U'S' Army Corps of Engineers

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U.S. Army Corps of Engineers

• Pittsburgh District
• Regulatory Branch
• Allen Edris
• [phone]
• allen.r.edris_at_lrp02.usace.army.mil
• www.lrp.usace.army.mil/

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Regulatory Program Goals

• To provide strong protection of the Nation's
  aquatic environment, including wetlands.  
• To enhance the efficiency of the Corps
  administration of its regulatory program.  
• To ensure that the Corps provides the regulated
  public with fair and reasonable decisions.

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Section 404 of the Clean Water Act
Regulates discharge of dredged or fill material
into waters of the United States
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Is this program really such a bear?
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So What Is a Water of the U.S.?
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Definition

• Section 328.3 - Definitions.
• a. The term "waters of the United States" means
  

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Waters of the U.S.

• 1. All waters which are currently used, or were
  used in the past, or may be susceptible to use in
  interstate or foreign commerce, including all
  waters which are subject to the ebb and flow of
  the tide
• 2. All interstate waters including interstate
  wetlands

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Waters of the U.S.

• 3. All other waters such as intrastate
• lakes, rivers, streams (including
• intermittent streams), mudflats,
• sandflats, wetlands, sloughs, prairie
• potholes, wet meadows, playa
• lakes, or natural ponds, the use,
• degradation or destruction of which
• could affect interstate or foreign
• commerce including any such
• waters

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Waters of the U.S.

• Such waters include
• Which are or could be used by interstate or
  foreign travelers for recreational or other
  purposes or
• From which fish or shellfish are or could be
  taken and sold in interstate or foreign commerce
  or
• Which are used or could be used for industrial
  purpose by industries in interstate commerce

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Waters of the U.S.

• 4. All impoundments of waters otherwise defined
  as waters of the United States under the
  definition
• 5. Tributaries of waters identified in
  paragraphs (a)(1)-(4) of this section
• 6. The territorial seas

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Waters of the U.S.

• 7. Wetlands adjacent to waters (other than waters
  that are themselves wetlands) identified in
  paragraphs (a)(1)-(6) of this section. Waste
  treatment systems, including treatment ponds or
  lagoons designed to meet the requirements of CWA
  (other than cooling ponds as defined in 40 CFR
  123.11(m) which also meet the criteria of this
  definition) are not waters of the United States.

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Ordinary High Water Mark

• That line on the shore or stream bank established
  by the fluctuations of water and indicated by
  physical characteristics

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Ordinary High Water Mark

• Physical Characteristics include
• 1. clear natural line impressed on the bank
• 2. shelving
• 3. changes in the character of soil

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Ordinary High Water Mark

• 4. destruction of terrestrial vegetation the
  presence of litter and debris, or
• 5. other appropriate means that consider the
  characteristics of the surrounding areas.

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Stream Types
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Stream Types

• Ephemeral flows during and for short duration
  after precipitation events, located above the
  water table year round
• Intermittent flows during certain times of the
  year , surface and ground water contribution
• Perennial flows year-round during a normal
  precipitation year, groundwater is primary source
  of hydrology with some surface water contribution

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Intermittent Stream
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Is This a Water of the U.S.?
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Limits of Jurisdiction

• Non-tidal waters
• In the absence of adjacent wetlands, the
  jurisdiction extends to the ordinary high water
  mark, or
• When adjacent wetlands are present, the
  jurisdiction extends beyond the ordinary high
  water mark to the limit of the adjacent wetlands.
  
• When the water of the United States consists only
  of wetlands the jurisdiction extends to the limit
  of the wetland.

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Is This a Water of the U.S.?
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YES!

• Captured stream such as those placed in culverts
  or stream enclosures remain waters of the U.S.

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Changes

• Permanent changes of the shoreline configuration
  result in similar alterations of the boundaries
  of waters of the United States. Gradual changes
  which are due to natural causes and are
  perceptible only over some period of time
  constitute changes in the bed of a waterway which
  also change the boundaries of the waters of the
  United States.

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Changes

• For example, changing sea levels or subsidence of
  land may cause some areas to become waters of the
  United States while siltation or a change in
  drainage may remove an area from waters of the
  United States. Man-made changes may affect the
  limits of waters of the United States

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Is this a Water of the U.S.?
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• Probably
• Not

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End of Ordinary High Water Mark
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End of Ordinary High Water Mark
The stream channel loses definition
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Stream Mitigation under Section 404
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Authorization

• For the Corps to authorize an activity under
  Section 404, the applicant must demonstrate, to
  the satisfaction of the Corps, that the proposed
  project represents the least environmentally
  damaging practicable alternative. 

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Mitigation Sequencing

• I. AVOIDANCE
• Taking all appropriate and practicable measures
  to avoid those adverse aquatic impacts that are
  not necessary requires that to permit a proposed
  project, it must be the least environmentally
  damaging practicable alternative. 

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Mitigation Sequencing

• II. MINIMIZATION
• Taking all appropriate and practicable measures
  to minimize those adverse impacts to the aquatic
  resource that cannot be reasonably avoided.  

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Mitigation Sequencing

•  
• III. COMPENSATORY MITIGATION
• Implementing appropriate and practicable
  measures to compensate for adverse aquatic
  resource impacts.   

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Purpose of Compensatory Mitigation

• To replace aquatic functions unavoidable lost or
  otherwise adversely affected by authorized
  activities

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Forms of Mitigation

• Restoration
• Enhancement
• Creation
• Preservation

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ELEMENTS OF COMPENSATORY MITIGATION

•  
• Replacement of
• 1. Chemical
• 2. Physical
• 3. Biological

  FUNCTIONS
  lost or impaired as a result of a
Section 404 authorization
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Mitigation Begins with Evaluation of Project
Related Effects
Requires understanding of baseline conditions and
predicted effects
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Consider direct indirectproject effects
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Regulatory Guidance Letter 02-02

• The purpose of this document is to provide
  guidance on compensatory mitigation projects
  required to offset unavoidable aquatic resource
  impacts pursuant to Section 404

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Regulatory Guidance Letter 02-02

• Focuses On
• Watershed Approach
• Functional Assessment
• Stream Mitigation
• Definitions of Mitigation
• Contents of Mitigation Plans

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Watershed Approach
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Watershed Approach

• Considers entire systems and their constituent
  parts. Recognizes that healthy main stem stream
  reaches are only as healthy as the many
  tributaries of which they are composed.
• - Identifies specific functions lost or impaired
  within watersheds and focuses on replacing those
  functions.

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Watershed Approach

• Relies on information and input from other
  federal, tribal, state, and local resource
  management programs.
• Recognizes the role of zoning, regional planning,
  land use initiatives, and factors of local
  interest.

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Functional Assessment
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Functional Assessment

• Tools used to qualitatively and quantitatively
  identify the nature and extent of anticipated
  adverse impacts associated with a given project,
  in addition to beneficial effects associated with
  mitigation projects.

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Some Examples

• The Eastern Kentucky Stream Assessment Protocol
• West Virginia Stream Assessment Protocol
  (currently being developed)
• EPAs Rapid Bioassessment Protocol
• West Virginia Stream Condition Index
• Water Quality sampling

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Irrespective of the Numbers Dont Lose Sight of
the Goal
FUNCTIONALREPLACEMENT
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Stream Mitigation

• So difficult it can make your hair stand on
  end?

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The Goal of Mitigation is
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FUNCTIONALREPLACEMENT
Consequently it is imperative to remember that
small ephemeral and intermittent stream functions
are very different from those of perennial streams
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Mitigation Plans

• When preparing stream mitigation plans, it is
  important to document baseline conditions to
  substantiate that particular mitigation elements
  and/or techniques area needed and are appropriate
  for the given situation.

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Learn to Read the Stream

• Considerations
• 1. What are the current conditions of this stream
  telling me?
• 2. What do comparisons to historic conditions
  tell me?
• 3. Is the system in transition, or in a state of
  dynamic equilibrium
• 4. Are impacts affecting the system, and is so,
  in what ways
• 5. Would reasonably foreseeable future watershed
  changes affect this system, and how?

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Learn to Read the Stream

• Considerations
• 6. Is the stream aggrading or degrading?
• 7. Is it widening or narrowing?
• 8. Are banks eroded or bare?
• 9. Is the associated riparian area vegetated or
  bare?
• 10. What is the stream type relative to
  entrenchment ratios?

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Learn to Read the Stream

• Considerations
• 11. Does the stream exhibit appropriate sinuosity
  relative to its slope and roughness?
• 12. Is there sufficient input of course woody
  debris?
• 13. Is there a particular feature that may be
  acting as grade control?
• 14. Identify appropriate reference reaches for
  data collection

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Determine Stream Present Type
Consider Future Stream Type
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Is the Stream Aggrading or Degrading
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Baseline Information

• Water quality sampling

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Baseline Information

• Benthic macro-invertebrate sampling

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Baseline Information

• Identify any historic impacts or activities

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Wildlife Functions

• Endangered Species
• Currently there are approximately 2,500
  officially listed imperiled and
  endangered species, many of which utilize
  aquatic resources for all or part of
  their life cycle

Indiana Bat Dog
Myotis sodalis canidae
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Wildlife Functions

• Maintain and/or enhance integrity of
  the food web

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Wildlife Functions

• West Virginia has 34 species of salamanders that
  range in length from 4 inches to 2 feet.  Their
  habitats include to aquatic to semiaquatic
  habitats such as ephemeral and intermittent
  streams, riparian zones, springs, and moist,
  forested hillsides.
•  

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A Stream Mitigation Design Should

• Focus on the functions you are seeking to
  replace,
• Provide aquatic resource benefits commensurate
  with authorized impacts,
• Incorporate appropriate channel plan, profile and
  dimension,
• Consider needs of the watershed,
• Function as a long term sustainable system,

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A Stream Mitigation Design Should

• Consider shear stress and identify areas of
  vulnerability,
• Appropriately factor for Mannings n, (roughness)
• Carefully consider and design for the most
  appropriate channel size (bankfull event)
• To the extent practicable incorporate elements to
  enhance the physical, chemical, and biological
  characteristics of the stream.

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A Stream Mitigation Design Should

• Be compatible with other activities in the
  watershed,
• Wherever possible be sited adjacent to contiguous
  mitigation projects or protected lands,
• Use of native plants (exclusively)
• Incorporate overall habitat improvements
• Overhanging vegetation for shading
• Snags for wildlife habitat
• Fingerling escape channels, to allow downstream
  escape for fry trapped in pools during dry times
  of year

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Definitions of Mitigation
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Restoration

• Manipulation of the physical, chemical, or
  biological characteristics of a former or
  substantially degraded wetland, stream or other
  aquatic resources to return natural and/or
  historical functions.

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Enhancement

• Manipulation of the physical, chemical, or
  biological characteristics of an aquatic resource
  to heighten, intensify, or improve a specific
  functions or to change the growth stage of
  composition of the vegetation present, and may
  include converting the site to a less destructive
  land use.

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Creation

• The establishment of a wetland or other aquatic
  resource where one did not formerly exist.

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Preservation

• The legal and physical protection of existing
  ecologically important streams, wetlands and/or
  other aquatic resources for an extended period of
  time, usually in perpetuity.

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Questions ?