Your Government at Work in an Emergency


Here are comments cited [see this PDF] as having been received by the U.S. Army Corps of Engineers from those grievously concerned about the Gulf Coast ecosystem — so much so that they hope to block construction of barrier isles to block oil from reaching sensitive ecosystems of coastal marshes, wetlands, etc.

•Borrow locations near the islands could increase erosion of islands.
•Could significantly impact endangered species, critical habitats, sustainable fishery stocks, and migratory birds.
•May use borrow material intended to support future coastal restoration projects.
•Clearance of pipelines and infrastructure during dredging and material placement may require full geophysical survey.
•Would require a Special Use Permit due to National Refuge Administration Act and a Sand & Gravel Lease for uncleared borrow sites.
•Complete pilot study to validate concept
•Could adversely impact national navigation
•Disposal of contaminated sediment (dredging, placement, and on islands)

And the “barriers” to constructing the barriers?

Applicable Environmental Laws

•National Environmental Policy Act (NEPA)
•Clean Water Act (CWA)
•Migratory Bird Treaty Act (MBTA)
•Coastal Barrier Resource Act (COBRA)
•Endangered Species Act (ESA)
•National Refuge Administration Act (NRAA)
•Wilderness Act
•Magnuson-Stevens Act [Essential Fish Habitat (EFH)]
•Marine Mammal Protection Act (MMPA)
•National Historic Preservation Act

Oh, and Section 10 of the Rivers and Harbors Act of March 3, 1899 (33 USC 403).

Not that this emergency, expedited procedure will be all that easy:

Path Forward: Implementation of Protection Sand Berm NIC Demo Project
•State of LA must accept, sign, and return permit to USACE
•State of LA is the permittee and is responsible for implementation and adherence to all terms and conditions of permit
•State ensures that borrow sites and stockpile areas located in state waters are environmentally cleared by the Corps of Engineers prior to commencement of work. If borrow sites are located in OCS waters, clearance must be obtained from MMS
•State must establish monitoring protocols with USACE prior to commencement to document project success/impacts.
•State must request release of any U.S. flagged dredges currently under contract to USACE.
•State will provide best estimate of when dredges will be on site and commencing work
•Any changes in the permit must be recognized by the State and approved by USACE
•USACE will provide QA for regulatory and environmental compliance on behalf of the U.S. Government.

Path Forward: Implementation of Protection Sand Berm Project as authorized by USACE
•State must establish monitoring protocols with USACE prior to commencement to document project success/impacts
•State ensures that borrow sites and stockpile areas within State waters are environmentally cleared by USACE. If any borrow sites located in OCS waters, clearance must be obtained from MMS
•State must obtain Special Use Permit from Breton National Wildlife Refuge prior to commencement of work
•State must submit a final permit application within 30 days of emergency permit issuance
•State must provide USACE with all preconstruction documentation as specified in special conditions of the emergency permit
•State must request release of any dredges currently under contract to the Corps.
•Any changes in the permit must be requested by the State and approved by USACE
•State will provide best estimate of when dredges will be on site and commencing work

And, ah, there’s a little more:

Permit Provisions and Specified Conditions Two provisions:
1. Limited to specific proposed segments: Only authorized reaches (E3-4, W8-11) in a manner to minimize adverse impacts.
2. Subject to emergency permit terms: Subject to emergency permit terms, with formal application in 30 days.

33 Specified Conditions:
1.Property Rights: No property rights conveyed, or injury to property rights.
2. No federal liabilities: Excepting federal actions taken under OPA in DWH response.
3. Water Quality Standards: Meet standards and Best Mgt Practices.
4. Permit may be revoked: For the public interest or if terms/conditions revoked.
5. Data accuracy: Federal government will rely on data, inaccurate data may result in permit being revoked.
6. Damages for permit change/revocation: Change or revocation of permit no basis for claim against federal government.
7. All other laws/regulations: Must be followed.
8. USACE inspection: Periodic inspection allowed.
9. Navigation: No interference, installation of lights, signals, signs by permittee.
10. Borrow site limitations: Only segment of Pass a Loutre borrow site allowed
11. Borrow site coordination: Coordinated with MMS, USGS, USACE (MVN Regulatory), EPA, USFWS, NMFS, and other concerned federal/state agencies.
12. Notice to Mariners: Coordinate with USCG for BNTM for vessel activities.
13. Pipelines and Submerged Objects: Permittee must identify and avoid.
14. Berm Removal/Relocation: May be required at permittee’s expense if interferes with navigation.
15. Cannot interfere with aquatic movement/migration: Of indigenous or migratory species.
16. Piping plover intertidal foraging habitat avoidance: 100 foot setback required from mean low-low to foot of berm.
17. Equipment out of intertidal to dune/vegetation line
18. Best Management Practice to protect seagrass beds
19. Minimize impacts: to natural sediment transport, fish migration, salinity regimes.
20. No blockage of tidal inlets to maximum extent practicable.
21. Bird rookery setbacks: Rookeries of specific species require 650-2000’ setbacks from Sept –Mar/April (specified by species) with monitoring by USFWS observer.
22. Trustee/Service Consultations: Required before/during/after with NMFS, USFWS, and USGS for Essential Fish Habitat and Endangered Species Act.
23. Cultural Resource Protection: Consultation required, and work must cease if new historic/prehistoric cultural resources discovered.
24. Historic Protection: Reporting of unknown historic or archeological items.
25. Tribal cultural materials: Area is aboriginal Chitimacha homelands, tribe contact required if cultural materials are discovered.
26. No boundary change: No new claims authorized, no boundary changes.
27. No statement on spill response applicability: Permit does not address applicability to response.
28. Construction schedule and timeline: Due prior to commencing work.
29. Weekly conference call: With interested parties.
30. Survey of berm alignment: Due prior to initiating work.
31. Monitoring plan: Specific requirements in consultation with USACE and other interested parties.
32. Aerial photography: Required every two weeks.
33. Effective date of permit: Upon receipt by USACE of copy signed by permittee agreeing to and accepting conditions.

No wonder things got straightened out so quickly. Imagine if they weren’t flexible in their single-minded determination to do whatever was needed to mitigate the damage?


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