Permitting is the ‘long pole’: HDR consultant outlines Corps, NEPA and mitigation risks for Allens Creek
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Summary
HDR and the consultant team told the BRA committee that Corps 404/Section 10 jurisdiction, evolving 'waters of the United States' definitions and NEPA procedures are the primary schedule and cost risks; early engagement with the Corps, EPA and state agencies is essential to avoid rework and litigation.
Permitting, consultants told the Brazos River Authority committee, is the primary driver of time and cost for the Allens Creek reservoir. James Thomas of HDR Engineering summarized federal and state authorities the project must satisfy and urged early, well‑documented engagement to reduce the risk of rework and litigation.
"The Brazos River is designated as section 10 water, a navigable in fact water," James Thomas said, explaining that any in‑channel work or intake excavation will require Section 10 authorization from the U.S. Army Corps of Engineers. He added that the Clean Water Act’s Section 404 program governs placement of fill into waters and wetland features; for this project Allens Creek “is most likely going to be deemed to be a waters of the United States,” which would require mitigation and trigger a Corps 404 review and NEPA environmental review, likely an EIS for a project of this size.
Thomas and other consultants emphasized several points the board should expect and plan for: definitions of jurisdictional waters are in flux after recent Supreme Court decisions (notably Sackett and other cases), the Corps historically hires a third‑party contractor to prepare NEPA documents for individual permits (a contractor the BRA would help select but would typically be paid by BRA), and the Corps and EPA share joint authority over Clean Water Act reviews. "The Corps will be looking at least‑environmentally‑damaging practical alternatives and they weight stream and wetland impacts heavily," Thomas said.
Consultants advised that the BRA and its consultants should prepare a defensible "purpose and need" statement, be conservative in scoping alternatives so the Corps’ third‑party reviewer can verify rather than redo work, and anticipate requests from state agencies including the Texas Historical Commission and the Texas Water Development Board. They also flagged procedural risks: if the Corps rejects a submittal as incomplete or requires additional studies late in the process, the project could face months or years of delay and substantial added cost.
Board members asked how changing federal rules might affect the schedule; consultants said the changes could help (by narrowing what qualifies as waters of the U.S.) but also pose a risk if rules change mid‑process. The team recommended procuring or lining up a third‑party NEPA contractor in advance and negotiating pre‑application scoping with the Corps to clarify data needs before submitting a permit package.
The committee directed staff to prioritize permitting strategy as the team moves into the alternatives analysis and to build materials (a clear purpose and need, a regulatory scoping summary and maps showing utilities and wetlands) the Corps and state agencies can use in review.
The meeting concluded with staff and consultants available for follow‑up; the committee adjourned at 12:15 p.m.
