|
|
|
|
|
INTRODUCTION
The Department of the Army
regulatory program is one of the oldest in the Federal Government. Initially it
served a fairly simple, straightforward purpose: to protect and maintain the
navigable capacity of the nation's waters. Time, changing public needs,
evolving policy, case law, and new statutory mandates have changed the
complexion of the program, adding to its breadth, complexity, and authority.
LEGISLATIVE
AUTHORITIES
The legislative origins of
the program are the Rivers and Harbors Acts of 1890 (superseded) and 1899 (33
U.S.C. 401, et seq.). Various sections establish permit requirements to prevent
unauthorized obstruction or alteration of any navigable water of the United
States. The most frequently exercised authority is contained in Section 10 (33
U.S.C. 403) which covers construction, excavation, or deposition of materials
in, over, or under such waters, or any work which would affect the course,
location, condition, or capacity of those waters. The authority is granted to
the Secretary of the Army. Other permit authorities in the Act are Section 9 for dams and dikes,
Section 13 for refuse disposal, and Section 14 for temporary occupation of work
built by the United States. Various pieces of legislation have modified these
authorities, but not removed them.
In 1972, amendments to the
Federal Water Pollution Control Act added what is commonly called Section 404 authority (33 U.S.C.
1344) to the program. The Secretary of the Army, acting through the
Chief of Engineers, is authorized to issue permits, after notice and
opportunity for public hearings, for the discharge of dredged or fill material
into waters of the United States at specified disposal sites. Selection of such
sites must be in accordance with guidelines developed by the Environmental Protection Agency
(EPA) in conjunction with the Secretary of the Army; these guidelines are known as
the 404(b)(1) Guidelines. The discharge of all other pollutants into
waters of the U. S. is regulated under Section 402 of the Act which supersedes
the Section 13 permitting authority mentioned above. The Federal Water
Pollution Control Act was further amended in 1977 and given the common name of
"Clean Water Act" and was again amended in 1987 to modify criminal
and civil penalty provisions and to add an administrative penalty provision.
Also in 1972, with
enactment of the Marine Protection, Research, and Sanctuaries Act, the
Secretary of the Army, acting through the Chief of Engineers, was authorized by
Section 103 to issue permits for the transportation of dredged material to be
dumped in the ocean. This authority also carries with it the requirement of
notice and opportunity for public hearing. Disposal sites for such discharges
are selected in accordance with criteria developed by EPA in consultation with
the Secretary of the Army.
DELEGATION
OF AUTHORITY
Most of these permit
authorities (with specific exception of Section 9) have been delegated by the Secretary of the Army to the
Chief of Engineers and his authorized representatives. Section 10
authority was formally delegated on May 24, 1971, with Section 404 and 103
authorities delegated on March 12, 1973. Those exercising these authorities are directed to
evaluated the impact of the proposed work on the public interest. Other
applicable factors (such as the 404(b)(1) Guidelines and ocean dumping
criteria) must also be met, of course. In delegating this authority, the
Secretary of the Army qualified it to "...[be] subject to such conditions
as I or my authorized representatives may from time to time impose."
Additional clarification of
this delegation is provided in the program's implementing regulations (33 CFR
320-330). Division and district engineers are authorized to issue conditioned
permits (Part 325.4) and to modify, suspend, or revoke them (Part 325.7).
Division and district engineers also have authority to issue alternate types of
permits such as letters of permission and regional general permits (Part
325.2). In certain situations the delegated authority is limited (Part 325.8).
This delegation recognizes
the decentralized nature and management philosophy of the Corps of Engineers
organization. Regulatory
program management and administration is focused at the district office level,
with policy oversight at higher levels. The backbone of the program is
the Department of the Army regulations (33 CFR 320-330) which provide the
district engineer the broad policy guidance needed to administer day-to-day
operation of the program. These regulations have evolved over time, changing to
reflect added authorities, developing case law, and in general the concerns of the public. They
are developed through formal rule making procedures.
The geographic jurisdiction
of the Rivers and Harbors Act of 1899 includes all navigable waters of the
United States which are defined (33 CFR Part 329) as, "those waters that
are 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 to use to transport interstate or
foreign commerce." This jurisdiction extends seaward to include all ocean
waters within a zone three nautical miles from the coast line (the
"territorial seas"). Limited authorities extend across the outer
continental shelf for artificial islands, installations and other devices (see
43 U.S.C. 333 (e)). Activities requiring Section 10 permits include structures
(e.g., piers, wharfs, breakwaters, bulkheads, jetties, weirs, transmission
lines) and work such as dredging or disposal of dredged material, or
excavation, filling, or other modifications to the navigable waters of the
United States.
The Clean Water Act uses
the term "navigable waters" which is defined (Section 502(7)) as
"waters of the United States, including the territorial seas. " Thus,
Section 404 jurisdiction is defined as encompassing Section 10 waters plus
their tributaries and adjacent wetlands and isolated waters where the use,
degradation or destruction of such waters could affect interstate or foreign
commerce.
Activities, requiring
Section 404 permits are limited to discharges of dredged or fill materials into
the waters of the United States. These discharges include return water from
dredged material disposed of on the upland and generally any fill material
(e.g., rock, sand, dirt) used to construct fast land for site development,
roadways, erosion protection, etc.
The geographic scope of
Section 103 of the Marine Protection Research and Sanctuaries Act of 1972 is
those waters of the open seas lying seaward of the baseline from which the
territorial sea is measured. Along coast lines this baseline is generally taken
to be the low water line. Thus, there is jurisdiction overlap with the Clean
Water Act. By interagency agreement with EPA, the discharge of dredged material
in the territorial seas is regulated under the Section 103 criteria rather than
those developed for Section 404.
PROCESSING
STEPS
The basic form of
authorization used by Corps districts is the individual permit. Processing such
permits involves evaluation of individual, project specific applications in
what can be considered three
steps: pre-application consultation (for major projects), formal project
review, and decision making.
Pre-application consultation usually involves one or
several meetings between an applicant, Corps district staff, interested
resource agencies (Federal, state, or local), and sometimes the interested
public. The basic
purpose of such meetings
is to provide for informal
discussions about the pros
and cons of a proposal before an applicant makes irreversible commitments of resources (funds,
detailed designs, etc.). The process is designed to provide the
applicant with an assessment of the viability of some of the more obvious
alternatives available to accomplish the project purpose, to discuss measures
for reducing the impacts
of the project, and to inform him of the factors the Corps must consider
in its decision making process.
Once a complete application is received,
the formal review process
begins. Corps districts operate under what is called a project manager
system, where one individual is responsible for handling an application from
receipt to final decision. The project manager prepares a public notice, evaluates the impacts of the project and all comments received,
negotiates necessary modifications of the project if required, and drafts or
oversees drafting of appropriate documentation to support a recommended permit
decision. The permit decision document includes a discussion of the
environmental impacts of the project, the findings of the public interest review process,
and any special evaluation required by the type of activity such as compliance
determinations with the Section 404(b)(1) Guidelines or the ocean dumping
criteria.
The Corps supports a strong, partnership with states in
regulating water resource developments. This is achieved with joint permit processing procedures (e.g., joint public
notices and hearings), programmatic general permits founded on effective
state programs, transfer of the Section 404 program in non-navigable waters, joint
EISs, special area management planning, and regional conditioning of nationwide
permits.
PERMIT
DECISION
Of great importance to the
project evaluation is the Corps public interest balancing process. The public benefits and
detriments of all factors relevant to each case are carefully evaluated and
balanced. Relevant factors may include conservation, economics, aesthetics,
wetlands, cultural values, navigation, fish and wildlife values, water supply,
water quality, and any other factors judged important to the needs and welfare
of the people. The following general criteria are considered in
evaluating all applications:
1. the relevant extent of public and private needs;
2. where unresolved conflicts of resource use exist,
the practicability of using reasonable
alternative locations and methods to accomplish project purposes; and
3. the extent and
permanence of the
beneficial and/or detrimental effects the proposed project may have on public and private uses
to which the area is suited.
No permit is granted if the proposal is found to be
contrary to the public interest.
ALTERNATE
FORMS DEPARTMENT OF ARMY PERMITS
There are alternate forms
of authorization used in certain
prescribed situations. Letters of permission may be used where, in the
opinion of the district engineer, the proposed work would be minor, not have
significant individual or cumulative impact on environmental values, and should encounter no appreciable opposition.
In such situations, the proposal is coordinated with all concerned fish and wildlife
agencies, and generally adjacent property owners who might be affected by the proposal,
but the public at large is
not notified. The
public interest balancing process is again central to the decision making
process on letters of permission. Another form of authorization is the
general permit. General permits are not normally developed for an individual
applicant, but cover activities the Corps has identified as being substantially
similar in nature and causing only minimal individual and cumulative
environmental impacts. These permits may cover activities in a limited
geographic area (e.g., county or state), a particular region of the county
(e.g., group of contiguous states), or the nation. The Corps element developing
such permits is that one which has geographic boundaries encompassing the
particular permit. Processing, such permits closely parallels that for
individual permits, with public notice, opportunity for hearing and detailed
decision documentation.
A programmatic general
permit is one founded on an existing state, local or other Federal agency
program and designed to avoid duplication with that program. Nationwide general
permits are issued by the Chief of Engineers through the Federal Register
rulemaking process. Nationwide general permits are found at 33 CFR Part 330,
Appendix A.
PUBLIC
INVOLVEMENT
Public involvement plays a
central role in the Corps' administration of its regulatory program. The major
tools used to interact with the public are the public notice and public hearing. The public notice
is the primary method of advising all interested parties of a proposed activity for which a permit is sought and of
soliciting comments and information necessary to evaluate the probable beneficial and detrimental
impacts on the public interest. Public notices on proposed projects
always contain a statement
that anyone commenting may request a public hearing. Public hearings are
held if comments raise substantial issues which cannot be resolved informally
and the Corps decision maker determines that information from such a hearing is needed to make a
decision. Public notices are used to announce hearings. The public is also informed by
notice on a monthly basis of permit decisions.
Any project on which an Environmental Impact Statement
(EIS) will be prepared is subject to additional public involvement. The
preparation of EISs is governed by regulations implementing the National
Environmental Policy Act (NEPA). The first stage of EIS development is the
scoping process which is the means by which substantive issues are identified
for further study in the EIS. The NEPA scoping process begins with the
publication of a Notice of Intent to prepare an EIS. The scoping process itself
often involves actual face-to-face participation of the interested public. The
availability of the draft EIS is announced through public notice. It is the
notice which is intended to solicit comments not only on the NEPA document but
substantive comments on the proposal itself. Again, with these complex
projects, the public may
request a public hearing. Sometimes the Corps decision maker will
independently decide to hold a public hearing and announcement of it will be
incorporated into the notice of availability of the NEPA document. The public
is also informed through notice of the availability of the final EIS, any EIS
supplement, and the availability of the decision maker's record of decision.
Thus, a permit application requiring preparation of an EIS can involve five or
more notices to the public during the review process.
INTERNAL
DECISION SAFEGUARDS
The permit evaluation
process contains many safeguards designed to ensure objectivity in the
evaluation process. Even before an application is formally submitted, such
safeguards come into play, for example, in the pre-application consultation
stage. Probably the single
biggest safeguard of the program is the Corps public interest review,
which also forms the main framework for overall evaluation of the project. This review
requires the careful
weighing of all public interest factors relevant to each particular
case. Thus, one specific factor (e.g., economic benefits) cannot by itself force a specific
decision, but rather the decision represents the net effect of balancing
all factors, many of which are frequently in conflict.
The public interest review is used to evaluate
applications under all authorities administered by the Corps. There are
additional evaluation criteria used for specific authorities. For example,
applications for fill in waters of the United States are also evaluated using,
the Section 404(b)(1) Guidelines developed by EPA in conjunction with the
Department of the Army. These guidelines are heavily weighted towards
preventing environmental degradation of waters of the United States and so
place additional constraints on Section 404 discharges. Likewise, ocean dumping
permits (Section 103) are evaluated using special criteria developed by EPA in
consultation with Army. These criteria are also primarily aimed at preventing
environmental degradation and set up some very stringent tests which must be
passed before a Section 103 permit can be granted. Although required for permit
issuance, compliance with these authority specific criteria is only a part of
the public interest review. Therefore, projects which comply with the criteria
may still be denied a
permit if they are found to be contrary to the overall public interest.
EXTERNAL
DECISION SAFEGUARDS
The above safeguards are
basically internal standards or procedures with which projects are evaluated.
There are also a series of external safeguards which work to maintain
objectivity. One is EPA's Section 404 or so called "veto" authority.
EPA may prohibit or withdraw the specifications of any disposal site if the EPA
Administrator determines that discharges into the site will have unacceptable
adverse effects on municipal water supplies, shellfish beds and fishery areas,
wildlife, or recreational areas. This authority also carries with it the
requirement for notice and opportunity for public hearing. EPA may invoke this
authority at any time. An application need not be pending.
Section 404(q) of the Clean
Water Act requires the Department of the Army to enter into interagency
agreements to minimize duplication, needless paperwork, and delays in the Section
404 permit process. Current agreements allow EPA and the Department of Commerce
and the Interior to request
higher level review within the Department of the Army when they disagree with a
permit decision which is about to be made by the district engineer. Higher
level review can only be requested when certain criteria are met and must be
conducted within time limits specified in the agreements. These criteria
are insufficient coordination at the district level, development of significant
new information, or the need for policy level review of nationally important
issues. Honoring such requests is at the discretion of the Assistant Secretary
of the Army for Civil Works.
Individual state permitting
and water quality certification requirements provide an additional form of
objective safeguard to the Corps regulatory program. Section 401 of the Clean Water Act requires state
certification or waiver of certification prior to issuance of a Section 404
permit.
Section 307 of the Coastal
Zone Management Act of 1972, as amended (16 U.S.C. 1458(c)), requires the
applicant certify that the project is in compliance with an approved State
Coastal Zone Management Program and that the State concur with the applicants
certification prior to the issuance of a Corps permit. The Corps' standard
permit form contains a statement notifying the permittee that the Federal
permit does not remove any requirement for state or local permits. This has the
effect of making the Corps' permit unusable without these additional authorizations.
If the state or local permit is denied before the Corps has made its decision,
the Corps permit is also denied.
In addition to these requirements, the Corps'
implementing regulations require that district engineers conduct additional
evaluations on applications with potential for having an effect on a variety of
special interests (e.g., Indian reservation lands, historic properties,
endangered species, and wild and scenic rivers).
PROCESSING
TIMES
On average, individual permit decisions are made within
two to three months from receipt of a complete application. In emergencies, decisions can be
made in a matter of hours. Applications requiring EISs (far less than one percent) averaging about three years to process.
ENFORCEMENT
Procedures for enforcing
Corps permitting authorities are found at 33 CFR Part 326. The following
paragraphs briefly summarize those procedures.
Inspection and surveillance
activities are carried out by all means at the district engineer disposal.
Corps of Engineers employees are instructed on the observation and reporting of
suspected unauthorized activities in waters of the United States and of
violations of issued permits. The assistance of members of the public and other
interested Federal, State and local agencies is encouraged.
When the district engineer
becomes aware of any unauthorized activity still in progress, he must first
issue a cease and desist order and then begin an investigation of the activity
to ascertain facts concerning alleged violations. If the unauthorized activity
has been completed he will advise the responsible party of his discovery and
begin an investigation. Following his evaluation, the district engineers may
formulate recommendations on the appropriate administrative course or legal
action to be taken.
The district engineer's
evaluation contains an initial determination of whether any significant adverse
impacts are occurring which would require expeditious corrective measures to
protect life, property, or a significant public resource. Once that
determination is made, such remedial measures can be administratively ordered
and a decision can be made on whether legal action is necessary. In certain
cases, district engineers, following the issuance of a cease and desist order,
coordinate with state and Federal resource agencies in deciding what action is
appropriate. Further evaluation of the violation takes into consideration
voluntary compliance with a request for remedial action. A permit is not
required for restoration or other remedial action.
For those cases that do not
require legal action and for which complete restoration has not been ordered,
the Department of the Army will accept applications for after-the-fact permits.
The full public interest review is deferred during the early stages of the
enforcement process. A complete public interest review is conducted only if and
when the district engineer accepts an application for an after-the-fact permit.
The laws that serve as the
basis for the Corps regulatory program contain several enforcement provisions
which provide for criminal, civil, and administrative penalties. While the
Corps is solely responsible for the initiation of appropriate legal actions
pursuant to enforcement provisions relating to its Section 10 authority, the
responsibility for implementing those enforcement provisions relating to
Section 404 is jointly shared by the Corps and EPA. For this reason Army has
signed a Section 404 enforcement memorandum of agreement (MOA) with EPA to
ensure that the most efficient use is made of available Federal resources.
Pursuant to this MOA, the Corps generally assumes responsibility for
enforcement actions with the exception of those relating to certain specified
violations involving unauthorized activities.
If a legal action is instituted
against the person responsible for an unauthorized activity, an application for
an after-the-fact permit cannot be accepted until final disposition of all
judicial proceedings, including payment of all fees as well as completion of
all work ordered by the court.
Presently about 6,000
alleged violations are processed in Corps district offices each year. The
approximate breakdown by authority is: Section 10, 15 percent; Section 404, 60
percent; and Section 10/404, 25 percent.
The Corps strives to reduce
violations by effective publicity, an aggressive general permit program. and an
efficient and fair evaluation of individual permit applications.
|
|
