Proposed funded agreement

Published Feb. 20, 2020
Expiration date: 3/7/2020

Feb. 20, 2020

This public notice announces the preliminary intent of Norfolk District, U.S. Army Corps of Engineers to accept and expend funds from the Virginia Department of Transportation to expedite processing of its Department of the Army permit applications, subject to certain limitations. The notice also solicits public comments on acceptance and expenditure of funds contributed by VDOT to expedite the evaluation of Army permit applications for projects with a public purpose.

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 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 VDOT would be used to augment the Corps budget in accordance with Section 214 provisions. The Corps would establish a separate account to track funds receipt and expenditure.

Activities for which funds would be expended:
Funds would be expended primarily on the labor of one dedicated Regulatory project manager responsible for processing VDOT 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, public notice preparation and distribution, meetings, consultation with other agencies; preparation of correspondence, environmental assessments and permit-decision documents; public-interest and compensatory-mitigation proposal review, alternatives analysis 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, including endangered-species biological assessments; cultural-resource assessment surveys, preparing regional general permits and other technical documents, including draft environmental reports, at Regulatory Branch direction and review.

If VDOT’s funds are expended and not renewed, its remaining permit applications would be processed like those of any other nonparticipant, in a manner decided by the assigned Regulatory Branch project manager and his or her supervisor.

How funds acceptance is expected to expedite permit process:
The Corps and VDOT believe a dedicated project manager will be able to develop expertise in the types of projects implemented by VDOT, which would improve review efficiency. As a result, based on past experience and current VDOT application volume, funding one full-time Corps reviewer for VDOT projects will result in an expedited review process. It will also improve Corps and VDOT ability to coordinate and prioritize project review, based on schedules and deadlines.

Procedures to ensure impartial decision-making:
To ensure funds will not impact impartial decision-making, the following procedures would be applied:

(a) Funds would not be expended for project manager work review by supervisors or other individuals in the decision-making chain of command.

(b) 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.

(c) Funds from this agreement will not be used for enforcement activities. Funds may be used for compliance inspections, but not to resolve noncompliance issues.

(d) All final permit decisions (including no-permit-required decisions) for applications in which these funds are expended will be made available on the Corps headquarters webpage.

(e) 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.

(f) 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 is not funded by any funding agreement.

(g) All preliminary jurisdictional determinations (JDs) and approved JDs where funds are used to complete the JD must have documentation that a nonfunded regulator conducted a determination review. No field review is required.

Regulatory Program impacts:
Norfolk District does not expect priority review of VDOT’s permit applications to negatively impact the Regulatory Program or increase evaluation time of other project 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 considered in determining whether it’s in the public interest to proceed with this action. If the Norfolk District commander determines, after considering public comments, that funds acceptance and expenditure is in compliance with Section 214, the Corps will implement through a signed memorandum of agreement and accept VDOT funds. 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 VDOT increases the funds amount previously furnished or extends the agreement’s duration, provided the purpose remains the same.

Comments submission:
Interested parties may submit proposal comments in writing.

Comments should be mailed to:
Norfolk District, U.S. Army Corps of Engineers
Regulatory Branch
ATTN: Kimberly Prisco-Baggett
803 Front St.
Norfolk, VA  23510

They can also be sent by email to:

This public notice has a 15-day comment period. Comments should reach this office no later than March 7. For more information, call Kimberly Prisco-Baggett at 757-201-7873. This public notice is issued by the Regulatory Branch chief.

Attachment: Draft Funding Agreement