The Corps and Environmental Regulation

1. The Corps and Environmental Regulation Presented by Clarissa J Cook

2. In the Beginning… • June 16, 1775 – Continental Congress created an army with a chief engineer (Colonel Richard Gridley) and 2 assistants • 1779 – Corp of Engineers reorganized, only to be mustered out of service after Revolutionary War over • 1802 – Permanent and separate US Army Corp of Engineers (USACOE) established at the same time as West Point

3. West Point Military Academy • West Point’s first superintendent, Jonathan Williams, was chief engineer of Corps • For 1st half of 19th century, WP was the only engineering school in the country

4. The General Survey Act of 1824 and 1826 • Authorized the President to have surveys done for roads and canals deemed economically or militarily important • Responsibility given to USACOE • 1824 - $75,000 to improve navigation of Ohio and Mississippi rivers • 1826 – established use of authorizations for both surveys and projects (still used)

5. History • 1879 – Mississippi River Commission • 3 of 7 members from USACOE • Used levees to control flooding in lower Mississippi Valley • 1914 – Panama Canal completed • Officially built by Panama Canal Commission with help from USACOE officers

6. Headquarters • Headed by the Chief of Engineers • Currently Lieutenant General Carl A. Strock • Advises the US Army on engineering, topography, real estate, etc.

7. Organization • 8 geographical divisions • Further divided into 41 districts in the US, Asia, and Europe • 9th division created in 2004 for Iraq and Afghanistan • Boundaries defined by watersheds, not state lines • Took watershed approach for better management, planning, and development over larger areas

10. USACOE Organizations • Huntsville, US Army Engineering and Support Center (CEHNC) • Transatlantic Programs Center (CETAC) • Finance Center, USACE (CEFC) • Humphreys Engineer Center Support Activity (CEHEC) • Marine Design Center (CEMDC) • Institute for Water Resources (IWR) • 249th Engineer Battalion

11. The Laboratories • Engineer Research and Development Center (CEERD) • Consists of 7 Laboratories • Coastal and Hydraulics Laboratory • Cold Regions Research and Engineering Laboratory • Construction Engineering Research Laboratory • Environmental Laboratory • Geotechnical and Structures Laboratory • Information Technology Laboratory • Topographic Engineering Center

13. CEERD Research • Mapping and terrain analysis • Infrastructure design, construction, operations, and maintenance • Structural engineering • Cold regions and ice engineering • Coastal and hydraulic engineering • Geotechnical engineering • High performance computing and information technology

14. Mission and Goals • Planning, designing, building, and operating water resources • Design, construct, and manage military facilities for the Army and Air Force • Provide support to other defense and federal agencies by providing designs and construction management

15. Environmental Missions • Wetlands and waterways regulation and permitting • Authority over dredging and filling • Determine which areas need protection as wetlands • Ecosystem restoration • Re-establish natural, functioning, and self-regulating systems • Florida Everglades largest such attempt

16. Environmental Missions Cont. • Environmental Stewardship • Management and project programs that comply to Federal, state, and local requirements • Radioactive site cleanup • Formerly under the jurisdiction of Dept. of Energy • Support to EPA Superfund program • Corps manages design and construction contracts for remediation • Provides technical support

17. Environmental Legislation • The Rivers and Harbors Act of 1890 and 1899 • Aims to prevent unauthorized alteration of navigable waters • Section 10 enforced most and concerns anything that effects the course, location, condition, or capacity of those waters • National Environmental Policy Act of 1969 • Assures all branches of government consider environment before taking any major federal action

18. Legislation Cont. • Federal Water Pollution Control Act of 1972 • Commonly known as Clean Water Act • Regulates discharges of pollutants into waters • Under jurisdiction of both EPA and USACOE • Water Resources Development Act of 1986 • Nonfederal interests should have more management and financial responsibility concerning water resources • 1990 amendment created goal of “no net loss” of wetlands to increase their quality and quantity

19. National Wetlands Mitigation Action Plan • Regulatory program administers and enforces Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act • Section 10 says that a Corps permit is required to do any work around or in navigable waters • Section 404 states that a Corps permit is required for dredging or filling into waters of the United States

20. Regulatory Program • Mitigation • Process for permit applications and Corps decisions on projects • In-Lieu Fee option • Pay the value of the wetland instead of creating, restoring, preserving, or enhancing wetlands • Done by most companies • i.e. Wal-Mart

21. FIGURE 1–1 Area of wetland impacts permitted, mitigation required by the permit, and the anticipated gain in wetland area as a result of permits issued by the U.S. Army Corps of Engineers regulatory program from 1993 to 2000. 1 hectare = 2.47 miles. SOURCE: Data from U.S. Army Corps of Engineers Headquarters, Operations, Construction and Readiness Division.

22. Regulatory Program • Permit required before work can begin • Standard Permit • Pre-application/application • Public notice and comment • Evaluation, decision, and mitigation • Monitoring and enforcement

23. Regulatory Program • General Permit • Most common permit, 90% • Issued quickly • Minimal impact on environment • Given on a national, regional, or state level • Letter of Permission • Issued more quickly than Standard Permit, but slower than General Permit • For projects with no controversy and water quality certificates

24. Regulatory Program • Decision on applications takes an average of 30 days • USACOE makes about 90,000 decisions a year • 2003 – permits affected 23,000 acres of wetland • More than 43,000 restored, created, enhanced, or preserved

25. 2001 SWANCC Ruling • Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers • Restricts Corps regulation to traditionally navigable waters, surface tributaries, and wetlands adjacent to such waters • Renders moot the “Migratory Bird Rule” which extended jurisdiction to intrastate waters • States and tribes now responsible for isolated waters and wetlands

26. Regulation Enforcement • Violation of permit usually involves unauthorized filling of wetland or the blocking/altering of waters of the US • Sometimes detected by Corps, but rely on individuals or local, state, and other federal agencies

27. Regulatory Violations • Corps sends a warning letter if work completed • If work ongoing, violator sent a cease and desist order • Some choose to remove fill and restore cite • Violator can apply for after-the-fact permit

28. Civil Penalties • Clean Water Act states a civil penalty should not exceed $25,000 a day • Enforced by EPA and USACOE • All monies collected from fines goes directly to US Fish and Wildlife Service • Use the money for wetland projects near the site of the violation

29. Regulatory Problems • Mitigation plans vague on wetland requirements • Didn’t specify water source, water quantity, soil, topography, structure, and location • Animal habitat not usually considered unless the species are endangered or waterfowl • Numerous studies show as much as 34% of wetlands never installed

30. Regulatory Problems • Compliance inspections rarely done by USACOE • Workload of USACOE staff is extremely high • Led to making permits a priority, and inspections and site visits became secondary • Rely on other agencies and citizens to call in violations

31. Regulatory Numbers for 2003 • Standard and Letter Permits: 7,075 denied: 299 • Regional Permits: 43,486 • Nationwide Permits: 35,317 • Acres of wetlands with permitted activity: 21,330 • Acres requiring mitigation: 43,379 • Acres wetland loss avoided through process: 5,824

32. Questions?