2017 Nationwide Permits · 2017 Nationwide Permits David Olson Regulatory Program Manager ....
Transcript of 2017 Nationwide Permits · 2017 Nationwide Permits David Olson Regulatory Program Manager ....
2017 Nationwide Permits
David Olson
Regulatory Program Manager
Headquarters, U.S. Army Corps of Engineers
March 28, 2016
Presentation overview
Regulatory program and Nationwide Permit background
Regional tailoring of Nationwide Permits Schedule
2
3
Regulatory Program Authorities
Construction and dredging Section 10 Rivers and Harbors Act
Discharge of dredged and fill material Section 404 Clean Water Act
Transport and discharge of Dredged material Section 103 Ocean Dumping Act
What are Nationwide Permits? General permits issued by Corps Headquarters to
authorize activities across the country ◦ Categories of activities with no more than minimal individual and
cumulative adverse environmental effects ◦ Reissuance process every 5 years ◦ Rulemaking activity, with interagency review under EO 12866
managed by the Office of Management and Budget
Authorize: ◦ Discharges of dredged or fill material into waters of the United
States Section 404 of the Clean Water Act
◦ Structures or work in navigable waters Section 10 of the Rivers and Harbors Act of 1899
4
What are Nationwide Permits? Congressional intent (Clean Water Act Section 404(e)) ◦ Streamlined authorization process for small activities with no
more than minimal adverse environmental effects
Authorize ~35,000 activities per year (reported) plus ~30,000 non-reporting activities
First issued in 1977 ◦ 15 nationwide permits
Current nationwide permits issued on February 13, 2012 ◦ 50 nationwide permits 31 general conditions
◦ Effective on March 19, 2012 ◦ Expire on March 18, 2017
5
Nationwide Permits Authorization by Nationwide Permit ◦ Some activities can proceed without notifying Corps ◦ Other activities require notifying Corps before construction
(submit a pre-construction notification, or PCN) If loss of waters less than 1/2-acre, Corps-only review If loss of waters greater than 1/2-acre, Corps coordinates with
agencies
If authorized, district issues verification letter ◦ With or without special conditions to ensure no more than
minimal adverse environmental effects
If district determines adverse environmental effects are more than minimal, notifies applicant that individual permit is required
6
Nationwide Permits
Before the NWP activity proceeds: ◦ If it involves discharges into waters and
wetlands subject to Clean Water Act jurisdiction, requires water quality certification from State, Tribe, or EPA (or waiver) ◦ If in coastal zone, requires Coastal Zone
Management Act consistency concurrence for State (or presumption of consistency)
7
Minimal adverse environmental effects determination factors
Direct and indirect effects caused by the NWP activity Environmental setting in the vicinity of the NWP activity Type of resource that will be affected by the NWP activity Functions provided by the aquatic resources that will be
affected by the NWP activity Degree or magnitude to which the aquatic resources
perform those functions Extent that aquatic resource functions will be lost as a result
of the NWP activity (e.g., partial or complete loss) Duration of the adverse effects (temporary or permanent) Importance of the aquatic resource functions to the region
(e.g., watershed or ecoregion) Mitigation required by the district engineer
8
Regional Tailoring of Nationwide Permit Program Division engineers have the authority to modify,
suspend, or revoke Nationwide Permits within a region ◦ Corps district, state, county, or other geographic area ◦ Regional conditions can only further restrict use of Nationwide
Permits ◦ Prohibit use of one or more Nationwide Permits in a region
District engineers have the authority to modify, suspend or revoke Nationwide Permits on a activity-specific basis ◦ Activity-specific conditions restricting use of Nationwide Permit ◦ Suspend or revoke a Nationwide Permit to require an individual
permit for the proposed activity
9
Examples of Regional Conditions Restrict or prohibit use of NWPs in specific types of waters or
wetlands (e.g., fens, bogs) Revoke one or more NWPs in a watershed, county, state or other
type of geographic area Modify pre-construction notification (PCN) thresholds to require
notification for all activities or lowering PCN thresholds. Reduce NWP acreage limits in certain types of waters, or in
specific geographic regions Restrict activities authorized by NWPs to certain times of the year
in a particular river or estuary Conditions necessary to facilitate compliance with general
condition 18, endangered species
10
Regional condition process Shortly after proposed NWPs published in
Federal Register ◦ Districts reach out to States and Tribes to seek
suggestions for new or modified regional conditions ◦ If within the Corps’ authority to enforce, regional
conditions can be adopted to facilitate issuance of water quality certifications and CZMA consistency concurrences
After final NWPs published in Federal Register ◦ Corps Districts work with their Divisions to
finalize the regional conditions
11
Current Status 2012 NWPs expire on March 18, 2017 Undergoing rulemaking process to issue NWPs ◦ Approximately one-year process
Draft proposed NWPs under interagency review process managed by the Office of Management and Budget ◦ Various agency headquarters review draft and provide
their suggested changes before proposed rule is cleared by OMB and published in Federal Register for 60-day comment period
12
NWP 2017 Rulemaking Timeline
13
2015 2016 2017
OMB Interagency Review – minimum 90 days
Publish in Federal Register for 60-day comment period
OMB Interagency Review – approximately 90 days
Review comments, Prepare draft final NWPs
District public notices – 45 days
State water quality Certifications – 60 day minimum
State coastal zone consistency – 90 day minimum
Districts finalize regional conditions, issue public notices
2012 NWPs expire as 2017 NWPs go In effect 3/18/17
Submit draft proposed rule to OMB
Submit draft final rule to OMB
Publish final rule in Federal Register
Schedule December 11, 2015 – Corps submitted draft proposed rule
to OMB to initiate E.O. 12866 interagency review process April 2016 – proposed rule cleared by OMB ◦ Publish proposal in Federal Register for public comment ◦ 60-day comment period ◦ Districts issue local public notices, propose regional
conditions, request suggestions for new or modified regional conditions
◦ Districts make initial WQC, CZMA requests Summer 2016 – Corps HQ reviews comments on proposed
rule, prepares draft final rule
14
Schedule Districts continue to work with others to develop
regional conditions September 2016 – Corps HQ submits draft final
rule to OMB for interagency review December 2016 – final rule cleared by OMB ◦ Publish final rule in Federal Register ◦ Districts work with States and Tribes to complete water
quality certification process ◦ Districts work with States to complete Coastal Zone
Management Act consistency concurrence process ◦ Corps divisions complete regional conditions Districts issue public notices announcing final regional conditions
NWPs effective on March 19, 2017
15
Concurrent processes Tribal consultation ◦ Districts sent letters to Tribes requesting consultation on
regional conditions to protect trust resources
Historic properties ◦ Districts can work with State and Tribal Historic Preservation
Officers to identify potential exemptions for activities that have minimal or not adverse effects on historic properties
Endangered species ◦ Districts will coordinate with regional offices of FWS and NMFS
to identify new and modified regional conditions to protect listed species
16
David Olson Regulatory Program Manager Headquarters, U.S. Army Corps of Engineers 202-761-4922 [email protected]
17