One Corps Serving the Army and the Nation U.S. Army Corps of Engineers Pittsburgh District Regulatory Branch Allen Edris (412) 395-7158 [email protected] www.lrp.usace.army.mil/
Jan 05, 2016
One Corps Serving the Army and the Nation
U.S. Army Corps of Engineers
Pittsburgh DistrictRegulatory Branch
Allen Edris(412) 395-7158
www.lrp.usace.army.mil/
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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.
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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
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Is this program really such a bear?
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So What Is a Water of the U.S.?
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Definition
Section 328.3 - Definitions.
a. The term "waters of the United States" means
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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;
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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:
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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;
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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
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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.
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Ordinary High Water Mark
That line on the shore or stream bank established by the fluctuations of water
and indicated by physical characteristics
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Ordinary High Water Mark
Physical Characteristics include:
1. clear natural line impressed on the bank
2. shelving
3. changes in the character of soil
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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.
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Stream Types
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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
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Intermittent Stream
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Is This a Water of the U.S.?
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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.
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Is This a Water of the U.S.?
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YES!
Captured stream such as those placed in culverts or stream
enclosures remain waters of the U.S.
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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.
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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;
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Is this a Water of the U.S.?
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Probably Not
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End of Ordinary High Water Mark
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End of Ordinary High Water Mark
The stream channelloses definition
The stream channelloses definition
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Stream Mitigation
under Section 404
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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.
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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.
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Mitigation Sequencing
II. MINIMIZATION:
Taking all appropriate and practicable measures to minimize those adverse impacts to the aquatic resource that cannot be reasonably avoided.
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Mitigation Sequencing
III. COMPENSATORY MITIGATION:
Implementing appropriate and practicable measures to compensate for adverse aquatic resource impacts.
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Purpose of Compensatory Mitigation
To replace aquatic functions unavoidable lost or otherwise adversely affected by authorized activities
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Forms of Mitigation
Restoration
Enhancement
Creation
Preservation
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ELEMENTS OF COMPENSATORY MITIGATION
Replacement of 1. Chemical
2. Physical
3. Biological
FUNCTIONS
lost or impaired as a result of a
Section 404 authorization
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Mitigation Begins with Evaluation of Project Related
Effects
Requires understanding of
baseline conditions and predicted effects
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Consider direct & indirectproject effects
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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
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Regulatory Guidance Letter 02-02
Focuses On
- Watershed Approach- Functional Assessment- Stream Mitigation- Definitions of Mitigation- Contents of Mitigation Plans
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Watershed Approach
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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.
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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.
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Functional Assessment
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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.
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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
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Irrespective of the Numbers Don’t Lose Sight of the Goal
FUNCTIONALREPLACEMENT
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Stream Mitigation
So difficult it can make your hair stand on end?
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The Goal of Mitigation is
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FUNCTIONALREPLACEMENT
Consequently it is imperative to remember that small ephemeral and intermittent
stream functions are very different from those of perennial streams
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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.
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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?
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Learn to Read the Stream
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?
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Learn to Read the Stream
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
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Determine Stream Present Type
Consider Future Stream
Type
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Is the Stream Aggrading or Degrading
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Baseline Information
Water quality sampling
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Baseline Information
Benthic macro-invertebrate sampling
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Baseline Information
Identify any historic impacts or activities
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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
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Wildlife Functions
Maintain and/or enhance integrity of the food web
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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.
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- 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
A Stream Mitigation Design Should
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- 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.
A Stream Mitigation Design Should
A Stream Mitigation Design Should
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- 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
A Stream Mitigation Design Should
A Stream Mitigation Design Should
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Definitions of Mitigation
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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.
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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.
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Creation
The establishment of a wetland or other aquatic resource where one did not formerly exist.
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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.
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Questions ?