16 February 2024
CENAO-WRR
FEDERAL PUBLIC NOTICE
This Public Notice announces the preliminary intent of the U.S. Army Corps of Engineers Norfolk District (Corps) to accept and expend funds from the Virginia Passenger Rail Authority (VPRA) to expedite processing of their Department of the Army (DA) permit applications subject to certain limitations. This Public Notice also solicits comments from the public on the subject of acceptance and expenditure of funds contributed by VPRA to expedite the evaluation of DA permit applications for projects with a public purpose.
Authorities:
Section 214 of the Water Resources Development Act of 2000 (Section 214) as amended and codified at 33 U.S.C. 2352 provides in part that: “The Secretary, after public notice, may accept and expend funds contributed by a non-Federal public entity or a public-utility company, natural gas company, or railroad carrier to expedite the evaluation of a permit of that entity, company, or carrier related to a project or activity for a public purpose under the jurisdiction of the Department of the Army.”
The authority to accept and expend funds under Section 214 has been delegated to the Chief of Engineers and his authorized representatives, including the Commander of the Norfolk District, U.S. Army Corps of Engineers.
How the Corps Would Expend Funds:
The Corps Regulatory Program is funded as a congressionally appropriated line item in the annual Federal budget. Additional funds received from VPRA would be used to augment the budget of the Corps in accordance with the provisions of Section 214. The Corps would establish a separate account to track the receipt and expenditure of the funds.
Activities for Which Funds Would be Expended:
Funds would be expended primarily on the labor of one-half of a dedicated Regulatory project manager responsible for the processing of VPRA permit applications pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). Such permit processing activities could include but would not be limited to the following: application completeness review, jurisdictional determinations, site visits, preparation of public notices, preparation of correspondence, meetings, consultation with other agencies, public interest review, distribution of public notices, analysis of alternatives, compensatory mitigation proposal review, preparation of environmental assessments, preparation of permit decision documents and permit compliance inspections. Funds may also be expended to hire contractors to perform select duties such as site visits, technical writing, copying, technical contracting for review of specific items such as biological assessments for endangered species, cultural resource assessment surveys, preparing regional general permits, and other technical documents, including draft environmental documents, at the direction and review of the Regulatory Branch.
If VPRA’s funds are expended and are not renewed, VPRA’s remaining permit applications would be processed like those of any other non-participant, in a manner decided by the assigned Regulatory Branch project manager and his or her supervisor.
How Acceptance of Funds is Expected to Expedite the Permit Process:
The Corps and VPRA believe that one-half of a dedicated project manager will be able to develop expertise in the types of projects implemented by VPRA which will improve the efficiency of review. As a result, based on past experience and current volume of VPRA applications, funding one-half of a full-time Corps reviewer for VPRA projects will result in an expedited review process for VPRA projects. It will also improve the ability of the Corps and VPRA to coordinate and prioritize review of projects based on project schedules and deadlines.
Procedures to Ensure Impartial Decision Making:
To ensure the funds will not impact impartial decision making, the following procedures would be applied:
- Funds would not be expended for review of project managers’ work by supervisors or other persons in the decision making chain of command.
- All final permit decisions for cases where these funds are used must be reviewed and approved in writing at least one level above the decision maker.
- Funds from this agreement will not be used for enforcement activities.Funds may be used for compliance inspections, but cannot be used to resolve non-compliance issues.
- All final permit decisions (including no permit required decisions) for applications where these funds are expended will be made available on the Corps Headquarters’ web page.
- The Corps must ensure compliance with all applicable laws and regulations and will not eliminate any procedures or decisions that would otherwise be required for the type of project and permit application under consideration.
- Instruments for mitigation banks or in-lieu-fee programs developed for the entity with a funding agreement must be signed by the Regulatory Branch Chief or higher level position that us not funded by any funding agreement.
- All preliminary jurisdictional determinations (JDs) and approved JDs where funds are used to complete the JD must have documentation that a non-funded regulator conducted a review of the determination.The review does not need to be a field review.
Impacts to the Regulatory Program:
We do not expect priority review of VPRA’s permit applications to negatively impact the Regulatory Program or to increase the time to evaluate other projects’ permit applications since additional staff may be hired to augment this priority review.
Consideration of Comments:
The Corps is soliciting comments from the public, Federal, State and local agencies and officials, and other interested parties. Comments will be made part of the administrative record, and they will be considered in determining whether it would be in the public interest to proceed with this action. If the Norfolk District Commander determines, after considering public comments, that the acceptance and expenditure of the funds is in compliance with Section 214, the Corps will implement through a signed memorandum of agreement and accept funds from VPRA. Funds will be accepted only if the public interest is better served through cost-effectiveness, enhanced evaluation capability, streamlined permit application processing, or other appropriate justification. A final public notice will be issued regarding the District Commander’s decision. Beyond that, no new public notice will be issued if VPRA increases the amount of funds previously furnished or extends the duration of the agreement, provided that the purpose remains the same.
Submission of Comments:
Interested parties may submit comments concerning this proposal in writing.
Comments should be mailed to:
U.S. Army Corps of Engineers, Norfolk District
Regulatory Branch
ATTN: Kimberly Prisco-Baggett
803 Front Street
Norfolk, VA 23510
Alternatively, comments can be sent electronically to: Kimberly.A.Baggett@usace.army.mil
This public notice has a 15-day comment period. Comments should reach this office not later than the expiration date of this public notice. For additional information please call Kimberly Prisco-Baggett of my staff at 757-201-7873. This public notice is issued by the Chief, Regulatory Branch.
Attachment: Draft Funding Agreement