Who is involved?
Agency roles for development of the EIS
The U.S. Army Corps of Engineers (Corps) is responsible for federal environmental review under the National Environmental Policy Act (NEPA), while Whatcom County and the Washington Department of Ecology (Ecology) are responsible for the state’s environmental review under the State Environmental Policy Act (SEPA). The following illustrates the regulatory jurisdiction for each of the Co-Lead Agencies.
Agency roles following the issuance of the final EIS
Each Co-Lead Agencies, along with other state and federal agencies, will use the information contained in the EIS as well as information gathered through the permit application process to inform decisions. Each Co-Lead Agency regulates different activities, under different authorities and makes different decisions. Some of those decisions are described below.
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Once the final EIS has been issued, the Corps will prepare a record of decision (ROD) pursuant to 40 Code of Federal Regulations (CFR) 1505.2 and 33 CFR 325.2(a)(6)). The ROD may not be signed until 30 days after the notice of availability of the final EIS is published in the Federal Register. The ROD will:
- Identify all alternatives considered by the agency and specify the alternative or alternatives that were considered to be environmentally preferable.
- State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why.
- Provide the Corps’ views on the probable effect of the proposed work on the public interest, including conformity with the Section 404 (b)(1) guidelines published for the discharge of dredged or fill material into waters of the United States (40 CFR part 230).
- Address compliance with other federal laws (Endangered Species Act, etc.) and provide a summary of the monitoring required, where applicable, for any mitigation, and the permit decision of the district engineer.
Through the ROD, the Corps will ultimately determine whether permits may be issued under the following laws and regulations:
- Section 404 of the Clean Water Act (Corps follows 33 Code of Federal Regulations (CFR) Parts 320 through 332) and Section 404(b)(1) Guidance (40 CFR Part 230)
- Section 10 of the Rivers and Harbors Act of 1899
Other federal agency involvement
In addition, the Corps will consult with other federal agencies to ensure compliance with all applicable federal laws (Endangered Species Act, National Historic Preservation Act, etc.). For information on the Corps’ Regulatory Permit Program, review the “Permit Guidebook.”
Tribal Trust responsibility
The Corps will also consult with applicable tribes as part of the federal treaty trust responsibilities. Consultations could include such issues as usual and accustomed fishing rights, including tribal fishing, fisheries and fisheries habitat, cultural resources, and the tribes’ ability to meet moderate living needs.
Ecology will determine whether permits and approvals may be issued for the proposals under the following laws and regulations:
- Section 401 Clean Water Act Water Quality Certification
- Requires evaluation of whether the proposal will comply with state water quality standards. This evaluation will ensure adequate mitigation for impacts to wetlands, streams and aquatic habitat.
- National Pollutant Discharge Elimination System (NPDES) Industrial Stormwater Permit
- Establishes controls over water pollution by regulating point sources that discharge pollutants into waters of the state. A separate NPDES permit is necessary for the construction period of any proposed action affecting a water body.
- Coastal Zone Management Act Consistency
- Determines whether the proposal is consistent with the policies of Washington’s Coastal Zone Management Program, which includes SEPA, the Shoreline Management Act, and the Clean Air Act.
Other state agencies will use information from the EIS for their related actions and permit processes, including but not limited to:
- Washington State Department of Fish and Wildlife
- Hydraulic Project Approval is necessary for any use that diverts, obstructs or changes the natural flow or bed of any fresh water or saltwater of the state.
- Washington State Department of Natural Resources (DNR)
- A lease must be received by DNR prior to constructing the wharf and trestle on state-owned aquatic lands. DNR cannot issue a lease until after the project receives all applicable federal, state, and local permits.
- A Forest Practice Application (FPA) must be submitted to DNR prior to any conversion activities, such as road building, timber harvest, and clearing. The permit application must include a declaration from the county that the SEPA process is complete, and a release letter from the county stating that all permits have been approved and work can begin.
- Northwest Clean Air Agency
- Clean Air Act requires an estimate of pollutant emissions from both construction and operation phases of an industrial facility to determine whether emissions from each phase conform to air quality standards. If emissions from either phase are expected to exceed air quality standards, then measures to mitigate emissions would be sought prior to issuing any permits to construct.
Seven days following issuance of final EIS, Whatcom County can make decisions on the applications for the Major Development Permit (Whatcom County Code Chapter 20.88) and the Shoreline Substantial Development Permit (Whatcom County Code Chapter 23.60) provided that the applicant has submitted the information necessary. In addition, Whatcom County will determine if the following local permits may be issued:
- Land Disturbance Permits (Whatcom County Code Chapters 15.04, Chapter 16.16).
- Commercial Construction and Occupancy Permits (Whatcom County Code Chapter 15.04).
- On-Site Sewage System Design and Installation Permits and Water Verification (Whatcom County Code Chapter 24.05).
- Revocable Encroachment Permit and Right-of-Way Vacation (Whatcom County Code Chapter 12.16).