Environmental Permitting

U.S. Army Corps of Engineers Permit   (Top of Page)

The Regulatory Branch of the U.S. Army Corps of Engineers (Corps) evaluates applications for permits for work in waters of the U.S. [33 CFR Parts 320 through 330; 40 CFR Part 230]. The Corps regulatory program is based on its authorities pursuant to the Rivers and Harbors Act of 1899, the Federal Water Pollution Control Act, as amended (Clean Water Act), and the Marine Protection, Research, and Sanctuaries Act of 1972 (Ocean Dumping Act). At the conclusion of the evaluation process, the Corps decides to either issue or deny the permit for the proposed work. The Corps permit decision is considered a Federal action that must comply with the Endangered Species Act (ESA). The ESA is administered by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS). NMFS has ESA jurisdiction over salmon, other marine fish, marine mammals, and marine reptiles. USFWS has ESA jurisdiction over birds, terrestrial animals, plants, amphibians, and most freshwater fish.

Under Section 7 of the ESA, the Seattle District Corps must consult with the NMFS and the USFWS on its permit program on any permit application for proposed work which may affect threatened or endangered species, or their designated critical habitat. With listings of many fish species as threatened or endangered, the majority of permit applications in the state of Washington will likely involve some elements that require Section 7 evaluation. In addition to fish, other threatened and endangered plants and animals occur in various areas of the state.

Under the Corps' Federal permit program, permit applications must be reviewed for the potential impact on threatened and endangered species pursuant to Section 7 of the ESA. The Corps, through informal and formal consultation procedures with the NMFS and USFWS, must evaluate information on the presence of listed species (including timing and life stages), habitat for such species and their prey sources, and other parameters. The information required for ESA evaluation must be prepared in the form of a Biological Evaluation (BE) which is utilized to assess project impacts to listed, and/or proposed species and designated and/or proposed critical habitat. The Corps will use the BE to determine whether the project may affect listed species or their critical habitat.

If the Corps determines that work proposed in the permit application would have no effect on all threatened or endangered species, no further consultation with NMFS and USFWS is required. The Corps has developed guidelines for "No Effect" situations, for both freshwater and marine environments.

If the Corps determines that the work proposed in a permit application may affect any threatened or endangered species, some kind of consultation with NMFS and USFWS is required. The two types of consultation are informal or for

Section 401 of the Clean Water Act   (Top of Page)

Section 401 of the Clean Water Act (33 U.S.C. 1341) requires any applicant for a federal license or permit to conduct any activity that may result in a discharge of a pollutant into waters of the United States to obtain a certification from the State in which the discharge originates or would originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the affected waters at the point where the discharge originates or would originate, that the discharge will comply with the applicable effluent limitations and water quality standards. A certification obtained for the construction of any facility must also pertain to the subsequent operation of the facility.

Section 404 of the Clean Water Act    (Top of Page)

Section 404 of the Clean Water Act (33 U.S.C. 1344) (hereinafter referred to as section 404) authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fill material into the waters of the United States at specified disposal sites. (See 33 CFR Part 323.) The selection and use of disposal sites will be in accordance with guidelines developed by the Administrator of EPA in conjunction with the Secretary of the Army and published in 40 CFR Part 230. If these guidelines prohibit the selection or use of a disposal site, the Chief of Engineers shall consider the economic impact on navigation and anchorage of such a prohibition in reaching his decision. Furthermore, the Administrator can deny, prohibit, restrict or withdraw the use of any defined area as a disposal site whenever he determines, after notice and opportunity for public hearing and after consultation with the Secretary of the Army, that the discharge of such materials into such areas will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. (See 40 CFR Part 230).

Section 10 of the Rivers and Harbors Act    (Top of Page)

Section 10 of the Rivers and Harbors Act approved March 3, 1899, (33 U.S.C. 403) (hereinafter referred to as section 10), prohibits the unauthorized obstruction or alteration of any navigable water of the United States. The construction of any structure in or over any navigable water of the United States, the excavating from or depositing of material in such waters, or the accomplishment of any other work affecting the course, location, condition, or capacity of such waters is unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army. The instrument of authorization is designated a permit. The authority of the Secretary of the Army to prevent obstructions to navigation in navigable waters of the United States was extended to artificial islands, installations, and other devices located on the seabed, to the seaward limit of the outer continental shelf, by section 4(f) of the Outer Continental Shelf Lands Act of 1953 as amended (43 U.S.C. 1333(e)). (See 33 CFR Part 322.)

Section 7 of the Endangered Species Act   (Top of Page)

Section 7 of the Endangered Species Act of 1973, as amended, outlining procedures for interagency cooperation to conserve Federally listed species and designated critical habitats. Section 7(a)(1) requires Federal agencies to use their authorities to further the conservation of listed species. Section 7(a)(2) requires Federal agencies to consult with the Services to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. Other paragraphs of this section establish the requirement to conduct conferences on proposed species; allow applicants to initiate early consultation; require FWS and NMFS to prepare biological opinions and issue incidental take statements. Section 7 also establishes procedures for seeking exemptions from the requirements

Informal Consultation    (Top of Page)

If the effects of the proposed work on listed species would be beneficial, or the potential adverse impacts are insignificant and discountable, then the Corps determines that the project may affect, but not likely to adversely affect the species or critical habitat. The Corps would then forward the Biological Evaluation (BE) to NMFS and USFWS (based on the species affected) and request that they concur with the "not likely to adversely affect" determination. Once concurrence is granted, the consultation process ends. If NMFS or USFWS finds that the project will have significant adverse effects on listed species or critical habitat and can not concur with the "not likely to adversely affect" determination, then formal consultation commences.

Formal Consultation    (Top of Page)

If the proposed work may have more than insignificant and discountable adverse impacts to listed species or critical habitat, then the Corps determines that the project may affect, is likely to adversely affect the species or critical habitat. The Corps then refers the Biological Assessment (BA) to NMFS and USFWS (based on the species affected) to initiate formal consultation. NMFS and USFWS prepare a biological opinion (BO) that documents whether the project will jeopardize the continued existence of the species or destroy or adversely modify critical habitat. If the BO finds that the project will jeopardize the species, then the Corps will generally deny the permit. Projects that will not jeopardize the species must comply with the terms and conditions of the BO. Formal consultation ends with receipt of the BO.

Federally-listed Salmonids Listed in Washington State
Because Federal listings continually change with species peril and recovery, some of the following information may have changed. Updated lists can be found at the following Agency links: USFWS:  http://ecos.fws.gov/tess_public/pub/stateListingAndOccurrenceIndividual.jsp?state=WA The WDFW PHS: http://wdfw.wa.gov/conservation/phs/list/ NOAA Fisheries:  http://www.nwr.noaa.gov/ESA-Salmon-Listings/upload/snapshot-7-09.pdf
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Chum Salmon	Summer Run Chum ESU	Threatened
	Columbia River Chum ESU	Threatened
Coho Salmon	Coho Puget Sound/Straight of Georgia	Candidate
	Coho Lower Columbia River/Southwest Washington	Candidate
Chinook Salmon	Puget Sound	Threatened
	Snake River Spring/Summer-run	Threatened
	Snake River Fall-run	Threatened
	Lower Columbia River	Threatened
	Upper Columbia River Spring-run	Endangered
Sockeye Salmon	Ozette Lake	Threatened
	Snake River	Endangered
Steelhead Trout	Middle Columbia River	Threatened
	Upper Columbia River	Threatened
	Snake River Basin	Threatened
	Lower Columbia River	Threatened
	Southwest Washington	Not Warranted
	Olympic Peninsula	Not Warranted
	Puget Sound	Threatened
Bull Trout	Puget Sound Bull Trout	Threatened  Critical Habitat
	Columbia River Bull Trout	Threatened
Cutthroat Trout	Puget Sound	Not Warranted
	Olympic Peninsula	Not Warranted
	Southwestern Washington/Columbia River Proposed	Threatened

“Critical Habitat” for Salmonids      (Top of Page)

On February 16, 2000, NOAA Fisheries, formerly the National Marine Fisheries Service (NMFS), designated Critical Habitat for 19 Evolutionarily Significant Units (ESUs) of Chinook, chum, and sockeye salmon, as well as steelhead trout in Washington, Oregon, Idaho, and California. On April 30, 2002, the U.S. District Court for the District of Columbia approved a NMFS consent decree withdrawing a February 2000 critical habitat designation for 19 ESUs, including Chinook salmon (Threatened). This action may not significantly affect the protection of listed salmon and steelhead species because 1) the Endangered Species Act (ESA) status is unchanged; 2) Sections 4, 7, 9, and 10 of the ESA involving protective actions remain in effect; and 3) the designation of Essential Fish Habitat (EFH) overlaps most of the withdrawn Critical Habitat area (addressed below).

Essential Fish Habitat     (Top of Page)

The Magnuson-Stevens Fishery Conservation and Management Act (MSA), as amended by the Sustainable Fisheries Act of 1996, requires all Federal agencies to consult with NOAA Fisheries on all actions that may adversely affect Essential Fish Habitat (EFH). On 27 September 2000, NOAA Fisheries approved Amendment 14 to the Pacific Coast Salmon Fishery Management Plan designating marine and freshwater Essential Fish Habitat for Pacific Salmon. The EFH provisions of the Magnuson-Stevens Act were developed to minimize both fishing and non-fishing effects on EFH. The provisions were developed to prevent future habitat problems so that salmon, steelhead, and other fish and shellfish stocks that depend on healthy habitats avoid further declines.