Section 404 Permits and Determining Jurisdictional Waters

1
Section 404 Permits and Determining
Jurisdictional Waters

• Department of the Army
• Regulatory Permit Program

Tulsa District Building Strong!
2
a Multi-discipline Engineering Agency That
Devises Solutions
3
Regulatory Program Mission

• To protect the Nations aquatic resources while
  allowing reasonable and appropriate development
  through fair, flexible, and balanced permit
  decisions

Tulsa District Building Strong!
4
Regulatory Program Annual Facts

• - Over 220 billion of economic development is
  affected by 1,200 Corps regulators
• - 60,000 authorizations affecting waters of the
  U.S., including wetlands
• 75 on private property vs. 25 on government,
  tribal, NGO lands
• Variety from complex-controversial to
  simple-routine projects
• - 70,000 jurisdictional determinations
• - About 2,000 enforcement cases
• About 60 appeals (permit denials, jurisdictional
  determinations)
• 79 of actions are authorized under general
  permits

Tulsa District Building Strong!
5
Regulatory Challenges

• Timeliness
• Predictability
• Consistency
• Transparency

Tulsa District Building Strong!
6
Clean Water Act Jurisdiction

• Where is the limit of the Corps jurisdiction?
• Solid Waste Agency of Northern Cook County SWANCC
  Case navigable has to mean something
• Rapanos Case is a hydrologic connection
  through a man-made ditch sufficient to establish
  jurisdiction in a wetland?
• Carabell Case is separation by a berm
  sufficient to sever jurisdiction in a wetland?

Tulsa District Building Strong!
7
Clean Water Act Jurisdiction

• - Jurisdiction applies to relatively permanent
  waters (plurality test) and to waters/wetlands
  that significantly affect the chemical, physical,
  and biological integrity of traditional navigable
  waters (Kennedy test)

Tulsa District Building Strong!
8
Clean Water Act Jurisdiction

• Waters of the United States includes
• 1. Navigable waters / Traditional navigable
  waters (TNW)
• 2. Wetland adjacent to TNWs
• 3. Relatively Permanent Waters (RPW) that
  flow year-round directly or indirectly to TNWs
• 4. Relatively Permanent Waters that flow
  at least seasonally directly or indirectly to
  TNWs
• 5. Wetlands directly abutting RPWs
• 6. Wetlands adjacent to RPWs
• 7. Non-RPWs that flow directly or
  indirectly to TNW
• 8. Wetlands adjacent to non-RPWs
• 9. Impoundments of
  jurisdictional waters
• 10. Isolated waters and
  wetlands, only where there is a proven
  interstate commerce nexus
• Requires a Significant Nexus Evaluation and
  concurrence by EPA

Tulsa District Building Strong!
9
Clean Water Act Jurisdiction

• Significant Nexus Evaluation
• Determine if physical indicators of flow are
  present
• Determine if hydrologic connection to TNW exists
• - Assess aquatic functions performed by the
  tributary or wetland with regard to chemical,
  physical, and/or biological integrity of
  downstream waters (ecological factors)
• Significant is more than speculative or
  insubstantial
• - SNE requires concurrence from EPA that
  jurisdiction is appropriate

Tulsa District Building Strong!
10
Aquatic Resource Mitigation

• First, Avoid Impacts
• Then, Minimize Impacts
• Lastly, think Compensation
• (Off-sets and Replacement)
• only for Unavoidable Impacts

Tulsa District Building Strong!
11
Mitigation Rule

• Responds to NRC recommendations
• Endorses Goal of No Net Loss of Wetlands
• Mitigation must be science-based and
  results-oriented
• Emphasis on Avoidance, Minimization, then
  Compensation
• Watershed-based decisions un-do harm
• Mitigation must be proposed at time of
  application
• Application must include an Avoidance and
  Minimization statement

Tulsa District Building Strong!
12
Mitigation Rule

• Hierarchy of Mitigation Preference
• 1. Mitigation Banks
• 2. In-Lieu Fee Mitigation
• 3. Permittee-Responsible Mitigation
  (Project-Specific)

Tulsa District Building Strong!
13
Mitigation Rule

• 12 Fundamental Components of ALL Mitigation
  Plans
• Objectives
• Site Selection Criteria
• Site Protection Instruments
• Baseline Environmental Information
• Credit Determination Method
• Mitigation Work Plan
• Maintenance Plan
• Ecological Performance Standards
• Monitoring Requirements
• Long-Term Management Plan
• Adaptive Management Plan
• Financial Assurances
• Stream Mitigation Plans may require Additional
  Items
• planform geometry watershed characterization
• design discharge riparian plantings

Tulsa District Building Strong!
14
Aquatic Resource Functions

• Water quality maintenance
• Fish and wildlife habitat
• Food web support
• Organic matter prey export
• Flood storage flood flow dampening
• Stream flow maintenance
• Sediment export transport
• Nutrient conversion
• Contaminant uptake

Tulsa District Building Strong!
15
Stream Mitigation Credit Options

• Restoration of previously channelized streams
• Enhance stream aquatic habitat
• Restoring or establishing natural buffers and
  riparian corridors
• Increase canopy and effective shading
• Exclude livestock disturbances from stream
  channel
• Reduce excess sediment sources in watershed
• Restore dynamic relationship between stream and
  floodplain

Tulsa District Building Strong!
16
Working with the Corps

• Plan ahead
• Integrate aquatic resource protection into your
  planning process
• Demonstrate avoidance and minimization of
  impacts
• Develop specific plan to replace (compensate)
  for expected unavoidable impacts
• Pre-application consultation with the Corps
• Develop good project descriptions
• Develop good supplemental materials
  (delineations, maps, drawings, alternatives
  considerations)
• Remember certain waters have special status
  issues
• (wetlands, scenic rivers and tributaries)

Tulsa District Building Strong!
17
What do you see?
Tulsa District Building Strong!
18
Tulsa District Building Strong!
19
Tulsa District Building Strong!
20
Tulsa District Building Strong!
21
Tulsa District Building Strong!
22
Tulsa District Building Strong!
23

• Of the Earths water
• Only 2.8 is freshwater
• 2.2 is in ice
• 0.6 is in groundwater
• 0.01 is in lakes
• Less than 0.001 is in rivers and streams

Tulsa District Building Strong!