Restoration and Regulation Discussion

1. Restoration and Regulation Discussion Joseph P. DaVia US Army Corps of Engineers-Baltimore Chief, Maryland Section Northern March 12, 2013

2. Presentation Overview • Coordination with MDE • Types of Department of the Army (DA) permits • Issues & Challenges • Actions to Improve the Permit Process

3. Baltimore District Regulatory Boundaries

4. Clean Water Act Section 404 • Permit required from the Corps to discharge dredged or fill material into waters of the US • Stream restoration, TMDL, or SWM projects in perennial, intermittent, and ephemeral streams, and jurisdictional wetlands: DA permit required • Corps level of involvement in project review is commensurate with the degree of impact

5. Clean Water Act Section 404 • Alternatives analysis is the centerpiece of the 404 review • Identify the practicable alternative which has the least adverse impact on the aquatic ecosystem (e.g., wetland/waters) • Practicable means available and capable of being done taking into consideration cost, existing technology, and logistics in light of overall project purposes • Two part test: 404 and Corps public interest review

6. Coordination with MDE • Joint Federal/State permit process • Coordinated project reviews • Office/field meetings • Public notice • Joint Evaluation Meetings in Annapolis • Public hearings • Consistent permit decisions and conditions

7. Coordination with MDE • MDE morning presentations • Purpose and need • Alternative analysis • Documentation requirements

8. Types of DA Permits • Nationwide Permit (NWP) • Department of the Army Maryland State Programmatic General Permit (MDSPGP-4) • Standard Permits

9. NWP 27 - Aquatic Habitat Restoration, Establishment, & Enhancement Activities • No acreage limit, but the terms limit the types of activities authorized • Activities must result in net increase in aquatic resource functions and services • Coordination with NMFS on coastal plain streams (MD) • Coordination with other Agencies is optional (MD) • Other NWP 27 requirements for Pennsylvania

10. NWP 27-Aquatic Habitat Restoration, Establishment, & Enhancement Activities • Applicant must demonstrate/document in the permit application and supporting info how the terms and conditions of the NWP are met, including how the project will achieve a net increase in aquatic resources functions and services over the existing conditions • Applicants required to coordinate w/SHPO, FWS, and appropriate State agency…See Regional Condition 31a. • Functions: physical, chemical, biological processes that occur in aquatic ecosystems

11. NWP 27-Aquatic Habitat Restoration, Establishment, & Enhancement Activities • Pre-Construction Notification (PCN) required for all NWP 27 activities in the Baltimore District • Does not authorize conversion of a stream or wetlands to another aquatic habitat type, stream channelization, or the relocation or conversion of tidal waters, including tidal wetlands to other aquatic uses (e.g., conversion of tidal wetlands into open water impoundments)

12. What is Causing Project Delay? • Incomplete permit applications • No alternatives analysis • Changes to stream hydrology (e.g., sediment transport reach to aggradation reach)

13. What is Causing Project Delay? • Projects resulting in a change from palustrine forested wetlands, to palustrine emergent or scrub/shrub • Projects proposing the construction of berms, dams, or weirs across perennial streams, forested floodplains, and adjacent wetlands, to impound/retain water for stormwater management

14. Actions • If practicable, move as far upstream in the watershed to avoid impacts to waters of the U.S. • Focus site selection on degraded systems, not on relatively stable streams with mature forested floodplains and adjacent wetlands

15. Actions • Corps developed a simple flow chart on the permit application process • Corps is developing an information checklist for applicants seeking NWP 27 authorization • Outreach – such as this “venue” • Joint Federal/State permit application revisions

16. Actions • Working with the EPA Chesapeake Bay Program Office, EPA R3 Regulatory, and MDE to explore options for addressing concerns and improving the permit process • Applicants: Involve the agencies early in the planning process for your restoration project. Agencies are accessible for pre-application consultation

17. Pre-Application Consultation • Agencies meet with the applicant in advance of a permit application • Agencies offer input at the planning stages of a project (field/office meeting) • Discuss documentation requirements and alternatives that should be evaluated

18. Pre-Application Consultation • We can provide guidance and preliminary feedback regarding the regulatory feasibility, and potential suggestions on alternatives that could make the project more feasible • We can have a pre-app meetings for restoration projects proposed for grant funding

19. Pre-Application Consultation • Maryland State Highway Administration TMDL projects • Evaluate potential TMDL projects (e.g., stream restoration) to discuss site selection and the permit process

20. Pre-Application Consultation • Expedites the permit process • Cost and time savings to applicants • Before you invest time and resources, contact the Corps and/or MDE to schedule a pre-app meeting (both agencies need to be present)

21. Pre-Application Consultation • Monthly Interagency Joint Evaluation (JE) Meetings in Annapolis, Maryland – 4th Wednesday of the month • Federal/State agencies participate in JE • Recurring meetings with MD counties [e.g., Baltimore, Anne Arundel, Harford, Allegany Stormwater Committee]. Your county?