one corps serving the army and the nation u.s. army corps of engineers pittsburgh district...

One Corps Serving the Army and the Nation

U.S. Army Corps of Engineers

Pittsburgh DistrictRegulatory Branch

Allen Edris(412) 395-7158

[email protected]

www.lrp.usace.army.mil/


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.


Section 404 of the Clean Water Act

Regulates discharge of dredged or fill material into waters of the United StatesRegulates discharge of dredged or fill

material into waters of the United States


Is this program really such a bear?


So What Is a Water of the U.S.?


Definition

Section 328.3 - Definitions.

a. The term "waters of the United States" means


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;


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:


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;


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


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.


Ordinary High Water Mark

That line on the shore or stream bank established by the fluctuations of water

and indicated by physical characteristics



Physical Characteristics include:

1. clear natural line impressed on the bank

2. shelving

3. changes in the character of soil



4. destruction of terrestrial vegetation the presence of litter and debris, or

5. other appropriate means that consider the characteristics of the surrounding areas.


Stream Types


Stream Types

1. Ephemeral – flows during and for short duration after precipitation events, located above the water table year –round

2. Intermittent – flows during certain times of the year , surface and ground water contribution

3. Perennial – flows year-round during a normal precipitation year, groundwater is primary source of hydrology with some surface water contribution


Intermittent Stream


Is This a Water of the U.S.?


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.


Is This a Water of the U.S.?


YES!

Captured stream such as those placed in culverts or stream

enclosures remain waters of the U.S.


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.


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;


Is this a Water of the U.S.?


Probably Not


End of Ordinary High Water Mark


End of Ordinary High Water Mark

The stream channelloses definition

The stream channelloses definition


Stream Mitigation

under Section 404


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.


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.



II. MINIMIZATION:

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



III. COMPENSATORY MITIGATION:

Implementing appropriate and practicable measures to compensate for adverse aquatic resource impacts.


Purpose of Compensatory Mitigation

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


Forms of Mitigation

Restoration

Enhancement

Creation

Preservation


ELEMENTS OF COMPENSATORY MITIGATION

Replacement of 1. Chemical

2. Physical

3. Biological

FUNCTIONS

lost or impaired as a result of a

Section 404 authorization


Mitigation Begins with Evaluation of Project Related

Effects

Requires understanding of

baseline conditions and predicted effects


Consider direct & indirectproject effects


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


Regulatory Guidance Letter 02-02

Focuses On

- Watershed Approach- Functional Assessment- Stream Mitigation- Definitions of Mitigation- Contents of Mitigation Plans


Watershed Approach


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.


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.


Functional Assessment


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.


Some Examples

- The Eastern Kentucky Stream Assessment Protocol

- West Virginia Stream Assessment Protocol (currently being developed)

- EPA’s Rapid Bioassessment Protocol- West Virginia Stream Condition Index - Water Quality sampling


Irrespective of the Numbers Don’t Lose Sight of the Goal

FUNCTIONALREPLACEMENT


Stream Mitigation

So difficult it can make your hair stand on end?


The Goal of Mitigation is


FUNCTIONALREPLACEMENT

Consequently it is imperative to remember that small ephemeral and intermittent

stream functions are very different from those of perennial streams


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.


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 equilibrium4. Are impacts affecting the system, and is so,

in what ways5. Would reasonably foreseeable future

watershed changes affect this system, and how?



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?



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


Determine Stream Present Type

Consider Future Stream

Type


Is the Stream Aggrading or Degrading


Baseline Information

Water quality sampling



Benthic macro-invertebrate sampling



Identify any historic impacts or activities


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

Myotis sodalis canidaeMyotis sodalis canidae

Indiana Bat Dog


Wildlife Functions

Maintain and/or enhance integrity of the food web


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.


- 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,

A Stream Mitigation Design Should



- Consider shear stress and identify areas of vulnerability,

- Appropriately factor for Manning’s 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.




- 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




Definitions of Mitigation


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.


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.


Creation

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


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.


Questions ?

one corps serving the army and the nation u.s. army corps of engineers pittsburgh district...

Documents