The U.S. Army Corps of Engineers’ (USACE) authority to regulate development in or near American waters dates to the late 19th century, when it was charged with protecting and maintaining the navigable capacity of the nation’s waters. Initially, USACE regulatory activities were limited to keeping waterways unobstructed by dams or other structures.

Many factors – including changing public demands, policy evolution, legislation, and case law – have gradually altered this program over the last century, adding to its scope and complexity. The most significant statutory mandate for USACE comes from Section 404 of the Clean Water Act, which authorizes USACE to issue or deny permits for the discharge of dredged or fill material into the waters of the United States.

Though the details of the U.S. Army Corps of Engineers Regulatory Program are constantly adapting, the program continues to maintain a focus on balancing the national concern for both protection and utilization of important environmental resources.

 

New and Better Tools for Decision-Making

According to Jennifer Moyer, acting chief of USACE’s Regulatory Program, FY 2012 was a year in which USACE finalized updates to several tools that will help improve and streamline individual permit decisions, including:

• The National Wetland Plant List – The federal definition of a “wetland” depends on three criteria: vegetation, hydric soils, and hydrology. In the 1980s, botanists from USACE, the Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS), and Natural Resources Conservation Service (NRCS), developed a list of plants that could help to delineate wetlands in the United States and its territories. The 2012 National Wetland Plant List, released in May, replaces this earlier version and is meant to be used not only to inform decisions on a variety of issues, from food security to wildlife habitat, but also as a resource for the scientific and academic communities.

Botanists with USACE’s Engineer Research and Development Center led this effort, which involved 16 rounds of discussion about the list’s final contents. “This list is a living document,” said Moyer, “that enables the public to contact the professional panel and issue a challenge to say: ‘I don’t agree with what you’ve done, and here’s the evidence I’m providing to inform a dialogue on this issue.’ It allows for interaction and understanding and transparency. It’s something that not just USACE but all of the federal government can be proud of.”

• The Cumulative Effects Assessment Tool – Another significant 2012 development has been the creation of the USACE Cumulative Effects Assessment (CEA) Tool. The impetus for development of this tool was the 2009 agreement between USACE, EPA, and the Department of the Interior to improve the environmental review of permit applications for activities related to surface coal mining in the Appalachian region. In their Memorandum of Understanding, the agencies placed a priority on assessing the cumulative effects of surface coal mining on aquatic ecosystems.

The CEA Tool, developed by USACE’s Institute for Water Resources, is a science-based analytical watershed analysis tool that uses specific data gathered from different sources. The CEA identifies stressors in a watershed and demonstrates their expected impacts. “It’s demonstrated some interesting things in the areas of eastern Kentucky and southern West Virginia, where we have good data,” said Moyer. “Specifically, that road infrastructure – which wasn’t previously thought to be a major stressor on the watershed – is one of the major impacts in those areas. It’s allowed USACE and our agency partners to make better informed decisions, or to think about different options for compensatory mitigation, because it enhances our ability to look at other areas in a watershed where we wouldn’t naturally be focusing. The whole point of a tool like this is to do the right work in the right place, to offset unavoidable impacts.”

USACE is working vigorously, Moyer said, to collect the data needed to deploy the CEA in other areas of the country, with efforts currently focused in Washington, Virginia, and Texas.

• The Nationwide Permitting Process – The Clean Water Act authorizes USACE to issue general permits for activities that have minimal individual and cumulative adverse environmental effects. With this authority, USACE is able to improve the efficiency of permit decision-making on project proposals, while ensuring protection of aquatic resources.

The first suite of Nationwide Permits (NWP), developed in the mid-1970s, consisted of about a half-dozen permits; today the NWPs and other forms of general permits do the heavy lifting for USACE’s Regulatory Program, comprising somewhere between 80 to 90 percent of the organization’s efforts to protect the nation’s aquatic resources while allowing reasonable economic development via fair, flexible, and balanced permit decisions.

Though the details of USACE’s Regulatory Program are constantly adapting, the program continues to maintain a focus on balancing the national concern for both protection and utilization of important environmental resources.

Because the NWPs are so crucial, USACE works hard to ensure there is no lapse in coverage at the end of a five-year cycle. At least two years before the permits expire, USACE seeks input from all 38 USACE districts, other federal agencies, the public, and its stakeholder groups about other areas that may meet the “no more than minimal impact” threshold and may warrant a broad NWP. After a draft proposal for a NWP is composed, USACE releases it for public comment.