Q1. Regional Permit 1 (Residential, Commercial and Institutional Developments) and Regional Permit 2 (Recreation Projects) states “The District may allow buffer widths below the required minimums. It shall be incumbent on the applicant to demonstrate that no practicable alternatives are available that would not impact the required buffer widths.” How will this provision be applied by the District?
A1. Regional Permits 1 & 2 requires that the applicant provide at least the minimum buffer widths as stated in condition d, (1-4). In the vast majority of projects, the applicant can design their project in order to provide the required buffer widths. We recognize that in a very small number of cases this is not possible given local requirements or site constraints on a particular parcel of property. In those few specific cases where the applicant has clearly demonstrated that no practicable alternatives are available and the overall impacts are minimal, the District may allow minor deviations to the buffer requirement in a specific area of the development. This provision is intended to only allow well designed projects to qualify for Regional Permit 1 or 2. Only projects that have no more than minimal impacts qualify for authorization under the Regional Permit Program.
Q2. The previous Regional Permit Program (RPP) dated January 1, 2005 stated for Regional Permit 1 & 2, “Waters of the U.S. shall not be filled to meet the buffer requirements.” Under the new RPP can an applicant fill a portion of “waters of the U.S.” under Regional Permit 1 & 2?
A2. It is unlikely the District would allow for an applicant to fill a portion of “waters of the U.S.” because of the significant direct and indirect impacts that would result. The District may allow partial fill of a “waters of the U.S.” in a few cases where the applicant has clearly demonstrated that no practicable alternatives are available, overall impacts are minimal and the partial fill occurs in a single instance. However, much like buffer widths, in the vast majority of projects the applicant must avoid these types of partial fill impacts. Applicants should expect projects that propose to fill a portion of “waters of the U.S.” to be processed as Individual Permits.
Q3. Regional Permit 3 (Transportation Projects) states “The impact to waters of the U.S. shall not exceed 0.25 acres for any single crossing.” Is a road widening project that impacts “waters of the U.S.” subject to this provision?
A3. No, widening of existing roads will not be limited to the 0.25 acre of impact threshold for a single crossing. Construction of new roads or other new transportation projects across “waters of the U.S.” will be considered a crossing and will be limited to 0.25 acres of impact for a single crossing under Regional Permit 3.
Q4. Where is the Regional Permit Program (RPP) applicable?
A4. The RPP is applicable in the Illinois counties of Cook, DuPage, Kane, Lake, McHenry and Will. Please note that projects in Will County that are located within the recharge zone for Lockport Prairie Nature Preserve, an area that supports the Federally Endangered Hines Emerald Dragonfly, will not be reviewed under the RPP. Projects within this area will be reviewed under individual permit procedures.
Q5. Why were certain Nationwide Permits suspended?
A5. It is the District's opinion that the RPP would reduce the regulatory burden on applicants for activities that result in minimal adverse effects on the aquatic environment, individually or cumulatively. The RPP would also enhance the District’s ability to pursue the current level of review for activities that have greater adverse effects on the aquatic environment, including activities that require individual permits, and minimize the District’s burden of pursuing compliance actions. It is the District's opinion that the RPP will provide greater consistency and predictability, quicker decisions and greater environmental protection for the regulated public.
Q6. Who determines which Regional Permit is applicable to a project?
A6. For clarity of evaluating compliance with Regional Permit (RP) conditions and general conditions, the District requires the applicant to request the Regional Permit to be used for the activity. The District reserves the right to determine the appropriate authorization type for any given project.
Q7. What is discretionary authority?
A7. As per U.S Army Corps of Engineers' regulation (33 CFR 325.2(e) (2)), the Corps has the discretion to suspend, modify, or revoke authorizations. This discretionary authority may be used to further condition or restrict the applicability of the RPP where there are concerns for aquatic resources or other factors of the public interest. Because of the nature of most Category I activities, the Corps anticipates that it will not exert discretionary authority, except in extraordinary cases. For Category II activities, if the Corps determines that a proposed activity may have more than minimal individual or cumulative adverse impacts to aquatic resources or otherwise be contrary to the public interest, the District will modify the authorization to reduce or eliminate those adverse effects, or notify the applicant that the proposed activity is not authorized under the RPP and provide instructions on how to seek authorization under an individual permit. The District may also use its discretionary authority to modify, suspend, or revoke a Regional Permit for any specific geographic area, class of activities, or class of waters within the District’s boundaries or individual authorizations where an activity is not in compliance with the RPP.
Q8. What date is used as the date of receipt of a complete notification?
A8. The date that the notification is stamped (date received) by the Chicago District Regulatory Branch will be used as the date of notification if the notification is determined to be complete upon receipt. If the notification is considered incomplete upon receipt by the Chicago District Regulatory Branch , the date for complete notification will commence when the Chicago District Regulatory Branch stamps (received) the necessary information. It should be noted that a signed receipt provided by a delivery service(s) does not necessary represent the date received by the Chicago District Regulatory Branch.
Q9. How does the District define a single and complete project?
A9. A single and complete project is the total project proposed or accomplished by one owner, developer or partnership, or agency. If the project construction involves phases, the sum of all impacted areas would be the basis for deciding whether or not this Regional Permit will cover the project.
Q10. Does an applicant have to include a delineation of waters of the United States, including wetlands, with his/her notification?
A10. Yes, a delineation of waters of the United States including wetlands is required to complete your notification under the Regional Permit Program. The delineation report must include a Floristic Quality Assessment ( Swink and Wilhelm, 1994 (latest edition). Plants of the Chicago Region) and should include a complete list of vegetation and wildlife including amphibians that are present. The District on a case-by-case basis may determine flexibility of this requirement only.
Q11. Does the District require that all wetland delineations be surveyed?
A11. Yes, all wetland delineations must be surveyed to receive an authorization under the Regional Permit Program. Buffer requirements will be established from the surveyed wetland delineation line at the time of the Department of the Army (DA) authorization. A survey of the wetland delineation would not be necessary for activities not requiring a DA permit.
Q12. What constitutes the District’s concurrence of a wetland delineation?
A12. The District will provide written correspondence when it accepts or concurs with wetland delineations. Wetland delineations are valid for five years from the date of confirmation.
Q13. Why are upland buffers required under the Regional Permit Program?
A13. The District’s requirement for vegetated buffers adjacent to streams and other waters is consistent with the goals of the Clean Water Act of the maintenance of the biological, chemical, and physical integrity of the aquatic environment. The presence of buffers adjacent to wetlands and waters of the United States contribute to protection strategies by maintaining the functions and values of local natural ecosystems affected by permitted activities including: 1) reducing adverse effects to water quality by trapping and removing sediments, pollutants, and nutrients from surface runoff, 2) enhancing infiltration of water into soil, which allows plants and microbes to remove nutrients and pollutants from water, 3) decreasing erosion of stream beds and surrounding land by slowing storm water runoff velocities and increasing infiltration, 4) reducing soil erosion by keeping the soil in place with plant roots, 5) maintain fish habitat by reducing water temperature changes, 6) providing detritus from riparian vegetation that contributes to the aquatic food chain, 7) providing aquatic habitat features such as snags and shade, 8) providing habitat to a wide variety of aquatic terrestrial species, 9) providing corridors for movement of many species of wildlife, and 10) providing a visual screen for wildlife uses and recreational activities on waters of the United States.
Q14. Are storm water facilities allowed in the upland buffer area?
A14. Storm water retention/detention basins may be located in the buffer. However, the basin shall be setback a minimum distance of 50% of the required buffer, leaving the remaining buffer footage (adjacent to the regulated area) to consist of native vegetation or other vegetation approved by the District.
Q15. How would one seek authorization to construct a garage at a private residence?
A15. If there is a wetland impact then authorization may be sought under Minor Discharges and Minor Dredging (RP4) that covers elements of a single-family residence. If the activity does not impact a wetland or other waters of the United States then no permit is required from our office.
Q16. Is an alternative analysis required for Regional Permits?
A16. No. However, General Condition 21(j) (Notification) requires a discussion of the measures taken to avoid and minimize impacts to aquatic resources on the project site. In addition, all RP activities must comply with General Condition 20 that requires practicable avoidance, minimization and mitigation of impacts to waters of the United States.
Q17. Is an alternative analysis required for Section 10 (only) projects?
Q18. What if the Corps discovers, during its review process under the Regional Permit Program (RPP), that a project may affect historic properties and/or cultural resources or a Federally endangered or threatened species?
A18. An activity will not be evaluated under the RPP if it potentially may affect either historic properties and/or cultural resources or is likely to jeopardize the continued existence of a threatened or endangered species or destroy or adversely modify the critical habitat for that species. An individual permit will be required.
Q19. Can multiple Regional Permits be combined to accomplish a single project?
A19. Yes, with some exceptions. Multiple Regional Permits may be combined to authorize a proposed single and complete project, except as indicated under specific Regional Permits. To use multiple Regional Permits, the applicant must submit notification under Category II and indicate which Regional Permits are to be used for the project. Regional Permit 1 (Residential, Commercial and Institutional Developments) and Regional Permit 2 (Recreation Projects) cannot be used in conjunction with any other Regional Permit, except Regional Permit 7 (Temporary Construction Activities) and Regional Permit 10 (Bank Stabilization).
Q20. Can multiple Regional Permits increase the acreage limit?
A20. No. Regional Permit authorization(s) are for activities that have minimal individual and cumulative impacts on the aquatic environment. Acreage thresholds for Regional Permit activities were determined to have minimal adverse impacts on the aquatic environment. Activities may be authorized with one or more Regional Permits within a project site provided the individual and cumulative impacts within the project site are minimal. If multiple Regional Permits are used, the total impact may not exceed the maximum allowed by the Regional Permit with the greatest impact threshold.
Q21. What is considered speculative fill within a jurisdictional area?
A21. An applicant’s proposed site plans must be sufficient for the District to determine the extent of impacts to the aquatic environment, and compliance with the terms and conditions of the Regional Permit. The placement of fill in wetlands is considered speculative if the District determines that the plans reflect an unreasonable amount of uncertainty with regards to: building locations, lot and road layouts, unspecified land uses, and/or purpose and need. The District will notify all parties concerned if submitted plans are incomplete.
Q22. Does minimum necessary under Regional Permit 3 (Transportation Projects) imply that retaining walls must be constructed in all cases?
A22. No, it implies that the fill must be minimized. For instance, if the project requires a two-lane culverted crossing of a stream, you could not have extra lanes or shoulders in excess of what is needed or required. In most cases, the District will defer to current standard highway designs and specifications. However, in cases involving high quality wetlands, the District will require a higher mitigation ratio and/or consider alternative designs such as retaining walls that minimize impacts to wetlands
Q23. Do quarry stone breakwaters on Lake Michigan fall under Category II?
A23. Such a project would be evaluated on a case-by-case basis. A small breakwater could qualify under Category I for Regional Permit 4 (Minor Discharges and Minor Dredging) or larger breakwaters may qualify for Category II for Regional Permit 11 (Marine Structures and Activities). Otherwise, an individual permit will be required.
Q24. Does maintenance of quarry stone breakwaters and revetments fall under Category I, provided a permit has been issued in the past?
A24. Such a project would be evaluated on a case-by-case basis for qualification under Regional Permit 9 (Maintenance), Category II.
Q25. For construction of revetments and breakwaters where a layer of sand is present and the sand needs to be excavated to clay for stability, how does this type of dredging fit into the Regional Permits?
A25. Dredging for shoreline protection installation is allowed under Regional Permit 11 (Marine Structures and Activities).
Q26. Do permeable piers fall under Category I, Regional Permit 11 (Marine Structures and Activities)?
A26. Yes, provided the District determines that there are no impacts to navigation and/or the littoral drift system.
Q27. Will the length of a stream bank stabilization project under Regional Permit 10 (Bank Stabilization) be based on the stream channel length or based on the shoreline length along one side of the stream?
A27. The length of a stream bank stabilization project is based on the shoreline length along on one side of a channel. For a proposed project with structural bank stabilization, the maximum length allowed under the RP 10 is 500 feet. In this case, the applicant could stabilize 250 feet on each side of the channel
Q28. How does the Corps assess indirect impacts to remaining wetlands situated on the project site and/or as part of a contiguous system?
A28. Direct and indirect impacts to remaining wetlands are assessed on a case-by-case-basis, and practicality of avoidance and/or minimization of potential impacts to the wetlands are evaluated. Factors such as the wetlands size, location, functions and values, and hydrologic connection to the watershed shall weigh heavily in the determination of the wetlands long-term viability and practicality of avoidance and/or minimization of potential impacts to the wetlands. The Best Management Practices (BMP) hierarchy as outlined in the RPP is one way that an applicant can avoid and minimize impacts to these areas.
Q29. What will your office accept as evidence that I have contacted the U.S. Fish and Wildlife Service (USFWS) to comply with notification item (g) under General Condition 21 (Notification)?
A29. Project proponents should work with the Chicago District to ensure that they have complied with the Endangered Species Act. A Section 7 species list for the project area using the on-line application at the U.S. Fish & Wildlife Service website. The application will indicate whether resources (species and habitats) listed or designated under the Endangered Species Act of 1973, as amended (Act), may be present within areas affected (directly or indirectly) by the proposed project. You can access "U.S. Fish and Wildlife Service Endangered Species Program of the Upper Midwest" website at http://www.fws.gov/midwest/Endangered. Click on the Section 7 Technical Assistance green shaded box in the lower right portion of the screen and follow the instructions to completion. Print all documentation pertaining to the species list and forward the information to this office for review; if no species or habitats are listed, then a “no effect” determination can be made, and section 7 consultation is not warranted. If species or habitats appear on the list, then a biological assessment or biological evaluation will need to be completed to determine if the proposed action is likely or not likely to adversely affect them. The Corps will request initiation of section 7 consultation with the U.S. Fish and Wildlife Service upon agreement with the applicant on the effect determinations in the Biological assessment or biological evaluation.
Q30. Why are Best Management Practices (BMPs) a requirement of Regional Permit 1 (Residential, Commercial and Institutional Developments) & Regional Permit 2 (Recreation Projects)?
A30. It has been found that development impacts on wetlands are two-fold: water quality impacts and hydrologic impacts. While properly designed wet or wetland detention basins can often address the water quality impacts of development, they may not be adequate to fully mitigate the hydrologic impacts. Even with detention, storm water is discharged to wetlands over a relatively short period of time (1 to 3 days) compared to the undeveloped landscape. Further, because urban surfaces cause much of the runoff to be diverted from sub-surface runoff to surface runoff, much less groundwater flow reaches the wetland. As a result, the wetland often experiences much greater hydrologic variability after development. Because groundwater flow is much cooler than surface runoff, there can be temperature effects as well. With proper site planning, these impacts can be significantly reduced, minimizing degradation of water quality, destruction of aquatic habitat, and shifts in wetland plant communities. The BMP hierarchy requires a development to consider site-planning techniques and BMPs to protect water quality, minimize the adverse effects of storm water on aquatic resources, and preserve the natural infiltration characteristics of the site.
Q31. What information should be included in the written narrative?
A31. A written narrative must be included with notification under Regional Permit 1 (Residential, Commercial and Institutional Developments) and Regional Permit 2 (Recreation Projects). The narrative must address in detail the how the BMP hierarchy was used in determining the water quality practices and protection strategies that were selected for the project site. The applicant must address each layer or step of the hierarchy as it relates to the proposed project.
Q32. How is the Best Management Practice (BMP) Hierarchy applied to a project site?
A32. The most efficient means of minimizing the impact of development on water resources is through effective planning of the development site. The overall philosophy should be to view water as the essential resource to wetlands that it is and to keep water in the appropriate form so that it remains a resource rather than a nuisance. The primary objective of storm water management has traditionally been to remove excess rainfall from the land as rapidly as possible and into hydraulically efficient storm sewers and channels. Conversely, proper storm water management should strive to protect water quality and beneficial uses of aquatic resources. Designs for new developments should strive to minimize adverse changes to the chemical and hydrologic characteristics of the site by preserving the areas natural drainage and storage functions. Storm water features should work as a system with a common goal rather than independent devices that often have conflicting purposes.
Q33. What is meant by preservation of natural resource features on the project site (e.g., floodplains, wetlands, streams, lakes, steep slopes, significant wildlife areas, prairies, woodlands, sensitive aquifers and their recharge areas and native soils)?
A33. The most efficient means of minimizing the impact of development on the water resource is through effective planning of the development site to avoid sensitive natural features that contribute to hydrologic stabilization and water quality mitigation. Sensitive natural features include streams, lakes, and wetlands, areas of native vegetation, native soils, high quality woodlands and natural depressions and drainage ways. Early in the planning process, a developer should identify and map sensitive areas and develop a plan for avoiding/enhancing these areas.
Q34. How can sensitive areas be protected?
A34. The best way is to avoid these areas. The following techniques will also be valuable including, providing buffers and setbacks, clustering development on less sensitive areas, conservation easements, limiting grading to roads and building sites, and construction phasing.
Q35. What are some examples of how Best Management Practices (BMPs) can be used on the site?
A35. The natural infiltration and storage characteristics of the site can be preserved by minimizing compaction of the soils, using native vegetation, protecting existing digressional storage, and providing opportunities for impervious runoff to drain across pervious areas of the site to maximize opportunities for infiltration (e.g., using existing and created drainage swales, vegetated filter strips, etc.). Impervious cover should be minimized to avoid generating excess runoff. Methods of reducing impervious cover include critically examining parking needs, using narrower roads, and reducing building setbacks (to reduce the length of driveways and service walks), and using permeable paving materials.
Q36. Why are conservation easements or deed restrictions necessary?
A36. Conservation easements and deed restrictions are required to protect and maintain the aquatic resources and associated buffers established on the project site.