AASHTO PH14-2016 AASHTO PRACTITIONER S HANDBOOK - APPLYING THE SECTION 404(B)(1) GUIDELINES IN TRANSPORTATION PROJECT DECISION-MAKING (Revision 2).pdf

1、Applying the Section 404(b)(1) Guidelines in Transportation Project Decision-Making 1 AASHTO PRACTITIONERS HANDBOOK The Practitioners Handbooks are produced by the Center for Environmental Excellence by AASHTO. The Handbooks provide practical advice on a range of environmental issues that arise duri

2、ng the planning, development, and operation of transportation projects. The Handbooks are primarily intended for use by project managers and others who are responsible for coordinating compliance with a wide range of regulatory requirements. With their needs in mind, each Handbook includes: key issu

3、es to consider; a background briefing; practical tips for achieving compliance; and a list of reference materials. In addition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.org. American Association

4、 of State Highway and Transportation Officials Center for Environmental Excellence by AASHTO 14 August 2016 APPLYING THE SECTION 404(B)(1) GUIDELINES IN TRANSPORTATION PROJECT DECISION-MAKING This Handbook is intended to assist practitioners in applying the Section 404(b)(1) Guidelines in the enviro

5、nmental review process for surface transportation projects. The Handbook focuses on highway and transit projects that require an individual Section 404(b)(1) Guidelines permit under the Clean Water Act and involve preparation of an environmental impact statement (EIS) or environmental assessment (EA

6、) under the National Environmental Policy Act (NEPA). This Handbook outlines steps that can be taken at each stage of the environmental review process to lay the foundation for compliance with the guidelines. Issues covered in this Handbook include: Linking the transportation planning process to pro

7、ject-level studies and decisions Initiating an environmental review process that includes NEPA and Section 404(b)(1) Guidelines requirements (as well as Rivers and Harbors Act requirements, where applicable) Identifying and evaluating aquatic resources, including waters of the United States Defining

8、 “purpose and need” under NEPA and “overall project pur- poses” under Section 404(b)(1) Guidelines Developing, screening, and evaluating alternatives under both NEPA and Section 404(b)(1) Guidelines Selecting a preferred alternative that complies with the guidelines and with the requirement for a pu

9、blic-interest determination Developing mitigation measures that comply with the guidelines Resolving inter-agency disputes involving the guidelinesCopyright 2016, Center for Environmental Excellence by AASHTO (American Association of State Highway and Transportation Officials). All Rights Reserved.

10、This book, or parts thereof, may not be reproduced in any form without written permission of the publisher. Printed in the United States of America. This material is based upon work supported by the Federal Highway Administration under Cooperative Agreement No. DTFH61-07-H-00019. Any opinions, findi

11、ngs, and conclusions or recommendations expressed in this publication are those of the Author(s) and do not necessarily reflect the view of the Federal Highway Administration. 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law

12、.Applying the Section 404(b)(1) Guidelines in Transportation Project Decision-Making 1 This Handbook provides advice on compliance with the Section 404(b)(1) Guidelines as part of the environmental review process for a transportation project. Section 404(b)(1) Guidelines of the Clean Water Act prohi

13、bits the discharge of dredged or fill materials into waters of the United States, except when authorized by a permit issued by the U.S. Army Corps of Engineers (Corps). Waters of the United Statesalso called jurisdictional watersinclude many wetlands, streams, lakes, and rivers, as well as oceans. W

14、hen issuing permits under Section 404, the Corps must comply with the Section 404(b)(1) Guidelines. The guidelines define the criteria that must be met in order for the Corps to issue a Section 404 permit. The guidelines were issued by the U.S. Environmental Protection Agency (EPA) and are included

15、in EPAs regulations at 40 CFR Part 230. Federal agencies typically consider the guidelines as one part of an environmental review process that includes compliance with many other laws, such as the National Environmental Policy Act (NEPA). Therefore, rather than addressing the Guidelines in isolation

16、, this Handbook considers the guidelines in the context of the environmental review process as a whole. The Handbook uses a step-by-step approach to illustrate the actions that can be taken throughout the process to lay the groundwork for compliance with the guidelines. It is important to note sever

17、al points regarding the scope and emphasis of this Handbook: The Handbook focuses on actions that transportation agencies can take in their capacity as project sponsors, joint lead agencies, and/or Section 404(b)(1) Guidelines permit applicants. The Handbook focuses on projects that require an indiv

18、idual Section 404(b)(1) Guidelines permit under the Clean Water Act and that involve preparation of an Environmental Impact Statement (EIS) or Environmental Assessment (EA) under NEPAin other words, relatively large and complex projects. These projects are the focus of the Handbook because they are

19、the ones that are most likely to involve challenges regarding the application of the guidelines. The Handbook does not address projects that qualify for nationwide or regional general permits. The Handbook focuses on Section 404(b)(1) Guidelines permitting, rather than covering all forms of Corps pe

20、rmitting equally. The Handbook briefly discusses permits issued by the Corps under Sections 9 and 10 of the Rivers and Harbors Act. The Handbook focuses on the guidelines specifically, rather than covering all aspects of Section 404(b)(1) Guidelines permitting. The Handbook focuses on the guidelines

21、 because of their important role in decision- making for complex transportation projects. As context for the discussion of the guidelines, the Handbook includes background information on other important aspects of Section 404(b)(1) Guidelines permitting, such as jurisdictional determinations. Backgr

22、ound Briefing The Clean Water Act prohibits the discharge of dredged or fill material into waters of the United States, except as authorized in a permit issued pursuant to Section 404(b)(1) Guidelines of the Act. The agency with direct responsibility for issuing Section 404(b)(1) Guidelines permits

23、is the Corps. In carrying out this responsibility, the Corps must follow criteria established by the EPA. These criteria are known as the Guidelines. Although they are called “guidelines,” these criteria are established in regulations (40 CFR Part 230) and are legally binding. The guidelines establi

24、sh important requirements that must be met before a permit can be issued. Overview 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.2 Applying the Section 404(b)(1) Guidelines in Transportation Project Decision-Making Corps

25、PermittingThe Basics Origins of Permitting Authority. The Corps role as a permitting agency originates in the Rivers and Harbors Act of 1890. In general terms, that law prohibited the construction of barriers to navigationpiers, bridges, abutments, etc.in navigable waters unless approved by the Secr

26、etary of War. The Corps permitting role was expanded in the Rivers and Harbors Act of 1899, which prohibited discharges into navigable waters without a Corps permit. In 1972, Congress further expanded and redefined the Corps permitting function with the enactment of Section 404(b)(1) Guidelines of t

27、he Clean Water Act. Section 404(b)(1) Guidelines gave the Corps broader permitting jurisdiction and more of an environmental protection mission. Today, the Corps continues to exercise permitting authority under the Rivers and Harbors Act, as well as the Clean Water Act. Scope of Corps Jurisdiction.

28、The scope of the Corps permitting jurisdiction is defined more broadly under the Clean Water Act than under the Rivers and Harbors Act. Section 404(b)(1) Guidelines of the Clean Water Act gives the Corps permitting authority over the “waters of the United States.” This term has been interpreted to i

29、nclude traditionally navigable waters as well as a wide range of non-navigable aquatic resources, including many wetlands. By contrast, the Rivers and Harbors Act gives the Corps permitting authority over “navigable waters of the United States.” 1 Standards for Determining Jurisdiction. The extent o

30、f the Corps jurisdiction over “waters of the United States” has been the subject of extensive litigation. This issue was addressed by the Supreme Court in Rapanos v. United States. There was no single majority opinion in Rapanos, which left substantial confusion about the legal standard to be applie

31、d for determining jurisdiction. Based on that case, the Corps now defines its jurisdiction to include traditional navigable waters and their tributaries, as well as other aquatic resources with a “significant nexus” to those waters. Under this standard, wetlands are considered jurisdictional “if the

32、 wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditional navigable waters. 2 Process for Making Jurisdictional Determinations. Following the Rapanos decision, the Corps and EPA issued

33、joint guidance (the Rapanos guidance) clarifying the standards and process for making jurisdictional determinations. 3 In addition, the Corps issued Regulatory Guidance Letter 08-02, which further clarified the procedures for making jurisdictional determinations, and also allowed applicants to reque

34、st a “preliminary jurisdictional determination.” 4 With a preliminary determination, the applicant can concede jurisdiction and proceed with the permit application process, thereby avoiding a potentially time-consuming effort to determine jurisdiction. Individual vs. General Permits. The Corps issue

35、s two types of permits under Section 404(b)(1) Guidelines: “individual permits” and “general permits.” Individual permits are issued for specific projects. An individual permit can be issued as a standard permit or as a “letter of permission,” which involves a more limited review for a project with

36、minor impacts. General permits are issued for categories of projects that are presumed to have similar effects and not more than minimal impacts on the aquatic environment. General permits can be issued on a nationwide or regional basis. 5As noted in the Overview section, this Handbook focuses on in

37、dividual permits. Environmental Review Requirements. The Corps must comply with environmental review requirements under various Federal laws before issuing Section 404(b)(1) Guidelines permits. These laws include NEPA, the Endangered Species Act, the National Historic Preservation Act, the Coastal Z

38、one Management Act, and many others. The level of review required under these laws varies greatly from case to case, depending on the nature of the project and its impacts. Each law has different requirements, and the Corps must ensure that all applicable requirements are satisfied before a permit i

39、s issued. The Corps regulations include procedures for NEPA compliance (33 CFR Part 325, App. B) and for Section 106 compliance (33 CFR Part 325 App. C). As reflected in those regulations, the Corps has an independent obligation to comply with those laws. The 1 For purposes of the Rivers and Harbors

40、 Act, the Corps defines “navigable waters of the United States” 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 for use to transport interstate or foreign commerce. A determination of navigability, once

41、made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity. 33 CFR 328.3(a) 2 On June 29, 2015, the Corps and EPA published a final rule defining the term “waters of the United States.” The final rul

42、e took effect on August 28, 2015. However, a Federal court subsequently issued an injunction that prevented the rule from taking effect. As of the date of publication of this Handbook, the injunction remains in place, and therefore the June 2015 final rule is not in effect. 3 The joint EPA/Corps gui

43、dance documents are available on the Centers web site at http:/environment.transportation.org and are listed in the Reference Materials section for this Practitioners Handbook. 4 Regulatory Guidance Letter 08-02 is available on the Centers website at http:/environment.transportation.org and are list

44、ed in the Reference Materials section for this Practitioners Handbook. 5 33 CFR 320.1(c). 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.Applying the Section 404(b)(1) Guidelines in Transportation Project Decision-Making 3

45、 Corps may adopt, incorporate by reference, or otherwise use or rely upon the NEPA and Section 106 documents prepared by other agencies. Public Interest Review. The Corps conducts a public interest review as part of its decision-making process under Section 404(b)(1) Guidelines and under Section 10

46、of the Rivers and Harbors Act. The public interest review is based on a range of factors, weighing the proposed impacts against the potential benefits of the proposed activity. The Corps issues a permit only if it concludes that the project is in the public interest. The public interest finding is r

47、equired by the Corps regulations, not by the guidelines. 6The Corps regulations include a list of 21 criteria that the Corps must consider when making a public interest determination. One required element is a finding that the proposed activity complies with the guidelines. Overview of Section 404(b

48、)(1) Guidelines Permitting Agency Roles. The Clean Water Act creates a system of checks and balances in which several agencies have a significant role in the Section 404(b)(1) Guidelines permit application process. The Corps is assigned the lead role as the permitting agency, with direct responsibil

49、ity for issuing and denying permits. The EPA, the U.S. Fish and Wildlife Service, and state water quality agencies all have important roles as well. The agencies roles are based on specific provisions in the statute itself. Corps as Permitting Agency. Section 404(b)(1) Guidelines(a) gives the Corps its authority to issue permits under the program. It also requires the Corps to issue a public notice and provide an opportunity for a public hearing before issuing a permit. EPA Role in Setting Guidelines. Section 404(b)(1) Guideli