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This is a thumbnail of the process for medium to large projects in the Central Valley, where most California vernal pools are found.  The process differs significantly for small projects (eligible for a Nationwide Permit from the Corps), and may also differ significantly for very large projects (which may use a Habitat Conservation Plan for endangered species approvals).  There are smaller differences for vernal pools in other parts of the state, handled by different offices of the regulatory agencies.

Wetland Delineation and Biological Surveys (COMPLETED)

A wetland delineation, identifying all watercourses, vernal pools, and other wetlands on the site is prepared (usually by the applicant's consultant), submitted to the US Army Corps of Engineers, and verified by the Corps after any necessary modifications.

Biological surveys are conducted to determine what sensitive species are present and where they are. Species-specific protocols are used for some species, and general protocols are used for others.

Prepare and Submit an Application

The applicant plans the project and prepares an application package. This package must contain basic information that briefly describes the project and simple drawings illustrating the project. It also normally contains three key supporting documents:

• A Wetland Mitigation Plan containing a proposal to offset impacts on wetlands and their functions and values
   
• A Endangered Species Mitigation Plan containing a proposal to minimize and offset impacts on federally listed species
   
• An Alternatives Analysis, containing the applicant's evaluation of alternative sites and alternative configuration of the project on the proposed site. The project is not eligible for a permit if it may practicably be built on a less damaging site or if it may practicably be configured in a less damaging manner on the proposed site.

Issue Public Notice and Initiate Related Approvals/Processes

When a complete application is submitted, the Corps issues a Public Notice requesting comments from the public, key state and federal agencies, and other interested parties. The Public Notice normally sets a 30-day period for receipt of comments. Among other things, the Public Notice allows the public to request a formal Public Hearing. If one is held, it provides additional opportunity for comment.

A number of related approvals and processes are usually initiated concurrently with Public Notice issuance.

• The Corps will initiate Endangered Species Act consultation with the US Fish and Wildlife Service. This begins a process within the process, in which Fish and Wildlife will prepare a Biological Opinion containing two key project approvals or denials:
   
  • Fish and Wildlife determines if the proposed project would jeopardize listed species - in other words: appreciably reduce the likelihood that any listed species would survive in the wild and recover from its listed status (a "Jeopardy Opinion"), or would not jeopardize listed species ("Non-Jeopardy Opinion"). A Jeopardy Opinion effectively prevents the Corps from issuing a permit, while a Non-Jeopardy Opinion provides the Endangered Species Act approvals needed for the Corps to issue a permit.
     
  • Fish and Wildlife specifies the terms and conditions under which listed animals may be taken by the project, granting Incidental Take Authorization. The Corps delegates this authorization, and its conditions, to the applicant.
     
• The Corps and the applicant will request water quality approvals from the state, handled by the Central Valley Regional Water Control Board and/or the State Water Resources Control Board (depending on which form of approval is used). This begins another process within the process, to determine if the project is consistent with applicable water quality standards contained in the Basin Plan.
   
  • The Board(s) action is considered subject to the California Environmental Quality Act (CEQA), so this approval may not be granted until CEQA procedures are complete (e.g. an Environmental Impact Report is complete).
     
  • The Regional Board normally takes its action in a Public Hearing format. State Board Action may be taken either administratively by its Executive Officer or by the Board in public hearing.
     
  • Approval may be in the form of a Waiver (only for very small projects), Certification (conditions of approval may only be enforced through the Corps), or Waste Discharge Requirements (conditions of approval are enforced by the Regional Board).
     
• A denial of water quality approvals prevents the Corps from issuing a permit.
   
• The Corps must take steps to ensure that permit issuance complies with the National Historic Preservation Act and is consistent with the Clean Air Act. These requirements do not directly relate to vernal pool resources and rarely result in permit denial.

Evaluation and Response to Comments

The Corps will evaluate the comments and take them into account when deciding what process is necessary to comply with the National Environmental Policy Act (NEPA). The Corps will prepare an Environmental Assessment, and determine if the project is a major federal action with potential to significantly affect the human environment. In practice the threshold for a "significant impact" is much higher under NEPA than CEQA. There are two potential outcomes:

• The Corps may decide its permit is not major federal action and make a Finding of No Significant Impact (FONSI). Public participation opportunities are minimal in this case.
   
• The Corps may decide project is a major federal action with potential to significantly affect the human environment. It must then prepare an Environmental Impact Statement (EIS), which includes significant additional opportunity for public participation. In practice, only very large projects are subject to an EIS.

The Corps transmits all comments on the Public Notice to the applicant. For each comment, the applicant has the option of contacting the commenter and attempting to resolve the concern, modifying the project to resolve the concern, rebutting the comment, or making no response to the comment.

Negotiations, Findings, and Decision Making

Significant negotiations typically occur at this point. The Corps orchestrates and manages these negotiations, which fall into two interrelated types.

• There are usually discussions between the Corps and the applicant (other agencies commonly participate) focused on whether the Corps can make necessary findings (see below) based on the record to date. These discussions often focus on modifying the mitigation proposals and further evaluation of alternatives that may be less damaging to the aquatic environment.
   
• There are often discussions between the Corps and other agencies (the applicant commonly participates) focused on whether the concerns of these agencies have been adequately addressed. Because EPA, the US Fish and Wildlife Service, and the California Department of Fish and Game have statutory comment roles, special effort is usually given to resolving their concerns, using established elevation procedures if necessary.

The Corps must make two key findings in order to issue a permit:

• The project is not contrary to the public interest, considering a very broad range of public and private concerns. This standard requires the Corps to balance reasonably foreseeable benefits against reasonably foreseeable detriments. Corps regulations specify that unless the balance overall is contrary to the public interest, a finding in favor of permit issuance will be made.
   
• The project is consistent with EPA's 404(b)(1) Guidelines. This means that
  1) there is no other practicable site where the project's purposes can be met with lesser damage to the aquatic environment, 2) the permit would authorize the least environmentally damaging way to meet project purposes on the site, and 3) that the impacts of the project do not rise to an unacceptable level even after the least damaging site is chosen and the project is fit to that site in the least damaging way.

The Corps drafts a decision document, taking into account the administrative record produced by the process so far. This document may not be finalized until all related approvals have been issued, including the Biological Opinion, Water Quality Approval, Cultural Resources approvals, and any Air Quality approvals needed to make a consistency determination. The Corps may issue a provisional permit pending completion of one or more of these related approvals.

Issue or Deny the Permit

The Corps decides whether to issue or deny the permit. The applicant may administratively appeal a denial within the Corps, and subsequently through the courts. The public may challenge the decision only through the courts.