The basic form of authorization 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 larger projects), formal permit application review, and decision-making. Pre-application consultation usually involves one or several meetings between an applicant, USACE 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 relative to its effects on the aquatic environment while the applicant is still in the planning process. The process allows for a consideration of potentially less environmentally damaging alternatives available to accomplish the project purpose, to discuss measures for reducing the impacts of the project, and to inform the applicant of the factors the USACE must consider in its decision-making process. Once a complete application is received, the formal review process begins. The project manager prepares a public notice (if required), evaluates the impacts of the project and considers all comments received, addresses potential modifications to the project if appropriate, 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 determinations of compliance with the Section 404(b)(1) Guidelines.
Letter of Permission Procedures
A letter of permission is a type of permit issued through an abbreviated processing procedure that includes coordination with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife Coordination Act, and a public interest evaluation, but without the publishing of an individual public notice (See 33 CFR 325.2(e)(1)). A Letter of Permission (LOP) procedure is an alternative procedure for evaluating individual permit applications for activities in waters of the U.S. authorized by the U.S. Army Corps of Engineers (USACE). An LOP procedure serves to reduce the administrative procedures and to expedite permit decisions for cases that include only minor work in waters of the U.S. that do not have significant individual or cumulative environmental impacts and should encounter no appreciable opposition. The letter of permission may not be used to authorize the transportation of dredged material for the purpose of dumping it in ocean waters. Letters of permission may be used in those cases subject to Section 10 of the Rivers and Harbors Act of 1899 when, the proposed work would be minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition. To use Letters of permission in cases subject to section 404 of the Clean Water Act, the USACE must first consult with Federal and state fish and wildlife agencies, the Environmental Protection Agency, the state water quality certifying agency, and, if appropriate, the state Coastal Zone Management Agency, on appropriate categories of activities for authorization under LOP procedures. The USACE must also issue a public notice advertising the proposed list and the LOP procedures, request comments and offer an opportunity for public hearing. Finally 401 certification must be issued or waived and, if appropriate, CZM consistency concurrence obtained or presumed either on a generic or individual basis.
An LOP may include general conditions and appropriate case-specific provisions necessary to protect the environment, including natural and cultural resources. LOP procedures may not have an expiration date, but LOP's issued under the procedure always will have an expiration date. The USACE must conduct a public interest evaluation, but there is no requirement for a public notice. The permittee is responsible for obtaining any additional federal, state, or local permits that may be required. Prior to authorizing any project, the USACE must conduct a public interest evaluation and coordinate with the U.S. Fish and Wildlife Service (USFWS) and Texas Parks and Wildlife Department (TPWD); and may coordinate with other agencies such as Environmental Protection Agency (EPA); the Texas Commission on Environmental Quality (TCEQ) or the Railroad Commission of Texas (RRC) (depending on the nature of the proposed activities); the National Marine Fisheries Service (NMFS); the General Land Office (GLO); the Louisiana Department of Environmental Quality and the Louisiana Department of Wildlife and Fisheries; and the Louisiana Department of Natural Resources (Coastal Management Division). Refer to the applicable LOP procedure for the requirements in each case.
Work that does not comply with the provisions of LOP procedure may require authorization by standard individual permit. Compliance with the LOP procedure, including the general conditions, does not guarantee authorization of the work by an LOP. Application procedures are included with each LOP procedure. The following are the Section 404 LOP procedures currently available in the Fort Worth District:
Standard Individual Permit
The Fort Worth Regulatory Branch has released an application submittal form to supplement Form 4345 (the official IP application form) for Individual Permits in the Fort Worth District.
Activities that do not qualify for authorization under the General Permit program may qualify for authorization by Standard Individual Permit (IP). Authorization under IP may be obtained only through application with the USACE. These permits are issued for activities that have more than minimal adverse impacts to waters of the United States and evaluation of each permit application involves more thorough review of the potential environmental and socioeconomic effects of the proposed activity. The Checklist for Applications for Individual Department of the Army Permits (dated March 31, 2003) is a summary in checklist form of the items that applicants are required to provide for a complete individual permit application (33 CFR 325). The applicant must submit the required information on an Individual Permit Application Form (Form 4345) and are encouraged to submit the supplemental electronic IP application form (available here) along with it. An Alternative analysis and a mitigation plan are not required for a complete application to prepare a public notice, but are very helpful. The SP Evaluation Process may be summarized as follows:
- Preapplication coordination;
- Individual Permit Application Form submitted;
- After receipt of a complete application, the USACE issues joint public notice for Section 404 and Section 401 water quality certification;
- 15-30 day Public Notice comment period;
- Opportunity for public hearing;
- USACE reviews comments, evaluates the permit application based on regulations, and completes required documentation; and
- USACE makes a decision: issue, issue with conditions, or deny.
Permit Decisions are based on probable impacts associated with the proposed project, including cumulative impacts, on the public interest (33 CFR 320.4
). Public review interest factors include:
- General Environment
- Cultural Values
- Fish & Wildlife Values
- Land Use
- Flood Hazards
- Property Ownership
- Flood Plain Values
- Shore Erosion & Accretion
- Water Supply / Water Quality
- Energy Needs
- Mineral Needs
- Food & Fiber production
- Needs & Welfare of People
A permit will be granted if the proposed project is not contrary to the public interest and meets other legal requirements, such as the 404(b)(1) guidelines.
The Section 404(b)(1) Guidelines are the substantive criteria developed by Environmental Protection Agency and used by the USACE to evaluate proposed discharges into waters of the United States. The USACE may not issue a permit under Section 404 if the proposal does not meet the 404(b)(1) guidelines (See Alternatives Analysis Guidance). The USACE may only issue a permit for the least environmentally damaging practicable alternative. Practicability includes cost, existing technology, and logistics.
The level of review of a proposed project is commensurate to the level of impact to waters of the U.S. (Regulatory Guidance Letter 93-2). The USACE may not issue a permit if the proposed project is not in compliance with other laws (such as Section 401 of the Clean Water Act; National Environmental Policy Act; Fish and Wildlife Coordination Act ; Endangered Species Act (threatened or endangered species information); Coastal Zone Management Act ; National Historic Preservation Act; Magnuson-Stevens Fishery Conservation and Management Act; Essential Fish Habitat); if the activity would result in significant degradation of aquatic environment (net after mitigation); or if there is not appropriate and practicable mitigation. Public interest reviews, Section 404(b)(1) analyses and National Environmental Policy Act analyses require a resource impact assessment, which may include Wetland Evaluation Technique (WET), Habitat Evaluation Procedures (HEP), Hydrogeomorphic Approach (HGM) for wetlands or the EPA's rapid bioassessment method for streams.
State Water Quality Certification (March 5, 2001) is required for all standard individual Section 404 of the Clean Water Act permits. Section 401 water quality certification is conducted by the Texas Commission on Environmental Quality in Texas and the Louisiana Department of Environmental Quality (LDEQ) in Louisiana.
The TCEQ and the USACE have developed a tiered system of review for all standard individual Section 404 permit applications based on project size and the area of waters in the state affected. Generally, for small projects (Tier I) that affect less than three-acres of waters in the state, or less than 1,500 linear-feet of streams, TCEQ has determined that incorporating certain best management practices and other requirements into the project will sufficiently address the likelihood that water quality will remain at the desired level. Any project that does not qualify for a Tier I review or for which the applicant elects not to incorporate Tier I criteria or prefers to use alternatives will be considered a Tier II project. Tier II projects are subject to a certification review by TCEQ. Please note that completion of a questionnaire is not required in order for a Section 404 application to be considered administratively complete by the USACE, but is required for the TCEQ to process a request for water quality certification. If the project qualifies for Tier I water quality certification submittal, then the applicant must complete the required best management practices form. If the project does not qualify for Tier I; if the applicant can not follow the best management practices; or if the applicant chooses not to follow the Tier I requirements, then the applicant must complete and submit the 401 certification questionnaire and the alternatives analysis checklist to TCEQ. TCEQ has an online 401 Water Quality Certification Tracking System.
LDEQ reviews Individual Permit applications concurrent with the USACE review to determine if the work would comply with State water quality standards and other applicable provisions of the Clean Water Act.