United States Army Corps of Engineers Pittsburgh District Regulatory Program Westmoreland County 2014 Engineers Workshop March 20 th & 21 st, 2014
Outline of Topics Regulatory Boundary Map USACE Regulatory Authorities Jurisdiction Types of Permits Enforcement / Non-compliance Information for the State of Pennsylvania
Pittsburgh District Regulatory Boundary
USACE Regulatory Authorities
Statutory Authorities Section 10 of the Rivers and Harbors Act of 1899 Requires approval prior to any work in, on, over or under navigable waters of the United States, or which affects the course, location, condition or capacity of such waters Examples: Ohio River, Tug Fork, Elk River, Gauley River, Greenbrier River, Kanawha River, New River, Monongahela River, Tygart River, Potomac River, Shenandoah River Complete list on District s webpage Section 404 of the Clean Water Act Requires approval prior to discharging dredged or fill material into the waters of the United States
Barge fleeting Power lines Piers Mooring structures Utility line crossings Boat docks Section 10 Activities
Section 404 Waters Navigable waters of the United States All Section 10 Waters Interstate waters & interstate wetlands Other waters such as intrastate lakes, rivers, streams, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation or destruction of which could affect interstate or foreign commerce
Section 404 Waters Rivers, streams, canals, some ditches, impounded waters, natural lakes, and wetlands
Jurisdiction
Jurisdiction Navigable Waters (Section 10) Each District has a list with limits Waters of the US (Section 404) Jurisdiction extents to ordinary high water mark for: Section 10 waters Relatively Permanent Waters Lakes Streams (Perennial, Seasonally Intermittent) Adjacent Wetlands Others require a case-specific determination Streams (Intermittent, Ephemeral)
BUILDING STRONG
Jurisdictional Determinations
Jurisdictional Determinations Identification of Potentially Jurisdictional Waters Wetland Delineation Identification of Streams and other waters USACE/USEPA have ultimate authority for Section 404 determinations USACE will determine if waters are or are not jurisdictional (i.e. isolated)
Isolated Waters Waters determined by the USACE Potentially Regulated by Pennsylvania DEP
Identifying Streams Relatively Permanent Waters (RPW s) Perennial has surface flow year round Intermittent has flow for several months in a year Non-relatively Permanent Waters (nrpw s) Ephemeral has flow only during rain events
Ohio River
Mill Run
UNT to Stonycreek River
UNT to Stonycreek
UNT to Brush Creek
Tributary to the Conemaugh River
Upland Drainage Feature
Permits
Types of Permits Standard Permits (large complex projects) Letter of Permission Individual permits Goal is 120 days but majority take longer General Permits (smaller less complex projects) Nationwide Permit (Goal: 45 days from complete application) Regional General Permits PA SPGP-4: GP-05, GP-07, GP-08, etc. (Goal: 60 days from complete application)
Standard Individual Permit Process Pre-application meetings are encouraged Formal application Alternative Analysis Mitigation Public Notice with opportunity for Public Hearing Only agency coordination for LOPs 404(b)(1) Guideline Analysis EA/EIS and Decision Document (NEPA) Public Interest Review Permit Decision
General Permits Authorization for a category of activities that are: similar in nature and cause only minimal individual and cumulative environmental impacts; adequately regulated by a local, regional, state or Federal agency and cause only minimal individual and cumulative environmental impacts.
General Permits Nationwide Permits (NWP) Issued at the HQ level and made regionally specific Currently there are 52 NWPs. Examples: Bank protection Commercial & Residential Development Linear Transportation Projects Utility lines Regional General Permits (RGP) Issued at the District level. Examples: Rec. Dock and Piers Maintenance Dredging
Nationwide Permits (NWPs) Specific conditions General conditions Regional Conditions 401 certification Individual 401 may be required
PA SPGP-4 Many NWPs are suspended and must use SPGP-4 Category I, II, & III Category I, II: PA DEP authorizes with federal authorization included as SPGP-4 Category III: PA DEP and Corps review SPGP-4 applications. Federal authorization can be sent separately via Corps letter or sometimes included in DEP authorization.
Commonly used General Permits General Permit 3: Bank Rehabilitation, Bank Protection, and Gravel Bar Removal General Permit 4: Intake and Outfall Structures General Permit 5: Utility Line Stream Crossings General Permit 7: Minor Road Crossings General Permit 8: Temporary Road Crossings General Permit 11: Maintenance, Testing, Repair, Rehabilitation or Replacement of Water Obstructions and Encroachments * If General Permit conditions cannot be met, then a Joint Permit Application (JPA) will be required
Common Reasons for Category III Review Thresholds Previous Federal Authorization
Common Reasons for Category III Review Federally Endangered Species
Common Reasons for Category III Review Cultural Resources Development without proof of conservation instrument
Common Reasons for Category III Review Crossing State Line Ch. 105.12(a)(2) Waiver 2
Items needed for Corps Review Permit application (with accurate info) USGS Location Map with coordinates Aquatic Resource Delineation Report with pictures, data sheets, etc. Federally listed species clearance or consultation (USFWS) Cultural Resource Clearance or consultation (PHMC) Drawings of proposed project showing impacts to WOUS Impacts description (temporary, permanent, type, etc.) Impacts table that IDs all impacts for project Restoration statement and mitigation plan when applicable Discussion demonstrating avoidance and minimization of impacts to WOUS Other: CD with e-files, waters upload sheet (Revised)
Closing the Loop Corps Cat. III Closure Procedure
Corps Discretionary Authority
Enforcement and Non-Compliance
Goal = Prevention of Violations Presentations/training Sessions Municipal Governments Contractors, Engineers, Surveyors, Land Use Planners Loggers, Farmers Special Interest Groups Mailings to Municipal Governments Program Overview/updates Field Assistance/training Target Issues Meetings Issue/project Specific Programmatic Concerns
Enforcement
Enforcement Three federal agencies involved: U.S. Army Corps of Engineers MOA between USACE and USEPA Corps still major player Corps does all compliance United States Environmental Protection Agency Is lead when: Flagrant violator Repeat violator EPA requests lead agency status (Region III: 2011 request of all O&G CWA violations) Department of Justice Consent agreements Referral for court ordered restoration
Enforcement Outcomes No action Voluntary Restoration After-the-Fact (ATF) Permit (Mitigation/Restoration) Referral to U.S. E.P.A. (EPA becomes lead federal agency) Civil Litigation (Department Of Justice)
Compliance
Compliance USACE performs compliance for all types of permits, including Nationwide Permits Compliance Review Office Review Field Review Outcomes Permittee is in compliance Permittee is in non-compliance
Non-compliance Permit Suspension Permit Modification Permit Revocation Administrative penalty DOJ No action
Reference Links PA SPGP-4: http://www.lrp.usace.army.mil/portals/72/docs/regulatory/pas PGP%204/PASPGP-4.pdf Corps Regulatory: http://www.lrp.usace.army.mil/missions/regulatory.aspx Navigable Waters: http://www.lrp.usace.army.mil/portals/72/docs/regulatory/reg ulatoryboundaries/pn12-2.pdf General Line: (412) 395-7155 Regulatory Email Box: Regulatory.Permits@usace.army.mil