Fill and Sign the Clia Application Form 0938 0581

PBS Wetlands Impact Management Desk Guide Final Guidance September 1, 2000 PBS Wetlands Desk Guide – Final September 1, 2000 Table of Contents CHAPTER 1 - INTRODUCTION............................................................................................... 1-1 1.1 Purpose................................................................................................................ 1-1 1.2 Requests for Authorizations or Appropriations.................................................... 1-1 1.3 Application of This Desk Guide ........................................................................... 1-1 1.4 Definitions ............................................................................................................ 1-1 1.5 Changes to This Desk Guide............................................................................... 1-3 CHAPTER 2 – RESPONSIBILITIES FOR WETLAND IMPACT MANAGEMENT .................. 2-1 2.1 Director, Division of Environmental Business Strategies (PXE) ......................... 2-1 2.2 Regional Administrators....................................................................................... 2-1 2.3 Program Staff....................................................................................................... 2-1 2.4 Other Program Requirements.............................................................................. 2-2 CHAPTER 3 – OVERVIEW OF THE COE PERMITTING PROCESS FOR THE DISCHARGE OF DREDGED AND FILL MATERIAL .............................. 3-1 3.1 Introduction .......................................................................................................... 3-1 3.2 Determining Whether a COE Permit is Needed.................................................. 3-1 3.2.1 3.2.2 3.2.3 3.2.4 3.3 Determining If an Action May Result in a Discharge............................... 3-1 Determining the Area(s) Within Which a Discharge May Occur............. 3-2 Determining the Presence or Absence of a Wetland .............................. 3-2 Determining Whether There Will Be a Discharge Into a Wetland........... 3-3 Types of COE Permits ......................................................................................... 3-3 3.3.1 3.3.2 General Permits ....................................................................................... 3-3 3.3.1.1 Programmatic and Regional General Permits.......................... 3-4 3.3.1.2 Nationwide General Permits ..................................................... 3-4 Individual Permits..................................................................................... 3-4 PBS Wetlands Desk Guide – Final 3.4 Obtaining a COE Permit ...................................................................................... 3-5 3.4.1 3.4.2 3.5 September 1, 2000 Nationwide Permits .................................................................................. 3-5 Individual Permits..................................................................................... 3-5 3.4.2.1 Individual Permit Application..................................................... 3-5 3.4.2.2 Post-Application Consultation and Cooperation....................... 3-6 3.4.2.3 Issuance or Denial of the Permit .............................................. 3-8 3.4.2.4 GSA's Decision ......................................................................... 3-8 3.4.2.5 Mitigation and Monitoring ......................................................... 3-8 Leasing Actions .................................................................................................... 3-8 3.5.1 3.5.2 Leasing in Existing Structures ................................................................. 3-8 Lease Construction and Other Lease Actions Involving Discharges...... 3-8 3.6 Disposal of Federal Real Property....................................................................... 3-9 3.7 Where No Section 404 Permit is Required.......................................................... 3-9 CHAPTER 4 - COORDINATION WITH OTHER AUTHORITIES ............................................ 4-1 4.1 Coordination with NEPA ...................................................................................... 4-1 4.1.1 4.1.2 Categorical Exclusion Actions (CATEX) .................................................. 4-1 Environmental Assessments and Environmental Impact Statements........................................................... 4-2 4.2 Coordination with the Coastal Zone Management Act, State ............................. 4-2 Wetland Protection Laws, and Executive Order 11988 4.3 Public Involvement............................................................................................... 4-2 PBS Wetlands Desk Guide – Final September 1, 2000 List of Appendices Appendix 1: Section 404 of the Clean Water Act Section 10 of the Rivers and Harbors Act National Environmental Policy Act (NEPA) Executive Order 11990, “Protection of Wetlands” ADM 1095.5, “Consideration of Wetlands in Decisionmaking” Title 33 Code of Federal Regulations Parts 320-330 (not included see website) State and Local Wetland Regulations (not included see website) Appendix 2: Index of Nationwide Permits Appendix 3: Sample Language For Use In Lease Construction And Other Lease Actions Involving Discharges To Wetlands Appendix 4: General Services Administration (GSA) Scope of Work for Wetland Delineation Appendix 5: Pertinent Agencies PBS Wetlands Desk Guide – Final September 1, 2000 Chapter 1- Introduction 1.1 PURPOSE This Desk Guide is designed to help General Service Administration (GSA) employees and contractors ensure that GSA’s policies and procedures for the management of impacts on wetlands are fully and properly implemented. These policies and procedures are set forth in ADM 1095.5, “Consideration of wetlands in decisionmaking”. The ADM Order and this Desk Guide are based on government-wide direction provided in Executive Order (EO) 11990, “Protection of Wetlands,” Title 33 Code of Federal Regulations (CFR) 320­ 330 by the United States Army Corps of Engineers (COE) under the authority of Section 404 of the Clean Water Act (33 United States Code 1344), the National Environmental Policy Act (NEPA), and other authorities. See Appendix 1 for a list of regulations and Orders pertinent to Wetlands. wetlands. By itself, this Desk Guide is not a mandatory authority that GSA personnel must follow. However, following it is generally necessary to the orderly implementation of ADM 1095.5. This Desk Guide is meant to be used with the PBS NEPA Desk Guide, a companion GSA publication on compliance with the NEPA pursuant to ADM 1095.1F, “Environmental considerations in decisionmaking.” 1.2 When congressional authorization or appropriation is necessary for the proposed actions, the request to OMB must indicate the action is in compliance with the policy and provisions of EO 11990. 1.3 EO 11990, “Protection of Wetlands,” directs Federal agencies to provide leadership and take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance wetlands. Specifically, the EO requires: [E]ach agency, to the extent permitted by law, shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. Executive Order 11990 Together, ADM 1095.5 and this Desk Guide describes GSA’s program for compliance with EO 11990, Section 404 of the Clean Water Act, and related authorities dealing with the management of impacts on REQUESTS FOR AUTHORIZATIONS OR APPROPRIATIONS APPLICATION OF THIS DESK GUIDE The policies, procedures, and practices described here apply to GSA actions, including leasing, acquiring, developing, managing and disposing of real property, that may have an impact on wetlands. They apply to all GSA business lines, GSA staff, contractors, and others who operate under GSA oversight. 1.4 DEFINITIONS 1.4.1 Action. An “action” is any GSA activity which involves: acquiring, developing, managing, and disposing of Federal lands and public buildings; providing federally undertaken, financed, or assisted construction and improvements; and conducting Federal activities and programs affecting land use. Page 1-1 PBS Wetlands Desk Guide – Final 1.4.2 Construction. “Construction” in­ cludes draining, dredging, channelizing, filling, diking, impounding, and related activities and any structures or facilities begun or authorized after the May 1977 issuance of EO 11990. 1.4.3 Discharge of Dredged Material. 33 CFR 328 provides a detailed definition of “discharge of dredged material.” In essence, this constitutes the introduction of dredged material into waters of the United States, including the redeposit of dredged material other than incidental fallback. This specifically includes, but is not limited to: (a) the addition of dredged material to a specified discharge site located in waters of the United States; (b) runoff or overflow from a contained land or water disposal area; (c) any addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the United States, including mechanized landclearing, ditching, channelization, or other excavation. Discharge of Dredged Material does not include: (d) discharges of pollutants into waters of the United States resulting from the onshore subsequent processing of dredged material that is extracted for any commercial use (other than fill). These discharges are subject to section 402 of the Clean Water Act even though the extraction and deposit of such material may require a permit from the Corps or applicable State section 404 program; (e) activities that involve only the cutting or removing of vegetation above the ground (e.g., mowing, rotary cutting, and chainsawing) where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material; or September 1, 2000 (f) incidental fallback. 1.4.4 Dredged Material. As pertaining to the COE regulations, “Dredged Material” includes any material that is excavated or dredged from a wetland or other waters of the United States. 1.4.5 Fill Material. “Fill Material” is any material used for the primary purpose of replacing an aquatic area with dry land, or of changing the bottom elevation of a water body. 1.4.6 Practicable Alternatives. Under GSA, “Practicable alternatives” are those which: (a) (b) (c) (d) (e) meet justified program requirements; are within the legal authority of GSA or its client agency; meet technological standards; are demonstrated as being cost effective; and do not result in unreasonable adverse environmental impacts. 1.4.7 Structure. As defined in 33 CFR 322.2, the term “structure” includes “without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent mooring structure, power transmission line, permanently moored floating vessel, piling, aid to navigation, or any other obstacle or obstruction.” A building foundation should be considered a “piling.” 1.4.8 Waters of the United States. The regulatory definition of “Waters of the United States” is given in 33 CFR 328.3. Waters of the U.S. constitute: (a) all waters which are currently used, or were used in the past, or may be susceptible to use in interstate commerce or foreign commerce, including all waters which are subject to the ebb and flow of the tide; Page 1-2 PBS Wetlands Desk Guide – Final September 1, 2000 (b) all interstate waters including interstate wetlands; (c) all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mud flats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use of which could affect interstate or foreign commerce (specific examples of such commerce being re-creational purposes, commercial fishing, and industrial use); (d) all impoundments of water otherwise defined as waters of the United States; (e) tributaries of the above-described waters; (f) the territorial seas; and (g) wetlands adjacent to waters (other than waters that are themselves wetlands) identified above. 1.4.9 Wetlands. “Wetlands” are those areas that are inundated by surface or ground water with a frequency sufficient to support, and under normal circumstances do or would support, a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet meadows, river outflows, and mud flats, and natural ponds. Wetlands are often associated with floodplains, but may also occur in other situations. For instance, a wetland may also be formed and maintained by a high water table in areas with shallow depressions in the topography. 1.5 CHANGES TO THIS DESK GUIDE GSA PBS Division of Environmental Business Strategies (PXE) may issue updates, changes, or corrections to this Desk Guide. Page 1-3 PBS Wetlands Desk Guide – Final September 1, 2000 Chapter 2 – Responsibilities for Wetlands Impact Management 2.1 DIRECTOR, DIVISON OF ENVIRONMENTAL BUSINESS STRATEGIES (PXE) ?? Advises the Administrator, Commissioner, other Heads of Services and Business Lines, Regional Administrators, and other GSA managers and staff regarding how to address impacts on wetlands; ?? Coordinates compliance with ADM 1095.5 and the laws, Executive Orders, and regulations it implements; ?? Provides advice and assistance to Regional Environmental Quality Advisors (REQA) regarding wetland matters; ?? With the cooperation of Services, Business Lines, and Regional Offices, provides guidance, education, training, and advice about education and training standards and opportunities to GSA personnel who have responsibilities that may impact a wetland; ?? Coordinates with the U.S. Army Corps of Engineers (COE), the U.S. Environmental Protection Agency (EPA) and other agencies involved in wetland impact management at the national level; responsibilities of the Division; and ?? Promulgates, maintains, and when necessary updates this “Wetlands Impact Management Desk Guide” providing detailed direction and advice regarding implementation of wetland responsibilities. 2.2 ?? Are responsible for compliance with ADM 1095.5 and this Desk Guide; ?? Maintain a reasonable body of expertise regarding wetland matters in the staff of the REQA and/or Field Office personnel as described in PBS NEPA Desk Guide and ensure that the REQA has access to appropriate professional wetland management expertise; and ?? Ensure that all Regional and/or Field Office program staff involved in planning and decision making about actions that could affect wetlands are made aware of GSA's wetland management responsibilities, are acquainted with this Desk Guide and ADM 1095.5, are held accountable for the quality of their actions and decisions, and are required to coordinate effectively with the REQA on wetland matters. 2.3 ?? Represents GSA in interagency coordination on matters related to wetland management on a national basis; ?? Routinely solicits and acts upon the advice of Regional Environmental Quality Advisor (REQA) and Field Office personnel in developing program direction and carrying out the REGIONAL ADMINISTRATORS PROGRAM STAFF For the purposes of this Desk Guide, program staff includes all GSA employees responsible for the management and implementation of program actions, such as project planning and development, acquisition of real property by purchase, exchange or eminent domain, project management, leasing, and disposal of real property. Page 2-1 PBS Wetlands Desk Guide – Final Program staff are responsible for: ?? With the assistance of the REQA, developing and maintaining a thorough understanding of wetland management requirements, principles, and procedures, and of the policy articulated in ADM 1095.5, as these pertain to their program areas; September 1, 2000 responsibilities, reviews and mechanisms. through performance other administrative ?? Ensuring that GSA’s wetland management responsibilities are met to the best of their abilities, as early as possible in planning any action within their program areas; ?? Coordinating their programs, activities, and projects with the REQA; and ?? Implementing all mitigation and other commitments resulting from compliance with this Desk Guide for actions under their authority. 2.4 OTHER PROGRAM REQUIREMENTS Each Head of Service, Business Line, and Regional Office shall establish internal systems to ensure that the requirements of ADM 1095.5 and this Desk Guide are carried out. Each such system shall ensure that: ?? Compliance with this Desk Guide begins early in planning any action, when the widest reasonable range of alternatives are open for consideration; ?? Consideration of wetlands impacts, and application for and receipt of permits from the COE, are conducted in coordination with continuing planning; and ?? Employees responsible for managing impacts to wetlands are held accountable for the performance of such Page 2-2 PBS Wetlands Desk Guide – Final September 1, 2000 Chapter 3 – Overview of the COE Permitting Process For the Discharge of Dredged and Fill Material 3.1 INTRODUCTION If GSA proposes a project that will involve discharge of dredged or fill material into a waterway or a wetland, it must follow a very specific regulatory procedure. Discharge into a wetland without a permit is a violation of the Clean Water Act and can result in issuance of compliance orders, civil actions, and criminal prosecution of GSA employees, contractors, and others involved. Sections 9 and 10 of the Rivers and Harbors Act, and Section 404 of the Clean Water Act together provide to the COE the authority to regulate construction in navigable waters of the United States, and the discharge of dredged or fill material into all waters of the United States, including wetlands. All types of activities involving the discharge of fill into a wetland are subject to regulation. For example, the disposal of debris from a construction or demolition site into a wetland, or discharges associated with landscaping, fall under the regulatory authority of the COE. The COE carries out its regulatory responsibilities under the Rivers and Harbors Act, the Clean Water Act, and related Federal laws using uniform rules set forth at 33 CFR 320-330. Title 33 CFR 325 provides specific direction about how to obtain a COE permit to discharge fill material into a wetland. Under the Clean Water Act, discharging fill into a wetland without a permit issued by the COE under its regulations is an offense punishable by civil actions and criminal prosecution. In addition to Section 404 permitting, certain discharges of dredged or fill material into waters of the United States, including wetlands, are also regulated by the COE under the aforementioned Rivers and Harbors Act. Although not discussed in detail in this guidance, you should be aware that Section 10 of this Act includes regulations for structures or work in or affecting navigable waters of the United States, including wetlands adjacent to navigable waters. Section 9 of the Rivers and Harbors Act is applicable to dams and dikes in navigable waters. This chapter of the Wetlands Impact Management Desk Guide provides an overview of the general steps required to obtain a COE permit, and Exhibit 3-1 illustrates the typical COE review process for Section 404 standard permits. You should be familiar with this process to ensure that GSA—or its contractor—is in compliance with the COE requirements and EO 11990. 3.2 DETERMINING WHETHER A COE PERMIT IS NEEDED 3.2.1 Determining if an Action May Result in a Discharge The first step in determining whether a COE permit is required is to determine whether the proposed action is the kind of action that could result in a discharge. Consider the following questions: (a) Does the action involve new construction? New construction always has the potential for discharges. Discharges may result from site preparation, the construction itself (dumping fill upon which buildings are built, placing pilings, etc.), from disposal of debris from demolition of existing structures, grading, or excavation, or Page 3-1 PBS Wetlands Desk Guide – Final from both. (b) Does the action involve renovation? Renovation may result in discharges of demolition debris (including debris from interior demolition) and/or spoil from utility trenching, excavation for seismic retrofit, excavation for new subsurface facilities, or foundation work. (c) Does the action involve landscaping, road construction, remediation or other work that requires grading, trenching, or other land treatment that could produce fill or permit runoff and erosion? September 1, 2000 covered by water or have waterlogged soils for significant periods during the growing season—that is, the average period between the last killing frost in the spring and the first killing frost in the fall. Wetland plants are capable of living in soils lacking oxygen for at least part of their growing seasons. Types of wetlands include, but are not limited to, bottomland forests, swamps, pine savannas, sloughs, mud flats, bogs, marshes, wet meadows, potholes and wet tundra. Wetlands may also develop in low areas created by human activity, such as large collapsed cellar holes and drainage ditches. If the action involves no potential discharges, then there is no need for a COE permit. If there is a potential discharge, then proceed to the next step. An area is likely to be a wetland if any of the following conditions exist: 3.2.2 ?? The area has low spots in which water stands for more than seven consecutive days during the growing season, as indicated by soil that glistens with water, water marks on trees or posts, drift lines or other debris piles oriented in the direction of water movement, debris lodged in trees or piled against other objects, or thin layers of sediment. Note that many wetlands actually lack both standing water and waterlogged soils during at least part of the. Determining the Area(s) Within Which a Discharge May Occur If there is a potential discharge, consider where it may occur. Consider: (a) The project construction site or other direct impact area. (b) The location(s) where debris, spoil, or other material will be disposed of. (c) Areas that might be affected by erosion or deposition resulting from the action. 3.2.3 Determining the Presence or Absence of a Wetland Are wetlands present in any of the areas where there may be a discharge? Remember that wetlands are not necessarily wet all year-around. “Wetlands” are land areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands are ?? The area is in a floodplain. ?? The area has plant communities that commonly occur in areas having standing water for part of the growing season. Some 5,000 different plant species are commonly associated with wetlands in different parts of the country; a listing of wetland plants that occur in specific areas can be obtained from the COE. Examples of plant types associated with wetlands include cattails, bulrushes, skunk cabbage, cordgrass, spaghum moss, bald cypress, willows, mangroves, sedges, rushes, arrowheads and water plantains. Other indicators are trees such as willows, alders, red maples, sycamores, and bushes or trees with Page 3-2 PBS Wetlands Desk Guide – Final shallow root systems, swollen trunks, or roots growing from the plant trunk above the soil surface. ?? The area has peat, muck, or gleyed soils, substantial amounts of decomposing plant material on the surface, dark streaks of buried organic matter, or a sulfurous, "rotten egg" smell. ?? The area is periodically flooded by tides. Some wetlands may have been “delineated” and a current map is available. A good source is the U.S. Fish & Wildlife Service’s National Wetlands Inventory (www.nwi.fws. gov/) If a current map is not available, the wetland must be delineated in accordance with the COE’s 1987 Wetlands Delineation Manual, or according to applicable State standards, whichever is more rigorous. Wetland delineation is the identification of wetlands, their boundaries, and their characteristics. A model Wetland Delineation Scope of Work (SOW) is included in Appendix 4. Wetland delineation must result in a written report, which should provide the following information: ?? Wetland delineation maps showing the size, location, configuration, and boundaries of each wetland, together with local landmarks for orientation; sample plot locations; names of water features; a north arrow; scale, and date, and the names of the people who conducted the delineation; ?? Wetland delineation forms from the Wetland Delineation Manual or State standards, or similar data sheets, for each sample site, clearly listing the soil, vegetation, and hydrological indicators used to determine the presence of a wetland; ?? An overall vicinity map identifying the locations of study areas; and September 1, 2000 ?? A narrative describing the methods employed, identifying the wetlands found, and integrating the information outlined above. 3.2.4 Determining Whether There Will Be a Discharge Into a Wetland It may be possible to determine that the discharge will impact a wetland by overlaying project plans, including plans showing where spoil and other material will be disposed of, on the wetlands map for each alternative. If it is determined that a COE permit may be required for an activity involving a wetland or other waters of the United States, GSA’s contractor should request a pre-application consultation with the appropriate COE district office. COE staff can advise potential applicants of information foreseeably required for permit applications, such as the identification of potential alternatives to avoid and minimize project impacts, mitigation opportunities, and other factors which must be considered by the COE in the permit decision making process. 3.3 TYPES OF COE PERMITS The COE issues both general permits and individual permits. There are three types of general permits for various activities with minimal impact to wetlands and other waters of the United States. Individual permits are issued for activities that do not fall within the criteria for a general permit. Early coordination with the COE can help identify which type of permit is needed for your specific action. 3.3.1 General Permits Many minor actions fall within existing general permits that have been issued to the public at large by the COE on a regional and nationwide basis for a category, or categories of activities. The activities under a general permit may only result in minimal Page 3-3 PBS Wetlands Desk Guide – Final individual or cumulative impacts. The approval process for general permits is much less time and labor-intensive than that for an individual permit. Avoidance and minimization of impacts should always be the first consideration in project planning, and you should consider that by modifying an action by these means, its impacts to wetlands may be reduced to a degree that it can fall under the requirements of a general, rather than an individual, permit. There are three types of general permits: programmatic, regional, and nationwide. Because programmatic and regional general permits vary widely from state to state and region to region, this Desk Guide will focus on the application and evaluation of the more common nationwide general permits (NWP). 3.3.1.1 Programmatic and Regional General Permits Programmatic general permits are general in scope, based on existing regulatory programs of other agencies, and are intended to avoid duplication of effort. Regional general permits apply to certain minor activities authorized by the COE Districts on a regional or statewide basis, and are issued by a COE division or district engineer after notice and opportunity for public hearing. Regional general permits are issued using the same procedures prescribed in the regulations for individual permits. 3.3.1.2 Nationwide General Permits Nationwide general permits are a type of permit that represent COE authorizations issued by 33 CFR part 330 for specified activities on a nationwide basis. If certain conditions are met, then the activity can proceed without either an individual or regional permit. There are several different types of NWPs, covering activities such as construction of Outfall Structures and Maintenance (NWP #7), Linear Transportation Crossings (NWP #14), September 1, 2000 Residential, Commercial and Institutional Developments (NWP#39), and Stormwater Management Facilities (NWP #43),. See Appendix 2 for a sample list of NWPs. NWP #39 lists government office buildings and judicial buildings as examples of institutional developments. Activities under NWP #39 are authorized if they meet certain specific conditions, including not causing the loss of more than ½ acre of non-tidal waters of the United States, and not causing the loss of more than 300 linear feet of stream bed. If the discharge causes the loss of more than 1/10 acre of waters of the United States, a Preconstruction Notification (PCN) must be made to the COE before the start of work. If the discharge causes the loss of an 1/10 acre or less, GSA must submit a report within 30 days of completion of the work to the COE District Engineer. The report should contain the following information: 1) the name, address and telephone number of the permittee; 2) the location of the work; 3) a description of the work; 4) the type and acreage of the loss of waters; and 5) the type and acreage of any compensatory mitigation used to offset the loss. If the action meets the terms and conditions of the applicable NWP, GSA and/or its contractor can usually proceed with the action. Although notification pertaining to your specific action may not be required, it is important to know that the COE districts and divisions have the final authority to modify, override, or condition NWPs: it is necessary for GSA and/or its contractor to be aware of any conditions which the applicable COE district may have added to the general conditions listed in 33 CFR part 330.4. 3.3.2 Individual Permits An individual permit is an authorization issued by the COE following an evaluation of a specific activity, the scope of which does not allow permitting under a general permit and for which avoidance and/or Page 3-4 PBS Wetlands Desk Guide – Final modification to minimize impacts to the level of a general permit is not feasible. Specific requirements for obtaining an individual permit are described in Section 3.4. The process for a standard individual permit is illustrated in Exhibit 3-1, and includes public notice, the opportunity for a public hearing, and receipt of comments. Consultation with other regulatory agencies, such as the U. S. Fish and Wildlife Service, may also be a part of the individual permitting process. In some cases, the COE may notify GSA or its contractor upon receipt of a permit application that the proposed activity qualifies for a Letter of Permission, or LOP. For routine or minor work with minimum impacts and a decreased likelihood of public objections, an LOP can be issued much more quickly than a standard individual permit. 3.4 OBTAINING A COE PERMIT 3.4.1 Nationwide Permits As stated in 3.3.1.2, many nationwide permits do not require COE notification, however, GSA and its contractor should be aware of any additional items that the applicable COE District may have added to the general conditions of these permits, or if the specific NWP requires notification. 33 CFR 330.4 states that “[a] prospective permittee must satisfy all terms and conditions of an NWP for a valid authorization to occur.” The COE reserves the authority to determine if an activity complies with the terms and conditions of a NWP, whether there has been notification or not. There also exist some restrictions on NWPs pursuant to other Federal, state, and local authorizations. For instance, 33 CFR 330.4(f) states that an activity which is "likely to jeopardize the continued existence of a threatened or endangered species as listed or proposed for listing under the Endangered Species Act, or to destroy or adversely modify the critical habitat of such species" cannot be authorized by a NWP. The regulation also includes conditions, September 1, 2000 limitations, and restrictions pertaining to the requirements of Section 401 of the Clean Water Act, the Coastal Zone Management Act, and the National Historic Preservation Act. COE guidance on nationwide permits can be found at www.usace.army.mil. NEPA Call-In can also help obtain current guidance regarding current procedures pertaining to all COE permits. 3.4.2 Individual Permits If at all possible, discharge of dredged or fill material into a wetland should be avoided. This may require some modification of the proposed action. If this is not feasible and a NWP does not apply, an individual permit will need to be obtained before the action can proceed. Application for an individual permit must follow 33 CFR 325.1, the requirements of which are summarized below. Responsible program staff should become thoroughly familiar with this and other pertinent COE regulations. A list of agency addresses for use in permit consultation is found in Appendix 5. 3.4.2.1 Individual Permit Application (a) Application form. ENG Form 4345, "Application of a Department of the Army Permit," or a joint Federal-state application that may be available in your state, is required to begin the review process. These forms vary from region to region, therefore it is essential that you obtain the appropriate form from the COE regulatory office in the area where the proposed action is located. (b) Content. The application must include: ?? A complete description of the proposed action, including drawings, sketches, or plans for use by the COE in issuing a public notice. Detailed engineering plans and specifications are not required and may not be desirable; remember that Page 3-5 PBS Wetlands Desk Guide – Final the COE will issue its public notice in an 8.5x11” format. ?? The specific location(s) of the action. ?? A statement of the action’s purpose and need. ?? The planned schedule for completing review of, and carrying out, the action. ?? The names and addresses of pertinent property owners, including the owners of lands involved in the action and adjacent properties. ?? The locations and dimensions of adjoining structures. ?? A list of authorizations needed, received, or denied from other Federal, interstate, State, regional or local agencies. ?? The type, composition and quantity of any material to be dredged. ?? The source, type, composition and quantity of any material to be to be discharged into a wetland. ?? The means by which any such material will be transported. ?? The location of any disposal site. ?? Any special structures to be employed, such as filled areas or pile or float-supported platforms. ?? Any impoundment structure. ?? Any proposed artificial reef. ?? Other information requested by the district or division engineer for purposes of the public notice (33 CFR 325.3) or other purposes. September 1, 2000 (c) Scope. The application must cover all connected actions that GSA and, where applicable, the offeror or cooperating agency intend to carry out that are reasonably related to the action and which might require a permit. For example, if the GSA project is a single building in a complex being developed for lease to multiple agencies of the Federal and state governments, the application should describe the entire complex. If the GSA project is a building that requires a new street for access, the application should cover the street as well as the building. (d) Signature. The application must be signed by the applicant/lessor, developer, or construction contractor. 3.4.2.2 Post-Application Consultation and Cooperation Once the application has been filed, the COE is responsible for seeking and considering public comment on the proposed activity, determining compliance with related federal laws, coordinating with other federal agencies, and ultimately determining if an activity can be permitted. The COE’s procedures for application processing are spelled out in 33 CFR 325.2. Program staff and the REQA should consult and cooperate with the COE in carrying out its review of the application; in preparing, distributing, and considering responses to the public notice; and in reaching its permit decision. The COE may conclude that an EIS is needed under NEPA, even in cases where GSA has determined that one is not needed. When the COE determines that an EIS is needed to obtain its authorization, GSA must cooperate with the COE and prepare an EIS. The COE must also carry out its own compliance with such other authorities as the Endangered Species Act and the National Historic Preservation Act. Program staff, the REQA, the Regional Page 3-6 PBS Wetlands Desk Guide – Final September 1, 2000 Exhibit 3-1 Typical Steps in COE Standard Permit Review Process Applicant Submits Engineer Form 4345 to COE District Office or State Agency Application Received, Acknowledged, and Processed Public Notice Issued Public Notice Normal 30-Day Comment Period Corps Individuals Special Interest Groups Local Agencies State Agencies Federal Agencies Application Reviewed by Corps and Other Interested Agencies, Organizations, and Individuals Permit Issued Public Hearing May Be Held Applicant Signs and Returns with Fee Evaluation Factors • • • • • • • • • • • • • • • • Conservation Economics Aesthetics Environmental Concerns Fish and Wildlife Values Flood Damage Prevention Welfare of the General Public Historic Values Recreation Land Use Water Supply Water Quality Navigation Energy Needs Safety Food Production Application Approved Application Denied Page 3-7 PBS Wetlands Desk Guide – Final Historic Preservation Officer, and other pertinent GSA personnel should work with the COE to coordinate the COE’s compliance requirements with GSA’s. 3.4.2.3 Issuance or Denial of the Permit September 1, 2000 increase function and values. The applicability and extent of the alternatives analysis and appropriate levels of mitigation is determined through close coordination on a case by case basis during the permit evaluation process. Ultimately, the COE will either issue or deny the permit. If the permit is issued, the COE may include conditions that GSA and/or its contractor is required to fulfill in order to mitigate environmental impacts. These conditions may not be limited to those necessary to control impacts on wetlands; they may involve impacts on endangered species, historic properties, social factors, natural resources, traffic, economics, visual factors, and other aspects of the environment. Whatever mitigation measures are stipulated in the COE permit, as well as any other mitigation measures the responsible GSA official determines to be appropriate, must be implemented. Effective and enforceable measures must be put in place, and documented in the FONSI or ROD under NEPA, to ensure that implementation occurs. Ongoing monitoring must be provided for to ensure that mitigation measures are carried out in an orderly manner, and brought to completion. 3.4.2.4 3.5 LEASING ACTIONS 3.5.1 Leasing in Existing Structures GSA’s Decision GSA’s decision on the action must be consistent with the terms of the COE permit, and must incorporate and ensure implementation of any permit conditions. No project involving discharge of dredged or fill material into a wetland may go forward without a COE permit. 3.4.2.5 Mitigation and Monitoring Unless a proposed action is water dependent, the COE guidelines presume the existence of alternatives which would not impact waters of the United States. GSA or its contractor may be required to provide information regarding alternatives considered which would avoid impacts altogether, or if this is impractical, show measures taken to minimize impacts to aquatic resources such as wetlands. Further mitigation through compensation for resources or replacement of resources may be required, depending upon the nature and value of the resource. These types of mitigation are referred to as compensatory mitigation, and can include creating aquatic resources where none existed previously, restoring resources where they previously existed, or enhancing existing resources to Where the space needs of a GSA customer can be satisfied using space in an existing structure (and there will be no excavation or other actions that might result in the discharge of fill to a wetland), no action is needed to consider effects on wetlands. Interior alterations or renovations in existing buildings do not require consideration of impacts to wetlands. 3.5.2 Lease Construction and Other Lease Actions Involving Discharges Where a lease may result in a discharge to a wetland (for example, placement of dirt or debris from a renovation project in a wetland), GSA’s Solicitation for Offers (SFO) should stipulate that the offeror obtain COE authorization or notify GSA that such authorization is not necessary. To comply with ADM 1095.5, program staff should also: (a) Ensure that all offerors include in their initial offers an assessment of the Page 3-8 PBS Wetlands Desk Guide – Final likelihood that construction will adversely impact a regulated wetland (language to this effect should be included in GSA’s SFO). (b) Ensure that each offeror invited to submit best and final offers include in their offer either a written determination that selection of the offer will not result in the discharge of fill into a wetland, or a qualified written estimate of the cost of obtaining and complying with a written COE authorization for the discharge. The determinations and cost estimates should be based upon either a wetland delineation performed by the COE or a COE certified delineator, or, when a delineation is not necessary, a signed statement to that effect from the COE. Appendix 3 provides standard language for use in ensuring that offerors provide the requisite information. (c) When it is known that there will be an impact to a wetland, the impact is included in the appropriate NEPA document and is brought to the attention of the appropriate REQA. 3.6 DISPOSAL OF FEDERAL REAL PROPERTY When Federally-owned wetlands or portions of wetlands are proposed for lease, easement, right-of or disposal to non-Federal public or private parties, the Federal agency shall (a) reference in the conveyance those uses that are restricted under identified Federal, State or local wetlands regulations; and (b) attach other appropriate restrictions to the uses of properties by the grantee or purchaser and any successor, except where prohibited by law; or (c) withhold such properties from disposal. Executive Order 11990 Where GSA disposes of Federal real property, program staff may comply with EO 11990 and ADM 1095.5 by considering potential impacts on wetlands as part of NEPA review, and by providing notice through the invitation for bids (IFB) that all September 1, 2000 potential and future recipients of the property will be responsible for complying with all Federal, State and local wetlands regulations. 3.7 WHERE NO COE PERMIT IS REQUIRED Where a COE permit is not required because no discharges into wetlands or other waters of the U.S. will occur as such, other direct and indirect impacts on wetlands must nevertheless be considered in reaching a decision about whether and how to proceed with the project, and mitigation measures must be implemented as needed. NEPA documents should demonstrate consideration of the following kinds of effects on wetlands, to the extent they are applicable to the action under review. (a) Effects that may influence water supply, quality, recharge and discharge, or pollution; (b) Effects that may exacerbate flood and storm hazards; (c) Effects on the natural systems upon which wetlands depend, through changes in flora and fauna, species and habitat diversity, hydrological utility, fish, wildlife, timber, and food or fiber resources; (d) Potential changes in the recreational, scientific, or cultural uses of wetlands (for example, by blocking access to them); (e) Non-federal actions that would not occur but for the GSA action, such as development of a commercial mall that involves use of a parcel of surplus Federal property; (f) Secondary effects beyond GSA’s control, such as reasonably foreseeable stimulation of housing or office Page 3-9 PBS Wetlands Desk Guide – Final September 1, 2000 development in the vicinity of a Federal building. All such effects are considered in the context of a COE permit application, but even where such an application is not required because there will be no actual discharge into a wetland, GSA must nevertheless consider them under NEPA and EO 11990. Page 3-10 PBS Wetlands Desk Guide – Final September 1, 2000 Chapter 4 - Coordination with Other Authorities 4.1 ?? 5.3(g) Acquisition easements; COORDINATION WITH NEPA Consideration of impacts on wetlands should be a routine part of GSA’s environmental analysis performed under NEPA, including analyses performed to screen categorical exclusions, analyses performed to develop environmental assessments (EAs), and analyses carried out as part of environmental impact statement (EIS) preparation. All types of impacts on wetlands, including direct, indirect, and cumulative impacts, must be considered (see ADM 1095.1F and the PBS NEPA Desk Guide for direction on NEPA compliance). An example of a direct impact on a wetland would be draining the wetland. An example of an indirect impact would be to reduce or increase the local water table to a point at which the moisture content of the wetland would be affected. An example of a cumulative impact would be disposal of a property by transfer to a party that would develop it as part of a general pattern of local development resulting in wetland deterioration. 4.1.1 Categorical Exclusion Actions (CATEX) (a) Automatic CATEXs. The automatic categorical exclusion actions listed in Section 5.3 of the PBS NEPA Desk Guide generally have so little potential for impact on wetlands that they require no review of such impacts. However, a few of these CATEXs have some marginal potential for discharge into a wetland, and should be subjected to the abbreviated review described below for checklist CATEXs. The automatic CATEXs that should be given some review are: ?? 5.3(f) Outlease or license government-owned space; of of land or ?? 5.3(j) Repair and alteration projects where there is no evidence of controversy; ?? 5.3(k) Repairs and alterations in accordance with applicable plans; and ?? 5.3(l) Repair and replacement in kind. (b) Checklist CATEXs. When completing Checklist Question A on the CATEX Checklist (See PBS NEPA Desk Guide p. 5-12), take the following steps: ?? Determine whether the action will involve the discharge of dredged or fill material, including but not limited to soil, stone, rubble, construction (including renovation) debris, or construction of buildings, berms, dikes, or dams, or the placement of pilings in the ground. If not, no COE permit is required, though further consideration of direct, indirect, or cumulative effects not involving discharges may be required under NEPA (See Checklist Questions B, D, E, F, G, I, and J). If a discharge may occur, determine whether it may occur in a wetland. Making this determination may require review of maps and other documents as well as some field inspection by a knowledgeable party. Be sure to consult the Regional Environmental Quality Advisor (REQA) or Field Office personnel. Be sure to consider the project construction site (if any) site preparation and staging areas, and any place where discharge of construction debris, spoil, or other material may occur. If Page 4-1 PBS Wetlands Desk Guide – Final you don’t know whether there might be a wetland involved a wetland delineation as discussed in Section 3.4 may be necessary. 4.1.2 Environmental Assessments and Environmental Impact Statements Each EA and EIS prepared pursuant to the PBS NEPA Desk Guide must address impacts on wetlands. This can be done either by documenting that the action analyzed in the EA has no potential for such impacts, or by describing such impacts (including the wetland functions that could be impacted), identifying potential mitigation measures or other alternatives, and where a discharge into a wetland will occur, acknowledging the need for a COE permit. 4.2 Coordination with the Coastal Zone Management Act, State Wetland Protection Laws, and Executive Order 11988 Many states have wetland protection statutes and regulations. Coastal states often manage coastal wetlands as part of their Coastal Management Program under the Coastal Zone Management Act (CZMA). Some states also require permits to dredge or fill wetlands. GSA projects must conform to state wetland protection laws. For example, GSA's Federal Acquisition Regulations (Section 52.236-7, "Permits and Responsibilities," November, 1991), states that contractors are "responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work." Therefore, if a proposed leaseconstruction project could impact a wetland, you should also identify state regulations that may be applicable to the project. Under the CZMA, any development project that could directly affect a wetland in a state's coastal zone may also require GSA to file a consistency determination with the state. September 1, 2000 In addition, consider that some wetlands are also in a floodplain. EO 11988, "Floodplain management," established the Federal policy of avoiding direct or indirect support of floodplain development when other alternatives are available. The Federal Emergency Management Agency (FEMA) has established procedures for agencies to follow when GSA finds that there are no practicable alternatives to locating a proposed action in a floodplain. 4.3 PUBLIC INVOLVEMENT EO 11990 directs agencies to provide an opportunity for early public review of any plan or proposal for new construction in wetlands. To minimize duplication of effort, if GSA's proposed action will require a COE permit, then the public notification process to obtain the permit fulfills the public involvement requirements of EO 11990. Similarly, if GSA's proposed action will require the preparation of an EA or an EIS, the public involvement requirements under NEPA, EO 11990, and COE permit process should be combined as much as possible (see PBS NEPA Desk Guide, Chapter 4). Page 4-2 PBS Wetlands Desk Guide – Appendix 1 Final September 1, 2000 APPENDIX 1: PERTINENT LEGAL AUTHORITIES RELATED TO WETLAND MANAGEMENT Regulations and Orders Section 404 of the Clean Water Act Section 10 of the Rivers and Harbors Act National Environmental Policy Act (NEPA) Executive Order 11990, “Protection of Wetlands” ADM 1095.5, “Consideration of Wetlands in Decisionmaking” Title 33 Code of Federal Regulations Parts 320-330 (not included refer to website below) See: www.gsa.gov/pbs/pt/call-in/erlsub3.htm#wetl State and Local Wetland Regulations (not included refer to website below) See: www.gsa.gov/pbs/pt/call-in/wetlinks.html Page A1-1 PBS Wetlands Desk Guide – Appendix 1 Final September 1, 2000 Section 404 of the Clean Water Act Permits for Dredged or Fill Material Title 33 US Code (U.S.C.) Part 1344 (a) The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit under this subsection, the Secretary shall publish the notice required by this subsection. (b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary “(1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zones, and the ocean under section 403(c), and ”(2) in any case where such guidelines under clause (1) alone would prohibit the specification of a site, through the application additionally of the economic impact of the site on navigation and anchorage. (c) The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection. (d) The term “Secretary” as used in this section means the Secretary of the Army, acting through the Chief of Engineers. (e)(1) In carrying out his functions relating to the discharge of dredged or fill material under this section, the Secretary may, after notice and opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. Any general permit issued under this subsection shall (A) be based on the guidelines described in subsection (b)(1) of this section, and (B) set forth the requirements and standards which shall apply to any activity authorized by such general permit. (e)(2) No general permit issued under this subsection shall be for a period of more than five years after the date of its issuance and such general permit may be revoked or modified by the Secretary if, after opportunity for public hearing, the Secretary determines that the activities authorized by such general permit have an adverse impact on the environment or such activities are more appropriately authorized by individual permits. (f)(1) Except as provided in paragraph (2) of this subsection, the discharge of dredge or fill material— Page A1-2 PBS Wetlands Desk Guide – Appendix 1 Final September 1, 2000 (A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices; (B) for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures; (C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; (D) for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters; (E) for the purpose of construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized; (F) resulting from any activity with respect to which a State has an approved program under section 208(b)(4) which meets the requirements of subparagraphs (B) and (C) of such section, is not prohibited by or otherwise subject to regulation under this section or section 301(a) or 402 of this Act (except for effluent standards or prohibitions under section 307 ). (f)(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. (g)(1) The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto), within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program. (g)(2) Not later than the tenth day after the date of the receipt of the program and statement submitted by any State under paragraph (1) of this subsection, the Administrator shall provide copies of such program and statement to the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service. Page A1-3 PBS Wetlands Desk Guide – Appendix 1 Final September 1, 2000 (g)(3) Not later than the ninetieth day after the date of the receipt by the Administrator of the program and statement submitted by any State, under paragraph (1) of this subsection, the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, shall submit any comments with respect to such program and statement to the Administrator in writing. (h)(1) Not later than the one-hundred- twentieth day after the date of the receipt by the Administrator of a program and statement submitted by any State under paragraph (1) of this subsection, the Administrator shall determine, taking into account any comments submitted by the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, pursuant to subsection (g) of this section, whether such State has the following authority with respect to the issuance of permits pursuant to such program: (A) To issue permits which— (i) apply and assure compliance with, any applicable requirements of this section, including, but not limited to, the guidelines established under section (b)(1) of this section, and sections 307 and 403 of this Act; (ii) are for fixed terms not exceeding five years; and (iii) can be terminated or modified for cause including, but not limited to, the following: (I) violation of any condition of the permit; (II) obtaining a permit by misrepresentation, or failure to disclose fully all relevant facts; (III) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge. (B) To issue permits which apply, and assure compliance with, all applicable requirements of section 308 of this Act, or to inspect, monitor, enter, and require reports to at least the same extent as required in section 308 of this Act . (C) To assure that the public, and any other State the waters of which may be affected, receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application. (D) To assure that the Administrator receives notice of each application (including a copy thereof) for a permit. (E) To assure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendation to the permitting State (and the Administrator) with respect to any permit application and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and the Administrator) in writing of its failure to so accept such recommendations together with its reasons for so doing. (F) To assure that no permit will be issued if, in the judgment of the Secretary, after consultation with the Secretary of the department in which the Coast Guard is operating, anchorage and navigation of any of the navigable water would be substantially impaired thereby. Page A1-4 PBS Wetlands Desk Guide – Appendix 1 Final September 1, 2000 (G) To abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement. (H) To assure continued coordination with Federal and Federal-State water-related planning and review processes. (h)(2) If, with respect to a State program submitted under subsection (g)(1) of this section, the Administrator determines that such State— (A) has the authority set forth in paragraph (1) of this subsection, the Administrator shall approve the program and so notify (i) such State, and (ii) the Secretary, who upon subsequent notification from such State that it is administering such program, shall suspend the issuance of permits under subsection (a) and (e) of this section for activities with respect to which a permit may be issued pursuant to such State program; or (B) does not have the authority set forth in paragraph (1) of this subsection, the Administrator shall so notify such State, which notification shall also describe the revisions or modifications necessary so that such State may resubmit such program for a determination by the Administrator under this subsection. (h)(3) If the Administrator fails to make a determination with respect to any program submitted by a State under subsection (g)(1) of this section within one-hundred-twenty days after the date of the receipt of such program, such program shall be deemed approved pursuant to paragraph (2)(A) of this subsection and the Administrator shall so notify such State and the Secretary who, upon subsequent notification from such State that it is administering such program, shall suspend the issuance of permits under subsection (a) and (e) of this section for activities with respect to which a permit may be issued by such State. (h)(4) After the Secretary receives notification from the Administrator under paragraph (2) or (3) of this subsection that a State permit program has been approved, the Secretary shall transfer any applications for permits before the Secretary for activities with respect to which a permit may be issued pursuant to such State program to such State for appropriate action. (h)(5) Upon notification from a State with a permit program approved under this subsection that such State intends to administer and enforce the terms and conditions of a general permit issued by the Secretary under subsection (e) of this section with respect to activities in such State to which such general permit applies, the Secretary shall suspend the administration and enforcement of such general permit with respect to such activities. (i) Whenever the Administrator determines after public hearing that a State is not administering a program approved under sectio