Permitting Marine Projects

1. Permitting Marine Projects Presented by Heather Page January 27, 2010

2. Presentation Overview • Permit Triggers • Major Environmental Laws and Permitting • Case Study: Gig Harbor Eddon Boatyard Project

3. What Triggers the need for a Permit? • Any work in, over, or under navigable waters • Any work in salt or fresh waters of the state • Discharge of dredge or fill material into waters of the U.S. • Discharge of pollutants (point and nonpoint sources) into waters of the U.S.

4. What Triggers the need for a Permit? • Projects within 200 feet of a regulated water body • Projects that impact wetlands, fish and wildlife habitat, frequently flooded areas, aquifer recharge areas, and geologically hazardous areas • Projects that impact threatened or endangered species • Projects that impact historic and cultural resources

5. Major Environmental Laws

6. Major Environmental Laws • Rivers and Harbors Act of 1899 – Section 10 • Clean Water Act • Coastal Zone Management Act of 1972 • Endangered Species Act of 1973 • Section 106 of the Nat’l Historic Preservation Act • Shoreline Management Act • Growth Management Act • Washington Hydraulic Code

7. Rivers and Harbors Act of 1899 – Section 10 • The purpose of this section of the Act was to prohibit the obstruction or alteration of navigable waters of the U.S. • The meaning of “navigable water” • A Section 10 Permit is required for any work in, over, or under navigable waters

8. Clean Water Act of 1972, amended in 1977 • An amendment to the Federal Water Pollution Control Act of 1972, which set the basic structure for regulating discharges of pollutants to waters of the United States • CWA made it unlawful for any person to discharge any pollutant from a point source into navigable waters (or waters of the state), unless a permit was obtained under its provisions

9. CWA – Section 404 • Established a program to regulate the discharge of dredged or fill material into waters of the U.S. • CWA built on the definition of navigable waters, and defined “waters of the U.S.” • Rapanos v United States

10. CWA – Section 401 • Required of any applicant for a federal license or permit to conduct any activity that may result in a discharge into navigable waters • 401 Certifications are made by the state in which the discharge originates • Approval can be issued in the form of a 401 Water Quality Certification, Letter of Verification, or No Further Action

11. CWA – Section 402 • National Pollutant Discharge EliminationSystem (NPDES) • NPDES programcontrols water pollution by regulating point sources that discharge pollutants into waters of the U.S. • It is an EPA program, typically administered by states

12. Types of NPDES Permits • Aquatic Pesticides General Permit • Boatyard General Permit • Construction Stormwater General Permit • Fresh Fruit Packing General Permit • Individual Permit • Industrial Stormwater General Permit • Municipal Stormwater General Permit • Sand and Gravel General Permit

13. Coastal Zone Management Act of 1972 • Established the nationalpolicy to preserve, protect, develop, and restore coastal zones • Provides for various grants to coastal states for development of coastal zone management plans and management of various programs

14. Endangered Species Act of 1973 • Conservation of threatened and endangered fish, wildlife, and plant species • Administered by National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (USFWS) • Projects with a federal nexus that could affect listed species trigger Section 7 consultation

15. Section 7 Consultation Process • Biological assessments analyze the potential effects of projects on listed species and critical habitat, and justify particular effect determinations • “Consultation” versus “Conference” with NMFS and USFWS • Informal versus formal consultation

16. Section 106 Process • Initiating Review • Does the project affect historical or archaeological resources ? • Early coordination with Tribes • Identifying Cultural Resources • Identify area of potential effect (APE) • Prepare Cultural Resource Report • Assessing Effects on Cultural Resources • Avoid, minimize, or mitigate adverse effects

17. Section 106 Process • Obtain SHPO Concurrence on “No Adverse Effect” • Resolving Adverse Effects • Reach agreement with the SHPO/Tribal Historic Preservation Officer on measures to deal with adverse effects • Mitigation may include active preservation in place for future study or other use, recovery or partial recovery of archaeological data, public interpretive display, etc.

18. Shoreline Management Act of 1971 • Local government has the primary responsibility for initiating the planning required by the SMA and administering the regulatory program (Shoreline Master Program) • Ecology acts primarily in a supportive and review capacity • Development projects within 200 feet of a regulated water body must be consistent with the local Shoreline Master Program

19. Growth Management Act • Requires state and local governments to manage Washington’s growth by identifying and protecting critical areas and natural resource lands and designating urban growth areas • Critical areas: wetlands, fish and wildlife habitat, frequently flooded areas, aquifer recharge areas, and geologically hazardous areas • GMA versus SMA: SB 5726 and HB 1653

20. Washington Hydraulic Code • Chapter 220-110 WAC • Hydraulic Project Approval (HPA) is required of any activity that uses, diverts, obstructs, or changes the natural flow or bed of any of the salt or fresh waters of state • Work requiring an HPA also includes… • Administered by the Washington Department of Fish and Wildlife

21. Case Study: Gig Harbor Sediment Cleanup Project

22. Aerial View of Property Pre-Project

23. Pre-existing Marine Structures Pre-existing Marine Structures

24. What were the project elements? • Demolition and removal of existing marine and shoreline creosote treated timber • Deconstruction, salvage, and temporary relocation of floating dock, gangway, and carriageways • Dredging and removal of contaminated marine sediments • Excavation and removal of contaminated upland soils • Clean backfill placement/capping • Reconfiguration of nearshore land to gentle slope

25. What was the permitting approach? • Early coordination with Ecology and design team • Identified environmental resources in the area • Developed permit strategy • SEPA Mitigated Determination of Non-significance • 401 Water Quality Certification from Ecology • Section 404/10 Permit from Corps • Endangered Species Act Concurrence from Services/Corps • Section 106 Concurrence from DAHP/Tribes/Corps • Hydraulic Project Approval from WDFW • Local permits from City of Gig Harbor, including Shoreline Substantial Development Permit

26. What were some permitting strategies? • Design of floating dock and gangway • Meet the needs of City of Gig Harbor, WDFW, Tribes, and DAHP • Be cost effective • Avoid impacts to cap • Conducted joint agency meeting • Back-pocket mitigation: • “Self” mitigating project • Creosote bulkhead removal • Negotiated permit conditions

27. Environmental Resources • Identifying resources on site: • Wetland • Stream • Tidal flats/nearshore habitat • Historical and cultural resources • Employing avoidance and minimization measures • Ensuring water quality

28. Category II Wetland

29. Containment boom and silt curtain (left) and high visibility fence around saltmarsh vegetation area (right)

30. Stream

31. Daylighting stream process

32. Tidal Flats/Nearshore Habitat

33. Dismantling of boat haul-out carriage for salvage

34. Tangible cultural resources found on site

35. May 2009

36. Eddon Boatyard: Much Success 36