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Successes in Stewardship
Monthly Newsletter
June 2004

Negotiating New Inroads: The Section 404 Agreement in Arkansas

Photo of two men in a wetland making field notes

In Arkansas, the process of obtaining a Section 404 Permit was particularly complicated until the Arkansas Highway and Transportation Department, the FHWA, and the USACE worked out a cooperative agreement that streamlines the permitting process for wetlands mitigation with one USACE point of contact.

Strong Interagency Relationships Help Simplify Permitting Process

Cooperation among resource agencies and transportation agencies is essential to streamlining the compliance process required by the National Environmental Policy Act (NEPA), so appreciating the dynamics that can influence interagency cooperation — such as the quality of relationships and processes — is critical to its success. In Arkansas, where transportation agency staff faced an unusually complex process for Section 404 permitting, they leveraged their positive relationships with resource agency staff to collaboratively develop an exceptional alternative. The result: an agreement that streamlines the Section 404 process across the state and benefits all involved agencies.

A Common Problem: Overlapping USACE Jurisdictions

Transportation projects covered by NEPA require a Section 404 permit for the mitigation of any affected wetlands, as directed by the Clean Water Act. For many projects, securing a Section 404 permit can be quite complex compared to other NEPA requirements because of the unique organization of the Army Corps of Engineers (USACE), the permit-granting resource agency. Since their permit authority focuses on specific bodies of water, such as rivers and their tributaries, USACE districts are organized by watershed boundaries, rather than by political or geographic boundaries such as state lines. As a result, many states are covered by two or more USACE districts, and in some cases by more than one division that oversees several districts. While this approach is useful to the USACE in planning, designing, and building its water resource projects, it can be problematic for state and municipal government agencies that need to work in conjunction with the USACE on their own projects. Many of these agencies must coordinate with multiple USACE districts and divisions to obtain a single Section 404 permit.

Until last year, Federal-aid highway projects throughout Arkansas were under the jurisdiction of three separate USACE districts, each with an office in a different state. NEPA projects in Southern Arkansas were administered by the Vicksburg District; projects in Northwest Arkansas and a sliver of land that follows the Arkansas River across the state came under the jurisdiction of the Little Rock District; and those in Northeast Arkansas along the Mississippi River were processed by the Memphis District. Further complicating matters, the Memphis and Vicksburg Districts are within the purview of the Mississippi Valley Division of the USACE, while the Little Rock District is within the Southwestern Division (view a map of USACE districts in Arkansas). Before the Section 404 process was streamlined, a permit application could have been assigned to any of several regulatory personnel at any of the three USACE offices.

Developing the Agreement: A Model of Interagency Collaboration

Fortunately, the staff members at the Arkansas Highway and Transportation Department (AHTD), the Federal Highway Administration (FHWA) Arkansas Division, and the three USACE offices have a long history of working together productively and amiably. The years of working within this restricted, multi-district structure helped strengthen their working relationships. Over many years, they have learned to communicate effectively; just as important, they have seen the mutually beneficial results of their efforts and have forged relationships based on trust.

So when staff at AHTD and FHWA Arkansas Division approached their counterparts at the USACE about streamlining the Section 404 permit process, it didn't take long for the group to take action. Representatives from each of the agencies sat down together for an informal brainstorming session, and took just half a day to establish a basic framework for the agreement, which radically changed the long-standing application process. This rapid turnaround can also be attributed to the team's use of an existing model; an agreement written by the Pennsylvania Department of Transportation was used as a format example.

The radical process change established by the Arkansas agreement created one point of contact for all transportation-related Section 404 inquiries and permit applications within the state of Arkansas (view the Arkansas agreement). This pivotal improvement was made possible because AHTD and FWHA Arkansas Division agreed to fund a dedicated USACE staff position in the centrally located Little Rock District office. It was agreed that the person in this position would process the multitude of 404 permit applications submitted for Arkansas transportation projects and deal with other enforcement and mitigation issues related to transportation.

Keys to Developing an Interagency
Agreement with USACE

Factors to keep in mind when creating an agreement to streamline the Section 404 process:

  • Strong working relationships among USACE and transportation staff members form the basis for cooperative negotiation.
  • A funded position at USACE creates a central processing center for transportation projects; this single point of contact can significantly streamline a complex process.
  • Existing agreements, such as those in Arkansas and Pennsylvania, provide models that can simplify your development process.

Achieving Results with a Single Point of Contact

The agreement was signed in December 2002 and the funded position was filled in the spring of 2003. Since then, all parties have noted improvements in process, communication, and outcome. In general, AHTD and FHWA Arkansas Division have found that the central processing of permits greatly improves process efficiency. Interagency coordination can start early and they can prepare their applications with more consistency. And for the USACE, the workload previously generated by hundreds of permit applications that were processed by several multi-district contacts is now alleviated.

Given that the USACE grants approximately 150 Section 404 permits per year in Arkansas, the streamlining of this process has the potential for significant impact. Because this new process has been in effect for only a year, data on measurable outcomes is incomplete. However, for many projects requiring a nationwide 404 permit, such permits have been approved in 14 working days; previously, this process could have taken a few months.

A less tangible but equally important outcome is an even stronger foundation of interpersonal relationships. A prime factor in creating the interagency agreement, this foundation will likely play a key role in sustaining it. Because the one person who processes all permit applications must interface with all three of the USACE districts as well as with the AHTD/FHWA and resource agencies, he possesses a keen understanding of the diverse policies and program issues of all participating agencies.

Creating Your Agency's Cooperative Agreement with USACE

The situation in Arkansas was unique in that the USACE organization was unusually complicated and the interagency relationships were exceptionally strong. Nevertheless, other agencies can learn from Arkansas's success. State DOTs may clear similar hurdles by establishing friendly and trustworthy working relationships with the staff of the USACE and other agencies, investigating funding mechanisms for dedicated USACE positions, and modeling their efforts on pioneering approaches such as that demonstrated in Arkansas.

Contact Information

Randal Looney
FHWA Arkansas Division
700 West Capitol Avenue, Room 3130
Little Rock, AR 72201
Phone: (501) 324-6430
Fax: (501) 324-6423
Email: Randal.Looney@fhwa.dot.gov

Look What's New!

  • NHI will be offering two NEPA classes this summer. Course #142005: NEPA and the Transportation Decision Making Process will be held in both Anchorage, AK and Baton Rouge, LA on August 31 — September 2. Visit http://www.nhi.fhwa.dot.gov for more information.
  • The TRB Joint Summer Meeting of the Planning, Economics, Environmental, Finance, Freight, and Management Committees will be held July 25-27, 2004 in Park City, Utah. Visit http://gulliver.trb.org/ for more information.

"Successes in Stewardship" is a Federal Highway Administration newsletter highlighting current environmental streamlining practices from around the country. To subscribe, call (617) 494-6352 or email esnewsletter@volpe.dot.gov.

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