his proposed project or address the agency's concerns and the agency threatens elevation, the Corps 

 must make the decision on the permit application. The Corps may impose conditions on the 

 permit that will result in enough of a compromise that the commenting agency will withdraw its 

 request for elevation but maintain its objections (Bosenburg, pers. comm.). 



Referral and elevation can result in significant time delays (120 days or more) in the processing 

 of a permit. Because of the time and effort associated with the elevation process, the Corps 

 attempts to avoid having its permit decisions elevated by delaying its permit decision in hopes of 

 a compromise being reached between the applicant and the commenting agency (D. Clark, CMD; 

 pers. comm.). 



In addition to its authority to request elevation under the memorandum of agreement, EPA is 

 given the authority by the Clean Water Act to establish, after consultation with the Corps, 

 substantive guidelines to be used by the Corps in evaluating §404 permit applications (33 U.S.C. 

 §1344(b)). The Clean Water Act further provides that EPA may prohibit the specification of any 

 defined area as a disposal site for dredge or fill material whether before or after a §404 permit has 

 been issued if it determines that such disposal will have an adverse impact on municipal water 

 supplies, shellfish beds, fishery areas including spawning and nursery areas, and wildlife or 

 recreational areas (33 U.S.C. § 1344(c)). This gives EPA veto authority over Corps §404 permit 

 decisions before or after permit issuance. 



The Corps §404 permit decisions are also affected by the comments and regulatory requirements 

 of certain State agencies. Under the Federal consistency requirements of the Coastal Zone 

 Management Act of 1972 (CZMA) Federal agencies including the Corps are required to "conduct 

 or support activities which directly affect the coastal zone of a State in such a manner which is to 

 the maximum extent practicable consistent with approved State management programs" (16 U.S.C. 

 §1457). In accordance with this mandate, the Corps will not issue a §404 or §10 permit for a 

 project over which CMD has jurisdiction unless CMD has either issued a CUP or a determination 

 that the project is consistent with the Louisiana Coastal Resources Program (LCRP), whichever 

 is appropriate. Nor may the Corps issue an §404 or §10 permit with conditions that are 

 inconsistent with a preissued CUP (Clark, pers. comm.). Thus, to obtain a §404 permit, the 

 applicant must satisfy the regulatory requirements of CMD. This could bring in the comments of 

 the other State agencies with which CMD has memoranda of understanding as mentioned above. 

 In the case of blockage or usurpation of State waterbottoms, the DSL may affect a §404 permit 

 by raising an objection to a CUP permit application that CMD feels is sufficient to deny the 

 permit. The denial of the CUP would in effect be a determination of inconsistency with the LCRP 

 thereby prohibiting the Corps from issuing the §404 permit. The DSL may also object directly to 

 the Corps concerning §404 or §10 permit applications. The Corps will not issue a permit over such 

 objections (R. Gonzales, U.S. Army Corps of Engineers, New Orleans, LA; pers. comm.). 



Section 401 of the Clean Water Act requires an applicant for a Federal license or permit which 

 results in any discharge into navigable waters to obtain a certification from the State that the 

 discharge will comply with the applicable provisions of the Clean Water Act (33 U.S.C. 

 §1341(a)(l)). Under this provision the Corps is prohibited from issuing a §404 permit in Louisiana 

 if the applicant has not obtained a water quality certification from the Louisiana Department of 

 Environmental Quality (DEQ) or such certification has been waived by DEQ. This requirement 

 is not limited to the coastal zone but has statewide application. The certification period involves 

 a public notice and comment period and DEQ usually attaches conditions to its certifications (L. 

 Wiesepape, Department of Environmental Quality; pers. comm.). 



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