Using a Programmatic Permitting Approach to Move Through the Corps' - - PowerPoint PPT Presentation

June 2016

Using a Programmatic Permitting Approach to Move Through the Corps' Regulatory Process On Time and Under Budget

Overview for T

• day’s Discussion

Programmatic Permitting In-Lieu Fee Programs Permitting Background ESA Compliance

PERMITTING BACKGROUND

• Corps Regulatory Program Goals

Provide strong protection to the Nation’s aquatic environment, including wetlands Enhance the efficiency of the Corps administration of its regulatory program Ensure that the Corps provides the regulated public with fair and reasonable decisions

Jurisdiction

• Navigable waters of the United States are those waters

subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

• Ocean and coastal waters to 3 nautical miles seaward of

baseline

• Tidal waters shoreward to MHW
• Non-tidal waters to OHWM and upstream to head of

navigation and adjacent wetlands

Jurisdiction – Section 10

Jurisdiction – Activities Regulated Under Section 10

Structures: Weirs, utility/power lines, tunnels, piers, wharves, dolphins, breakwaters, booms, bulkheads, revetments, riprap, jetties, permanent mooring structures, aids to navigation, permanently moored floating facilities, pilings Structures or work in,

• ver, or under navigable

waters of the U.S. (§ 10 of Rivers and Harbors Act of 1899) Work: Excavation, dredging, filling, or modification

Includes all navigable waters of the U.S.

Plus

– Adjacent wetlands – Extent of jurisdiction

• Territorial seas – from baseline seaward to three nautical miles
• Tidal waters of the U.S. – landward limits extend to high tide line
• r to limit of adjacent wetlands
• Non-tidal waters of the U.S. – jurisdiction extends to ordinary

high water mark or to limit of adjacent wetlands

Jurisdiction – Section 404

Jurisdiction – Activities Regulated Under Section 404

Discharge of dredged material means any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, waters of the US. Discharge of fill material means material placed in waters of the United States where the material has the effect of: i.Replacing any portion of a water of the US with dry land; or ii.Changing the bottom elevation of any portion of a water of the US.

Discharges of dredged or fill material into all waters of the U.S. (§ 404 of the Clean Water Act of 1972)

Sequential approach to decision making:

• General Permits

– Regional/Programmatic General Permit (MOST EFFICIENT) – Nationwide Permit (impacts minimal, supposed to be timely)

• LOP/Abbreviated Individual Permit Process

(MOST EFFICIENT)

• Standard Individual Permit (a “one-off” permit,

least simple, most time consuming)

Permitting Process

• Nationwide Permits.

– Corps estimates 45 Days to process. – Are supposed to allow certain activities with little delay and paperwork. – Read the PCN timing fine print.

• Individual Permits.

– Corps estimates 2-3 months to process a routine application involving a public notice. – Process in120 days.

Project Review Timelines

How long will it take?

Standard Permitting Review Process

PROGRAMMATIC PERMITTING

Programmatic Permitting Advantages

Saves Money

• Eliminates redundancies
• Studies and other project-by-project

costs

• Economies of scale with consolidated

mitigation

• Advanced mitigation lowers ratios

Saves time (timeline certainty!)

• Reduce agency review with pre-

screening

• Ground rules already established
• Mitigation identified

Programmatic Permitting Advantages

• –

– –

• –

– –

Provides outcome certainty! Helps regulatory agencies

• Efficiency
• Time to spend on larger projects
• Better documentation and tracking

Better for the environment

• Planning at a watershed scale
• Better project outcomes
• Better mitigation outcomes

Think about: – Proposed activities – Geographic area – Which Permit(s)? (LOP or RGP or PGP) – What other agency permits? – CEQA and other technical studies

Setting Up a Programmatic Permit

ENDANGERED SPECIES ACT COMPLIANCE

• Protection of endangered and threatened

species and their habitats

• Unlawful to “take” a listed animal without

a permit.

• Section 7 = for federal agencies
• Section 10 (HCP) = non-federal landowners

Endangered Species Act

ESA Coverage for Programmatic Permit

Integration with Habitat Conservation Plan Programmatic Section 7 Consultation

OR

Programmatic Determination of Not Likely to Adversely Affect (NLAA)

• Establishes procedures and project criteria for the

purposes of streamlining typical project-by-project ESA review for projects with negligible effects on listed species

• r designated Critical Habitat
• USFWS/NMFS concurrence that projects complying with

an agreed-upon set of criteria will be “not likely to adversely affect” – Applies to projects where effects are expected to be discountable, insignificant, or completely beneficial

• No need for initiation of consultation on a project-by-

project basis; programmatic concurrence, with advance notifications to USFWS/NMFS and annual reporting

• Activity-specific conditions (e.g., project design criteria)

and species-specific conditions must be met

• Impact thresholds are pre-determined and generally within

the range of General Permits

• Renewable on a 5-year basis

Programmatic Section 7 Consultation Options

Programmatic Biological Opinion

• Provides a framework to streamline ESA approval of projects

involving a federal permit, funding or action and where such projects “may adversely affect” listed species or critical habitat

• Establishes pre-determined project design criteria and impact

thresholds that must be met in order to qualify for coverage

• Can be used for all types of projects and provides applicants up-front information to

design projects to avoid affects on listed species

• Generally addresses effects of multiple activities at larger scales and promotes more

consistent application of conservation measures

• Increases certainty in the following:
• 1. timeframes for project approval
• 2. project cost
• 3. overall conservation benefits/outcomes
• Reduces regulatory burden and allows for more efficient use of

agency staff time when compared to project-by-project approach

Programmatic Section 7 Consultation Options (continued)

• Programmatic permits, such as RGPs and PGPs, when developed in concert with

HCPs can provide streamlined approval for covered activities under the HCP that also have impacts on waters of the U.S.

• Applies only to covered activities in waters of the U.S. within the plan area
• Covered activities must comply with thresholds, terms and conditions established

under RGP/PGP and requirements of HCP

• Avoids the often redundant regulatory process typically involved with Section 7

consultations triggered by the necessity of obtaining a 404 permit in an HCP area

• Ensures consistency in mitigation approach and requirements from the Corps
• Allows for coordinated restoration, enhancement and conservation of waters of the

U.S. and associated functions at a landscape scale in conjunction with HCP conservation actions

Integration with Habitat Conservation Plans

• Section 106 of

the National Historic Preservation Act

• Coastal Zone

Management Act

Compliance with Other Laws

IN-LIEU FEE PROGRAMS

Mitigation Planning – the 3 Ms

• Sequence:

– Avoidance – Minimization – Compensatory Mitigation

• Incorporate pre-identified

compensatory mitigation planning

• ILF well-suited to

programmatic permitting

What is compensatory mitigation to the Corps?

• Corps’ Mitigation Rule finalized April 2008
• Outcome-based mitigation to offset unavoidable impacts

to waters of the United States

• Mitigation measured by aquatic functions

Restoration (Re-establishment/Rehabilitation)

• Returning natural or historic functions to a degraded or

former aquatic resource

Establishment (a.k.a. creation)

• Manipulate an upland site to create an aquatic resource

Enhancement

• Manipulate an existing resource to increase one or more specific

functions

Preservation

• Remove a threat to an existing aquatic resource and

provide management

Mitigation Policy Background

What is an ILF?

• Program involving restoration, establishment,

enhancement, and/or preservation of aquatic resources through the collection of fees to satisfy mitigation requirements of permits

Sponsors

• Government or Non-Profit natural resources

management entity can be sponsors; assumes responsibility for successful implementation of compensatory mitigation

Use of Fees

• Fees must be used to plan, design, and implement

compensatory mitigation projects

Introducing In Lieu Fee

THE PREFERENCE HIERARCHY Mitigation Bank

• Commercial entity for profit or a single user for practicality
• Single project sites where larger compensatory mitigation project is done
• Permittees purchase credits from sponsor
• Sponsor assumes responsibility for providing the mitigation

In-Lieu Fee Program

• Government or non-profit natural resource management entity
• Consolidates fees to provide strategic compensatory mitigation projects

with greater ecological benefits

• Sponsor assumes responsibility for providing mitigation

Permittee-responsible

• On-site, Off-site (in watershed) and/or in-kind

Types of Mitigation Programs

• Greater ecological benefits
• Focus on watershed needs
• Increase capacity for local,

ecologically-appropriate habitat improvement projects

• Develop self-sustaining revenue

source to fund mitigation projects

• Create and strengthen local

community partnerships

In-Lieu Fee Overview

• Only the Corps authorizes ILFs
• Other agencies can authorize use on

a case-by-case basis

• In-Lieu Fee credit sales are market driven
• Mitigation Credit Sales fund project

planning, design, implementation and long term management.

• Mitigation projects are normally required

to be implemented within 3 years of selling credits

In Lieu Fee Program Basics

Permittee Benefits:

• Compensatory Mitigation availability
• Mitigation certainty
• Cost savings

Permittee/Sponsor Benefits

Sponsor Benefits:

• Provide funding for

strategically important restoration projects

• Increased capacity: can

become the local source of mitigation credits

• Consolidated projects with

greater ecological benefits

• Enhance more important

wetlands and stream corridors

EXAMPLE – SUISUN MARSH

Example – Suisun Marsh

• Suisun Marsh: largest contiguous brackish

water marsh on the west coast of North America (over 50,000 acres).

• Suisun Marsh Management Plan: balance tidal

wetland restoration, ESA habitat, managed wetlands, public use, upland habitat.

• Suisun Marsh: resting and feeding ground

for thousands of migrating birds on the Pacific Flyway; tidal rearing ground for salmonids; 200 miles of levees help manage salinity in the Sacramento- San Joaquin River Delta (Delta).

• Recreation: 158 private duck clubs; CDFW

lands; other recreation

Suisun Marsh Challenges

RESOURCE PROTECTION CHALLENGES:

• Water management practices

and operations

• Managed wetlands operations

and management

• Habitat protection for multiple

special status species PEOPLE CHALLENGES:

• Seven State and Federal

Agency Stakeholders

• Hundreds of private

landowner Stakeholders

• Public landowners

(DWR, Bureau of Reclamation, CDFW)

• All must integrate

competing uses into beneficial uses to restore and protect Suisun Marsh

Regional General Permit 3 (RGP3)

• Applicants: Suisun RCD; CDFW; CDWR; U.S. Bureau of Reclamation
• Authorizes Operations and Maintenance Activities:
• ditch maintenance; placement of rip-rap; exterior and interior levee

maintenance; bulkhead repair; grading work; duck blind placement; salinity monitoring equipment; coffer dams; water control structures work; fish screen maintenance and repair; salinity station maintenance/repair/replacement

• RGP3 administered by Suisun RCD
• 30 day authorization process by Corps
• Conditional 401 Cert covers all RGP3 activities
• Programmatic BOs from USFWS, NMFS covers all RGP3 activities
• Annual report summarize amounts and locations of activities
• Mitigation completed as part of a 30 year plan to protect Suisun Marsh

Suisun Marsh Letter of Permission (LOP)

• Applicants: Suisun RCD; CDFW; CDWR; U.S. Bureau of Reclamation
• Authorizes up to 100,000 cubic yards of material, and up to 19.83 acres
• r 90,446 linear feet (17.13 linear miles) to be dredged from:
• Bays the border Suisun Marsh Managed Wetlands
• Major Sloughs in the Suisun Marsh
• Minor Sloughs in the Suisun Marsh
• Dredger Cuts in the Suisun Marsh
• 1,000,000 cubic yards authorized over 10 years
• 401 Cert coverage
• Programmatic BOs from USFWS, NMFS coverage
• Annual report summarize amounts and locations of dredging
• Mitigation completed as part of a 30 year plan to protect Suisun Marsh

Suisun Marsh Programmatic Permitting Benefits

PERMITTEE BENEFITS

• Saves time! 100s of permit applications are

processed with timeline certainty (30 days)

• Permit submittal consistency (Suisun RCD

handles permitting for landowners).

• Avoidance, minimization, mitigation

requirements known. No surprises.

• Saves money (everything is already

completed: CEQA, environmental studies, permit application process, mitigation). AGENCY BENEFITS

• Agencies aren’t “papered.”
• Better environmental protection
• Better monitoring
• Agencies can track, monitor, understand

individual and cumulative impacts

EXAMPLE – South Sacramento HCP

Example – South Sacramento HCP

• SSHCP provides a landscape-level approach to

protection of important biological resources

• Plan Area – 317,655 acres within south

Sacramento County

• 28 Covered Species of plants and wildlife
• New conservation of 33,796 acres
• Urbanization Covered Activities occur within

Urban Development Area

• Need = Aquatic Permits Integration!
• Aquatic Resources Program (ARP) developed

in coordination with SSHCP

SSHP Plan Area Urban Development Area (UDA) Preserve Planning Units (PPU) Galt City Limits Rancho Cordova Limits

SSHCP Aquatic Resources Program

HCP/Aquatic Resources integration is possible

T

• Make it Work:
• Need to bring all agencies together
• Need correct terminology
• Need to understand all agencies’ concerns

SSHCP Aquatic Resources Program

• ARP provides a regulatory framework

for projects in SSHCP to comply with federal, state, and local laws that protect aquatic resources

• Multidisciplinary, programmatic

approach to obtain permits for impacts to aquatic resources (404, 401, 1600)

• Permitting process has

pre-identified avoidance and minimization requirements

• Comprehensive compensatory

mitigation strategy

Aquatic Resources Permitting Strategy

• Programmatic General Permit
• Regional General Permit
• Letter of Permission procedure
• Abbreviated Standard Permit Procedure

Plus

• In-Lieu Fee Program

• EXAMPLE – 2013 USACE/NMFS NLAA PROGRAM

• Developed by USACE and NMFS for USACE-permitted projects

in San Francisco and Sacramento Districts

• Intended to streamline approval of 7 types of projects via

programmatic determination of “not likely to adversely affect”

• Addresses 20 listed species, distinct population segments,

evolutionary significant units, and any designated critical habitat for these species

• Applies to certain projects that meet specific project design

criteria set forth in the NLAA Program; eligible project categories include:

• Bank Stabilization
• Boat Docks, Piers, and Wharfs
• Bridge Repair/Widening/Replacement
• Culvert Replacement/Upgrade
• Levee Maintenance
• Buoys, Floats, and Other Devices to Facilitate Mooring of

Vessels

• Pipeline Repair or Replacement
• Projects that don’t meet design criteria do not qualify for

coverage and will require separate independent consultation (either formal or informal) with NMFS

Example – 2013 USACE/NMFS NLAA Program

• NLAA Program addresses the following species:

– Fish: Chinook salmon, Coho salmon, Steelhead and Green sturgeon – Marine Mammals: Blue whale, Fin whale, Humpback whale, Sei whale, Sperm whale, Western North Pacific grey whale

• Some species (Pacific eulachon, White abalone

and Black abalone) are specifically excluded from coverage due to difficulty identifying the extent and magnitude of impacts from certain project types

• NLAA applies to three geographic regions to

account for: 1. species vulnerability to project effects 2. species-specific biological requirements 3. differences in ecological landscapes

Example – 2013 USACE/NMFS NLAA Program

Geographic Areas: Northern California Coast Central California Coast Central Valley

• Project design criteria intended to ensure projects, either individually or combined, are not likely

to adversely affect covered species and critical habitat

• Project design criteria include two types:

– Criteria that apply to all project types = standard avoidance and minimization measures – Project-specific criteria = requirements specific to each project under the approved categories

• Work windows/project timing requirements (e.g., avoidance of spawning seasons)
• Geographic restrictions (e.g., on North Coast, in SF Bay, in Central Valley)
• Methods and materials approved for use (e.g., pile driving for boat docks)
• Special notification or assistance requirements (e.g., monitoring or reporting)

Example – 2013 USACE/NMFS NLAA Program

Questions?

Presenters

Laurie Monarres Regulatory Specialist

415.321.5315

lmonarres@dudek.com David Wickens Regulatory Specialist

415.321.5314

dwickens@dudek.com Sean O’Brien Senior Biologist

415.321.5317

sobrien@dudek.com