or temperature, for example.

Likely Not likely operator is eligible

4. Can Measures be Implemented to Avoid Adverse Effects?

measures become YES NOpermit conditions, operator is eligible

5. Determine if Eligibility Requirements Can Be Met:

Though adverse effects are likely, and no measures to avoid them are recognized, operators may still be eligible for permit if likelihood of adverse effects are addressed through meeting criteria of Part I.A.3.e.(1)(b)-(e). These include:

prior authorization under Endangered Species Act, or

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part of a larger project which was permitted and adverse impacts were considered in the permitting process, or

Fish and Wildlife Service has issued an opinion showing action is not likely to jeopardize the continued existence of endangered species, or

operator was considered part of a larger, more comprehensive site assessment of impacts on endangered or threatened species at the time the SWPPP was submitted and permittee met eligibility requirements.39

The applicant must also determine whether any historic properties listed in National Register, or any properties eligible to be listed in the Nation Register,

All of this, and more, automatically occurs through the DNR/Corps process as well. They shotgun out the application to USFWS, NMFS, DWF, EPA, and DEQ. If any of them want more, they write to the applicant (agent if there is one) and request what else they want. SHPO (state historical presv office) sometimes asks for arch screens, state or federal bugs & bugs may want a field check for species or habitat on ESA Sec 7 “take” issues, and so on. I doubt there’s square inch of the Earth which NMFS will not designate as “ESF,” essential fish habitat.

are in the vicinity of the discharge area. These properties will be listed on the National Park Service’s website, and can also contact city, parish, or other local historical societies for assistance (particularly for questions of eligibility of listing). The permit may be issued if no historic properties are identified, or if properties are identified but would not be effected by discharge.

If historic properties are identified in the path of discharge, and there is a potential for adverse effect on the property, a permit may still be issued if operator obtains and complies with a written agreement from the State Historic Preservation Officer outlining mitigating measures and conditions.

3. Standard Permitting Conditions

A diversion project would include particular permitting conditions, and these would be explored and assigned throughout the permitting process, for example, as with Wildlife and Fisheries for the purposes of protecting endangered species. Where permit applicants do not meet general permit eligibility conditions, there is an option to pursue coverage under an individual or alternative general permit. There are, however, standard permit conditions for all discharges of storm water from construction activity of five acres or more, and these will guide any variances or conditions particular to individual and alternative permits.

39 Requirements and exceptions more fully explained in Addendum A of LPDES permit.

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Each permit requires a duty to comply. The department can pursue criminal or civil penalties in cases of non-compliance, and all permit holders are required to take all reasonable steps to prevent violations. Permit holders are also required to comply with periodic, unannounced inspections where inspectors from the LDEQ must be allowed access to the project premises, monitoring equipment and project records. Permits may be modified, revoked and reissued, or terminated. Reasons for such action include noncompliance with conditions, misrepresentations in application, new determination that permitted activity endangers human health or the environment, and changes in ownership. Permit holders must also comply with methods of monitoring discharge prescribed in the Code of Federal Regulations.40

D. Environmental Impact Statement

1. Statutory Authority for Regulation

Prior to permit approval for projects that significantly effect the environment, federal agencies are required to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy (NEPA), 42 U.S.C. § 4332. The EIS is created by the agency in draft form and then circulated among other agencies involved in the permitting process and members of the public for comment.

2. Procedure

The process begins when a federal agency first receives an application for permit. First, a permit-issuing federal agency assesses the need for an EIS. Once it is determined that an EIS is needed through an environmental assessment, the federal agency handling the permit, or the “lead agency,” will then prepare the draft. Where a company is applying for a permit for a project significantly effecting the environment, often the company would provide an EIC, and may hire an environmental consultant to prepare the EIC.

After the EIS draft is prepared, it is circulated for comments. Once comments and responses are incorporated, the drafting agency must prepare a record of decision, discussing alternative or mitigating measures.41The Final EIS (FEIS) is submitted to the Council on Environmental Quality (CEQ). The CEQ evaluates the intensity of the project’s impact on the human environment, and may further recommend alternatives.The EIS is then used, in combination with all other materials and information gathered, by the agency making the permit determination to help guide their acts and decisions.42

40 Tables found at 40 C.F.R. 136.4140 C.F.R. 1505.2(c).4240 C.F.R. 1202.1.

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E. The Comprehensive Permit Process

While permit approval from each of these separate agencies is required to move forward with projects, it is important to remember that the agencies work cohesively throughout the process. Agencies are able to combine like requirements, for example, by scheduling one joint public notice hearing, instead of holding separate hearings to review each agency’s specific concerns. The agencies inter-communicate throughout the process, sharing application information and research with one another. This interaction simplifies the application process for operatorsand prevents the problem of having to answer to inconsistent interests represented by each agency.

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