Federal environmental permitting during the shutdown: How to keep your Section 404 and Section 10 permit applications moving forward

As the former head of the U.S. Army Corps of Engineers Regulatory Office, an important question I’ve been hearing from permit applicants is, “Are there steps we can take after Permit Managers go on furlough to keep our permit moving forward?”

There’s no “one size fits all” answer because of differences in project size and location. A small project proposed for the Arizona desert usually has an easier route to approval than a large project impacting wetlands in Florida.

Nevertheless for most applicants, especially those facing potential delays due to Endangered Species, Historic Properties, or other State issues, taking some steps during the shutdown can help save time once the Corps of Engineers Regulatory Offices reopen:

• Complete field work on your Aquatic Resource Delineation Reports (ARDRs). These reports are extensive and complicated so use this time when Regulatory is shut down to improve these reports.

• If you have just applied for an Individual permit and it is in process, draft a Public Notice for the Corps to consider. Obviously the Corps has final say! But I know from experience that offers of help like this are appreciated.

• If the Corps has already issued a Public Notice, prepare your own Public Notice response and work with supporters on their responses.

• Complete your draft analysis of alternatives for the Corps to review, including options to avoid and reduce impacts on jurisdictional wetlands.

• Complete a draft Environmental Assessment for the Corps.

• If you know there will be potential impacts to threatened or endangered species, make sure all species surveys are scheduled and completed (if within proper timeframes for each species) with qualified biologists.

• If there may be historic properties on your permit site, make sure you schedule archaeology surveys with qualified experts.

• For any permit, investigate options for mitigation banks in your area and make plans to obtain required credits.

• Continue to work with any non-federal agencies of which you need permits from. Whether it’s a Section 401 permit or a coastal use permit, just because federal agency employees are furloughed that doesn’t mean that state and local agencies aren’t still processing applications.

Applicants that have these items ready to go when the Corps Permit Managers return to work will be viewed favorably and may receive faster response times. These items will help the Corps complete work on your permit faster. Again, nothing you do during the shutdown guarantees the Corps will approve your project. But federal permitting is a process governed by laws and regulations that are legally binding on the Corps of Engineers. Steps you can take that help the Corps meet its legally required standards will also help facilitate approval for your permits.

Mark Sudol

Senior Advisor

Prior to joining Dawson & Associates, Mark was Chief of the U.S. Army Corps of Engineers Regulatory Program and oversaw the Corps’ regulatory responses to U.S. Supreme Court’s Rapanos and Northern Cook County decisions. He was also senior lead for the team that wrote the Mitigation Banking Regulations.