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Permitting Marine Projects. Presented to. UW Tacoma Students. Presented by. Katie Chamberlin and Heather Page. June 29, 2007. Rivers and Harbors Act of 1899 – Section 10. The purpose of this section of the Act was to prohibit the obstruction or alteration of navigable waters of the U.S.

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permitting marine projects

Permitting Marine Projects

Presented to

UW Tacoma Students

Presented by

Katie Chamberlin and Heather Page

June 29, 2007

rivers and harbors act of 1899 section 10
Rivers and Harbors Act of 1899 – Section 10
  • The purpose of this section of the Act was to prohibit the obstruction or alteration of navigable waters of the U.S.
  • Navigable waters of the U.S. defined as “those waters that are subject to the ebb and flow of the tides and/or are presently used, or have been used in the past, or maybe susceptible to use to transport interstate or foreign commerce“
  • A Section 10 Permit is required for any work in, over, or under navigable waters
  • Approval issued as an Individual Permit, Nationwide Permit, or Regional Permit
clean water act of 1972 amended in 1977
Clean Water Act of 1972, amended in 1977
  • CWA established the basic structure for regulating discharges of pollutants into the waters of the U.S.
  • Provided EPA the authority to implement pollution control programs such as setting wastewater standards for industry and setting water quality standards for all contaminants in surface waters
  • CWA made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions
cwa section 404
CWA – Section 404
  • Established a program to regulate the discharge of dredged or fill material into waters of the U.S.
  • CWA built on the definition of navigable waters, and defined “waters of the U.S.” to include tributaries to navigable waters, interstate wetlands, wetlands which could affect interstate or foreign commerce, and wetlands adjacent to other waters of the U.S.
  • Definition of the extent of “waters of U.S.” continues to be in flux, based on court rulings
cwa section 404 cont
CWA – Section 404 (cont.)
  • 404 Program jointly administered by the U.S. Army Corps of Engineers (Corps) and the EPA
  • Program permit review and issuance encourages avoidance of impacts, followed by minimizing impacts and, finally, requiring mitigation for unavoidable impacts to the aquatic environment. This sequence is described in the guidelines at Section 404(b)(1) of the CWA.
  • Approval issued as an Individual 404 Permit, Nationwide 404 Permit (NWP), or Regional Permit
cwa section 401
CWA – Section 401
  • Required of any applicant for a federal license or permit to conduct any activity that may result in a discharge into navigable waters
  • 401 Certifications are made by the state in which the discharge originates and declare that the discharge will comply with applicable provisions of the Act, including water quality standards requirements
cwa section 401 cont
CWA – Section 401 (cont.)
  • In this state, administered by the Washington State Department of Ecology (Ecology)
  • Approval can be issued in the form of a 401 Water Quality Certification (WQC), Letter of Verification, or No Further Action clause (issued by the Corps in their 404 Permit)
cwa section 402
CWA – Section 402
  • National Pollutant Discharge Elimination System (NPDES)
  • NPDES program controls water pollution by regulating point sources that discharge pollutants into waters of the U.S. Industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.
  • It is an EPA program, typically administered by states
  • In this state, administered by Ecology
cwa section 402 cont
CWA – Section 402 (cont.)
  • Many different NPDES Permits:
    • Aquatic Pesticides General Permit
    • Boatyard General Permit
    • Construction Stormwater General Permit
    • Fresh Fruit Packing General Permit
    • Individual Permit
    • Industrial Stormwater General Permit
    • Municipal Stormwater General Permit
    • Sand and Gravel Site Permit
coastal zone management act of 1972
Coastal Zone Management Act of 1972
  • Established the national policy to preserve, protect, develop, and restore the Nation’s coastal zones.
  • Provides for various grants to coastal states for development of coastal zone management plans and management of various programs
  • In this state, administered by Ecology via their Section 401 review process

Endangered Species Act of 1973

  • Conservation of threatened and endangered fish, wildlife, and plant species
  • Administered by National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (USFWS)
  • Projects with a federal nexus that could affect listed species trigger Section 7 consultation
section 7 consultation process
Section 7 Consultation Process
  • Biological assessmentsanalyze the potential effects of projects on listed species and critical habitat, and justify particular effect determinations
  • “Consultation” versus “Conference” with NMFS and USFWS
  • Informal versus formal consultation

Section 106

  • Lead federal agency consults with State Historic Preservation Office (SHPO) and affected Tribes (36 CFR Part 800)
  • Excavating, altering, defacing, or removing archaeological objects or resources or Native Indian graves, cairns, or glyptic records
section 106 process
Section 106 Process
  • Initiating Review
    • Does the project affect historical or cultural resources?
    • Early coordination with Tribes
  • Identifying Historic Properties
    • Identify area of potential effect (APE)
    • Prepare Cultural Resource Report
  • Assessing Effects on Historic Properties
    • Avoid, minimize, or mitigate adverse effects
section 106 process cont
Section 106 Process (cont.)
  • Obtain SHPO Concurrence on “No Adverse Effect”
  • Resolving Adverse Effects
    • Reach agreement with the SHPO/Tribal Historic Preservation Officer on measures to deal with adverse effects
    • Mitigation may include active preservation in place for future study or other use, recovery or partial recovery of archaeological data, public interpretive display, etc.
washington hydraulic code chapter 220 110 wac
Washington Hydraulic Code (Chapter 220-110 WAC)
  • Hydraulic Project Approval (HPA) is required of any activity that uses, diverts, obstructs, or changes the natural flow or bed of any of the salt or fresh waters of state
  • Work requiring an HPA also includes…
  • Administered by the Washington Department of Fish and Wildlife (WDFW)
washington department of natural resources dnr permits
Washington Department of Natural Resources (DNR) Permits
  • Aquatic Use Authorization
    • Required of any activity that takes place on state-owned aquatic lands, consistent with Chapter 79.105 RCW
  • Site Use Authorization
    • Required to dispose of dredged material at one of DNR’s unconfined open-water dredged material disposal sites
    • Administered through DNR and the Dredged Material Management Program (DMMP)
state environmental policy act sepa
State Environmental Policy Act (SEPA)
  • Enacted in 1971; modeled after National Environmental Policy Act (NEPA)
  • Phased process, not a permit, that culminates in a threshold determination (WAC 197-11)
  • Any proposal that requires a state or local agency decision to license, fund, or undertake a project, or the proposed adoption of a policy, plan, or program can trigger environmental review under SEPA
sepa process
SEPA Process
  • Determine whether SEPA is required
  • Determine the lead agency
  • Set up pre-application meeting
  • Prepare SEPA Checklist
  • Lead agency evaluates proposal
  • Assess significance and issue a threshold determination

Model Toxics Control Act

  • Passed by WA voters as Initiative 97
  • Chapter 70.105D RCW / Chapter 173-340 WAC
  • Working with Ecology to Achieve Cleanup
    • Voluntary Cleanup Program (VCP)
    • Consent Decrees
    • Agreed Orders

Permitting Cleanup Sites

  • NWP 38
  • Permits Required
    • SEPA
    • 401 WQC
    • DNR Aquatic Use Permit (if applicable)
  • RCW 70.105D.090: Exemption from procedural requirements of
    • SMA, NPDES, HPA, Clean Air Act, Hazardous Waste & Solid Waste Mgmt.
integration of sepa and mtca
Integration of SEPA and MTCA
  • WAC 197-11-250 through 268
  • Does not apply to VCPs
  • Review Process
    • Identify lead agency
    • Conduct early review
    • Perform early scoping
    • Make threshold determination
shoreline management act
Shoreline Management Act
  • Enacted in 1971 (Chapter 90.58 RCW)
  • Local government has the primary responsibility for initiating the planning required by the SMA and administering the regulatory program (Shoreline Master Program [SMP])
  • Ecology acts primarily in a supportive and review capacity with an emphasis on providing assistance to local government and on ensuring compliance with the policy and provisions of the SMA
sma development permit
SMA Development Permit
  • Development projects within 200 feet of a regulated water body must be consistent with the local SMP
  • Shoreline permit exemptions
  • Substantial Development Permits
  • Conditional Use Permit and Variances
sma permit process
SMA Permit Process
  • Determine whether a permit is required
  • Set up pre-application meeting
  • Obtained either through JARPA or a separate SSDP Form
  • Lead agency evaluates proposal
  • Assess significance and issue a permit (needs Ecology’s review)
wsdot i 405 project office
WSDOT I-405 Project Office
  • Co-located WSDOT/consultant team
  • Primarily design-build projects vs. design bid build projects
  • All 405 Projects permitted through the WSDOT- funded Multi-Agency Permitting (MAP) Team
  • Many phases and stages, based off state and federal funding availability
i 405 bellevue nickel improvement project goals
I-405, Bellevue Nickel Improvement Project Goals
  • Reduce congestion and increase travel speeds into and out of Bellevue by adding lanes to I-405
  • Improve merging conditions and safety near I-90 by:
    • Reconfiguring the northbound on-ramps from I-90 so traffic will not have to merge together before merging onto I-405
    • Extending the southbound HOV lane on the west side of I-405 to I-90 so drivers have more time to merge
  • Enhance wetlands and wildlife habitat by creating a wetland at Bellevue's Kelsey Creek Park to mitigate for wetland impacts from the project
  • Improve water quality by treating highway stormwater runoff
project impacts to sensitive areas winter 2005
Project Impacts to Sensitive Areas (Winter 2005)
  • Permanent impact to approximately 32,000 ft2 (0.74 acre) of Category 3 and 4 wetlands
  • Permanent impact to approximately 11,000 ft2 (0.25 acre) of one stream
permit strategy
Permit Strategy
  • Section 404 Individual Permit
  • Section 401 Water Quality Certification
  • Coastal Zone Management Act Consistency Determination
  • Section 402 NPDES Construction Stormwater General Permit
  • Section 106 SHPO Concurrence
  • NMFS and USFWS Concurrence
  • SEPA Threshold Determination
  • Hydraulic Project Approval
  • Shoreline Substantial Development Permit
design change 1
Design Change #1

Negotiations between BNSF, King County, and WSDOT led to an agreement in which a major design constraint, the Wilburton Tunnel, could be removed!

project impacts to sensitive areas summer 2006
Project Impacts to Sensitive Areas (Summer 2006)
  • Permanent impact to approximately 7,000 ft2 (0.16 acre) of Category 3 and 4 wetlands
  • Permanent impact to approximately 3,500 ft2 (0.08 acre) of one stream
  • Mitigation was tailored to meet the compensation requirements, although wetland mitigation site would have surplus restoration area
  • Permits were issued based off these impact numbers and the required mitigation respective to these impacts
permit strategy 2
Permit Strategy #2
  • Section 404 Nationwide Permit
  • Section 401 Letter of Verification
  • No Coastal Zone Management Act Consistency Determination – part of LOV process
  • Section 402 NPDES Construction Stormwater General Permit
  • Section 106 SHPO Concurrence
  • NMFS and USFWS Concurrence
  • SEPA Threshold Determination
  • Hydraulic Project Approval
  • Shoreline Substantial Development Permit
design change 2
Design Change #2
  • Contract awarded in February 2007
  • Design-build contractor successfully minimized both wetland and stream impacts:
    • Wetland impacts now total 2,700 ft2 (0.07 acre)
    • Stream impacts now total 725 ft2 (0.02 acre)
design change 2 cont
Design Change #2 (cont.)
  • Reduction in impacts meant a revised permit strategy
  • Needed to modify wetland mitigation plan to indicate that less of the restoration would be allocated to this project
  • Needed to significantly scale back stream mitigation plan
  • Needed to re-verify the NWP 404 Permit
  • Needed an amended HPA
design build impact minimization in this project
Design Build Impact Minimization in this Project
  • Wetland impacts went from approximately 32,000 ft2 (0.74 acre) to 2,700 ft2 (0.07 acre) – 84% reduction
  • Stream impacts went from approximately 11,000 ft2 (0.25 acre) to 725 ft2 (0.02 acre) – 66% reduction
funding for project
Funding for Project
  • Previous owner
  • U.S. Environmental Protection Agency Brownfields Grants
  • DNR Creosote Removal Program
permit strategy1
Permit Strategy
  • Individual Section 404 Permit (not a NWP 38)
  • Section 10 Permit
  • 401 Water Quality Certification
  • Coastal Zone Management Act Consistency Determination
  • Hydraulic Project Approval
  • Section 106 SHPO Concurrence
  • NMFS and USFWS Concurrence
  • Shoreline Substantial Development Permit
  • SEPA Threshold Determination
  • Floodplain Permit
  • Certificate of Appropriateness from City Design Review Board
  • No DNR Aquatic Use Authorization
permit strategy cont
Permit Strategy (cont.)
  • Joint Agency Meeting set up through Office of Regulatory Assistance
  • Meeting with WDFW and NMFS to address concerns raised at Joint Agency Meeting
  • Pre-application meeting with City of Gig Harbor Planning Department
end results
End Results
  • Submitted all permit documentation within one month of Joint Agency Meeting
  • Received minimal comments from Ecology, WDFW, the Corps
  • Next steps
  • Take home message

Clean Water Act

Act of 1972, amended 1977:

Section 404:

Section 401:

Section 402:

Washington Hydraulic Code

Chapter 220-110 WAC:

DNR Permits

Site Use Authorization:

Aquatic Use Authorization:


Endangered Species Act

Act of 1973:

History of ESA Act:


NMFS (NW Office):

Preparing Biological Assessments

Section 106

Working with Section 106:

Consulting with Indian Tribes:



SEPA Handbook:

SEPA Rules:


MTCA Rules:

Shoreline Management Act

SMA of 1971: