Watershed, Summer 2000
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Meet a River Agency
The U.S. Army Corps of Engineers

The following article by Bruce Henderson was adapted from an informal communication to a local activist and should not be construed as the position of the U.S. Army Corps of Engineers (Corps). Bruce Henderson is a Corps representative who deals primarily with issues related to Section 404 of the Clean Water Act.

The Clean Water Act (CWA) was enacted to ensure protection of the physical, chemical and biological integrity of the Nation's waters. The Corps was mandated by Congress to implement Section 404 of the CWA, which specifically regulates the discharge of dredged or fill material into waters of the United States. That's it - the Corps' role and focus is narrow. If someone wants to do a project that discharges fill material into waters of the U.S., they usually need a 404 permit. If they are outside of Corps' jurisdiction (i.e., outside of the limits of the "Waters of the U.S."), they do not need a 404 permit and we do not have any authority over their proposal. If they propose to do something within an area subject to the Corps' jurisdiction, and it does not involve a discharge of fill material, the activity is not regulated by the Corps. That's the gist of it, but you'd be surprised at the amount of regulations and guidance that have been generated over the past 28 years to implement such a seemingly simple policy.

Corps authorization of projects usually is in the form of a nationwide permit. Nationwide permits are general permits established by Headquarters Regulatory Program personnel. General permits may be established pursuant to Section 404(e) of the CWA for activities of similar type if the proposed work is determined to have minimal adverse impacts to aquatic resources on an individual and cumulative basis. The District Engineer may establish regional general permits on a similar basis.

If a particular project does not qualify for a general permit, it must be analyzed under the individual permit process. This requires that a public notice be sent to those on one of our mailing lists (general, by county, or by region, such as the Colorado River or outer continental shelf). Comments received are usually addressed by the project proponent. The Corps must prepare an environmental assessment regarding the proposed project, and project modifications and/or compensatory mitigation are frequently the result of this process. In rare circumstances, a permit is denied and the project proponent must redesign their project if it is to receive Corps authorization.

Before the Corps may issue a 404 permit to authorize discharge of fill material, the State Water Resources Control Board must certify the project meets state standards for water quality pursuant to Section 401 of the CWA. In some circumstances, the Regional Water Quality Control Boards may deem certification waived if they determine a particular project is in compliance with existing water quality standards.

If a project is likely to affect a species listed as threatened or endangered under the federal Endangered Species Act (ESA), the Corps must consult with the U.S. Fish and Wildlife Service (USFWS) or he National Marine Fisheries Service (NMFS), depending upon the species in question, pursuant to Section 7 of the ESA. The appropriate service would then thoroughly analyze the potential effects of the action on the species or its designated critical habitat before rendering their biological opinion, which could be either "jeopardy" or "non-jeopardy." That is, the service would have to determine whether the proposed action would potentially result in jeopardy to the continued existence of the species. The District Engineer is forbidden to issue a permit if he agrees the action would jeopardize a listed species.

On a project affecting riparian resources, the Corps looks at the effect of the discharge of fill material into waters of the U.S., whereas the California Department of Fish and Game (CDFG) looks at the effect of the activity on fish and wildlife issues. The USFWS and NMFS are somewhat similar to CDFG in this regard, but coordinate with the Corps due to our federal permit authority. The Environmental Protection Agency (EPA) has an oversight role, usually relegated to providing comments on public notices. In extremely rare circumstances, they may invoke a veto authority over the Corps pursuant to Section 404(c) of the CWA.

All federal agencies, in cases where their decisions may have an effect on the human environment, must ensure such decisions are made in conformance with the National Environmental Policy Act (NEPA). NEPA parallels the California Environmental Quality Act (CEQA) substantially. Under NEPA, the federal agency making a decision that may affect the human environment must prepare an environmental assessment (EA) of the action. This EA may determine there are unmitigated significant impacts to the human environment and that an environmental impact statement (EIS) is necessary, or the EA may stand alone if no EIS is needed. The EIS is equivalent to an Environmental Impact Report under CEQA.

Implementation of Corps regulations and guidance can fill a book -- and has. When the Corps throws up a red flag on a project, you can be pretty certain its due to some fine point of our regulations or interpretations that have stood the test of time. The situation is extremely complex and getting more so. While some disparagingly refer to agencies like the Corps as bureaucracies, implying large immovable objects, such declarations usually issue from a position of ignorance of all the considerations that must go into the decisions we make, and the input from agencies that must be consulted relative to a decision. The overall process ensures that all points are addressed before one agency makes an independent decision that fails to account for some important facet of the issue.


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