1、iApplying the Section 404(b)(1) Guidelines in Transportation Project Decision-MakingAASHTO PrAcTiTiOnerS HAndbOOkThe Center for Environmental Excellence by AASHTO produces the Practitioners Handbooks. The Handbooks provide practical advice on a range of environmental issues that arise during the pla
2、nning, development, and operation of transportation projects.Each Handbook is developed by the Center in cooperation with an advisory group that includes representatives from the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), state DOTs, and other agencies as approp
3、riate.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: A background briefing; key issues to consider; practical tips for achievin
4、g compliance.In addition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.org.APPlying THe SecTiOn 404(b)(1) guidelineS in TrAnSPOrTATiOn PrOjecT deciSiOn-MAkingThis Handbook is intended to assist prac
5、titioners in applying the Section 404(b)(1) Guidelines (Guidelines) in the environmental review process for surface transportation projects. The Handbook focuses on highway and transit projects that require an individual Section 404 permit under the Clean Water Act and involve preparation of an envi
6、ronmental impact state-ment (EIS) or environmental assessment (EA) under the National Environ-mental 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 Han
7、dbook include: Linking the transportation planning process to project-level studies and decisions Initiating an environmental review process that includes NEPA and Section 404 requirements (as well as Rivers and Harbors Act requirements, where applicable) Identifying and evaluating aquatic resources
8、, including waters of the United States Defining “purpose and need” under NEPA and “overall project pur-poses” under Section 404 Developing, screening, and evaluating alternatives under both NEPA and Section 404 Selecting a preferred alternative that complies with the Guidelines and with the require
9、ment for a public-interest determination Developing mitigation measures that comply with the Guidelines Resolving inter-agency disputes involving the GuidelinesAmerican Association of State Highway and Transportation Officials14June 2011Center for Environmental Excellence by AASHTOii Using the Trans
10、portation Planning Process to Support the NEPA ProcessCopyright 2011, Center for Environmental Excellence by AASHTO (American Association of State Highway and Transportation Officials). All Rights Reserved. This book, or parts thereof, may not be reproduced in any form without written permission of
11、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, findings, and conclusions or recommendations expressed in this publication are those of the Author(
12、s) and do not necessarily reflect the view of the Federal Highway Administration.1Applying the Section 404(b)(1) Guidelines in Transportation Project Decision-MakingSection 404 of the Clean Water Act prohibits the discharge of dredged or fill materials into waters of the United States, except when a
13、uthorized 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.Section 404(b)(1) of the Clean Water Act directs the U.S. Environmental Protection Agency (EPA) t
14、o issue “guidelines” that the Corps must follow when issuing Section 404 permits. EPA complied with that mandate by issuing the regulations known as the Section 404(b)(1) Guidelines, which are codified at 40 C.F.R. Part 230.Federal agencies typically consider the Guidelines as one part of an environ
15、mental 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, this Handbook considers the Guidelines in the context of the environmental review process as a whole. The Hand-boo
16、k 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 several points regarding the scope and emphasis of this Handbook: This Handbook is intended for transportation agencies,
17、not permitting agencies. Therefore, it focuses on actions that transportation agencies can take in their capacity as project sponsors, joint lead agencies, and/or permit applicants. It is not intended as a manual or guide for permitting officials in the Corps or other agencies. The Handbook focuses
18、on projects that require an individual Section 404 permit under the Clean Water Act and that involve preparation of an EIS or EA under NEPAin other words, relatively large and complex projects. These projects are the focus of the Handbook because they are the ones that are most likely to involve dif
19、ficulties or disagreements 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 permitting, rather than covering all forms of Corps permitting equally. As back-ground, the Hand
20、book briefly discusses permits issued by the Corps under Sections 9 and 10 of the Rivers and Har-bors Act. The Handbook focuses on the Guidelines specifically, rather than covering all aspects of Section 404 permitting. The Handbook focuses on the Guidelines because of their important role in decisi
21、on-making for complex transportation projects. As context for the discussion of the Guidelines, the Handbook includes background information on other im-portant aspects of Section 404 permitting, such as jurisdictional determinations.Overview2 Applying the Section 404(b)(1) Guidelines in Transportat
22、ion Project Decision-Makingbackground briefingThe 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 of the Act. The agency with direct responsibility for issuing Section 404 permits is
23、 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 C.F.R. Part 230) and are legally binding. The Guidelines establ
24、ish important requirements that must be met before a permit can be issued.Corps PermittingThe BasicsOrigins 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 navigatio
25、npiers, bridges, abutments, etc.in navigable waters unless approved by the Secretary 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 Co
26、rps permitting function with the enactment of Section 404 of the Clean Water Act. Section 404 gave the Corps broader per-mitting 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
27、Clean Water Act.Scope of Corps Jurisdiction. 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 of the Clean Water Act gives the Corps permitting authority over the “waters of the United States.” This te
28、rm has been interpreted to include 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.”1Standards for Determining
29、Jurisdiction. The extent of the Corps jurisdiction over “waters of the United States” has been the subject of extensive litigation. This issue was addressed by the Supreme Court most recently in Rapanos v. United States. There was no single majority opinion in Rapanos, which left substantial confusi
30、on about the legal standard to be applied 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, wetlan
31、ds are considered jurisdictional “if the 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.Process for Making Jurisdictional Determinations. Following the Rapano
32、s decision, the Corps and EPA issued joint guid-ance (the Rapanos guidance) clarifying the standards and process for making jurisdictional determinations.2In addition, the Corps issued Regulatory Guidance Letter 08-02, which further clarified the procedures for making jurisdictional determinations,
33、and also allowed applicants to request a “preliminary jurisdictional determination.”3With a preliminary determination, the applicant can concede jurisdiction and proceed with the permit application process, thereby avoiding a potentially time-consuming effort to deter-mine jurisdiction.Individual vs
34、. General Permits. The Corps issues two types of permits under Section 404: “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 fo
35、r a project with 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 environ-ment. General permits can be issued on a nationwide or regional basis.4As noted in the Overview section, this Handb
36、ook focuses on individual permits.1 For purposes of the Rivers and Harbors Act, the Corps defines “navigable waters of the U.S.” 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 inter
37、state or foreign commerce. A determination of navigability, once 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.2 The joint EPA/Corps guidance documents are available on the Centers web s
38、ite at http:/environment.transportation.org in the Reference Materials section for this Practitioners Handbook.3 Regulatory Guidance Letter 08-02 is available on the Centers website at http:/environment.transportation.org in the Reference Materials section for this Practitioners Handbook.4 33 C.F.R.
39、 320.1(c).3Applying the Section 404(b)(1) Guidelines in Transportation Project Decision-MakingEnvironmental Review Requirements. The Corps must comply with environmental review requirements under various federal laws before issuing Section 404 permits. These laws include the National Environmental P
40、olicy Act, Endangered Species Act, National Historic Preservation Act, Coastal Zone 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 Co
41、rps must ensure that all applicable requirements are satisfied before a permit is issued. The Corps regulations include procedures for NEPA compliance (33 C.F.R. Part 325, App. B) and for Section 106 compliance (App. C). As reflected in those regulations, the Corps has an independent obligation to c
42、omply with those laws. It canbut is not required toadopt 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 and under Section 10 of the Rivers and Harbors Act. The
43、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 required by the Corps regulations, n
44、ot by the Guidelines.5The 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 PermittingAgency Roles. The Clean Wate
45、r Act creates a system of checks and balances in which several agencies have a significant role in the Section 404 permit application process. The Corps is assigned the lead role as the permitting agency, with direct respon-sibility for issuing and denying permits. But EPA, the U.S. Fish and Wildlif
46、e 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(a) gives the Corps its authority to issue permits under the program. It also requires the Corps to issue a p
47、ublic notice and provide an opportunity for a public hearing, before issuing a permit.EPA Role in Setting Guidelines. Section 404(b) requires the Corps to exercise its permitting authority “through the application of guidelines developed by EPA, in conjunction with the Corps.” EPA implemented this r
48、equirement by issuing the Guidelines, which are codified as regulations in 40 C.F.R. Part 230.EPA “Veto” Authority. Section 404(c) authorizes EPA to prohibit or overturn the issuance of a permit by the Corps under the Section 404 program. In effect, this section gives EPA a veto power over Section 4
49、04 permits. While the veto is rarely exercised, the existence of this authority gives EPA substantial influence in the permitting process.USFWS Commenting Role. Section 404(m) directs the U.S. Fish and Wildlife Service to submit comments on a Section 404 permit application within 90 days after receiving notice from the Corps. This commenting role is defined by Section 404 itself, and is separate from the Services roles under the Endangered Species Act and other laws.Agency Coordination and Elevation. Section 404(q) directs the Corps to enter
