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An Introduction to the Corps of Engineers Regulatory Program

An Introduction to the Corps of Engineers Regulatory Program. Kathleen Buckler Biologist/Project Manager Regulatory Branch NY Permit Evaluation Section Kathleen.a.buckler@usace.army.mil. Discussion Topics. Forms of permits Compensatory mitigation. Regulatory program Goals Authority

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An Introduction to the Corps of Engineers Regulatory Program

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  1. An Introduction to the Corps of Engineers Regulatory Program Kathleen Buckler Biologist/Project Manager Regulatory Branch NY Permit Evaluation Section Kathleen.a.buckler@usace.army.mil

  2. Discussion Topics Forms of permits Compensatory mitigation • Regulatory program • Goals • Authority • Other related laws • Jurisdiction • Waters of the U.S. • Jurisdictional determinations • Work requiring permits • Exempt activities • Other laws • NYSDEC WQC • NYSDOS Coastal Zone

  3. RegulatoryProgram • To provide strong protection of theNation’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. • To achieve no net loss of • aquatic resources

  4. Authority • Two laws delegate the authority to regulate waters of the United States (WOUS) to the Corps of Engineers • Section 10 of the Rivers and Harbors Act of 1899 • Section 404 of the Clean Water Act

  5. Section 10 of the Rivers and Harbors Act of 1899 • Under this law, a permit is required for any structure or activity that takes place in, under, or over navigable water, or wetlands adjacent to navigable waters of the U.S. • Navigable Waters - waters that are subject to the ebb and flow of the tide, and/or are presently used, have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

  6. Section 404 of the Clean Water Act • Under this law, a permit is required for activities that involve a discharge of fill material into a water of the U.S. • Applies to ‘waters of the United States’ (33 CFR 328.3) • Goal - to preserve the physical, chemical and biological integrity of U.S. waters

  7. USEPA Oversight EPA issued Section 404(b)(1) Guidelines to facilitate fulfillment of regulatory program goals: • Least environmentally damaging practicable alternative (LEDPA) “no discharge of fill material shall be permitted if there is a practicable alternative…” • Is the project water dependent? “When the proposed project does not require access or proximity to a wous to fulfill its basic purpose, practicable alternatives are presumed to exist…” • Avoid, minimize, mitigate

  8. Other Related Laws Affecting the Regulatory Program • Coastal Zone Management Act • Endangered Species Act • Fish and Wildlife Coordination Act • Federal Power Act • National Environmental Policy Act • National Historical Preservation Act (SHPO) • Marine Protection, Research and Sanctuaries Act • Section 7(a) of the Wild and Scenic Rivers Act

  9. Waters of the U.S. • Navigable Waters (TNW) • Wetlands adjacent to/abutting TNW’s • Relatively permanent tributaries to TNW’s and wetlands that directly abut such tributaries • Adjacent wetlands • Bordering, contiguous, neighboring • Every water body that has a significant nexus with a TNW.

  10. Significant Nexus • A significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. • Consider the volume, duration, and frequency of the flow of water in the tributary and the proximity of the tributary to a TNW, plus the hydrologic, ecologic, and other functions performed by the trib. and all of its adjacent wetlands.

  11. Non-Waters of the U.S. • Isolated waters: are geographically isolated and lack links to interstate commerce sufficient to serve as a basis for jurisdiction Isolated vernal pool Isolated wetland

  12. Ditches • Ditches excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water generally are not jurisdictional because they are not tributaries or they do not have a significant nexus to a TNW.

  13. Swales • Generally not WOUS because they are not tributaries or they do not have a significant nexus to TNW’s • Even when not themselves WOUS, swales may still contribute to a surface hydrologic connection between an adjacent wetland and a TNW.

  14. Erosional Features • Erosional features, including gullies, are generally not WOUS because they are not tributaries or they do not have a significant nexus to TNW’s.

  15. Wetland Definition “Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”

  16. Wetland Delineation Must be delineated according to the 1987 Manual and appropriate Regional Supplement • Hydrophytic vegetation • Hydric soils • Hydrology

  17. Jurisdictional Determinations USACE required to document jurisdiction for all permit actions. Two options: Approved JD Preliminary JD Approved JD (RGL 07-01) • Requires USACE completion of 8 page AJD form for each water • Must document each water’s connectivity to a navigable water • Requires significant nexus determination for non-relatively permanent waters and adjacent wetlands that do not directly abut a relatively permanent water

  18. Jurisdictional Determinations Preliminary JD (RGL 08-02) • requires completion of PJD form & applicant signature • assumes all waters in project area are jurisdictional • not appealable • does not waive right to request an approved JD

  19. Department of the Army Permit is Required • For activities which involve a discharge of dredged or fill material into a water of the United States (Sec. 404, Clean Water Act). • For any structure or work that takes place in, under, or over a navigable water, or wetlands adjacent to or abutting navigable waters (Sec. 10, Rivers and Harbors Act).

  20. Work that May Require a Permit • Construction of piers, wharves, docks, and ramps • Section 10 (navigable) water bodies • Section 404 must be a discharge or fill in order to be covered under 404 • Open piles are not considered to be fill • Timber crib docks are considered to be fill • Mechanized land clearing in waters of the U.S. • Dredging in navigable waters • Stream channelization and relocation • Shoreline protection/bank stabilization

  21. Exempt Activities • Normal farming, silviculture and ranching activities • Plowing, seeding, cultivating, etc. for the production of food, fiber, and forest products • Maintenance that does not include any modification that changes the character, scope, or size of the original project • Construction or maintenance of farm or stock ponds or irrigation ditches • Construction of sedimentation basins • Construction or maintenance of farm roads, forest roads, or temporary roads

  22. Other Approvals Mandated by Law • 401 Water Quality Certification New York State Department of Environmental Conservation (NYSDEC) • Coastal Zone Management Program (CZM) Consistency Certification by the New York State Department of State (NYSDOS)

  23. NYSDEC 401 Water Quality Certification CWA assigns responsibility for control of non-point sources of pollution to the states • Applicant is responsible for compliance with WQC conditions • Some NWP’s have received General WQC from the DEC • Other NWP’s have been denied WQC, and must receive an Individual WQC • NWP is not valid until DEC issues WQC

  24. NYS Environmental Conservation Law • Article 24 Freshwater Wetlands Permit Program • DEC classified regulated freshwater wetlands according to their respective functions, values, and benefits: Class I, II, III, of IV • DEC regulates wetlands 12.4 acres in size or larger

  25. NYS Environmental Conservation Law • Stream classification • AA/A: use for drinking water • B: swimming • C: support fisheries • D: lowest standard • T indicates that the stream supports a trout population • Classification C(t) or higher are protected

  26. NYS Coastal Consistency • NYS Department of State (NYSDOS) Coastal Zone Management Consistency Determination applicable to all NWP’s located in the NYS Coastal Zone (CZ) • To see if your project lies within the CZ, see: http://nyswaterfronts.com • NWP is not valid until NYSDOS consistency determination is issued

  27. Department of the Army Permits Include: General Permits • Regional Permits (RP) • Nationwide Permits (NWP) Individual Permits • Letter of Permission (LOP) • Standard Individual Permit (IP)

  28. Regional Permits • District wide permit or geographic area • Authorize proposals commonly applied for within the District • Pre-determined to result in minimal impacts to aquatic environment • Minor activities not covered by NWPs • Most require notification and affirmation by Corps prior to use

  29. Nationwide Permits (NWP) • A type of general permit used to authorize specific types of activities • Minimal impact to aquatic environment • Expedite permit review process • 50 different NWPs • 28 general conditions • Regional conditions developed by District/state agencies • Mitigation may be required • Valid for 5 years • The rulemaking process for reauthorization of NWPs is in progress

  30. 2007 Nationwide Permit Program • Published in the March 2007 Federal Register • Effective March 19, 2007 • Expire March 18, 2012 • Available online at: http://www.irb.usace.army.mil/regulatory/nwp/htm Note: once affirmed by USACE, absent any changes to the current Nationwide Permits, reverification of the applicability of your project under the Nationwide Permit is not required if work is completed by March 18, 2010.

  31. Examples of 2007 Nationwide Permits • NWP 3 – Maintenance • NWP 12 – Utility Line Activities • NWP 13 – Bank Stabilization • NWP 14 – Linear Transportation Projects • NWP 18 – Minor Discharges • NWP 19 – Minor Dredging • NWP 27 – Aquatic Habitat Restoration, Establishment, and Enhancement Activities • NWP 29 – Residential Developments • NWP 33 – Temporary Construction, Access, and Dewatering • NWP 39 – Commercial and Institutional developments

  32. Regional Conditions • Each district is provided with the opportunity to add Regional Conditions to the NWP’s • Specific conditions to ensure minimal impact within watershed

  33. Buffalo District Regional Condition No. 10 • All culverts shall be installed to ensure safe passage of fish and other organisms

  34. Standard Permits • Letters of Permission: Authorize minor activities that exceed limits of general permits • Non-controversial • Require 15 day coordination with resource agencies and adjacent property owners

  35. Standard Permits • Individual Permits: Full public interest review • Public Notice (usually 30 days) • Determination of compliance with USEPA Section 404(b)(1) Guidelines • Preparation of Environmental Assessment (EA) and statement of findings (SOF) • Results in permit issuance or denial

  36. Compensatory Mitigation • The New Mitigation Rule: Effective June 9, 2008 • Three compensatory mitigation mechanisms • Mitigation banks • In-lieu fee • Permittee-responsible

  37. Compensatory Mitigation • Wetland impacts greater than 0.10 acre will require compensatory mitigation • Replacement ratio dependent upon: • The method of mitigation (restoration, enhancement, establishment, preservation) • The likelihood of success • Temporal losses of resource functions • Difficulty in replacing lost functions • Distance between impact area and compensation site

  38. Compensatory Mitigation Order • Mitigation bank credits • In-lieu fee credits • Permittee-responsible: watershed approach • Permittee-responsible: on-site and in-kind • Permittee-responsible: off-site and/or out of kind

  39. Compensatory Mitigation • Mitigation site should be located in the same watershed as impacted waters • Should be located where it is most likely to succeed • Must be reviewed and approved by the Corps

  40. Mitigation Banks • Impacts must be located in the service area of an approved bank • Bank must have the appropriate number and resource type of credits • Lower risk of uncertainty

  41. In-Lieu Fee (ILF) Program • Agreement between a regulatory entity and a single sponsor • Funds are paid to an approved natural resource management entity • Larger, more ecologically valuable parcels • More rigorous scientific and technical analysis

  42. Permittee-responsible under a watershed approach • Resource type and location is determined using the principles of a watershed approach • Used when a watershed plan is available • Goal: to maintain and improve the quality and quantity of aquatic resources within watersheds through strategic selection of mitigation sites

  43. Permittee-responsible: on-site, in-kind • Site must be ecologically suitable • Consider the following • Hydrological conditions • Habitat connectivity • Compatibility with adjacent land • Development trends

  44. Permittee-responsible: off site/out of kind • When all else fails… • An alternative and practicable off-site and/or out of kind mitigation opportunity will be identified • Usually results in a higher mitigation ratio

  45. Mitigation Plan • Objectives • Site selection • Site protection instruments • Baseline info • Credit determination methodology • Mitigation work plan 7. Maintenance plan 8. Ecological performance standards 9. Monitoring requirements 10. Long-term management 11. Adaptive management plan 12. Financial assurances

  46. Discussion Topics Forms of permits Compensatory mitigation • Regulatory program • Goals • Authority • USEPA oversight • Other related laws • Jurisdiction • Waters of the U.S. • Jurisdictional determinations • Work requiring permits • Exempt activities • Other laws • NYSDEC WQC • NYSDOS Coastal Zone

  47. Questions? Thank you!

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