Environmental Permitting in Louisiana
The permitting and construction of development projects such as marine terminals, surface mines, and commercial developments in Louisiana are especially challenging due to the extent of the coastal management zone and complex freshwater inland wetland ecosystems.
Advanced project planning is required to facilitate communication between the wetland consultant, project proponent, civil engineer, and other stakeholders to ensure protection of wetland and other aquatic resources during project construction and operation.
Below is a preliminary environmental scoping list for Project Managers in charge of planning, permitting, and constructing energy, mining, and commercial development projects in Louisiana, with emphasis for projects located within the New Orleans District:
1 Environmental Permit Schedule – Determine the date needed for all permits. This is usually the date you need to advertise for construction bids. The construction schedule can influence permit decisions by incentivizing resource avoidance to simplify permit submission and expedite permit issuance.
2 Environmental Scoping List – Prepare an environmental scoping sheet. Put on one page each permit needed and the agency requiring it. Major permits may include the following:
- FERC Certificate for interstate natural gas pipelines or LNG infrastructure
- Section 404 Permit for unavoidable impact to wetlands considered to be Waters Of the US (WOUS)
- Section 10 Permit issued by New Orleans District for potential impact to Navigable Waters Of the US (NWOUS)
- Section 408 Permit issued by New Orleans District for potential impact to Navigation on NWOUS
- Coastal Use Permit (CUP) issued by state of Louisiana Department of Natural Resources, Office of Coastal Management, for potential impact to wetlands and other aquatic resources within the state managed Coastal Management Zone
- Section 401 Water Quality Certification issued by state of Louisiana Department of Environmental Quality for water quality review of Section 404 Permit
- Construction Stormwater Permit issued by state of Louisiana Department of Environmental Quality for LPDES compliance
- Floodplain Mitigation Permit, Grading, and Drainage Permit, or Drainage Permit issued by the Parish where project plans trigger local parish review and approval related to drainage or fill within a FEMA FIRM Map identified flood zone
3 Environmental Permitting Budget, Schedule, and Contracting – Request an environmental permit budget and schedule from your consultant. The permit process is defined by agency interpretation and guidance of environmental regulations and therefore the scope of permitting is generally never completely known during the planning process. Therefore, project owners or proponents should provide a contingency in their budgets for unexpected requirements from state or federal agencies. Finally, ask the consultant to follow up with a cost proposal once the final site layout or route alignment is known.
4 Natural Resource Surveys – Natural resource surveys are walking surveys within the parcel boundaries, easement, or right of way of the project to identify state and federally protected resources. This information may be used to adjust the project layout to avoid protected resources or calculate impact acreage for unavoidable impact.
Protected natural resources intercepted by the project may include wetlands, streams, and endangered species. Common natural resource surveys completed for linear projects include:
- Stream Survey – a walking survey of streams to record ordinary high water mark observation (OHWM). The OHWM observations are used by the US Corps of Engineers to determine if the waterways in the ROW are “Waters of the US”. This information is needed for the Section 404 and Section 10 Permit process.
- Wetland Delineation – a wetland delineation to determine the boundaries and acreage of “suspect” wetlands within the ROW. Wetland delineation surveys follow the Army Corps of Engineers Wetland Delineation Guidance.
- Biological Assessment – A Biological Assessment (BA) following USFW Service Guidance is completed to comply with Section 7 of the Endangered Species Act. Data from the BA is used to determine the impact of the project on each federally managed endangered species in the project area.
5 Endangered Species Act Compliance – Compliance with Section 7 of the Endangered Species Act also requires consultation at the state level to identify and determine project impact upon state listed Rare, Threatened, and Endangered (RTE) species. RTE review is completed during the Section 404 permit preparation. RTE species impact from the project is assessed by the Louisiana Natural Heritage Program.
6 National Historic Preservation Act Compliance – – A Desktop Record Review or a Phase I Cultural Resource Survey completed by a Qualified Archaeologist may be required under federal permitting for compliance with Section 106 of the National Historic Preservation Act (NHPA). Section 106 review is a positive advisory process that affords federal agencies the opportunity to take historic preservation fully into account as part of their overall planning process.
The US Corps of Engineers Archaeologist assigned to the project generally will coordinate internally and with the Louisiana Department of Cultural Development – State Historic Preservation Office (SHPO) to determine Section 106 resource impact due to the project. The impact to historic structures is reviewed by the Corps Archaeologist and may also involve consultation with the Division of Historic Preservation for above grade structures and with the Division of Archaeology for below grade artifacts. The Louisiana Department of Cultural Development maintains a map of historic structures and districts.
7 FERC Certificate – Engage FERC early on in the project planning if the project requires FERC siting and construction authorization. FERC is responsible for regulating construction of natural gas pipelines and overseeing related environmental matters. FERC is also responsible for siting and construction of onshore and near-shore LNG import or export facilities and also issues certificates of public convenience for LNG facilities engaged in interstate natural gas transportation by pipeline. The FERC Certification Process requires NEPA compliance through environmental assessments or impact statements.
8 Jurisdictional Determination – Projects that contain areas that are suspect wetlands, streams, or navigable waters require a jurisdictional determination by the Enforcement Section of the New Orleans District. A Jurisdictional Determination is requested to defined project areas that are under the Corps of Engineers jurisdiction for Section 404 and Section 10. Impact to the jurisdictional areas requires a Section 10 and/or Section 404 Permit. The JD is generally submitted by the consultant after authorization from the project proponent and includes a detailed wetland delineation report.
9 Section 10 Permit – A project with potential to fill or dredge a waterway on the List of Navigable Waters of the US within the New Orleans District must be permitted under the authority of US Corps of Engineers – New Orleans District for compliance with Section 10 of the Rivers and Harbors Act. Projects that involve dredge or fill within the ordinary high water mark elevation of a NWOUS, such as marine terminals, docks, mooring anchors, barge fleeting, and permanent conveyors require a Section 10 Nationwide or Individual Permit. Public Notice is required for individual permits. If a Corps of Engineers permit is required, a federal permit including Section 7 (Endangered Species Act consultation) and Section 106 (National Historic Preservation Act consultation) is required as part of your permit application and process.
10 Section 404 Permit – A project with potential to impact a Section 404 jurisdictional resource must obtain a permit under the authority of the US Corps of Engineers – New Orleans District for compliance with Section 404 of the Clean Water Act. Section 404 jurisdictional resources include wetlands and waterways with functional connection to “Waters of the US” (WOUS). The US Corps of Engineers will generally require a General Permit, Nationwide or Individual Permit. Public notice is required for Individual Permits. Permitting is required if any dredge, fill, or horizontal boring is completed within or below wetlands or streams determined to be WOUS.
11 Section 408 Permit – The US Corps of Engineers – New Orleans District will generally conduct a Section 408 review of major projects along NWOUS to grant permission for a project that may impact navigational safety or structures. Navigational review by stakeholders such as the Coast Guard and Navigational Port Authority are components of the Section 408 review process. Example projects allowed for a general procedural 408 Review include most minor impacts to levees, changes to channel structure, pipeline alteration or construction, removal of bridges, bank stabilization and maintenance, installation of new or replacing bulkheads, docks, mooring dolphins and barge fleeting operations. NEPA requirements must be met for 408 qualifying projects and a list of Categorical Exclusions are maintained by the District. Section 408 Requests must include specific Engineering Criteria and Requirements for review.
12 State 401 Water Quality Certification – The Louisiana Department of Environmental Quality (LDEQ) coordinates 401 Water Quality Certification with the Corps of Engineers for dredge and fill permits (Section 10/404). Louisiana does not require a separate application for 401 permits, as do some other states, but rather assist the Corps with their analysis. LDEQ has adopted the 404(b)(1) guidelines to direct their analysis. The Corps of Engineers district with jurisdiction over the project will consult directly with LDEQ to obtained 401 Water Quality Certification.
13 Coastal Use Permit – The Coastal Management program within the Louisiana Department of Natural Resources (DNR) issues its own permit for projects in the coastal zone. The Office of Coastal Management (OCM) is charged with implementing the Louisiana Coastal Resources Program. The OCM regulates development activities and manages the resources of the Coastal Zone. Projects that may impact wetland resources within the Coastal Management Zone require joint permit application between the OCM and New Orleans District. OCM issues a Coastal Use Permit for projects which may impact coastal waters such as any project involving dredge or fill, water control structures, bulkheads, oil and gas facilities, commercial and industrial development, and marina and residential development. CUP Self Determination and Joint On-line Permit Application are key steps in the permit process.
14 Mitigation – Unavoidable and permanent impact to jurisdictional wetlands requires mitigation to replace lost natural resource value. When a discharge of dredged or fill material into wetlands is proposed, all appropriate and practicable steps must be taken to first avoid and then minimize wetland impacts as much as possible. For remaining unavoidable wetland impacts resulting from the project, compensation is required to replace the loss of wetland, stream and/or other aquatic resources. Mitigation may be achieved through the purchase of mitigation bank credits, In-Lieu Fee (ILF) program credits, or Permittee Responsible Mitigation (PRM). Mitigation bank and ILF Programs in the New Orleans District are identified in the RIBITS Website. Purchase of mitigation credits may generally be required at replacement ratio’s beginning at 2 times the loss acreage, depending on a variety of project and ecosystem factors.
15 Monitoring – Once construction is completed, wetland monitoring may be required if previously undisturbed areas were crossed that contained wetlands. Wetland monitoring is usually required for two years by the US Corps of Engineers to provide documentation that wetland conditions returned to pre-construction status or recommend corrective actions if they have not.