Environmental Permits and Authorizations for Maintenance Work

What Permits and Authorizations are Needed?

U.S. Army Corps of Engineers (USACE)

Section 404 Permits and Section 401 Water Quality Certification (WQC)Section 404 of the Clean Water Act (CWA) established a program to regulate the discharge of dredged or fill material into waters of the United States. All waters with a "significant nexus" to "navigable waters" are covered under the CWA, including wetlands. Any person, firm or agency planning to place structures or conduct work in navigable waters of the United States, or dump, place or deposit dredged or fill material in waters of the United States must first obtain a Section 404 permit from the Corps of Engineers. Section 404 permits vary and may be nationwide, regional, or individual. Section 401 certificates certify that the proposed work is compliant with water quality standards.

Violation Penalty: a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both.

Section 10 PermitsSection 10 of the Rivers and Harbors Act states that it is prohibited to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or enclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless there is Congressional approval, and excavation or fill within navigable waters requires the approval of the Chief of Engineers.

Violation Penalty: fines up to $2,500 or imprisonment for up to one year or both and the removal or abatement of offending structures.

U.S. Coast Guard (USCG)

Section 9 PermitsSection 9 of the Rivers and Harbors Act prohibits the construction of any bridge, dam, dike or causeway over or in navigable waterways of the United States without Congressional approval. This includes all temporary bridges used for construction access or traffic detour.

Violation penalty: fines up to $2,500 or imprisonment for up to one year or both and the removal or abatement of offending structures.

U.S. Fish and Wildlife Service (USFWS)Incidental/ Non-Purposeful Take PermitsIncidental take permits are required when non-Federal activities will result in take of threatened or endangered species, particularly eagles, their nests, or their eggs.

50 CFR 10 Part 22 - EaglesAccording to the Bald and Gold Eagle Protection Act, you may not sell, purchase, barter, trade, import, export, offer for sale, purchase, barter, trade, take, or transport at any time or in any manner, any bald eagle (Haliaeetus leucocephalus), or any golden eagle (Aquila chrysaetos), or the parts, nests, or eggs of these birds. The Act defines "take" as "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” A permit may be issued under this section to authorize removal or relocation of an inactive eagle nest when the removal is necessary to ensure public health and safety or inactive nest that is built on a human-engineered structure and creates a functional hazard that renders the structure inoperable for its intended use.

Violation penalty: a fine of $100,000 ($200,000 for organizations), imprisonment for one year, or both, for a first offense. Penalties increase substantially for additional offenses, and a 2nd violation of this Act is a felony.

50 CFR 10 Part 21 – Migratory BirdsAccording to the Migratory Bird Treaty Act, no person may take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such bird except as may be permitted under the terms of a valid permit. Penalty for violation: a misdemeanor and conviction would result in a fine of not more than $500 or imprisonment of not more than six months.

USFWS and the National Oceanic and Atmospheric Administration (NOAA)

Endangered Species Act - Section 7 ConsultationFederal agencies and state DOT projects receiving federal money are directed, under section 7(a)(1) of the Endangered Species Act (ESA), to utilize their authorities to carry out programs for the conservation of threatened and endangered species. Federal agencies must also consult with USFWS and/or the NOAA National Marine Fisheries Service (NMFS), under section 7(a)(2) of the ESA, on activities that may affect a listed species. Federal actions and state DOT actions receiving federal funding may not jeopardize the continued existence of a species or destroy or adversely modify critical habitat.

Penalty for violation: a civil penalty of not more than $12,000 for each violation.

Alaska Department of Fish and Game (ADF&G)Title 16 Fish Habitat Permit The Anadromous Fish Act (AS 16.05.871- .901) requires that an individual or government agency provide prior notification and obtain a permit before altering or affecting “the natural flow or bed” of a specified waterbody, or fish stream. All activities within or across a specified anadromous waterbody require approval from the ADF&G Division of Habitat. This includes:

O Construction of a hydraulic projectO Use, diversion, obstruction, pollution, or changing the natural flow or bed of a specified river, lake, or streamO Use of wheeled, tracked, or excavating equipment in the bed of a specified river, lake, or streamO Water withdrawalsO Stream realignment/diversion and bank stabilizationO Culvert repair/replacement/installationO Placing, excavating, depositing, or removing material

The Fishway (or Fish Passage Act AS 16.05.841), requires that an individual or government agency notify and obtain authorization from the ADF&G, Division of Habitat for activities within or across a stream used by fish if it is determined that such uses or activities could represent an impediment to the efficient passage of resident or anadromous fish. This means that a permit may be required for work over water when sediment may fall in and disturb fish (i.e. work on bridges).

Penalty for violation: A fine and sentencing of a class A misdemeanor, if found guilty.

Alaska Department of Natural Resources (ADNR)

Water Use Permits (Temporary and Permanent)A water right is a legal right to use surface or groundwater under the Alaska Water Use Act (AS 46.15). A water right allows a specific amount of water from a specific water source to be diverted, impounded, or withdrawn for a specific use. To obtain water rights in Alaska, you need to submit an application for water rights to the ADNR Division of Mining, Land, and Water. Penalty for violation: Anyone who diverts, impounds, or withdraws a significant amount of water for use, without a permit, certificate, or authorization is guilty of a misdemeanor (AS 46.15.180).

Limited Material SalesLease, sale, or other disposal of state land or resources may be made to a state or federal agency per the Alaska Land Act (AS 38.05.810A). Per our charitable and public material sales agreements with ADNR, in approved material sites without Interagency Land Management Assignments DOT&PF may extract up to 5,000 cu yd of material per year per project. Limited Material Sales agreements require Conditional Use permits to be obtained in the Matanuska-Susitna and Kenai Peninsula Boroughs and annual material use counts to be submitted to ADNR.

Alaska Department of Environmental Conservation (ADEC)Per CFR 40 Part 131A, states must review, establish, and revise water quality standards. States may also issue certifications pursuant to the requirements of the CWA.

Alaska Pollutant Discharge Elimination System (APDES) PermitConstruction projects disturbing more than one acre of ground, excluding routine maintenance projects. Projects must develop and follow a Storm Water Pollution Prevention Plan (SWPPP) to manage materials, equipment, and runoff from the construction site.

Violation Penalty: EPA - $37,500 per day per violation; ADEC - $500-$100,000 plus $10,000 per day. If violation knowing & willful, criminal penalties up to $10,000 and possible jail time.

Dewatering PermitThe state of Alaska regulates discharge of wastewater from excavations on sites located <1 mile from a contaminated site OR from excavations on sites located >1 mile from a contaminated site when project is not eligible for coverage under APDES. The owners and operators of facilities covered under this general permit are authorized to discharge to the lands and waters of the state of Alaska. Eligible projects may include earthwork activity such as culvert placement; gravel extraction; pipeline installation, inspection or repair; and other similar projects.

Stormwater Plan Review and Letter of Non-ObjectionAccording to 18 AAC 72.600, engineering plans should be submitted to DEC for review and approval. To obtain a "letter of non-objection" for all projects with permanent stormwater controls, treatment controls, or sewer systems.

ADEC, ContinuedPesticide General PermitIn compliance with the provisions of the CWA, 33 U.S.C. §1251 et seq., as amended by the Water Quality Act of 1987, P.L. 100-4; this permit is issued under provisions of Alaska Statutes 46.03; the Alaska Administrative Code as amended; and other State laws and regulations. A person or government entity may not, without first obtaining a permit issued by the department, direct, conduct, participate in, or allow the use of a pesticide1. to waters of the state; or2. by aircraft or helicopter

Violation penalty: the ADEC will serve a written stop sale, use, or removal order to the owner or custodian of the pesticide or device

Title I Minor Air Quality Permit40 CFR 52.21(b)(23) and Anchorage Municipal Code AMC 15.35.090D allow the ADEC Air Permit Program to protect the Alaskan environment by ensuring that air emissions from industrial operations in the state do not create unhealthy air.

Kenai Peninsula Borough (KPB) and Kenai River Center (KRC)KPB Conditional Use PermitKPB Code Chapter 21.18 allows the KPB to issue permit applications for projects that: a) are located within the Borough 50-foot Habitat Protection Area (construction, major vegetation clearing and other development activities within 50-feet of the: Anchor River, North Fork Anchor River, Beaver Creek, Bishop Creek, Bradley River, Chickaloon River, Deep Creek, English Bay River, Fox River, Funny River, Kasilof River, Kenai Lake, Kenai River, Killey River, Upper Killey River, Moose River, Ninilchik River, Quartz Creek, Russian River, Slikok Creek, Soldotna Creek, Stariski Creek, Seldovia River, Seven Egg Creek, and Swanson River) b) are not described as permitted activities in the KPB Code c) do not require permits from agencies other than the KPB.

As Conditional Use Permits must be approved by the KPB Planning Commission, applications may take up to 3 months to process.

KPB Floodplain Development PermitKPB Ordinance 86-97 mandates that the KPB Floodplain development program conform to the requirements of the FEMA National Flood Insurance Program (NFIP). The KPB Floodplain program issues floodplain development permits for all structures and for all other development including fill and other activities within flood hazard areas established in KPB.

KPB Material Site PermitsKPB Code of Ordinances Chapter 21.29 regulates material extraction, materials processing, and excavation in the water table within the KPB. The KPB Planning Department issues material site permits for material extraction which disturbs no more than 2.5 cumulative acres and does not enter the water table. A conditional land use permit (CLUP) is required for material extraction which disturbs more than 2.5 cumulative acres, or material extraction of any size that enters the water table.

Violation penalties in the KPB: For any violation, the KPB may force the guilty party to correct or abate the violation or recover a civil penalty not exceeding $500.00 per day for each violation

Municipality of Anchorage (MOA)Noise PermitAnchorage's Municipal Noise Ordinance (AMC15.70) limits the level of allowable noise based on location and time of day. A "noise permit" allows a temporary increase in allowable noise levels. Only certain events are eligible for a noise permit:O Construction O Explosives O Public events O Snow removal O Motor vehicle racing events

Flood Hazard Development PermitMOA flood hazard ordinance 21.60 mandates that no person shall engage in development within the flood hazard district unless a special flood hazard permit is first issued. The MOA requires a Flood Hazard Permit for all new construction or development within the floodplain, such as grading, cut and fill, installation of riprap and other bank stabilization techniques.

Stormwater Treatment Plan ReviewStorm water pollution control requirements are set forth in Title 21 (Land Use Planning) of theAnchorage Municipal Code (AMC). This code requires anyone who constructs, installs, modifies, or operates a storm water treatment or disposal system within the municipal boundaries to comply with the SWTPRGM regarding storm water runoff system plan requirements and plan reviews.

Matanuska-Susitna Borough (MSB)Floodplain Development PermitMSB 17.29 Flood Damage PreventionA Floodplain Development Permit is required prior to rebuilding or any other development within a Federally Designated Flood Hazard Area within the MSB. The permit shall be for all structures and for all development including fill and other activities. Violation penalty: The MSB may take such lawful action as is necessary to prevent or remedy any violation.

What To Do

Months before the work you want to do is ready to commence, call or email me or Jennifer and ask us to look into whether you need any permits. If you do, we’ll take care of the paperwork.

Give us details on the work you want to do, including:O Work location information (roads, intersections, and mileposts or mile points)O Approximate work areaO Purpose of work (why it needs to be done)O Scaled drawings of proposed workO Approximate cubic yards of material that will be installed/removed/relocatedO Photos of work areaO Culvert sizes/lengths

Questions and Contact Information

Renée Forque, Environmental Impact Analyst II Alaska Dept. of Transportation and Public Facilities Maintenance & Operations Section, Central Region P.O. Box 196900, Anchorage, Alaska 99519-6900 Phone (907) 269-0714| Fax (907) 248-1573

Jennifer Micolichek, Environmental Impact Analyst II Alaska Dept. of Transportation and Public Facilities Maintenance & Operations Section, Central Region P.O. Box 196900, Anchorage, Alaska 99519-6900 Phone (907) 269-5690| Fax (907) 248-1573