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Beach Nourishment: A Guide for Local Government Officials
Assessment of Section 404 Clean Water Act Regulatory IssuesAbstractSection 404 of the Clean Water Act of 1972, (hereafter referred to as Section 404), as amended (33 U.S.C. s/s 1251 and following) (1977) is the primary law that governs disposal of dredged and fill material in waters of the United States. Waters of the United States include ocean areas, estuaries, streams, ponds, rivers, lakes, and wetlands. The purpose of this paper is to describe the Section 404 permitting process for decision-makers, to identify important issues that arise during the permit review process, and to describe possible measures to be taken to create an efficient permitting process. Section 404 permits are highly complex because they are integrated with the National Environmental Policy Act (NEPA), which in turn triggers over 60 environmental laws and regulations. The permitting process involves public scoping, development of alternatives, impact analysis, and mitigation. The U.S. Army Corps of Engineers (USACE, the Corps) is the chief permitting agency for beach nourishment projects. As stated in 36 CFR Part 336.1(a), "Section 404 of the CWA governs the discharge of dredged or fill material into waters of the U.S." Although the Corps does not process and issue permits for its own activities, the Corps authorizes its own discharges of dredged or fill material by applying all applicable substantive legal requirements, including public notice, opportunity for public hearing, and application of the section 404(b)(1) guidelines. A permit is needed in conjunction with beach nourishment projects for placement of fill in areas below the mean high tide line. The Section 404 permitting process includes requirements for the submittal of either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) (or EIS equivalent document) for beach nourishment projects. The integration of Section 404 and NEPA to address beach nourishment projects results in a highly demanding and lengthy process for applicants. As a result of this complexity, the USACE has suggested applicants combine the NEPA and Section 404 documentation efforts with the USACE six-step planning process. Overview / IntroductionThe objective of this paper is to summarize key issues involving the Section 404 permitting process in relation to beach nourishment projects in the Atlantic and Gulf Coasts of the United States. The specific objectives of this paper are: (1) to describe the laws and regulations that control issuance of a Section 404 permit for a beach nourishment project; (2) to summarize specific Section 404 requirements on beach nourishment projects; (3) to suggest measures to comply with agency requirements. The objective is to provide information that will be useful to decision-makers interested in applying for Section 404 permits on these types of projects, to communicate the complexities and challenges involved, and to suggest ways to help assure that the process followed is in compliance. Description of Section 404 Laws and Regulations
A Section 404 permit is required of an applicant who plans to place dredged and fill material in waters of the United States for purposes of nourishing a beach. Placement of dredged and fill material in waters of the United States, including wetlands, is under the jurisdiction of the USACE. The Corps's Section 404 regulations are found in Title 33 of the Code of Federal Regulations, Parts 320-331. In addition, the USACE has its own six-step Water Resource Planning process (WRP) developed under the Water Resources Planning Act, as amended (WRPA)(42 U.S.C. 1962a-2)(as described in Engineering Regulation ER 1105-2-100) that is integrated with NEPA and Section 404 permitting of beach nourishment projects. Please refer to "Effective Integration of Legal and Regulatory Requirements into Beach Nourishment Projects" and "National Environmental Policy Act (NEPA) Compliance Requirements for Beach Nourishment Programs" for a discussion of the associated NEPA and the WRP processes. Permits are required for projects involving expenditure of federal funds. In addition, permits are required for private entities desiring to complete a beach nourishment project. For private entities, Section 404 requires completion of a NEPA document that is equivalent to an EIS or EA. For an EIS, this process includes public scoping, alternatives development, and all of the same steps required under NEPA. This is also a lengthy process requiring the applicant to meet similar agency review requirements as do public projects. Summary of Specific 404 Requirements for Beach Nourishment ProjectsObtaining approval for a Section 404 permit for a beach nourishment project of any size is a complex and lengthy process. The primary requirement is that applicants must be able to prove that they have selected the "least environmentally damaging practicable alternative" in order for the project to be approved. This means that the applicant must document that a sequence of avoidance, minimization, and compensation has been followed, in that order. This sequence is required under the Section 404(b)(1) Guidelines (40 CFR Part 230). The Section 404(b)(1) Guidelines are the rules by which federal agencies review each permit application. The guidelines are provided at the following USACE web page: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/40cfr230.htm. The Guidelines are also published at the following EPA website: http://www.epa.gov/owow/wetlands/40cfr/part230.html. A well defined project purpose and need are also critical elements of the Section 404 permit submitted. The USACE is bound by law to determine whether the project is in the best interest of the public. If the project is not determined to be in the public interest, the USACE may deny the permit application. Depending on how the alternatives are approached and other factors, this can be a complex issue in the case of beach nourishment projects, and will usually be identified by the USACE at a preapplication meeting. The Section 404(b)(1) Guidelines allow the applicant to take engineering, cost, environmental, and logistic factors into consideration when selecting the least environmentally damaging "practicable" alternative. The permit application usually contains an analysis that documents project alternatives, and the reasons that each alternative may or may not be considered practicable. This process starts with the initial conceptual designs being prepared in the planning stage of a project.
The avoidance test requires proving to the Corps that the proposed project alternative is the least environmentally damaging alternative that would accomplish the project purpose. The Corps will evaluate the proposed alternative, and will make an independent determination regarding whether the proposed alternative is the least environmentally damaging option; a negative determination by the Corps will usually result in denial of the permit application. To successfully meet the requirements of this test, the applicant must therefore prepare a defensible "alternatives" analysis showing that the least environmentally damaging alternative has been selected. For beach nourishment projects, this means going through an exhaustive analysis of available technologies and options, usually in varying combinations, to demonstrate avoidance. Table 1 summarizes the alternatives for a major beach nourishment EIS in Florida, as an example of the complexities of this process. The alternatives test must consider both on-site and off-site avoidance and minimization measures for the proposed project. Off-site measures means analysis of other locations for the project; on-site avoidance and minimization refers to those measures that may be taken on a particular site to reduce impacts. In the case of beach nourishment projects, off-site avoidance would not be required, because the applicant cannot simply build the project at another location and meet the project purpose. On-site avoidance and minimization is required on the proposed project location, and could involve measures such as preserving a particular stretch of beach in its existing condition (avoidance), or changing the time of year when the sand is placed on the beach to reduce impacts to shorebirds (minimization). Once avoidance and minimization have been achieved, the applicant can then propose ways to compensate for any unavoidable habitat losses caused by the project. Compensation can involve restoration of wetland or near shore habitats, for example. Compensation can only be proposed, however, after the steps of avoidance and minimization are successfully completed. The burden for proof that avoidance and minimization have been achieved is on the applicant. Many Corps districts will require the use of a functional analysis (that is, Habitat Evaluation Program) to determine compensation needs for the project, once avoidance and minimization have been demonstrated. Compensation usually involves some combination of restoration, preservation, creation, and enhancement. Most Corps districts also place a limit on the percentage of allowable preservation (typically 50 percent of the total credits). The sequencing requirements of the Section 404 permit are therefore very challenging, and require a thorough analysis and extensive preparation on the part of the applicant. In addition to these requirements, the applicant also has to prepare a scientifically defensible and credible description of the baseline environment in the areas in which fill is to be placed, in areas where beach material will be taken (borrow areas), and in areas where ancillary facilities are constructed and operated. Data collection and documentation may take two to three years because a thorough study of all natural resources must be conducted. The information collected in these baseline studies should be of such quality that it is defensible in a court of law. This information is assembled as one section of the NEPA document. The NEPA document also contains a summary of the purpose and need for the projects, alternatives to the preferred action, an assessment of the impacts of the alternatives, and a section describing the mitigation measures that will be taken to avoid, reduce, or minimize potentially adverse impacts. Please refer to "National Environmental Policy Act (NEPA) Compliance Requirements for Beach Nourishment Programs" for a more detailed discussion of the NEPA process, and examples of environmental associated with selected beach nourishment projects. A NEPA Environmental Impact Statement (EIS) is normally completed for major beach nourishment projects, since these projects have the potential to result in significant adverse impacts on the environment. NEPA is the overarching law that governs the decisions of federal agencies, and its purpose is to assure that the least environmentally damaging practicable alternative is selected by each permit applicant. The heart of the NEPA process is the alternatives, which are developed under NEPA through formal public scoping and input. NEPA specifies that the results of public scoping must be utilized by the lead agency to develop alternatives that are sharply defined according to the issues. The EIS then assesses and compares the impacts of the alternatives on the environment, and this information is used and evaluated by the USACE in making the permit decision. In this manner, NEPA and Section 404 permitting process are intricately interrelated. Decision-makers need to be fully aware of this process and how the alternatives are developed in order to usefully complete the process and obtain a permit. This is by definition a cooperative effort that requires effective communication between the applicant and the USACE during all phases of the permitting process, and especially during the development of alternatives. Because the Section 404 permit is prepared under the umbrella of NEPA and WRP requirements and specifications, it is a truly complex effort. As a result, a typical large beach nourishment project may take approximately 8 years to permit. Figure 5 illustrates the actual detailed steps required to complete a Section 404 permit for a beach nourishment project. Ways to Stay in ComplianceTable 2 summarizes steps that a permit applicant can take to comply with Section 404 permit requirements for a beach nourishment project. This information is adapted from USACE district web pages, and is intended to illustrate key steps that will help build consensus with agencies and all other stakeholders during the multi-year permitting process. Table 3 summarizes a set of review criteria used in a recent beach nourishment project in Florida conducted as part of an EIS (USACE 1996). This table reveals the complexity and depth of information required to complete the 404(b)(1) review process. ConclusionsObtaining a Section 404 permit for a beach nourishment project is a major undertaking that typically requires several years for large projects. At least two to three years of that time is required to establish alternatives and document baseline conditions. This is a time consuming process that must be approached in a manner that will assure compliance with the Section 404(b)(1) guidelines. NEPA and WRP requirements and policies are also intertwined with the 404 process. Permit applicants should plan accordingly and attempt to identify all issues early on in this process, in order to maximize their potential for working successfully with the agencies. |
