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U.S. Army Corps of Engineers. Pittsburgh District Regulatory Branch Allen Edris (412) 395-7158 allen.r.edris@lrp02.usace.army.mil www.lrp.usace.army.mil/. Regulatory Program Goals. To provide strong protection of the Nation's aquatic environment, including wetlands.  

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U s army corps of engineers

U.S. Army Corps of Engineers

Pittsburgh District

Regulatory Branch

Allen Edris

(412) 395-7158



Regulatory program goals
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.

Section 404 of the clean water act
Section 404 of the Clean Water Act

Regulates discharge of dredged or fill material into waters of the United States


Section 328.3 - Definitions.

a. The term "waters of the United States" means

Waters of the u s
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;

Waters of the u s1
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 of the u s2
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;

Waters of the u s3
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

Waters of the u s4
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.

Ordinary high water mark
Ordinary High Water Mark

That line on the shore or stream bank established by the fluctuations of water and indicated by physical characteristics

Ordinary high water mark1
Ordinary High Water Mark

Physical Characteristics include:

1. clear natural line impressed on the bank

2. shelving

3. changes in the character of soil

Ordinary high water mark2
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.

Stream types1
Stream Types

  • Ephemeral – flows during and for short duration after precipitation events, located above the water table year –round

  • Intermittent – flows during certain times of the year , surface and ground water contribution

  • Perennial – flows year-round during a normal precipitation year, groundwater is primary source of hydrology with some surface water contribution

Limits of jurisdiction
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.

U s army corps of engineers

Captured stream such as those placed in culverts or stream enclosures remain waters of the U.S.


  • 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.


  • 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;

End of ordinary high water mark1
End of Ordinary High Water Mark

The stream channel

loses definition

Stream mitigation under section 404

Stream Mitigation under Section 404


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. 

Mitigation sequencing
Mitigation Sequencing


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. 

Mitigation sequencing1
Mitigation Sequencing


Taking all appropriate and practicable measures to minimize those adverse impacts to the aquatic resource that cannot be reasonably avoided.  

Mitigation sequencing2
Mitigation Sequencing


Implementing appropriate and practicable measures to compensate for adverse aquatic resource impacts.   

Purpose of compensatory mitigation
Purpose of Compensatory Mitigation

To replace aquatic functions unavoidable lost or otherwise adversely affected by authorized activities

Forms of mitigation
Forms of Mitigation

  • Restoration

  • Enhancement

  • Creation

  • Preservation

Elements of compensatory mitigation

Replacement of

1. Chemical

2. Physical

3. Biological


lost or impaired as a result of a

Section 404 authorization

Mitigation begins with evaluation of project related effects
Mitigation Begins with Evaluation of Project Related Effects

Requires understanding of baseline conditions and predicted effects

Regulatory guidance letter 02 02
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

Regulatory guidance letter 02 021
Regulatory Guidance Letter 02-02

Focuses On

  • Watershed Approach

  • Functional Assessment

  • Stream Mitigation

  • Definitions of Mitigation

  • Contents of Mitigation Plans

Watershed approach1
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.

Watershed approach2
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.

Functional assessment
Functional Assessment

Functional assessment1
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.

Some examples
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

Stream mitigation
Stream Mitigation

So difficult it can make your hair stand on end?

U s army corps of engineers


Consequently it is imperative to remember that small ephemeral and intermittent stream functions are very different from those of perennial streams

Mitigation plans
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.

Learn to read the stream
Learn to Read the Stream


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 equilibrium

4. Are impacts affecting the system, and is so, in what ways

5. Would reasonably foreseeable future watershed changes affect this system, and how?

Learn to read the stream1
Learn to Read the Stream


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?

Learn to read the stream2
Learn to Read the Stream


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

Determine stream present type
Determine Stream Present Type

Consider Future Stream Type

Baseline information
Baseline Information

Water quality sampling

Baseline information1
Baseline Information

Benthic macro-invertebrate sampling

Baseline information2
Baseline Information

Identify any historic impacts or activities

Wildlife functions
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

Indiana Bat Dog

Myotis sodalis canidae

Wildlife functions1
Wildlife Functions

Maintain and/or enhance integrity of the food web

Wildlife functions2
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.

U s army corps of engineers

A Stream Mitigation

Design Should

  • 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,

U s army corps of engineers

A Stream Mitigation

Design Should

  • 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.

U s army corps of engineers

A Stream Mitigation

Design Should

  • 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


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.


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.


The establishment of a wetland or other aquatic resource where one did not formerly exist.


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.