Introduction Definitions and Abbreviations Authority for the Regulatory Program Types of Permits Steps in the Permit Process The Corps and Wetlands Jurisdictional Determinations and Wetland Delineations Mitigation Mitigation Banking In-Lieu Fee Mitigation Permittee Responsible Compensatory Mitigation Regulatory Compliance and Enforcement Conclusion
The U.S. Army Corps of Engineers' (Corps) primary Civil Works mission is to develop, manage, and protect our nation's waters and related land resources. Corps of Engineers projects control flooding; maintain, improve, and create harbors and navigation channels; protect shorelines; generate hydroelectric power; and restore environmental values.
The Corps also administers a regulatory (permit) program that regulates some activities conducted in certain waters and wetlands. Chicago District (District) is responsible for regulating activities conducted within the limits of its jurisdictional boundaries; these limits are defined geographically as Cook, DuPage, Kane, Lake, McHenry, and Will counties in Illinois. There are four other Corps Districts that share regulatory authority in Illinois. These boundaries are all displayed on this map. In order to determine the regulatory boundaries in other parts of the nation, please see our national web site.
The Corps' Regulatory Program is one of the nation's oldest. The original permit authority was established in the late 1800's. The program was developed and implemented in order to prevent the obstruction of navigable waters; in particular, it was designed to protect commercial navigation.
Since its establishment, the Regulatory program's scope and complexity have increased substantially. National concerns for water quality and other environmental resources led to the adoption of the public interest review, and of the requirement to consider a full range of factors during the process of evaluating a permit application. The program's focus expanded from protecting primarily navigation values to include protecting the environmental quality of the United States' waters and other resources. Today's regulatory program considers the public interest in both the protection and use of water resources, and also considers the full range of environmental and socio-economic factors during the evaluation of a permit application.
Definitions and Abbreviations
We have assembled a set of definitions and a list of acronyms/abbreviations which are commonly used in the program.
Authority for the Regulatory Program
Section 10 of the Rivers and Harbors Act of 1899 (RHA) authorizes the Corps to regulate structures or work in, over, or under navigable waters of the United States. Permits are required for projects such as marinas, bulkheads, bank stabilization, shoreline protection, piers, pipelines, dredging, or other work in navigable waters. Navigable waters are those waters which are presently used, have been used in the past, or may be susceptible for use, to conduct interstate or foreign commerce.
Section 404 of the Clean Water Act (CWA) gives the Corps authority to regulate discharges of dredged or fill material in waters of the United States, including wetlands. Mechanized land clearing, grading, leveling, ditching, and redistribution of material within "waters of the United States", including wetlands, are examples of regulated activities. "Waters of the United States" is broadly defined and includes the navigable waters of the United States and most other lakes, rivers, streams, wetlands, bogs, sloughs, wet meadows, ponds, etc.
Section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972 authorizes the Corps to issue permits for the transportation of dredged material for the purpose of disposal in ocean waters. As this law addresses only disposal of dredged material in ocean waters, it does not affect the work of the Chicago District.
The implementing program regulations are located at Title 33, Code of Federal Regulations (CFR) Sections 320 through 332.
Types of Permits
The Corps of Engineers regulates activities located in waters of the United States, including wetlands. Types of work requiring authorization under Section 10 of the Rivers and Harbors Act of 1899 include the construction of structures such as piers, decks, breakwaters, jetties, and utility lines, as well as activities such as dredging. Activities requiring authorization under Section 404 of the Clean Water Act involve the discharge of dredged or fill material into waters of the United States. Discharges include any fill material placed below the ordinary high water mark of a stream or in wetlands to convert an aquatic resource to dry land.
Individual permits are usually required for projects considered large in scope and/or involving potentially conflicting issues in environmentally sensitive areas, and are often required for projects involving navigable waters. The majority of individual permit decisions are made within 120 days from the date of receiving a complete application, however complex and/or controversial permit decision may take longer.
A Letter of Permission is a type of individual permit that may be used to authorize activities in navigable waters where the proposed work would be minor in scope, would have negligible adverse impacts on the aquatic environment, and is not controversial. In these situations, an abbreviated individual permit review process, involving coordination with other Federal and state regulatory agencies and adjacent property owners, is used to expedite the authorization.
The District has established a comprehensive Regional Permit Program. This program replaced most nationwide permits within the District regulatory boundaries.
Nationwide permits are a form of permit used to authorize specific activities determined to have no more than minimal impact on the aquatic environment. Nationwide permits are developed by Corps of Engineers Headquarters for the entire nation. The purpose of nationwide permit program is to allow certain activities to be permitted in an expeditious manner with a limited review. Nationwide permits may be conditioned on a local basis by the District Engineer. The District Commander suspended most nationwide permits within our regulatory boundaries in favor of the Regional Permit Program.
Steps in the Permit Process
The Chicago District Regulatory Branch reviews approximately 1200 permit actions per year. Every effort is made to make timely decisions while considering important functions and values associated with the aquatic environment, including wildlife habitat, flood control and water quality. Review of applications can be considered a three step process: pre-application consultation (for major projects), formal project review, and decision making. Pre-application consultation usually involves one or several meetings between an applicant, the District Regulatory staff, Federal, state or local resource agencies, and in some instances, the general public. In order to provide applicants some understanding of what is needed, we have developed an Application Checklist which fully describes the information which will be needed for evaluation of proposed projects. Not all described information is required in all cases, but rather as projects become more complex, more information is generally needed to properly evaluate potential impacts. The pre-application process is designed to provide the applicant with the Chicago District's assessment of potential alternatives available to accomplish the project purpose, to discuss measures for reducing the adverse impacts of the project, and to advise him of the factors the Corps must consider in its decision making process. The District maintains a list of environmental and engineering consultants which can provide services relating to the program. If questions arise concerning cultural or archeological resources, both Illinois and Indiana have lists of historic consultants.
When an applicant is ready to submit an application, it must be submitted on a joint application form used everywhere in Illinois. The form is actually four pages long but is provided in triplicate so that the applicant can provide copies to the appropriate agencies. There is a set of instructions available which provides assistance in filling out the form.
Once a application is received, the formal review process begins. The project manager will review an application to determine if all required information has been received. If it is determined that work requires an individual permit, the project manager prepares a public notice, assesses the potential adverse impacts of the project, and evaluates the comments received in response to the public notice.
At the end of the formal review process, the project manager drafts the appropriate documentation to support a recommended permit decision. The permit decision document includes a discussion of the environmental impacts of the project, the findings of the public interest review process, and any special conditions deemed appropriate for the authorized activity. Evaluation time will vary directly with the complexity of the proposed work, resources being impacted, and the type of authorization required. Typical individual permits usually take about 120 days from receipt of all the necessary information.
The consideration of the public interest is of great importance in the decision making process. The public benefits and detriments of all factors relevant to each case are reviewed. Relevant factors may include conservation, economics, aesthetics, wetlands cultural values, navigation, fish and wildlife values, water quality and any other issue judged important to the needs and welfare of the general public. Permits are issued unless the proposed project is found to be contrary to the public interest.
The Corps and Wetlands
The Corps of Engineers determines the presence and extent of jurisdictional areas by evaluating three factors; soil type, vegetation and hydrology. A brochure titled Recognizing Wetlands provides general information about wetlands. The links are a good place to look for additional information from the state and Federal resource agencies on wetlands.
Wetlands are recognized as being special aquatic sites and their loss or reduction is generally considered to be contrary to the public interest. In cases where development projects, particularly discharges of dredged or fill material, would adversely impact wetland resources, conflicts between resource use and preservation often exist. In order to receive a permit from the Corps to discharge dredged or fill material into wetlands, applicants must demonstrate that they have avoided wetlands to the extent practicable, and have minimized the adverse effects of the project to the extent practicable. These conditions, known as the Section 404(b)(1) Guidelines, are central to the Corps decision making process. Compensation is generally required for most impacts which are not avoided or minimized.
Jurisdictional Determinations and Wetland Delineations
In order to determine which regulatory authorities apply to a project, a jurisdictional determination must be done. Such a determination can be done by the Corps of Engineers; however, due to workload constraints, the Corps' work is limited normally to the identification of the presence of regulated waters, without a detailed characterization or delineation of any wetlands present. A form requesting a jurisdictional determination is available here. The boundaries and types of wetlands present on a proposed project site must be delineated before a jurisdictional determination can be made. The District maintains a list of consultants and consulting firms that perform wetland delineations and offer other program related services. Wetland delineation information is available at the national web site.
The objective of the Clean Water Act (CWA) is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Toward achievement of this goal, the CWA prohibits the discharge of dredged or fill material into wetlands, streams, and other waters of the United States unless a permit issued by the U.S. Army Corps of Engineers (Corps) .When there is a proposed discharge, all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources. For unavoidable impacts, compensatory mitigation is required to replace the loss of wetland, stream, and/or other aquatic resource functions. The Corps is responsible for determining the appropriate form and amount of compensatory mitigation required. Methods of providing compensatory mitigation include aquatic resource restoration, establishment, enhancement, and in certain circumstances, preservation.
Mitigation is frequently required as a condition for issuing DA Permits and is intended to replace lost natural functions and values. When evaluating compensatory mitigation options, the Corps will consider what would be environmentally preferable. In making this determination, the Corps shall assess the likelihood for ecological success and sustainability, the location of the compensation site relative to the impact site and their significance within the watershed, and the costs of the compensatory mitigation project. Compensatory mitigation requirements shall be commensurate with the amount and type of impact that is associated with a particular DA Permit. Permit applicants are responsible for proposing an appropriate compensatory mitigation option to offset unavoidable impacts. Due to the difficulty of precisely quantifying the functional value of aquatic systems, including wetlands, the Chicago District currently accepts acreage replacement of the impacted system.
On April 10, 2008, the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency issued the Final Compensatory Mitigation Rule to clarify how to provide compensatory mitigation for unavoidable impacts to the nation's wetlands and streams. The rule enables the agencies to promote greater consistency, predictability and ecological success of mitigation projects under the Clean Water Act. The new rule improves and consolidates existing regulations and guidance, to establish equivalent standards for all types of mitigation under the Clean Water Act Section 404 regulatory program. The rule does not change when compensatory mitigation is required, but it does change where and how it is required.
These equivalent standards take into account the inherent differences among mitigation banks, in-lieu fee programs, and permittee-responsible mitigation, in an effort to maximize the number of ecologically-successful compensatory mitigation projects that project proponents can use to offset their permitted losses of aquatic resources.
Compensatory mitigation is typically accomplished through either Mitigation Banks, In-Lieu Fee Mitigation, or Permittee Responsible Mitigation.
A permit applicant may obtain credits from a mitigation bank. A mitigation bank is a wetland, stream or other aquatic resource area that has been restored, established, enhanced, or preserved. This resource area is then set aside to compensate for future impacts to aquatic resources resulting from permitted activities. The value of a bank is determined by quantifying the aquatic resource functions restored, established, enhanced, and/or preserved in terms of "credits." Permittees, upon approval of regulatory agencies, can acquire these credits to meet their requirements for compensatory mitigation.
Mitigation banking involves the restoration, creation, enhancement, and, in exceptional circumstances, preservation of wetlands and/or other aquatic resources expressly for the purpose of providing compensatory mitigation for wetland losses authorized by Corps permits. The newly established wetland acreage (credits) may then be sold to permittees who need to provide compensatory mitigation for unavoidable impacts. (i.e., "debits").
The District, in cooperation with the United States Fish and Wildlife Service and the United States Environmental Protection Agency, has developed the Interagency Coordination Agreement on Wetland Mitigation Banking (ICA). The ICA outlines the criteria for establishing and operating wetland mitigation banks within the regulatory boundaries of the Chicago District. It also establishes the procedures for sales from the mitigation bank to those parties needing wetland mitigation as a condition of their Department of the Army permit. This local agreement is consistent with the April 2008 Final Compensatory Mitigation Rule on mitigation banking.
The decision to allow the use of a mitigation bank for compensatory mitigation rests solely with the Chicago District Corps of Engineers. The presence of a bank in a particular service area with available credits does not override the requirement to fully consider opportunities for on-site and in-kind compensation first.
In-Lieu Fee Mitigation
A permit applicant may make a payment to an in-lieu fee program that will conduct wetland, stream or other aquatic resource restoration, creation, enhancement, or preservation activities. In-lieu fee programs are generally administered by government agencies or non-profit organizations that have established an agreement with the regulatory agencies to use in-lieu fee payments collected from permit applicants. There is currently no approved In-Lieu Fee Mitigation in the Chicago District.
Mitigation banks and in-lieu fee mitigation are forms of "third-party" compensation because a third party, the bank or in-lieu fee sponsor assumes responsibility from the permittee for the implementation and success of the compensatory mitigation
Permittee Responsible Mitigation
Permittee responsible mitigation is defined as an aquatic resource restoration, establishment, enhancement, and/or preservation activity undertaken by the permittee (or an authorized agent or contractor) to provide compensatory mitigation for which the permittee retains full responsibility. Permittee responsible mitigation may include on-site or offsite mitigation. The proposed compensatory mitigation should utilize a watershed approach and fully consider the ecological needs of the watershed. Where an appropriate watershed or sub-watershed plan is available, mitigation site selection should be based on recommendations in the plan. The applicant shall describe in detail how the mitigation site was chosen and will be developed, based on the specific resource need of the impacted watershed. A good mitigation design selects an appropriate site and takes into consideration all-important multi-disciplinary factors that affect self-sustaining ecological systems, such as wetlands and associated uplands. If the whole landscape design is not integrated with site water management, mitigation efforts may not achieve the performance standards.
Regulatory Compliance and Enforcement
The District regulates certain activities conducted in waterways and wetlands located within Cook, DuPage, Lake, Kane, McHenry and Will Counties in northeastern Illinois. Part of the Corps' regulatory responsibility involves ensuring that permittees comply with issued permits (compliance), as well as ensuring that unauthorized activities do not take place in jurisdictional areas (enforcement).
- A permittee must comply with the terms and conditions of a Department of the Army permit authorization.
- Failure to comply with the terms and conditions of a Department of the Army permit authorization may result in suspension and revocation of the permit authorization and/or referral of the case to the U. S. Attorney's Office.
- Failure to obtain a Department of the Army authorization for work conducted within waters of the United States (including wetlands) will result in an enforcement action being brought by the Corps of Engineers.
- Resolution options include, but are not limited to, restoration of the destroyed wetland area, approval of an after-the-fact permit application, and other options.
- Appropriate cases for referral to the U. S. Environmental Protection Agency (USEPA) or the U. S. Attorney for criminal or civil action include, but are not limited to, violations that are willful, repeated, and flagrant, or result in substantial adverse environmental impact. The Chicago District is committed to aggressively pursuing parties who purposely attempt to evade the Corps of Engineers regulatory program.
To report a suspected violation of Corps regulatory requirements, contact the Chicago District Regulatory Branch at (312) 846-5530. Alternatively, you may complete and return a Reported Unauthorized Activity Form to the Branch. If you wish to remain anonymous, please state this in your communication. In either case, please provide a telephone number or e-mail address through which we may contact you should we require additional information.
The Corps' Regulatory Program often is controversial, because the Corps must balance the desires of the permit applicant against the protection of aquatic functions and values. The Corps has a strong commitment to continue to ensure that our nation's water resources are safeguarded, that those resources are used in the best interests of the public, and that environmental, social, and economic concerns of the public, for both protection and use of those resources, are balanced.
If you are planning an activity involving work in waterways or in wetlands, please contact:
USACE Regulatory Branch
231 South LaSalle Street, Suite 1500
Chicago, Illinois 60604
Phone (312) 846-5530
Fax (312) 353-4110