How Corps Will Evaluate High-Rise Permit Application

Romerica Investments, LLC has applied for a permit to build a high-rise development in the floodplain of the San Jacinto River. They call the proposed development the Kingwood Marina Project. Because it involves adding 12 feet of fill material to the floodplain of the San Jacinto River, the Army Corps of Engineers has become involved. The Corps rules on any permit application that involves “discharge” of fill into “waters of the United States.”

Proposed layout for the Kingwood Marina Project.

The fill would stretch approximately three quarters of a mile from north to south along Woodland Hills Drive and approximately .85 miles from east to west on both sides of the Barrington. If you want to know what the Corps considers when making such rulings, or why and how the TCEQ interprets “water quality” for them, read on.

Public Interest Review

As a result of several recent laws and judicial decisions, the Corps’ permitting process has evolved to include consideration of the full public interest by balancing favorable impacts against detrimental impacts. This is known as the ‘‘public interest review.’’ We are at that stage now.

The Corps’ main criteria for evaluating applications includes four high-level considerations:

Need for the project
Extent and permanence of detrimental effects
Effect on wetlands
Relative weight of various additional factors

The additional factors below also apply to the proposed High-Rise Kingwood Marina Project:

Conservation
Economics
Aesthetics
General environmental concerns
Historic, cultural, scenic, and recreational values.
Fish and wildlife values
Flood hazards
Floodplain management
Land use
Navigation
Shore erosion and accretion
Recreation
Water supply and conservation
Water quality
Safety
Considerations of property ownership
Needs and welfare of the people

Public Interest Described in More Detail

“All factors which may be relevant to the proposal must be considered,” says the intro to Corps regulations on page 398. The regulations (33 CFR 320-332) then go into more detail on many of these factors. The regs elaborate on dozens of things that the law requires the Corps to evaluate.

Here’s my summary and interpretation of those that likely apply. Keep in mind that I’m looking at these with the proposed Kingwood Marina high-rise project in mind. So I have omitted some items that do not apply, such those for coastal developments. For the exact text of each, consult this Department of the Army legal document. I am not a lawyer and do not offer legal advice.

The regulations start with a discussion of four high-level, over-riding factors.

The first thing reviewers look at is the “need for the project.” If needed, they then consider the extent and permanence of any detrimental effects relative to any benefits that the project provides.

In that regard, wetlands play a major role and get special mention. But the Corps also reviews the 17 other factors listed above that have to do with “the public interest.” Then they weigh them all – pros and cons. Something that’s very important on one project may carry no weight on another. The reviewers have wide latitude to use their own judgment.

What Does the Army Corps Consider Value of Wetlands to Be?

Section 320.4 B (2) I-iviii on page 398 states: Wetlands perform functions important to the public interest, such as:

Providing nesting, spawning, and rearing space for animals, birds and fish
Moderating natural drainage, sedimentation, salinity, flushing, and other environmental benefits
Shielding other areas from erosion or storm damage
Storing storm and flood waters
Purifying water
Providing unique natural value to a local area

Further section B (3) recognizes that although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in major impairment of wetland resources. This section seems to say, “We can afford to lose some wetlands, but at a certain point, “Enough is enough!”

The Corps looks at each wetland as part of a complete and interrelated wetland environment.

Corps Consults Others on Wetlands

The district engineer may undertake, where appropriate, reviews of particular wetland areas in consultation with the:

Regional Director of the U. S. Fish and Wildlife Service
Regional Director of the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration
Regional Administrator of the Environmental Protection Agency
Local representative of the Soil Conservation Service of the Department of Agriculture
Head of the appropriate state agency to assess the cumulativeeffect of activities in such areas (TCEQ and/or TPWD).

The district engineer may conclude that the benefits of a project outweigh the damage to wetlands. However, when evaluating whether wetlands can be filled, the engineer must consider the guidelines in the Clean Water Act (Section 404(b)(1) guidelines (40 CFR part 230.10(a) (1), (2), (3)).

In addition, state regulatory laws or programs for classification and protection of wetlands must be considered.

Fish and Wildlife Considerations

In accordance with the Fish and Wildlife Coordination Act (paragraph 320.3(e) of this section) district engineers must consult with:

The Regional Director, U.S. Fish and Wildlife Service
The head of the Texas Parks and Wildlife.

The engineer must consider conservation of wildlife resources and preventing harm to them due to proposed permit activity. The Army must give full consideration to the views of those agencies when deciding whether to issue, deny or condition permits.

Water-Quality Considerations

Applications for permits for activities which may adversely affect the quality of waters of the United States will be evaluated for compliance with applicable effluent limitations and water quality standards, during the construction and subsequent operation of the proposed activity. The evaluation should include the consideration of both point and non-point sources of pollution. The Clean Water Act assigns responsibility for control of non-point sources of pollution to the states. In our case, that’s the TCEQ.

Scenic and Recreational Values

Full evaluation of the general public interest requires that due consideration be given to the effect which the proposed structure or activity may have on values such as those associated with scenic rivers.

Consideration of Property Ownership

Authorization of work or structures by the Corps does not convey a property right. Nor does it authorize any injury to property or invasion of others’ rights.

An inherent aspect of property ownership is a right to reasonable private use. However, this right is subject to the rights and interests of the public in the navigable and other waters of the United States. It includes environmental protection.

Because a landowner has the general right to protect property from erosion, applications to erect protective structures will usually receive favorable consideration. However, if the protective structure may cause damage to the property of others, adversely affect public health and safety, adversely impact floodplain or wetland values, or otherwise appears contrary to the public interest, the district engineer will so advise the applicant and inform him of possible alternative methods of protecting his property.

A landowner’s general right of access to navigable waters may not create undue interference with access to, or use of, navigable waters by others. If it does, the authorization will generally be denied.

The applicant’s signature on an application is an affirmation that the applicant possesses or will possess the requisite property interest to undertake the activity proposed in the application.

In the absence of overriding public-interest factors that may be revealed during the evaluation of the permit application, a permit will generally be issued. But first, the engineer must receive favorable state determination. That state determination must take into account:

Similarly, a permit will generally be issued for Federal and Federally-authorized activities; another federal agency’s determination to proceed is entitled to substantial considerationin the Corps’ public interest review.

Threatened Species

The Endangered Species Act (16 U.S.C. 1531 et seq.) declares the intention of the Congress to conserve threatened and endangered species and the ecosystems on which those species depend. The Act requires that federal agencies, in consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, use their authorities in furtherance of its purposes by carrying out programs for the conservation of threatened species, (editorial comment: such as the bald eagle which nests and feeds near this property).

Floodplain Management

Floodplains possess significant natural values and carry out numerous functions important to the public interest. These include:

Water-resources value (natural moderation of floods, water quality maintenance, and groundwater recharge);
Living-resource values (fish, wildlife, and plant resources);
Cultural-resource values (open space, natural beauty, scientific study, outdoor education, and recreation); and
Cultivated-resource values (agriculture, aquaculture, and forestry).

Although a particular alteration to a floodplain may constitute a minor change, the cumulative impact of such changes may result in a significant degradation of floodplain values and functions and in increased potential for harm to upstream and downstream activities.

Executive Order 11988 and Floodplains

In accordance with the requirements of Executive Order 11988, district engineers, as part of their public interest review, should avoid to the extent practicable, long and short term significant adverse impacts associated with the occupancy and modification of floodplains, as well as the direct and indirect support of floodplain development whenever there is a practicable alternative. For those activities which in the public interest must occur in or impact upon floodplains, the district engineer shall ensure, to the maximum extent practicable, that the impacts of potential flooding on human health, safety, and welfare are minimized, the risks of flood losses are minimized, and, whenever practicable the natural and beneficial values served by floodplains are restored and preserved.

In accordance with Executive Order 11988, the district engineer should avoid authorizing floodplain developments whenever practicable alternatives exist outside the floodplain.If there are no such practicable alternatives, the district engineer shall consider, as a means of mitigation, alternatives within the floodplain which will lessen any significant adverse impact to the floodplain.

Water Supply and Conservation

Water is an essential resource, basic to human survival, economic growth, and the natural environment. Water conservation requires the efficient use of water resources in all actions which involve the significant use of water or that significantly affect the availability of water for alternative uses including opportunities to reduce demand and improve efficiency in order to minimize new supply requirements. Actions affecting water quantities are subject to Congressional policy as stated in section 101(g) of the Clean Water Act which provides that the authority of states to allocate water quantities shall not be superseded, abrogated, or otherwise impaired.

Navigation

Protection of navigation in all navigable waters of the United States continues to be a primary concern of the federal government.

District engineers should protect navigational and anchorage interests in connection with the NPDES (National Pollutant Discharge Elimination System) program by recommending to EPA or to the state, if the program has been delegated, that a permit be denied unless appropriate conditions can be included to avoid any substantial impairment of navigation and anchorage.

The NPDES permit program addresses water pollution by regulating point sources that discharge pollutants into waters of the United States.

Environmental Benefits

Some activities that require Department of the Army permits result in beneficial effects to the quality of the environment. The district engineer will weigh these benefits as well as environmental detriments along with other factors of the public interest.

Economics

When private enterprise makes application for a permit, it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the market place.However, the district engineer in appropriate cases, may make an independent review of the need for the project from the perspective of the overall public interest. The economic benefits of many projects are important to the local community and contribute to needed improvements in the local economic base, affecting such factors as employment, tax revenues, community cohesion, community services, and property values. Many projects also contribute to the National Economic Development (NED), (i.e., the increase in the net value of the national output of goods and services

Deadline for Comments Extended to March 1

Because of the prolonged government shutdown, the Army Corps has extended the deadline for public comments on the proposed Kingwood Marina high-rise development.

Comments and requests for additional information should reference USACE file number, SWG-2016-00384, and should be submitted to:

ARMY CORPS

Evaluation Branch, North Unit
Regulatory Division, CESWG-RD-E
U.S. Army Corps of Engineers
P.O. Box 1229
Galveston, Texas 77553-1229
409-766-3869 Phone
409-766-6301 Fax
swg_public_notice@usace.army.mil

TCEQ

The TCEQ will evaluate water quality issues for the Corps. You can email water quality comments to 401certs@tceq.texas.gov. Please ensure that all comments reference USACE permit application no. SWG-2016-00384.

Rehak Comments To Follow

As I have studied the Corps’ and TCEQ’s decision-making processes and criteria, I have also studied possible impacts of the proposed high-rise project. I intend to send my comments to the Corps, TCEQ, Texas Parks and Wildlife, the US Fish and Wildlife Service and the EPA. I will publish those when complete – hopefully by the end of this week.

As always, these represent my opinions on matters of public policy. They are protected by the First Amendment of the U.S. Constitution and the Anti-SLAPP statute of the Great State of Texas.

Posted by Bob Rehak on 1/31/2019

520 Days since Hurricane Harvey