Document

Report
St. Paul District U.S. Army Corps of
Engineers Regulatory Branch program:
an overview.
Presented by Rebecca Gruber, Corps Regulatory Biologist,
Waukesha Wisconsin
January 2009, Wisconsin Transportation Builders
Association/Wisconsin Department of Transportation
Contractor Engineer Conference
Disclaimer:
The views contained in this presentation and handouts are the personal views of
the presenter and do not necessarily reflect the views of the United States Army
Corps of Engineers, the Department of Defense, or the United States of America.
-DoD Joint Ethics Regulation, ¶ 2-207
Regulatory Program Goals
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Protect the Nation’s aquatic resources
Take into consideration the views of other
Federal, state & local agencies, interest groups,
and the general public
Achieve no net loss of wetland functions &
values/offset adverse impacts to the aquatic
environment with mitigation
Make fair, equitable & balanced permit decisions
Make timely permit decisions
Regulatory Authority – 2 types
Construction and dredging
(in FEDERAL navigable
waters only):
Section 10 Rivers and
Harbors Act of 1899
Discharge of dredged and
fill material into most
aquatic resources (includes
Federal navigable waters):
Section 404 Clean Water
Act, 1972 & 1977 (amended)
Jurisdictional aquatic resources are called
Waters of the United States (WOUS), &
typically include:
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Federally navigable waters (the Section 10 waters)
Interstate waters/wetlands
Navigable waters and abutting wetlands
Relatively permanent tributaries to navigable waters
Relatively permanent intrastate lakes, rivers and streams
Intermittent streams, mudflats, wetlands, sloughs, potholes, wet
meadows, playa lakes where degradation could affect interstate
or foreign commerce
Waters with industrial or commercial purposes (this could
include select isolated wetlands)
-Recent Supreme Court cases (SWANCC, Rapanos, Bayview)
have added “nuance” to the jurisdictional determination
process… determinations may be preliminary or approved.
Section 404
Activities
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Issues the Corps must consider during
permit application review (General
Public Interest Factors)
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Conservation
Economics
Aesthetics
Wetlands (ADID?)
Historic Properties
Flood Hazards
Floodplain Issues
Land Use
Navigation
Recreation
Energy Needs
Prime and Unique Farmland
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Safety
Water Quality
Fish and Wildlife Values
Shore Erosion and Accretion
Water Supply and
Conservation
Food and Fiber Production
Property Rights
Environmental Concerns
Welfare of the People
Mineral Needs
Endangered Species
COE can only authorize “least
environmentally damaging practicable
alternative” (LEDPA)
•Determine the project purpose; assume non-wetland sites
are available - if not water-dependent (must demonstrate
avoidance of impacts to aquatic resources).
•Once site is selected, minimize project impacts to aquatic
resources to the maximum extent practicable during design
and/or construction processes.
•Provide compensatory mitigation for unavoidable impacts
(typically over 10K square feet – at discretion of DE).
•Some permit types require public noticing to solicit
comments from the public (typically a 30 day notice).
Compensatory Mitigation Options for
Lost Functions and Values
Mitigation can be:
 In-kind – on-site or off-site
 Out-of-Kind -on-site or off-site
 Mitigation banks, applicant performs
 Can include some upland buffer
 Stream/Lake mitigation now required
Ratios for mitigation vary by type of basin impacted,
type of compensation, typically it is expensive.
Once the Permit is Issued
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The Corps views the permit as a “contract”
between you and us as to how the project will be
constructed
If design plans change between when the permit
was issued and when construction begins the
changes should be coordinated with the Corps
The Corps is not typically involved in the final
design and planning if the permit has been
issued
Once the Permit is Issued
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If a permit modification is required
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Coordinate well in advance of start of construction
Provide specific information and revised design plans
May require a public notice if changes are significant
May require additional compensatory mitigation
However, most modifications can be completed
efficiently with little additional coordination or analysis
Constructing a Project
Our top six concerns
Improperly installed culverts
 Introduction of non-native species
 Failure to implement or maintain stormwater BMPs
 Encroachment into wetlands and inadequate buffers
around wetlands
 Stream bank destabilization around crossings
 Poorly constructed compensatory mitigation
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“We don’t do enforcement for
enforcement’s sake, we do it for
compliance’s sake”.
(J.P. Suarez, Assistant Administrator, EPA)
The integrity of the Section 404
program depends on active
enforcement to ensure that
unauthorized activities do not occur
and that permittees comply with
the conditions of their permits.
Resolution of
Unauthorized Activities
The Corps “Toolbox”
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Initial Corrective Measures
After-the-fact Permit Application
Legal Action
Voluntary Restoration
Corrective Actions
Resolution of
Unauthorized Activities
Initial Corrective Measures
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Order Issued by the District Engineer
Based on Jeopardy to Life, Property, or
Public Resources
Could Resolve the Violation
Does not Require a Corps Permit
Resolution of
Unauthorized Activities
After-the-fact Permit Application
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Must be Accepted Unless One of the
Exceptions at 33 C.F.R § 326.2(e) Apply
Applicant Must Sign a Tolling Agreement
Processed in Accordance with Applicable
Procedures
Denial is a Possible Outcome
Resolution of
Unauthorized Activities
Legal Action
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Used to Obtain Penalties for Violations,
Compliance with Orders and Directives Issued
by the DE or Other Appropriate Relief
District Criteria for Referral Considers Actions
that are Willful, Repeat, Flagrant, or of
Substantial Impact
District Can Refer Cases to Local USDOJ,
USEPA, or Office of the Chief of Engineers
Environmental Protection Agency
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EPA has sole legal authority to pursue enforcement
of unpermitted fill activities.
EPA can use Section 309 Administrative Orders to
require correction of the violation or to assess civil
penalties up to $137,500.
EPA can use Section 308, which authorizes
collection of information including accessing the
property, collecting samples and evidence and
issuance of information requests.
Department of Justice
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Cases referred to DOJ typically result in civil
penalties and injunctive relief (restoration)
Once referred, decisions on penalty amounts
are made by the U.S. Attorney or Main
Justice, not by the Corps
Penalty amounts up to $32,500 per day, per
violation
Resolution of
Unauthorized Activities
Voluntary Restoration
• Not Enforceable Unless Another
Mechanism is Utilized
• Quickest and Most Straightforward
Method
Corrective Actions
• Only Available When an After-the-fact
Permit Application has been denied
• Enforceable through Legal Action
Resolution of
Unauthorized Activities
Corrective Actions
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Only Available When an After-the-fact
Permit Application has been denied
Enforceable through Legal Action Process
Permit Noncompliance
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The Corps does not have the resources to
inspect every project
Permittees are responsible for complying with all
terms and conditions of Corps authorizations
The Corps has the authority to issue
administrative penalties for permit
noncompliance
Permit Noncompliance
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Class I Administrative Penalties may not exceed
$11,000 per violation except that the maximum
amount of any Class I penalty shall not exceed
$27,500
Appropriateness of penalty takes into account
importance of resource affected, importance of
the violation, and history of the violator
Penalty amount determined by degree of
environmental harm and compliance importance
How to Stay Out of Trouble
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If work impacts a wetland or waterway in any
way, chances are a permit is required
Always obtain and READ permits for work in
wetlands and waterways before beginning work
Even if not required by permit, have sensitive
areas flagged so they are avoided during
construction
Ask questions before, not after you begin work.
If You Get into Trouble…
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Report any unauthorized discharges or noncompliance issues to agency staff immediately
Implement measures to control environmental
harm as soon as possible while coordinating
with agency staff
Review site practices to insure it doesn’t happen
again
What to Take Home
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We prefer to talk with you before the work rather than
after it has been done (permit vs. violation)
Make sure everyone has read and understands the
permit issued for the work
The Clean Water Act is a strict liability statute, the
person responsible for the work (performing or
directing) is liable
The Section 404 program is based on voluntary
compliance
We take unauthorized activities associated with
permitted activities and non-compliance issues seriously
Resources for more information
Our District website:
http://www.mvp.usace.army.mil/regulatory/
(info about local contacts, permit types, permit
application forms, public notices of local projects
and jurisdictional determinations).
 Our Headquarters website:
http://www.usace.army.mil/CECW/Pages/cecwo_
reg.aspx/ (info on national incentives,
regulations).
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