National Environmental policy Act NEPA Compliance

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National Environmental policy Act (NEPA)
Compliance and 404 permitting in the Early 21st
century
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Why cant we all just get along? - Rodney King
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COLORADO FRONT RANGE WATER PROJECTS

• Chatfield Reallocation (COE and 15 Participants)
  2000 (20.6 KAF re-allocated storage)
• Rueter Hess (PWSD 2 EISs) 2000-2004 (15 KAF)
  2005 (67 KAF)
• Moffat Expansion (Denver Water) 2003 (18 KAF)
• Windy Gap (13 NCWCD Participants 1) 2003 (33
  KAF)
• NISP (15 NCWCD Participants) 2003 (40 KAF)
• Halligan Seaman (Fort Collins Partners /
  Greeley) 2004 (38 KAF 36 KAF)
• Southern Delivery (CSU) 2003 (90 KAF)
• Non-Jurisdictional, Top Secret and non-EIS
  Projects (ECCV H2O6, Aurora - Prairie Waters,
  Broomfield Res., Gravel Pits, Private Developers)

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LOCAL PLANNING vs. FEDERAL PROGRAMS

• The LEDPA Rules!
• The 404(b)(1) Guidelines no discharge of
  dredged or fill material shall be permitted if
  there is a practicable alternative to the
  proposed discharge which would have adverse
  impact on the aquatic ecosystem, so long as the
  alternative does not have other significant
  adverse environmental consequences.
• An alternative is considered practicable if it
  is available and capable of being done after
  taking into consideration cost, existing
  technology, and logistics in light of overall
  project purposes.

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PURPOSE AND NEED

• Purpose and Need Drives the LEDPA
• Applicants Purpose and Need vs. Federal Purpose
  and Need
• Applicants PN May be Broader Than COE Federal
  PN multi purpose
• Federal PN Basic PN what is the PN that is
  essential to the project?
• Expect the Applicants Purpose and Need Will be
  Scrutinized in Detail!
• Municipal Population Projections / Industrial
  Development BATs
• Existing / Projected Water Use
• Conservation Plans / Conservation Implementation
• Renewable vs. Non-renewable
• Project Economics and Comparison with Other Users
• No Speculative Need Contacts / Agreements

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ALTERNATIVES SCREENING 101

• Alternatives There are always more than you
  ever thought possible
• Alternative Screening An arduous and oddly
  sequenced process!
• Cost may be the applicants primary driver in
  selection of an alternative but not the federal
  governments

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ALTERNATIVES SCREENING 201

• Purpose and Need
• Existing Technology
• Logistics (Geographic, Institutional,
  Practicability)
• Environmental Consequences (TE Species, Aquatic
  Environment)
• Cost (Existing Infrastructure, Rights, Real
  Property, Water Treatment / Transmission)

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ALTERNATIVES SCREENING 301

• SoYou Think You Need An Impoundment?
• Evaluate Other Alternatives
• Aquifer Storage
• Groundwater
• Non-Jurisdictional Impoundments
• Less Environmentally Damaging Alternatives
• Multiple Projects that Achieve the Same Objective
• Conservation / Reuse
• Individual Alternatives or Combinations

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ALTERNATIVES SCREENING 401

• DOA - EPA Mitigation MOA
• 02/06/90
• Avoidance
• Minimization
• Mitigation

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AVOIDING, MINIMIZING AND MITIGATING DELAYS IN THE
NEPA/404 PROCESS

• The Bad Cs
• Competing / Conflicting Interests Water User
  vs. Water User and Water Users vs. Stakeholders
• Confusion Complex issues are often not easy to
  convey to the public
• Contentious Issues Confrontation Court

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AVOIDING, MINIMIZING AND MITIGATING DELAYS A
BETTER WAY?

• The Good Cs
• Consultation
• Communication
• Collaboration
• Compromise
• Consensus (Implied Consent)

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AVOIDING, MINIMIZING AND MITIGATING DELAYS A
BETTER WAY?

• Facilitation
• Shared Vision Planning

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Experience is that marvelous thing that enables
you to recognize a mistake when you make it
again.
Conventional wisdom

• Strategic mistakes made during the NEPA
  process are often difficult to fix because of the
  public review process and the official
  recordgood pre-planning, sound feasibility
  studies, early consultation with the Corps and
  Stakeholders will minimize the potential for
  error.

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LESSONS LEARNED101

• Make sure your project need is defensible.
• Good preliminary planning and solid feasibility
  studies are critical to avoiding permitting
  delays.
• Feasibility studies should view the project
  purpose and need and alternatives through a
  regulators eyes.

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LESSONS LEARNED201

• Never Forget Avoidance, First Minimization,
  Second Mitigation, Last
• Consult with the appropriate regulatory agencies
  early in the planning and feasibility analysis
  process.
• Engage concerned stakeholders and potential
  project opponents early in the planning process
  and rememberInformed consent will keep you out
  of trouble.

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LESSONS LEARNED301

• If reservoir storage is required, smaller, off
  channel impoundments are generally easier to
  permitbut still take considerable time and
  financial resources.
• Large projects that successfully navigate the
  regulatory minefield have elements that are
  attractive to a wide spectrum of stakeholders.
• Offering voluntary environmental enhancement in
  addition to required mitigation is much easier
  than dealing with permitting delays, contested
  permit decisions and bad will.

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LESSONS LEARNED401

• You cant beat City Hall. The laws and
  regulations that govern the NEPA/404 Permit
  program are deeply entrenched with well
  established regulatory and legal precedents.
• Even the best planned large water storage project
  will take years to permit and millions of dollars
  in preliminary engineering studies, environmental
  analysis and NEPA review.
• The deck is stacked in favor of the government
  and environmental stakeholdersand the project
  proponent is not dealing the cards!

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LESSONS LEARNED501

• Accurately Scoping, Scheduling and Pricing
  Third-Party NEPA Contracts is Very Difficult
• Even Project Scoping is Usually a WAG
• Master Services Agreement w/ Specific Task Orders

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LESSONS LEARNED601

• There are Very Few Corps Project Managers Who
  Have Worked on Complex NEPA / 404 Projects
• There are Very Few Third-Party Consultants Who
  Have Worked on Complex NEPA / 404 Projects

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There is scarcely anything in the world that
some man cannot make a little worse, and sell a
little more cheaply. The person who buys on price
alone is this man's lawful prey. - John
Ruskin (1819 1900) English critic,
philosopher and reformer