New Draft Section 408 Policy Document EC

Transcription

1 New Draft Section 408 Policy Document EC Presentation to the Lower American River Task Force Ryan Larson, P.E. March 13, 2018 US Army Corps of Engineers

2 Outline 1. USACE Program Governance 2. Applicability of Section Options for Seeking Section 408 Permission 4. Basic Requirements 5. USACE Review Requirements 6. Review and Notification Timelines 7. Decision Authority 2

3 USACE Program Governance and Funding Section 408 Coordinator at all levels (new) Annual audit to review decisions, consistency, and policy compliance (new) Section 408 tracking database with a subset of publically available fields related to status Funding agreements (new), Section 1156(a)(2) of WRDA 2016 Amends Section 408 to provide a contributed funds authority Applies to any non-federal public or private entity (revised) Section 214, WRDA 2000 as amended Limited to non-federal public entities, public utility companies, natural gas companies, and railroad carriers Requires public notice and annual Congressional reporting 3

4 Applicability of Section 408 In general, Section 408 applies to, Authorized USACE Civil Works projects and Actions that build upon, alter, improve, move, occupy, or otherwise could affect the USACE project (permanent or temporary) Geographical Limitations of the Applicability of EC USACE project real estate interest; 4

5 Applicability of Section 408 (new) Emergency alterations follow EC (check other exceptions), reprioritize, use existing emergency environmental processes (revised) Project sponsor activities do not require Section 408 permission if activity is In O&M manual; Restores to same physical dimensions/design 5

6 Options for Seeking (revised with new appendix) Categorical Permission streamline process for categories of alterations that are similar in nature 2. Single-Phased Review all required information submitted at one time 3. (new) Multi-phased Review formalized process to pursue Section 408 permission in milestones or smaller phases interim reviews and assurances at predetermined milestones 6

7 Scenarios for Multi-Phased Review Large-scale plan consisting of multiple smaller construction phases. Milestones may be for review of the whole conceptual plan and then for each separable construction phase. Complex or advanced engineering and design needed for review and decision Milestones are for the same construction phase, but each milestone involves progressively advancing design 7

8 Basic Requirements (revised) Statement of No Objection (if requester not the project sponsor) Replaces written endorsement requirement Intent to ensure sponsor is aware of the Section 408 request and does not object to the request being submitted Not required if requester has eminent domain authority Technical Analysis and Design Meet USACE standards- impacts to channel and function of levees/project Specific quality and technical reviews may be required 8

9 Elements of USACE Review (revised) Public Input In general all Section 408 requests will require a public notice Coordinate content and timing of public notice for multiple purposes (Regulatory, EO11988, environmental compliance) (new) Standard terms and conditions (Appendix K) 9

10 (new) Timelines Emphasize intent of timely review and responsiveness to requesters Completeness Determination within 30 days, applies anytime USACE receives information related to a Section 408 request use the Basic Requirements to determine completeness Review and Decision Phase within 90 days from completeness determination Provide written notification if 90 days can t be met If schedule is beyond 120 days, Congressional reporting required Dates will be tracked in the Section 408 database ( 10

11 (revised) Decision Level All Section 408 decisions are delegated to Divisions and Districts Division Commander the decision-maker for the following, If Safety Assurance Review is required (life safety) If crediting is being sought If potential to affect a current USACE study Majority of Section 408 requests decided at the district (District Commanders can delegate decisions to a district division chief) 11

12 External Comment Submittal Comment period has been extended to April 6, Comments can be submitted through the Federal Register notice, Comment Portal: subject EC Comments 12

13 Process Steps Pre-Application Coordination Submit Request Review Documentation USACE Technical Review Summary of Findings Division Review, if required Issue Letter of Permission Post-Permission Oversight 15

14 408 Review Process Step 1: Pre-Application Coordination Pre-application meeting to help identify USACE procedures and potential issues Lead Federal Agency designation letter! Step 2: Submit Request Non-Federal sponsor reviews the request for completeness (state compliance typically) Non-Federal sponsor submits request to USACE Step 3: Required Documentation Technical Analysis (i.e. Basis of Design) Hydrologic and Hydraulics System Performance Analysis Geotechnical Analysis Environmental Compliance (NEPA) Real Estate Requirements Requester s Review Plan (district determination) 16

15 408 Review Process Step 4: USACE Technical Review Impair of the Usefulness of the Project Determination Injurious to the Public Interest Determination Legal and Policy Compliance Determination Step 5: Summary of Findings SPK makes their recommendation Step 6: Division Review (if required) 17

16 408 Review Process Step 8: Issue Letter of Permission USACE issues 408 Decision in a letter of permission USACE issues LOP to non-federal sponsor Sponsor then in turn issues to requester Step 9: Post-Permission Oversight (as appropriate) Construction Oversight As-Builts O&M Manual Update Post Construction Closeout Administrative Record 18

17 USACE Regulatory Division Coordination (Section 404/10 permits jurisdictional waters of the US) 408 group coordinates closely with Regulatory Division. Determine consultation(s) lead. No duplication of consultation efforts Sharing documentation Section 10/404 decisions are separate decisions thus require separate decision documentation Section 408 decision must be made before the Section 10/404 decision is issued. 19

18 Other Federal Agencies Important to identify early (pre-application) if: Another federal agency is the requester or providing funding Project is on federal land Steps 1. Corps sends a lead federal agency designation letter 2. Important for letter to be sent before Section 7 and 106 consultations 3. Other federal agency consults on behalf of the Corps 4. Corps uses consultations completed by the other federal agency 20