Assessing Wetland Impacts

1. Assessing Wetland Impacts

2. Outline • Statutory Authorities and Agency Roles • Clean Water Act Sections 404 and 401 • EPA, Corps of Engineers, states • Procedures and information needs • Determining Potential Impacts • Wetlands, presence/absence, impacts • Delineation vs. jurisdictional determination • Addressing potential impacts

3. Outline • Resolving Impacts, Assuring Compliance • Permits, mitigation • SEC oversight of applicants and consultants • Knowing when the process is complete

4. Authorities and Roles

5. Regulatory Overview • Clean Water Act (CWA) - Sections 404 and 401 • Executive Order (EO) 11990, “Wetlands” • USDA DR 9500-3 “Land Use Policy” • Consolidated Farm and Rural Development Act • 1940-G Exhibit C All of the above require an Alternatives Analysis to be completed prior to authorization of wetland impact. The Alternatives analysis must document: • There is no practicable alternative presentto the proposed wetland impact which would have a less adverse impact and meet the purpose and need of the proposal. • If a practicable alternative exists it must be implemented. • If there are wetland impacts mitigation is required.

6. CWA, Section 404 • U.S. Army Corps of Engineers (USACE) • Issues General, Individual and Nationwide Permits; • Enforces permit requirements and best management practices including mitigation activities; (specifically, S. 404(b)(1)) • Conducts and verifies jurisdictional determinations; • Regulations and policy.

7. CWA Section 404 U.S. Environmental Protection Agency (EPA) • Delegated some of its Section 404 authority to USACE • Develops and interprets policy, guidance and environmental criteria used in evaluating permit applications; • Determines scope of geographic jurisdiction and applicability of exemptions; • Approves and oversees State and Tribal assumption; • Reviews and comments on individual permit applications; • Has authority to prohibit, deny, or restrict the use of any defined area as a disposal site (Section 404(c)); • Can elevate specific cases (Section 404(q)); • Enforces Section 404 provisions.

8. CWA Sections 404 & 401 • Role of the states • State program general permits, water quality certification (401), or program assumption; • States (as well as Tribes and local authorities) can assume the S. 404 permitting program; MI and NJ have done so; • S. 401 allows states to take a more active role in wetland decisions, better accounts for state-specific concerns, and is usually conducted simultaneously with 404 review

9. More on Section 401 • 401 permits regulate discharge to state or Tribal waters; the broad purpose is to protect water quality; • Allows states and authorized tribes* to address the aquatic resource impacts of federally issued permits and licenses, including S. 404, but also other types; • Since the applicant is required, if necessary, to secure a 404 permit, they also must also provide to the permitting agency (USACE) a (401) certification from the state in which the discharge originates. * As of 2010, 36 tribes had been granted 401 certification authority

10. Section 401 (cont’d) • This permit program provides states and tribes an additional tool to protect waters of particular importance to them, and incorporates in some cases numerical limits on specific chemical, physical and biological parameters; these parameters are defined elsewhere in the CWA (§§ 301-303, 306, 307) • If a federal permit or license is not required, or would authorize impacts only to waters that are not waters of the U.S., the activity is not subject to CWA §401.

11. Process and Procedure • How or when does the Corps become involved? • What information needs to be provided? • What does (Corps) jurisdiction/non-jurisdiction mean? • Is a S. 401 permit always necessary?

12. What is the ConAct? • The ConAct is the Consolidated Farm and Rural Development Act and S. 363 prohibits wetland impact for the following programs: • CF Direct and Guaranteed Loans • Water & Waste Disposal Direct & Guaranteed Loans • Water, Wastewater & Essential CF Loans • Business and Industry Direct and Guaranteed Loan • Rural Transportation (RBEG earmarks and/or set asides) • Intermediary Relending Program • National Sheep Industry Improvement Center • Northern Great Plains Regional Authority • The ConAct S. 363 will not allow you to fill or manipulate a wetland under these programs.

13. Programs EXEMPT from ConAct: Exemptions: • Utility or water lines are not subject to the ConAct therefore the agency may allow wetland impacts for these programs. • Prior converted wetlands (as defined by NRCS converted before 1985) • Please note the 2012 Waiver for CF Programs expired on Sept. 30, 2012 • Programs Not Subject to ConAct: SFH direct and guaranteed, MFH direct and guaranteed, renewable energy, all grants,

14. Determining Potential Impacts

15. Wetlands The Food Security Act of 1985 contains the following definition of a wetland: The term “wetland”, except when such term is part of the term “converted wetland’ means land that – • has a predominance of hydric soils; • is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and • under normal circumstances does support a prevalence of such vegetation. For purposes of this Act, and any other Act, this term shall not include lands in Alaska identified as having high potential for agricultural development which have a predominance of permafrost soils. This definition includes both jurisdictional and non-jurisdictional (or isolated) wetlands

16. Definitions • Wetland Delineation– Biologist marks (delineates) wetland areas with flags according to 1987 USACE Manual. • Preliminary Jurisdictional Determination – USACE issues. These are advisory in nature and may not be appealed. Used for proposals that are avoiding potential wetlands located on the site. (Desk review only.) • Approved Jurisdictional Determination – USACE issues an official (written) determination that “waters of the U.S.” and/or “navigable waters of the U.S.” are either present or absent on a particular site. Significant Nexus Analysis performed and reviewed by USEPA. (Field review.) For large controversial projects or projects where there is a question in wetland impact areas.

17. Tools for Wetland Identification for RD Construction Proposals • NRCS Soil Survey websoil survey (http://websoilsurvey.nrcs.usda.gov/app) • Soil Surveys show mapped hydric soils – Review for presence of hydric soils or hydric soil inclusions. If they exist, a site visit should be made. Soil Survey Maps are more reliable than NWI maps for specific projects, but not meant to delineate small wetland areas. • USFWS National Wetland Inventory Maps - Wetlands Mapper (http://www.fws.gov/wetlands/Data/Mapper.html ) – Database developed to identify wetlands that exist on large land tracts (1 to 5 acres of land), not useful for detailed site investigations involving construction. • Private Environmental Consultants Perform Delineation according to USACE 1987 Wetlands Delineation Manual (http://www.wetlands.com/regs/tlpge02e.htm ) A biologist marks (delineates) wetland areas with flags according to the USACE 1987 Delineation Manual.

18. Site Visits • If there is no design professional for the proposal, but there is a question regarding the presence of wetlands on the site, visit the site and look for: • Standing water, wet ground, water in hole, water marks, surface soil cracks, hard salt crust etc. or presence of hydric soil indicators listed above. • Presence of water loving plants or grasses, (rushes, sedges, etc.) or forested species that tolerate water. • Location within a low area, near a creek, stream, river, spring, or within a 100 year floodplain.

19. If wetlands/waterways present • Try to avoid the wetland area (obtain preliminary JD if there is a question as to the location of the wetlands) • If a design professional is procured for this proposal and it is not clear where wetlands are located, have the applicant hire a wetlands biologist to perform a delineation. • Have applicant contact USACE to verify jurisdictional status of wetlands (preliminary or approved JD) • If wetlands must be disturbed, applicant must obtain USACE and any applicable state/local permits

20. Impact Assessment • What is or is not a wetland, and are there any present? • Is a delineation or JD necessary? • If there are wetlands, can they be avoided, and if not how can impacts be minimized?

21. Wetland Mitigation • May consist of the following: • Avoidance of wetland impact • Minimization of wetland impact • Compensatory Mitigation (including, but not limited to, wetland creation, restoration, enhancement, conservation easement, etc.)

22. Permit Decision-making • Essentially (and statutorily) a Corps decision based on their JD and analysis of project impacts • JDs in and of themselves do not include determinations that a particular activity requires a permit.

23. Section 404 - General and Individual Permits • For larger projects (typically greater than 1 acre) • fills for development (housing) • water resources proposals (dams/levees) • infrastructure developments (highways/airports) • Public noticing is required, so coordinate RD public noticing with USACE’s if possible. • Applicants must follow requirments and guidelines as stated in permit.

24. Section 404 Nation Wide Permits (NWPs) • Utilized for small routine impacts associated with: • Outfall Structures (NWP 7) • Utility lines (NWP 12) • Road Crossings (NWP 14) • Filling of Isolated Waters (NWP 26) • Requirements: check individual NWP requirements but in most cases: • must conform with standard environmental management conditions (best management practices) contained in the permit. • applicant must notify USACE of NWP use and issue a Pre-Construction Notification 30 days prior to commencement of activity. A list of the current NWP (2012) is here: http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP2012_sumtable_15feb2012.pdf

25. Useful Resources • EPA wetlands webpage: http://water.epa.gov/type/wetlands/; the Definitions and Fact Sheets links are particularly useful • USACE Regulatory webpage: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx - Among others, contains links to current list of Nationwide Permits, updated National Wetland Plant List, and Regulatory Guidance Letters, and jurisdictional information

26. More Useful Resources • Section 401 Fact Sheet - http://water.epa.gov/type/wetlands/outreach/fact24.cfm • EPA Section 401 Handbook (Interim, 2010) - http://water.epa.gov/lawsregs/guidance/cwa/upload/cwa-401-handbook-2010-interim.pdf

27. Example Questions& More Resources

28. Question 1: When Adopting other Agency’s EAs, does RD need to review the Wetland Impact Alternatives Analyses? Answer 1: • Yes, if our agency adopts an EA of another federal agency, RD is still required to review the Alternative Analysis (AA), and supplement it if it’s deficient. However, most federal agencies must also comply with the CWA, therefore they will likely include adequate AA coverage. It would be rare to have to supplement. • RD also needs to ensure that we get a copy of issued permit and include any required mitigation within our conditions. • Our Agency cannot fund if the program is one that prohibits wetland impact by the ConAct.

29. Question 2: • How is a loan specialist supposed to identify the three wetland parameters that must be present to have a wetland (hydrophytic (water loving) vegetation, hydric soils and wetland hydrology)? Photo 1: Wetland Specialists performing wetland delineation.

30. Answer 2: Loan Specialists are not expected to identify wetlands. • The agency does not expect loan specialists to be trained wetland specialists. If there is no design professional for the project, and a wetland specialist cannot be hired, the best tool for loan specialists to use to identify wetlands is to require the applicant to submit a copy of the project boundaries overlaid onto the published NRCS Soil Survey located here http://websoilsurvey.nrcs.usda.gov/app/ • The agency relies on the soil survey to identify the potential for wetlands. Soil surveys are not 100 % accurate, so utilize photographs or a site visit whenever possible. If there’s a question, or if hydric soils or their “inclusions” are present we can request that the applicant obtain a JD from USACE or hire a wetland specialist.

31. The “Web soil survey” can be used to create pdfs showing either hydric soils (or Important Farmland Soils) like the one above. See separate powerpoint “Web Soil Survey” on sharepoint site for how to do this.

32. Question 3: 1) An applicant for a CF Project indicates there are no wetlands on the site, however there are hydric soils mapped on the site. There are no obvious signs of wetlands from the photographs of the site taken in spring/summer and fall. Does the agency still need to ask the applicant to hire a wetland specialist to complete a survey or at a minimum contact the USACE for a Preliminary JD? Photo 2: Proposed Site for CF Project

33. Answer 3: YES! Wetland Survey or JD should be required. Wetland Delineation can be extremely complex. This type of wetland has Difficult Hydrology, and only ponds water for a few weeks or months during the winter, so standing water is not present year round. Photo 3: Emergent Wetland, only seasonally wet.

34. Interpreting Wetland HydrologyGroundwater fed wetlands (seeps) on slopes are difficult to identify. Identified by hydric soil inclusions or by a wetland scientist or USACE representative who knows the vegetation. Photo 4: Wetland Seep, occurs at spring seeps along and at bases of steep terrain

35. Interpreting Wetland Hydrology Surface and groundwater fed wetlands like this vernal pool are difficult to identify. They are identified by the presence of hydric soil inclusions or by a trained wetland scientist or USACE representative. Photo 5: Vernal Pool, intermittent depressional hydrology

36. Question 4: There’s a stock tank/pond used for cattle on the lot for new construction of a SFH. The applicant submits this picture. How do I know if this is a wetland? What are your next steps? Photo 6: Active stock pond (taken during drought), artificial hydrology.

37. Answer 4: a) Review the Soil Survey for presence of Hydric Soils or Hydric Soil Inclusions. Have the applicants provide this information if possible. b) If hydric soils are present, a site visit can be used to determine if wetlands are present or the Loan Specialist can require the applicant to obtain a preliminary JD from the USACE. A Wetland Specialist is not required if a Preliminary JD is obtained and wetlands can be avoided. If wetland impact is proposed, must do alternatives analysis. c) If hydric soils are not present, RD could conclude this pond was not a wetland because the soils appear to be excavated in upland soils, the vegetation is scarce, and therefore this would not meet the RD definition of a wetland. A JD from the USACE would not be required.

38. Example of a Wetland used for a Stock Pond. RD would take jurisdiction of this pond because it appears to have been excavated in wetland (hydric soils), supports prolific water loving vegetation and would likely meet the RD definition of a wetland. This is a wetland that was used as a stock pond but is being placed back into conservation. Photo 7: Emergent Wetland formerly used as stock pond.

39. Resources Useful information to assist you in identifying the signs of wetlands while reviewing applications, photographs, or making field visits.

40. Hydric Soil Indicators Below are photos of 3 common hydric soil indicators that you may recognize in the field. NRCS has published “Field Indicators of Hydric Soils in the United States” to assist wetland specialists, it is located here: www.itc.nl/~rossiter/Docs/NRCS/FieldIndicators_v5_01.pdf

41. Wetland Hydrology Indicators The USACE 1987 Manual Contains descriptions of each of the hydrological indicators located here http://el.erdc.usace.army.mil/wetlands/pdfs/wlman87.pdf

42. Common Wetland Hydrology Indicator: Saturate Soils: After digging a small hole, if you observe a high water table in the soil pit and it hasn’t just rained, you are likely in a wetland. The upper foot of soil only needs to be saturated for a few weeks during the growing season to be a wetland. Photo 8: Saturated Soils

43. Other Wetland Hydrology Indicators: Crawfish burrows are an excellent sign you are in either or wetland or near a stream. If you see these your applicant needs to provide more information. Photo 9: Crawfish burrows

44. Other Wetland Hydrology Indicators: Buttressed Tree Trunks are a sure sign of a wetland. Another characteristic is many trees are down due to shallow root depth. Photo 10: Buttressed tree trunks

45. Other Wetland Hydrology Indicators: Surface Soil Cracks Photo 11: Surface soil cracks in a seasonally ponded wetland

46. Wetland Hydrology Indicator: Hard Salt Crust Photo 12: A hard salt crust in a dry temporary pool

47. Hydrophytic Vegetation USACE publishes the “National Wetlands Plant List” located here: http://rsgisias.crrel.usace.army.mil/nwpl_static/static.html Photo 13: Example of Water Loving Vegetation

48. Tree Identification Smart Phone App (For Northeastern US only currently) • Leafsnap (FREE) • Users can identify trees by taking a photo or "snap" of its leaves. Leafsnap functions like face-recognition software, but it's leaf recognition software. • Supply the tree's name, but it also provides high-quality photos and information about the tree's bark, flowers, fruits and seeds. You would need to cross reference with the National Wetlands Plant List (http://rsgisias.crrel.usace.army.mil/nwpl_static/static.html) • Although Leafsnap's current database only includes the trees of the Northeastern United States, it will soon feature trees from the whole continental US.

49. Soil Survey Smart Phone App • Soil Web – (Free) • UsesGPS and NRCS online soil surveys to give you detailed soils information where ever you are http://blogs.usda.gov/2012/02/03/a-smartphone-app-provides-new-way-to-access-soil-survey-information/#more-38023

50. Email or call with any comments or questions on this webinar to Juliet.Bochicchio@wdc.usda.gov or 202-205-8242