Programmatic Permitting for Maintenance Activities

Pile repair and replacement are recurring maintenance activities for marine and freshwater ports throughout the United States. Because these activities require in-water work, they trigger the need for environmental permitting and compliance, including Rivers and Harbors Act (RHA) Section 10 and Clean Water Act (CWA) Section 404 permitting with the US Army Corps of Engineers (USACE), as well as compliance with the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). Preparing individual permit applications for recurring actions of similar scope and with similar potential effects increases uncertainty for project proponents and can affect port operations. It also results in increased costs to project proponents and regulatory agencies alike. To address these issues, federal regulatory agencies, such as the USACE, National Marine Fisheries Service (NMFS), and U.S. Fish and Wildlife Service (USFWS), have developed programmatic permits and consultation processes in which certain types of activities are pre-approved. If a project can be designed to satisfy the criteria of the programmatic approval, then the permit issuance can be expedited. While the USACE has established several existing programmatic permits and ESA consultations, some types of activities do not satisfy the criteria of an existing programmatic permit or ESA consultation. In these cases, a project proponent may be best suited by developing an individual programmatic USACE permit and ESA consultation with NMFS and USFWS, which can be tailored to the needs of the activity. The Port of Tacoma in Washington State recently developed a programmatic CWA permit and ESA consultation for pile replacement at 12 Port facilities for a period of five years. This paper describes the Port's programmatic permitting approach and compares and contrasts it with a traditional approach of permitting individual actions. The paper concludes with a summary of the benefits and potential drawbacks of a programmatic permitting approach, the regulatory considerations, and the types of situations in which a programmatic approach can be most beneficial.