The Kansas City District’s Regulatory Program: a balance between the environment, development and public interest

By CourtesyMay 17, 2024

The Kansas City District’s Regulatory Program: a balance between the environment, development and public interest
1 / 2 Show Caption + Hide Caption – Mike Mikulecky, on the left, and a Kansas Department of Wildlife and Parks employee, were conducting a survey in response to the required repair of a 20-inch crude oil pipeline that had become exposed within a perennial creek channel. (Photo Credit: Courtesy) VIEW ORIGINAL
The Kansas City District’s Regulatory Program: a balance between the environment, development and public interest
2 / 2 Show Caption + Hide Caption – Mike Mikulecky, on the right, and a Kansas Department of Wildlife and Parks employee, collaborated to conduct fish sampling to confirm the presence/absence of the Topeka shiner, also known as the Notropis Topeka, which is federally listed as endangered. (Photo Credit: Courtesy) VIEW ORIGINAL

Ever wonder what the Regulatory Branch does? We asked several program and project managers and David Hibbs, chief, regulatory program branch, to tell us about the work they do; they do a lot that you might not know about.

“Regulatory project managers need a diverse background and broad knowledge of many environmental issues to accomplish the daily work. Our project managers obviously work with streams and wetlands; however, they frequently deal with endangered species, cultural resources, water quality, economics, engineering principles, hydrology issues, public outreach and all types of public interest factors,” Hibbs said.

The Regulatory Branch is involved in most activities in the private or public sector that may have an impact on waters of the United States within the district’s area of responsibility.

More specifically, the regulatory branch regulates the discharge of dredged or fill material in waters of the United States, including wetlands, as well as activities that affect the course, condition or capacity of federally designated navigable waterways. The types of individual projects involved are complex and varied including land clearing, commercial navigation, construction of industrial plants, private commercial and residential developments, surface mining, levee construction, dredging and recreational developments, as well as more routine projects such as agricultural improvements, highway and transportation projects. The U.S. Army Corps of Engineers Regulatory Program is also integrated into major federal programs where there are proposed impacts to waters of the United States. State and local public works, resource management and land use planning activities are also subject to regulatory program requirements.

What are the legal references that govern the regulatory process? Section 10 of the Rivers and Harbors Act of 1899 gives USACE the authority to regulate any activity that would impede navigable waters. The act requires authorization from the Secretary of the Army, acting through USACE for the construction of any structure in or over any navigable water of the United States. The law applies to any structure or activity such as dredging or disposal of dredged materials, excavation, filling, re-channelization or any other modification of a navigable water of the United States and applies to all structures, from the smallest floating dock to the largest commercial undertaking.

Section 404 of the Clean Water Act of 1972 gives USACE authority to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. Activities in waters of the United States regulated under this program include fill for development, water resource projects, such as dams and levees, infrastructure development, such as highways and airports and mining projects. Section 404 requires a permit be issued before any dredged or fill material may be discharged into waters of the United States.

What about the district’s funded and managed projects? These projects are typically reviewed for environmental compliance by the planning programs and project management division. Regulatory staff may provide technical support or guidance with Clean Water Act requirements. USACE funded and/or construction projects must comply with the Clean Water Act requirements just as non-USACE applicants that obtain permits from the regulatory branch.

There are several types of permits for specific activities. Generally, there are a few main categories of permits. The standard permit is an individual permit for activities that may have more than a minimal impact on the environment. It’s open to public review and regulatory specialists have to weigh the overall public interest in a project versus the environmental impacts.

Another individual permit type is a Letter of Permission or LOP. An LOP is issued if there is no considerable impact and there is no perceivable opposition to the project. These projects do not require public notice; however, they must be coordinated and checked for compliance with other federal and state statues, such as the Endangered Species Act or National Historic Preservation Act.

The nationwide permit or NWP requires project proponents to design their projects with the already authorized description of the permit. Activities authorized by NWPs must be similar in nature, cause only minimal adverse environmental effects when performed separately and cause only minimal cumulative adverse effect on the aquatic environment. NWPs can authorize activities pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.

“An applicant doesn’t simply apply for a permit and get it approved in a couple of weeks. There is a balancing of public interest factors that ensures our decision is not contrary to the public’s interest,” said Matthew Sailor, program manager, Missouri State Regulatory Office.

“The regulatory branch receives and processes permit applications from the public to ensure their projects comply with our authorities under the Clean Water Act, and the Rivers and Harbors Act, as well as other federal laws,” said Matt Mikulecky, team leader in the Kanopolis Regulatory Office.

However, the regulatory permit process doesn’t end there. Regulatory project managers, like Mikulecky, conduct periodic inspections of projects that receive permits to ensure compliance with the terms and conditions of the permit. If there are violations, remedial action must be taken or there could be administrative penalties that are referred to the Department of Justice. With respect to enforcing the Clean Water Act, the Environmental Protection Agency could levy fines if the violator knowingly violated the Act by not obtaining a permit.

Mikulecky’s primary work consists of reviewing complex or major actions, distributing incoming permit applications within his office and other regulatory actions. He also serves on the district’s mitigation and the Northwestern Division’s mitigation project delivery teams. He coordinates with other federal agencies like the EPA and the U.S. Fish and Wildlife Service, as well as state agencies like the Missouri Department of Natural Resources, Missouri Department of Conservation, the Kansas Department of Wildlife and Parks and the Kansas Department of Health and Environment.

Mikulecky’s involvement in the regulatory program began in 2002 at the Kanopolis Lake Project as a summer intern park ranger. Two years later he accepted a position at the Kanopolis Regulatory Office. In 2008 he accepted a regulatory project management position in the Omaha District office in Pierre, South Dakota. He then transferred to the Regulatory Office in Bismarck, North Dakota. Mikulecky then went full circle in 2015 when he returned to the Kanopolis Regulatory Office.

“Regulatory has seen many changes the past 20 years and continues to evolve. The biggest challenge for me has been adapting to changes in our scope of jurisdiction, which has occurred several times since 2001. Regulatory isn’t just as simple as confirming compliance with the Clean Water Act or the Rivers and Harbors Act, it’s also ensuring compliance with several other federal laws. Sometimes, those other laws can present the biggest challenge depending on the project,” Mikulecky said.

Mikulecky is a principal agent in reviewing and administering mitigation bank and in-lieu-fee projects. His efforts affect projects across the state and are the primary tools to ensure no net loss of the functions and values of our waters and wetlands, allowing natural functions to provide clean available water to our ecosystems and for human use.

He was instrumental in coordinating this past year’s clean up and restoration of the TC Energy Keystone pipeline’s oil spill – one of the largest on continental soil in United States history. His knowledge of the environment and ability to coordinate with agency and private industry allowed his efforts under EPA oversight to restore 3.5 miles of heavily impacted stream.

Regulatory may be a good option for employees with an interest in aquatic resources, the overall environment and reviewing a variety of project actions, or for those wanting to change professions. Mikulecky has taken the initiative to advance his career, aided by studying and training in biological and ecological sciences.

“We’ve had staff come from other district branches and have several former park rangers and natural resource specialists in the regulatory program. The transition is fairly smooth since they are knowledgeable about the environment, have good communication skills with the public and in enforcing federal regulations. It’s probably one of the more common career paths to Regulatory, that’s how I did it,” Mikulecky said.

“He has taken a key role in advancing our mitigation guidance and is a Kansas point of contact for the Natural Resources Conservation Service helping maintain positive productive actions between our agencies,” said Tom Schumann, chief, Regulatory Program manager, Kansas State Regulatory Office.