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SUBJECT: U.S. Army Corps of Engineers Regulatory Role in Activities Associated with Oil and Natural Gas Production and Development of Class II Injection Wells
The purpose of this public notice is to advise you of the U.S. Army Corps of Engineers (USACE) regulatory role as it applies to activities associated with oil and natural gas production and distribution, and development of Class II injection wells. Through our regulatory authorities, the USACE is charged with protecting the nation's regulated aquatic resources while allowing reasonable and necessary development that impacts those resources to go forward. Our intent is to develop and maintain an open dialogue with those in the oil and gas industry to provide early coordination during project planning to ensure that project related impacts to regulated aquatic resources are appropriately avoided, minimized, and/or mitigated to ensure the proposals are in compliance with applicable regulatory requirements.
Under Section 404 of the Clean Water Act (33 USC 1344), the USACE regulates the discharge of dredged or fill material into Waters of the United States (U.S.). Under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403), the USACE has regulatory authority over all work or structures in, over, or under navigable waters. The Fort District has several rivers subjects to Section 10 of the Rivers and Harbors Act.
Waters of the U.S. are defined in 33 CFR 328 and may include lakes, rivers, streams (ephemeral, intermittent, perennial), mudflats, vegetated shallows, ditches, ponds, and wetlands. While some rivers, streams, lakes and wetlands are clearly jurisdictional waters, in many instances, the USACE can only make the determination of whether an aquatic resource is a water of the U.S. after a site-specific analysis. The presence of drought conditions in no way diminishes the extent and location of federal jurisdiction with respect to waters of the U.S., i.e. just because an area may appear as dry land, does not mean that it is no longer regulated under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.2
Certain activities associated with oil and natural gas production and distribution, and development of Class II injection wells, include impacts to aquatic resources that require authorization from the USACE prior to initiating work. Regulated impacts to aquatic resources from these activities would include the discharge of dredged or fill material within waters of the U.S. associated with, but not limited to, construction of utility line crossings, access roads
(including upgrades to existing roads), distribution pipelines, well pads, production facilities, water impoundments, and intake and outfall structures. To expedite application processing and to ensure regulatory compliance, the U.S. Army Corps of Engineers is providing this summary of existing regulations that may streamline many of these energy related activities along with Application Submittal Forms developed by the Fort Worth District.
Many of the existing nationwide permits (NWPs) and Regional General Permits (RGPs) have scopes of work and thresholds that may allow applicants to construct proposed projects without delay or waiting for an authorization. However, depending upon the size and location of your proposed work, you may be required to provide an application or preconstruction notification (PCN) for our review and authorization of your project prior to work in waters of the U.S. and in some instances, compensatory mitigation may be required. Please note that all General and Regional Conditions, including compliance with the Endangered Species Act and Section 106 of the National Historic Preservation Act also apply. Projects which may affect endangered species, critical habitat, or may have an effect on historic properties require a pre-construction notification prior to beginning construction. For more information regarding each of the following permitting options go to www.swf.usace.army.mil/missions/regulatory/permitting. These permits do not authorize any damage to private property, invasion of property rights, or any infringement of federal, state, or local laws or regulations.
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