U.S. Army Corps of Engineers

1. U.S. Army Corps of Engineers Pittsburgh District Regulatory Branch Allen Edris (412) 395-7158 allen.r.edris@lrp02.usace.army.mil www.lrp.usace.army.mil/

2. 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.

3. Section 404 of the Clean Water Act Regulates discharge of dredged or fill material into waters of the United States

4. Is this program really such a bear?

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

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

7. 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;

8. 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:

9. 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;

10. 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

11. 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.

12. Ordinary High Water Mark That line on the shore or stream bank established by the fluctuations of water and indicated by physical characteristics

13. Ordinary High Water Mark Physical Characteristics include: 1. clear natural line impressed on the bank 2. shelving 3. changes in the character of soil

14. 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.

15. Stream Types

16. 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

17. Intermittent Stream

18. Is This a Water of the U.S.?

19. 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.

20. Is This a Water of the U.S.?

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

22. 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.

23. 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;

24. Is this a Water of the U.S.?

25. Probably Not

26. End of Ordinary High Water Mark

27. End of Ordinary High Water Mark The stream channel loses definition

28. Stream Mitigation under Section 404

29. 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. 

30. 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. 

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

32. Mitigation Sequencing III. COMPENSATORY MITIGATION: Implementing appropriate and practicable measures to compensate for adverse aquatic resource impacts.   

33. Purpose of Compensatory Mitigation To replace aquatic functions unavoidable lost or otherwise adversely affected by authorized activities

34. Forms of Mitigation • Restoration • Enhancement • Creation • Preservation

35. ELEMENTS OF COMPENSATORY MITIGATION Replacement of 1. Chemical 2. Physical 3. Biological FUNCTIONS lost or impaired as a result of a Section 404 authorization

36. Mitigation Begins with Evaluation of Project Related Effects Requires understanding of baseline conditions and predicted effects

37. Consider direct & indirectproject effects

38. 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

39. Regulatory Guidance Letter 02-02 Focuses On • Watershed Approach • Functional Assessment • Stream Mitigation • Definitions of Mitigation • Contents of Mitigation Plans

40. Watershed Approach

41. 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.

42. 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.

43. Functional Assessment

44. 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.

45. 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

46. Irrespective of the Numbers Don’t Lose Sight of the Goal FUNCTIONALREPLACEMENT

47. Stream Mitigation So difficult it can make your hair stand on end?

48. The Goal of Mitigation is

49. FUNCTIONALREPLACEMENT Consequently it is imperative to remember that small ephemeral and intermittent stream functions are very different from those of perennial streams

50. 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.