Permitting

Background

Synopsis of Topic

Almost every restoration action requires some sort of permit from the appropriate regulatory agency. Those permits (or a determination that one is not necessary) are what allow restoration work to be legally undertaken. The most important acts that shape the business of restoration at a national level in the US include, the Endangered Species Act, the Clean Water Act, and the National Environmental Policy Act.

ESA Cartoon

Why we’re covering it

Permitting is a critical part of virtually every restoration project. While when you work in different localities, different statutes, laws, regulations and policies are relevant, the

Learning Outcomes

The most relevant learning outcomes for this unit is (7), but that feeds into (1).

  1. Gain direct experience applying knowledge as a watershed scientist to working on real-world aquatic ecosystem restoration and management problems (e.g. stream restoration, watershed management,wetland restoration) with practitioners.
  2. Identify and prepare forms and applications to appropriate regulatory agencies for a specific project to gain appreciation of legal and permitting aspects of projects.

Assignment

Each year, for a specific low-tech process based restoration project you will design and build in the spring, we have students prepare a real Joint Permit Application Form to the Utah Division of Water Rights for a Stream Alteration Permit for compliance under §73-3-29 of Utah Code. The U.S. Army Corps of Engineers is responsible for administering §404 of the Clean Water Act, which regulates the discharge of dredged or fill material into waters of the United States. If the impacts of the proposed ‘alterations’ are minor enough (as is typically the case in low-tech process based restoration), then a project can be approved under this joint permit application.

For example, the work the spring 2018 class did on Three Mile Creek, fell under this stream alteration permit: 17-25-002, whreas the work that the Fall 2017 and Fall 2018 classes did on Trail Creek fell under this stream alteration permit: 17-25-003. For an example from Idaho Department of Water Resources, see the 2019 class project on Station Creek.

Resources

Relevant Federal Permitting Examples

CWA

The Clean Water Act, and specifically §404 is the most common driver for a permit requirement to do restoration work in streams or rivers. As EPA [describes it](Clean Water Act](https://www.epa.gov/laws-regulations/summary-clean-water-act):

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. “Clean Water Act” became the Act’s common name with amendments in 1972.

Essentially, any disturbance or modification you do as part of restoration construction has the potential to discharge pollutants into waters, and therefore a stream alteration permit is often required. In many states (e.g. Utah) there is a joint-permit application where a state agency (typically a Division of Water Resources or Rights) acts as the clearing house for a permit application that is considered jointly by the state and federal counterparts at the US Army Corps of Engineers. Some states actually require separate applications to the US Army Corps of Engineers and the State agency. In some localities, a county or city municipality may have further requirements.

ESA

When it comes to managing for specific species of flora and fauna and their habitats, the Endangered Species Act is the most significant piece of legislation. As summarized by the EPA:

The Endangered Species Act (ESA) provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. The lead federal agencies for implementing ESA are the U.S. Fish and Wildlife Service (FWS) and the U.S. National Oceanic and Atmospheric Administration (NOAA) Fisheries Service. The FWS maintains a worldwide list of endangered species. Species include birds, insects, fish, reptiles, mammals, crustaceans, flowers, grasses, and trees.

The law requires federal agencies, in consultation with the U.S. Fish and Wildlife Service and/or the NOAA Fisheries Service, to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat of such species. The law also prohibits any action that causes a “taking” of any listed species of endangered fish or wildlife. Likewise, import, export, interstate, and foreign commerce of listed species are all generally prohibited.

Listen to Utah Public Radio’s Science Utah reporter and Watershed Science’s own Niall Clancy describe the Endangered Species Act in Episode 3 of of Utah Public Radio’s Science Utah.

NEPA

If you are working with Federal Agencies or on Federally owned land, National Environmental Policy Act will apply:

The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970. NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions.

Possible determinations under NEPA’s review process and three corresponding different levels of analysis include:

Sometimes, a determination under NEPA for your proposed restoration may already exist (e.g. a project on USFS where installing BDAs was already included in their Forest Plan, which required NEPA review). Much of it boils down to interpretation and precedent too. Most restoration projects typically fall under a CATEX or EA/FONSI.

Many NEPA certification programs exist including one here at USU.

Specific State Permitting Examples

Utah

In Utah, when you’re working under streams, the main permits you need to worry about are a stream alteration permit

In order to install low-cost, instream structures in the State of Utah, a stream alteration permit is potentially required. To do this for the workshop, we applied for such a permit using the US Army Corps of Engineers and Utah Division of Water Resources, Joint Application Form.

If you wish to translocate beaver, you need to work with the Utah Division of Wildlife Resources under the Utah Beaver Management Plan

References

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