using a programmatic permitting approach to move...
TRANSCRIPT
June 2016
Using a Programmatic Permitting Approach
to Move Through the Corps' Regulatory
Process On Time and Under Budget
Overview for Today’s Discussion
Programmatic Permitting
In-Lieu Fee Programs
Permitting Background
ESA Compliance
PERMITTING BACKGROUND
• Protect the aquatic environment
• Enhance Regulatory program efficiency
• Make fair, reasonable, and timely decisions
• Achieve No Net Loss of Aquatic Resources
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, over, 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
or 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
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
or 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
or 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
To 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
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
2013 USACE/NMFS NLAA Program August 13, 2013
1. Bank/Shoreline Stabilization
Example – 2013 USACE/NMFS NLAA Program
2013 USACE/NMFS NLAA Program August 13, 2013
1. Bank/Shoreline Stabilization
• 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
David Wickens
Regulatory Specialist
415.321.5314
Sean O’Brien
Senior Biologist
415.321.5317