Application and Mitigation Requirements Information required to process Section 404 Clean Water Act (CWA) and Section 10 Rivers and Harbors Act of 1899 (RHA) applications
US Army Corps of EngineersOrganization • 8 Divisions - Ex. Great Lakes and Ohio River- Cincinnati • 38 Districts Nationwide • 7 Districts comprise the Lakes and River Division -Louisville District -Buffalo District -Chicago District -Detroit District -Huntington District -Nashville District -Pittsburgh District
AUTHORITY The Corps of Engineers exercises jurisdiction on navigable and other “waters of the United States” under Section 10 of the Rivers and Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act (CWA)(1972)
Section 10 RHA • Section 10 protects navigation interests and prohibits obstruction or alteration of navigable waters. • Prior authorization required for any work proposed in, on, over, and/or under navigable waters. - Examples: Fleeting, loading/unloading facilities, marinas, commercial dredging, maintenance dredging, utility lines, underground mining.
Examples of Navigable Section 10 Waters within the Louisville District • Ohio River • Wabash River – Mouth to Wells/Adams Co. Line (441.9 miles) • White River – 66.2 miles above mouth • East Fork White River – 21.9 miles above mouth • Various Creeks, Backwater affects Ex. Pigeon Creek 5.9 miles • Complete Section 10 water list published on Public Notice 83-LD-016 http://www.lrl.usace.army.mil/
Section 404 of the CWA • “Waters of the United States” includes wetlands, streams, rivers, lakes, ponds, natural or manmade. • Discharge of dredged or fill material into “waters of the United States” requires prior authorization under Section 404.
Non-jurisdictional “Waters” under Section 404 CWA • Water bodies that do not have a conveyance to other “Waters of the United States” • Water treatment systems constructed and maintained in compliance with Section 402 CWA Ex: Isolated Depressional areas/potholes, upland lakes/ponds without surface connections (spillway), waste water treatment systems
Determining Limits of Jurisdiction WETLANDS - 1987 Corps of Engineers Wetland Delineation Manual - 3 parameters required for wetland - Hydric Soils - Hydrophytic Vegetation - Hydrology *Note – In the process of being regionalized.
Determining Limits of Jurisdiction • Rivers and Streams “Ordinary high water mark" means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
Determining Limits of Jurisdiction • Ephemeral Stream: An ephemeral stream has flowing water only during and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow.
Determining Limits of Jurisdiction • Intermittent Stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow.
Determining Limits of Jurisdiction • Perennial Stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow.
IMPORTANT Any active mine operations that require the discharge of dredged or fill materials into “waters of the United States” that are not currently authorized under Section 404 CWA or Section 10 RHA must contact the Corps Immediately.
Authorization Types • Standard Permits (i.e. Individual Permit) • General Permits (e.g. NWP 21, NWP 14)
Useful Guidance • US Army Corps of Engineers Standard Operating Procedures for Nationwide Permit 21 Processing March 19, 2004 • US Army Corps of Engineers Louisville District Mitigation Guidelines issued September 22, 2004 • Regulatory Guidance Letter, No. 02-2, December 24, 2002, Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 • www.lrl.usace.mil
Application Requirements(All Permit Types) Requirements for a complete Pre-Construction Notification (PCN) when submitting for a Nationwide Permit #21, Surface Coal Mining Activities, or for an Individual Permit.* * Note: The Corps determines appropriate authorization type
Conservation Economics Aesthetics General Environmental Concerns Wetlands Fish and Wildlife Values Historic Properties Flood Hazards Flood Plain Values Land Use Navigation Shoreline erosion & accretion Recreation Water supply & conservation Water quality Energy Needs Safety Food & fiber production Mineral needs Property ownership Needs & welfare of people Public Interest Factors
Project Purpose Thoroughly describe the project’s purpose.
Drainage Area • Identify each watershed within which the project area lies. • Provide the drainage area (acreage) for each watershed.
Fill Describe the type and quantity of dredged or fill material proposed to be discharged into “waters.”
Time Provide the date that you propose to begin work on the project (impacts to “waters”) and the date that the work is expected to be completed.
ALTERNATIVE ANALYSIS To meet the compliance requirements of 40 Code of Federal Regulations (CFR) Part 230.10(a), provide an alternative analysis to the proposed project showing why there is no other practicable alternative to the discharging of dredged or fill material to “waters of the U.S.” that would cause less adverse impact to the aquatic ecosystem.
What is in the AA • The proposed alternative discussion should include a No Action Alternative (forego the proposed operation), a Proposed Action Alternative (complete the action as proposed), and Alternatives Considered but Eliminated (move the operation to another location, reduce the size of the operation, and/or use alternative methods).
Examples for the AA • NO ACTION ALTERNATIVE - What would be the result if you did forego the proposed project, in other words what if you don't mine through streams, open waters, or wetlands that would otherwise be impacted?
AA cont. • PROPOSED ACTION ALTERNATIVE - What would be the result if the project was completed as proposed? Impacts to aquatic resources vs. realization of coal recovery (economics/energy needs/mitigation for impacts providing enhancement of aquatic functions)?
AA cont. • ALTERNATIVES CONSIDERED - What alternatives were considered (and these should have been considered - if not - please consider them) but eliminated in favor of the action as it is proposed? Is it practical to go underground for these seams so as to avoid the waters, is it practical to auger these seams so as to avoid the waters, is it practical for you to go around the aquatic resources altogether and leave that reserve or a portion behind? Explain why or why not. If you considered other alternatives please include them.
Application Requirements(Nationwide Permit 21) Specific Issue – Minimal Impact Determination
Minimal Impact Determination Information that will allow the District Engineer (DE) to determine if the proposed project would result in minimal adverse environmental effects on the aquatic environment, both individually and cumulatively. The DE will utilize this information to determine if the proposed project should be considered for a Nationwide Permit or should be evaluated under a Standard (Individual) Permit review process. • Primarily for NWP # 21 Applications • Can work together with Alternative Analysis
Minimal Impact Determination What constitutes a MID? • Inventory of existing aquatic resources • Avoidance and Minimization • Impact Analysis - Loss of aquatic functions • Mitigation - Gain of aquatic functions
Minimal Impact Determination Avoidance and Minimization • Are there practicable alternatives to the proposed impacts. Discuss the other alternatives considered. • Demonstrate avoidance of “waters” that have high functions and values. • Demonstrate sediment basins are as close to fill activities as practicable.
Quantify “Waters” to be Impacted Streams • Direct impacts - quantify area and flow regimes for streams to be directly impacted. This should include all impacts such as mining through and berm footprints (sediment basins). • Indirect impacts – quantify area of streams that would be otherwise impacted but not filled. Ex. sediment basin – linear footage within pool or from sediment pool to nearest fill activity.
Quantify “Waters” to be Impacted Wetlands • Provide delineation of the project site in accordance with the ’87 Corps of Engineers Wetlands Delineation Manual. • Delineation must be submitted to the Corps for concurrence.
Quantify “Waters” to be Impacted Other Special Aquatic Sites • Includes Sanctuaries/Refuges, Mud flats, Vegetated Shallows, Coral reefs, and Riffle/Pool complexes. • Primarily Riffle/Pool complexes for this area. • These sites must be delineated and included in the application.
Cumulative Impacts Must include an evaluation of the impacts of the proposed activity which incorporates incremental impacts of the proposed activity when added to other past, present and reasonably foreseeable future actions regardless of what agency or entity undertakes them. (Ex: mining, logging, agriculture and other land disturbance activities in the same watershed.)
Assessment and Classification of “Waters” Provide a description of the aquatic resources that would be directly affected, as well as the resources in proximity (upstream, downstream and riparian areas) that would be impacted indirectly.
Assessment and Classification of “Waters” Streams Provide a description of stream quality utilizing approved assessment/classification methodologies.
Assessment and Classification of “Waters” Common methodologies utilized include: • U.S. EPA Rapid Bioassessment Protocol for Use in Wadeable Streams and Rivers • Rosgen’s Applied River Morphology
Stream Assessment Assessments must include information on the stream pattern, profile and dimensions. • PATTERN – sinuosity, meander (wavelength), belt width, radius of curvature. • PROFILE – slope, riffle/pool sequence, step/pool sequence. • DIMENSION – channel width, bankfull width, mean depth, maximum depth, bankfull depth, width/depth ratio, flood prone width, entrenchment ratio.
Stream Assessment The description shall provide a functional assessment of the streams within the project area and how the proposed project will impact those functions and values.