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Posted 1/10/2013

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By Nancy J. Sticht

Jacksonville District’s regulatory permitting program, the largest in the Corps, exceeded all national performance standards in Fiscal Year 2012. Particularly noteworthy is the fact that 94 percent of general permit decisions were completed within 60 days of receipt of a complete application and 82 percent of individual permit decisions were completed within 120 days of receipt of a complete application.

The U.S. Army Corps of Engineers is responsible for regulating structures and work in navigable waters of the U.S. under Sections 9 and 10 of the Rivers and Harbors Act of 1899 and the discharge of dredged or fill material into waters of the U.S. (including wetlands) under Section 404 of the Clean Water Act. The Corps also regulates the transportation of dredged material for the purpose of ocean disposal under Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972. The objective of the regulatory program is to protect the nation’s aquatic resources, while authorizing development through fair, flexible and balanced permit decisions.

Between Oct. 1, 2011 and Oct. 1, 2012, Jacksonville District processed 2,590 general permit applications and 613 individual permit applications. Additionally, 2,426 desktop and 530 field jurisdictional determinations, or the identification of waters of the U.S. that fall under the Corps’ legal jurisdiction, were issued. Jacksonville District also finalized two mitigation banks, Star 4 and Southport, with a potential credit generation total of 543.03.

When a proposed project or action will create unavoidable impacts on the nation’s aquatic resources, the Corps may require mitigation as a condition of the permit. Most commonly, mitigation involves the creation, enhancement or restoration of wetlands and their functions. The Corps’ goal is to have sustainable compensation that will meet the needs of the watershed in which the impacts occurred. 

Compensatory mitigation, a requirement of the Clean Water Act, is a sequential, three-step process. Permit applicants must first make every effort to avoid and then to minimize impacts to aquatic resources; finally, for projects that will cause unavoidable adverse impacts to aquatic resources, compensation is required to make up for those impacts.

Compensatory mitigation may be done on or off the project site, by the permittee or through in-lieu-fee sponsors or mitigation banks. Between 2009 and 2012, permittee-responsible mitigation created, enhanced or restored 13,652 acres of wetlands and 261,499 linear feet of streams in Florida, in-lieu fee mitigation resulted in 1.9 million credits and mitigation banks provided 549 credits throughout Florida.

Public involvement is an important part of the Corps’ decision-making process. Public Notices are issued, to provide the public with an opportunity to review and comment on associated issues of concern. Public meetings are sometimes held, to explain and foster understanding of the Corps’ program and processes and to receive information from the public.
Major actions by Regulatory Division in 2012 included:

• Ridge Road Extension: Pasco County and the Florida Department of Transportation proposed extending the existing Ridge Road approximately eight miles, which will include impacts to water bodies that are within Corps jurisdiction. The Corps is in the process of reviewing nearly 2,000 comments and consulting with appropriate state and federal resource agencies.
• Titan/Tarmac LLC, King Road Limestone Mine: The Corps received an application for a proposed project to mine limestone on about 3,900 acres of a 4,800-acre area in Levy County over an approximate 100-year period. The project was anticipated to impact up to 2,069 acres of wetlands and 1,818 acres of uplands and the applicant proposed to restore and/or preserve 4,195 acres of wetlands and 331 acres of uplands in an adjacent area, in addition to preserving up to 522 acres of wetlands and 329 acres of uplands on the proposed mine parcel, a portion of which abuts the Waccasassa Bay preserve State Park. A public meeting to present the draft Environmental Impact Statement (EIS) was held May 31 in Inglis, Fla. The final EIS is currently in development. 
• Draft Area-wide Environmental Impact Statement (AEIS) for Continued Mining in the Central Florida Phosphate District: The Corps received four phosphate mining project permit applications (Ona, Desoto, Wingate East and South Pasture Extension) and prepared the Draft AEIS to address direct and indirect impacts associated with the four projects as well as other mining projects that might be proposed within the reasonably forseeable future. Public meetings were held in Lakeland, Fla. and Punta Gorda, Fla. in June. A final EIS, incorporating comments received throughout the process, will be published by spring 2013.
• A1 Flow Equalization Basin (FEB): The Corps issued a Public Notice Aug. 28 with a 30-day public comment period and a public scoping meeting was held Sept. 6 in West Palm Beach, Fla., in preparation for the development of a draft EIS for the South Florida Water Management District’s proposal to construct and operate the A1 FEB. The purpose of the proposed project is to attenuate peak stormwater flows to assist in achieving water quality standards in the Central Flowpath of the Everglades Protection Area. It includes a 15,000-acre shallow impoundment area that would store approximately 60,000 acre/feet of water approximately four feet in depth. The scoping process identifies concerns of federal, state and local agencies as well as any affected native American Indian Tribes, proponents of the action and the public. The draft EIS is still in development and is anticipated to be completed in December. 
• Via Verde Natural Gas Pipeline: The Puerto Rico Electric and Power Authority proposed to construct and install a 24-inch diameter steel natural gas pipe line approximately 92 miles long with a construction right-of way (ROW) of 150 feet wide, that transversing the island of Puerto Rico. Thousands of public comments were received on this controversial project, and the Corps was in the process of finalizing an Environmental Assessment when the applicant withdrew the pending application Oct. 11. 
• Programmatic General Permit (PGP): Jacksonville District issued SAJ-99, effective Nov. 15, to the state of Florida Department of Agriculture and Consumer Services to authorize the deposition of materials and other work for the purposes of clam and oyster aquaculture in navigable waters of the U.S. that are within the state’s jurisdiction. The PGP helps to avoid duplication of permitting and reduces the need for separate approval from the Corps and the state of Florida for minor work, reducing costs and increasing efficiency.  

In addition to processing permit actions, federal regulations also authorize the Corps to respond when unauthorized or non-compliant activities in waters of the U.S. occur. In 2012, 23 compliance and 66 enforcement cases were resolved.

A major compliance and enforcement case occurred at the Port of the Americas in Ponce, Puerto Rico, where year-long negotiations for the settlement of violations resulted in a signed Consent Decree, effectively resolving permit non-compliance issues that violated the Clean Water Act and the Rivers and Harbors Act. The violations had resulted in impacts to endangered species, cultural resources and historic properties protected under the National Historic Preservation Act and Endangered Species Act. The benefits of the Consent Decree included the development of compensatory mitigation that will compensate for 97 acres of seagrass and 59 acres of wetland impacts, the creation of a buffer for the protection the Ponce Playa Historic District and the protection of the existing archeological site (including human remains).

Time, changing public needs, evolving policy, case law and new statutory mandates have contributed to the regulatory program’s breadth, complexity and authority.  In making its decision, the Corps considers the value of the aquatic ecosystems involved, the views of federal, state and local agencies and interest groups and 21 public interest factors. Every permit application is objectively reviewed within the same laws and regulations, and the Corps is neither a proponent or opponent of any project.

general permit decision Jacksonville District permit permits regulatory U.S. Army Corps of Engineers