US Army Corps of Engineers

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Regulatory Program Overview

John Davidson

Team Lead, Compliance Branch

Galveston District

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Southwestern Division

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Galveston District

Wh artonBrazo ria

For t B end

Harr is

Walle r

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Liberty

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Chambers

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Galveston

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Jasp erNewto n

Vern on

Beaureg ard

Calcasieu

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Vic toria

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McMullen

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Jim W ells

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Regulatory Program Goals

“The Regulatory Program is committed to

protecting the nation's aquatic resources, while

allowing reasonable development through fair,

flexible and balanced permit decisions. The

Corps evaluates permit applications for

essentially all construction activities that occur in

the nation's waters, including wetlands.”

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Corps’ Primary Regulatory Authorities

Section 10 of Rivers & Harbors Act of 1899

►Regulates work and/or structures in/or

affecting navigable waters of the United

States

Section 404 of the Clean Water Act

►Regulates the discharge of dredged and/or fill

material into all waters of the United States;

which includes adjacent wetlands.

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Clean Water Act Goal

Restore and maintain the chemical,

physical, and biological integrity of the

Nation’s waters

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Commerce Clause

Power listed in the U.S. Constitution

that allows Congress to regulate

commerce with foreign Nations, and

among the several states, and with

Indian Tribes.

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Clean Water Act History 1880s and 1890s, Congress directed the

Corps to prevent dumping and filling in the

Nation’s harbors.

Rivers and Harbors Act of 1899 – illegal to

discharge refuse matter of any kind into

navigable waters or tributaries of

navigable waters. Also illegal to alter the

course, condition or capacity of any port,

harbor, channel, or any other areas within

the reach of the Act.

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Clean Water Act History

1912 – Public Health Service Act. Expanded

mission of U.S. Public Health Service to study

problems of sanitation, sewage, and pollution.

1924– Oil Pollution Act. Prohibited intentional

discharge of fuel oil into tidal waters. Repealed

by 1972 Federal Water Pollution Control Act.

1948 – Federal Water Pollution Control Act.

Created comprehensive set of water quality

programs. Enforcement limited to interstate

waters

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Clean Water Act History

1972 – Federal Water Pollution Control

Act significantly reorganized and

expanded.

1977 – With amendments, became the

Clean Water Act. Through Section 404,

mandated to develop effective program for

controlling pollution of Nation’s 76 million

acres of wetlands. One goal was to

eliminate all discharges by 1985.

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Clean Water Act History

1985 – U.S. v. Riverside Bayview Homes

– U.S. Supreme Court held that

intermingled (adjacent) wetlands of

navigable waters are subject to Section

404 of the Clean Water Act.

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Clean Water Act History 1986 – EPA clarified that waters of the U.S. at

40 CFR 328.3 also include waters which are or

would be used as habitat by birds protected by

the Migratory Bird Treaties; or which are or

would be used as habitat by other migratory

birds which cross state lines; or which are used

as habitat for endangered species; or used to

irrigate crops sold in interstate commerce. Also

introduced non-waters (presented later). Both in

preamble to 1986 regulations.

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Clean Water Act History 2001 – Solid Waste Agency of Northern Cook

County; 5-4 Decision in U.S. Supreme Court.

Concluded you can not solely use the Migratory

Bird Rule to exert jurisdiction over isolated

waters.

2006 – Rapanos & Carabell; 5 separate opinions

(one plurality, two concurring, two dissenting) in

U.S Supreme Court with no single opinion

commanding a majority. Vacated and remanded

case back down to 6th Circuit Court of Appeals.

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Clean Water Act History

Rapanos & Carabell Opinions

Plurality – (Scalia, Roberts, Thomas, Alito)

concluded that Section 404 should extend only

to relatively permanent, standing or continuously

flowing bodies of water connected to traditional

navigable waters and to wetlands with a

continuous surface connection to such relatively

permanent waters.

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Clean Water Act HistoryRapanos & Carabell Opinions

Kennedy – concluded that wetlands are waters

of the U.S. if the wetlands either alone or in

combination with similarly situated lands in the

region, significantly affect the chemical, physical,

and biological integrity of other covered waters

more readily understood as navigable. If the

wetlands effects on water quality are speculative

or insubstantial, they fall outside the statutory

term ‘navigable waters’.

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Clean Water Act History

Rapanos & Carabell Opinions

Dissenting – (Stevens, Souter, Ginsburg,

Breyer) concluded that EPA’s and Corps’

interpretation of waters of the U.S. was a

reasonable interpretation of the Clean Water

Act.

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Clean Water Act History

Rapanos & Carabell Opinions

When there is no majority opinion in a Supreme

Court case, controlling legal principles may be

derived from those principles espoused by five

or more justices. Therefore, jurisdiction under

the Clean Water Act exists if a waterbody meets

the plurality or Kennedy’s standard.

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Clean Water Act History

Rapanos & Carabell Opinions

Received guidance based on Rapanos &

Carabell opinions on 5 June 2007.

Received revised guidance on 2

December 2008.

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Corps/EPA Guidance

• In response to Rapanos & Carabell

opinions

• Coordination required with the EPA and

Corps HQ on some waters

• JD sheet required for each aquatic

resource

• New definitions

Traditional Navigable Waters (TNWs)

Relatively Permanent Waters (RPWs)

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Corps/EPA Joint Guidance

Aquatic resources not coordinated with EPA

(Agencies will assert jurisdiction over the following

waters)

‐ Traditional navigable waters (TNWs)

‐ Wetlands adjacent to TNWs

‐ Relatively permanent waters (RPWs)

‐ Wetlands abutting RPWs

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Corps/EPA Join Guidance

Aquatic resources coordinated with EPA

(Agencies will decide jurisdiction based on a fact-

specific analysis to determine if they have a

significant nexus with a TNW)

‐ Tributaries above RPWs

‐ Wetlands adjacent to but not abutting RPWs

- Wetlands adjacent to non-RPWs

‐ Isolated wetlands

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Corps/EPA Joint Guidance

Non-waters of the U.S.

(Agencies generally will not assert

jurisdiction over these features)

- Swales or erosional features

- Ditches excavated wholly in an

draining only uplands and that do not carry

a relatively permanent flow of water.

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Corps/EPA Joint GuidanceSignificant Nexus Analysis

- Assess the flow characteristics and functions

of the tributary itself and the functions performed

by all the adjacent wetlands to determine if they

significantly affect the chemical, physical, and/or

biological integrity of the downstream TNW.

- Includes consideration of hydrologic and

ecologic factors such as volume, duration,

frequency of flow, pollutant carrying capacity, flood

storage, habitat, nutrient and organic carbon

transfer capacity.

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Clean Water Rule New rule published in Federal Register on 29

June 2015

Became effective on 28 August 2015 (60 days

after publication)

Changed definition of waters of the U.S.

6th Circuit Court of Appeals issued a nationwide

stay on the CWR on 9 October 2015

6th Circuit Court of Appeals on 22 February 2016

ruled they had jurisdiction to issue the

nationwide stay

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Introduced Bills HR 1310 – Frank Pallone – Clean Water

Protection Act, 3 March 2009, amend the

CWA by redefining Fill Material to mean

any pollutant that replaces portions of

waters of the United States with dry land

or that changes the bottom elevation of a

water body for any purpose and to exclude

any pollutant discharged into water

primarily to dispose of waste, mountaintop

mining. NO ACTION

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Introduced Bills

S 787 – Russell Feingold – Clean Water

Restoration Act, 2 April 2009, amend the

CWA to replace the term "navigable

waters“ with the term "waters of the United

States,“ to the fullest extent that these

waters, or activities affecting them, are

subject to the legislative power of

Congress under the Constitution. NO

ACTION

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Introduced Bills

HR 5088 – James Oberstar – America’s

Commitment to Clean Water Act, 21 April

2010, restore the definition of waters of the

United States to that in place before the

SWANCC and Rapanos decisions.

(Replace Navigable waters with Waters of

the United States) NO ACTION

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Introduced Bills

14 April 2011 – 170 members of the

House of Representatives sent a letter to

President Obama asking him to end efforts

to broaden Federal protection of wetlands

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Introduced Bills S 2245 – John Barrasso – Preserve the Waters of the

United States Act, 28 March 2012, - Prohibits the

USACE and the EPA from: (1) finalizing the proposed

guidance described in the notice of availability and

request for comments entitled "EPA and Army Corps of

Engineers Guidance Regarding Identification of Waters

Protected by the CWA"; or (2) using such guidance, or

any substantially similar guidance, as the basis for any

decision regarding the scope of the CWA or any

rulemaking. Provides that the use of such guidance as

the basis for any rule shall be grounds for vacation of

such rule. NO ACTION

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Introduced Bills HR 4965 – John Mica – Preserve existing rights with

respect to waters of the U.S., 27 April 2012, Prohibits the

USACE and EPA from: (1) finalizing, adopting,

implementing, administering, or enforcing the proposed

guidance described in the notice of availability and

request for comments entitled "EPA and Army Corps of

Engineers Guidance Regarding Identification of Waters

Protected by the CWA"; or (2) using such guidance, or

any substantially similar guidance, as the basis for any

decision regarding the scope of the CWA or any

rulemaking. Sent to House or Senate on 7 June 2012

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Introduced Bills HR 5325 – Rodney Frelinghuysen – Energy and

Water Development Bill, 2 May 2012, None of

the funds made available by this Act…may be

used by the Corps of Engineers to develop,

adopt, implement, administer, or enforce a

change or supplement to the rule dated

November 13, 1986, or guidance documents

dated January 15, 2003 and December 2, 2008,

pertaining to the definition of waters under the

jurisdiction of the Federal Water Pollution

Control Act. Passed House on 6 June 2012

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Limits of Jurisdiction (approx.)

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Section 10 Rivers and Harbors Act;

What is Regulated?

Structures in Navigable Waters

► Such as piers, docks, boathouses, pilings, oil rigs,

pipelines, jetties, power transmission line,

permanently moored vessel

Work in Navigable Waters

► Dredging or disposal of dredged material, excavation,

filling, or other modification effecting a navigable

water

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Section 404 of the Clean Water Act

What is Regulated?

A Department of the Army Permit is required

prior to the discharge of any dredged and/or fill

material into any waters of the United States.

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What is Fill?

Material that has the effect of replacing a water

of the U.S. with dry land or changing the bottom

elevation of a water of the U.S. Examples

include rock, sand, soil, clay, plastics,

construction debris, wood chips, overburden

from mining, etc.

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Waters of the United States• Waters used for interstate commerce

including all tidal waters (navigable)

• Interstate waters, including wetlands

• Intrastate waters that could affect

interstate commerce

• Impoundments of waters of the United

States

• Tributaries of waters of the United States

• Wetlands adjacent to waters above

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Non-Waters of the U.S.• Non-tidal drainage and irrigation ditches

excavated on dry land that do not have

relatively permanent flow.

• Artificially irrigated areas that would revert

to uplands if irrigation ceased.

• Artificial lakes and ponds created by

excavating or diking dry land to collect water

for stock watering, irrigation, settling basins,

or rice growing.

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Non-Waters of the U.S.• Artificial reflecting or swimming pools or

other water bodies excavated from dry land

to retain water for primarily aesthetic

reasons

• Waterfilled depressions created in dry land

incidental to construction and pits excavated

in dry land for obtaining fill, sand, or gravel

until abandoned and the resulting body of

water meets the definition of waters of the

United States

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Special Aquatic Sites (defined in NEPA 40 CFR 230)

- Sanctuaries and refuges

- Wetlands

- Mud flats

- Vegetated shallows

- Coral Reefs

- Riffle and pool complexes

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Definition of Wetlands

“Areas that are inundated or saturated by

surface or ground water at a frequency

and duration sufficient to support, and

under normal circumstances do support, a

prevalence of vegetation typically adapted

for life in saturated soil conditions.”

33CFR328.3(b)

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Wetland Functions

• Flood retention

• Improve water quality

• Protect shorelines from erosion

• Filter pollutants from storm water

• Provide habitat for fish and wildlife

• Produce nutrients and detritus for the food

chain

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What makes a Wetland*?

• Hydrology (water)

AND

• Hydrophytic plants (plants adapted for wet

conditions)

AND

• Hydric (wet) soils

*Under normal conditions/circumstances*

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How to Delineate a Wetland

Proper application of the appropriate

Regional supplement to the 1987 Corps of

Engineers Wetland Delineation Manual.

1987 Corps of Engineers Wetland

Delineation Manual maintains the

technical guidance and procedures.

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Wetland Delineations

For wetland delineation purposes, an area

is considered to be vegetated if it has 5%

or more total plant cover during the peak

of the growing season

Use National Wetland Plant List. Revised

in 2012 for all plant indicator status.

Updated every two years or so.

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Plant Indicator Status

OBL – occurs in wetlands 99% of

time

FACW – occurs in wetlands 66-99%

FAC – occurs in wetlands 33-66%

FACU – occurs in wetlands 1-33%

UPL – occurs in wetland 1% of time

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Vegetation Strata

►Trees

►Saplings

►Shrubs

►Woody Vines

►Herbs

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Wetland Vegetation

Use 30-foot sampling radius for tree, sapling,

shrub, woody vine and herb strata

All dominant species across all strata are OBL or

FACW based on visual assessment (Rapid Test)

50/20 Rule to select dominants

> 50% of dominants FAC or wetter (Dominance

Test)

Use 50/20 rule within the stratum and the

dominance test across all strata

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Hydric Soils

►Dig hole and describe profile to 20

inches

►Look at soil colors in the profile and

match to NTCHS’s Field Indicators of

Hydric Soils in the United States,

Version 7.0

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Hydric Soils

All Soils

►Histosol (A1)

►Histic Epipedon (A2)

►Black Histic (A3)

►Hydrogen Sulfide (A4)

►Stratified Layers (A5)

►Organic Bodies (A6)

►5 cm Mucky Mineral (A7)

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Hydric Soils

►Muck Presence (A8)

►1 cm Muck (A9)

►Depleted Below Dark Surface (A11)

►Thick Dark Surface (A12)

►Coast Prairie Redox (A16)

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Hydric Soils

Sandy Soils – loamy fine sand and coarser

►Sandy Mucky Mineral (S1)

►Sandy Gleyed Matrix (S4)

►Sandy Redox (S5)

►Stripped Matrix (S6)

►Dark Surface (S7)

►Polyvalue Below Surface (S8)

►Thin Dark Surface (S9)

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Hydric Soils

Loamy and Clayey Soils – loamy very fine

sand and finer

►Loamy Mucky Mineral (F1)

►Loamy Gleyed Matrix (F2)

►Depleted Matrix (F3)

►Redox Dark Surface (F6)

►Depleted Dark Surface (F7)

►Redox Depressions (F8)

►Marl (F10)

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Hydric Soils

Loamy and Clayey Soils (cont’d)

►Depleted Ochric (F11)

►Iron-Manganese Masses (F12)

►Umbric Surface (F13)

►Delta Ochric (F17)

►Reduced Vertic (F18)

►Piedmont Floodplain Soils (F19)

►Anomalous Bright Loamy Soils (F20)

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Hydric Soils

Problem Soils

►2 cm Muck (A10)

►Red Parent Material (TF2)

►Very Shallow Dark Surface (TF12) (new)

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Wetland Hydrology

Atlantic and Gulf Coastal Plains

Groups

►A – Observation of surface water or saturated

soils

►B – Evidence of recent inundation

►C – Evidence of current or recent soil

saturation

►D – Evidence from other site conditions or

data

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Wetland Hydrology (Primary)

►Surface water (A1)

►High water table (A2)

►Saturation (A3)

►Water marks (B1)

►Sediment deposits (B2)

►Drift deposits (B3)

►Algal mat or crust (B4)

►Iron deposits (B5)

►Inundation visible on aerial imagery (B7)

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Wetland Hydrology (Primary)

►Water-stained leaves (B9)

►Aquatic fauna (B13)

►Marl deposits (B15)

►Hydrogen sulfide odor (C1)

►Oxidized rhizospheres along living roots (C3)

►Presence of reduced iron (C4)

►Recent iron reduction in tilled soils (C6)

►Thin muck surface (C7)

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Wetland Hydrology

(Secondary)

►Surface soil cracks (B6)

►Sparsely vegetated concave surface (B8)

►Drainage patterns (B10)

►Moss trim lines (B16)

►Dry-season water table (C2)

►Crayfish burrows (C8)

►Saturation visible on aerial imagery (C9)

►Geomorphic position (D2)

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Wetland Hydrology

►Shallow aquitard (D3)

►FAC-neutral test (D5)

►Sphagnum moss (D8) (new

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Corps Regulatory Actions

Determinations/Delineations/Verifications

Permits

Compliance Inspections on Permits

Enforcement

Appeals

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Determinations/Delineations/

Verifications

A determination is qualitative in that it only

provides an answer if there is a jurisdictional

area within the project area. (Yes or No)

A delineation is quantitative in that it provides

boundaries and acreage measurements for

each individual type of water of the United

States present in the project area. (Area)

A verification is a confirmation of the accuracy

and precision of a delineation.

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Expectations for Submitting Jurisdictional

Determinations

Letter requesting jurisdictional determination

(property owner or agent)

Vicinity map indicating project site boundaries

Detailed map showing property boundaries &

sample locations

Other supporting info such as CIR aerials, Quad

map, floodplain map, site photos, etc.

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Depicting Project Sites

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The Corps of Engineers Delineation

Verification Process

• Corps assigns project to PM and enters data

• Corps sends acknowledgement letter

• PM determines if site visit is necessary

• Conduct site visit for accuracy/adjustments

• Complete JD form for each aquatic resource

• Coordinate JD form with EPA if required

• PM writes memo and final letter

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Corps of Engineers - Expectations for Submitting Delineation Reports

• Complete Data Sheets

• Delineation map with transects, sample points,

aquatic resource and upland areas

• Acreages of wetlands, open waters, uplands

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Corps of Engineers Requirements for Field Verifications

• Project boundaries must be staked/marked

• Aquatic resources must be staked/marked

• Transects, data points must be marked

• Delineator must be able to explain why an area

is or is not called a wetland/water

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Approved/Preliminary

Jurisdictional Determinations

Approved JD - official USACE determination that

jurisdictional waters of the U.S. or navigable

waters of the U.S. are present or absent on a

particular site or a written statement and map

identifying the limits of waters.

Preliminary JD – written indication that there

may be waters of the U.S. on a parcel or of the

approximate locations of waters

Source: 33 CFR 331.2

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AJD/PJD Continued…

Approved JD – appealable; may or may not

delineate extent of jurisdiction; requires more

information to confirm.

Preliminary JD – not appealable; assumes all

aquatic resources on site are jurisdictional; not

as stringent to confirm (approximate locations);

cannot be used to determine no wetlands or no

jurisdictional wetlands.

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Jurisdiction under Rapanos

• Aquatic resources not coordinated with EPA

(Agencies will assert jurisdiction over the following

waters)

‐ Traditional navigable waters (TNWs)

‐ Wetlands adjacent to TNWs

‐ Relatively permanent waters (RPWs)

‐ Wetlands abutting RPWs

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Jurisdiction under Rapanos (cont.)

• Non-waters of the U.S.

(Agencies generally will not assert jurisdiction over

these features)

- Swales or erosional features

- Ditches excavated wholly in an draining only

uplands and that do not carry a relatively

permanent flow of water.

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Significant Nexus Analysis

It is an analysis to see if this reach of a tributary in

conjunction with all of the similarly situated wetlands

provide more than a “speculative or insubstantial” effect

upon the physical, chemical, and/or biological integrity of

the downstream traditional navigable water.

(Test required to coordinate with EPA for non-

RPW, wetlands adjacent to non-RPW, and

wetland neighboring RPW)

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Isolated Non-Jurisdictional Waters

Isolated waters means those non-tidal waters of

the United States that are:

► (1) Not part of a surface tributary system to interstate

or navigable waters of the United States; and

► (2) Not adjacent to such tributary waterbodies

(33CFR330.2(e))

There is no know interstate or foreign commerce

associated with the specific aquatic resource.

(Commerce Clause)

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Permit Types

General Permits

►Programmatic General Permits

►Regional General Permits

►Nationwide Permits

Letters of Permission

Standard/Individual Permits

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Types of Permits General Permits (GP)

• For activities having minor impacts

Nationwide General Permits (NWP)

• Subject to Section 10 and Section 404 for specific activities)

• These permits are developed by USACE Headquarters

• Already issued to the nation and have been pre-coordinated with other agencies for water quality impacts, endangered species concerns, etc.

• Some permits require notification to the Corps = Pre-Construction Notification (PCN)

• Also has Regional Conditions for the Galveston District

Regional General Permits (RGP)

• Subject to Section 10 (for specific activities). These permits are developed by the USACE districts

Standard Permits (SP)

• For activities having more than minor

impacts

Letters of Permission (LOP)

• Subject to Section 10 only

• These permits require a 15 Day Interagency Coordination

• Do not require Section 401 CWA Certification

Individual Permits (SP)

• Subject to Section 10 and Section 404

• The permits include a 15/30 Day Public Notice

• Requires all other elements of permit evaluation

http://www.swg.usace.army.mil/BusinessWithUs/Regulatory/Permits.aspx

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Nationwide Permits (NWPs) for

Docks and Dredging

• NWP 3 – Maintenance (does not including dredging)

• NWP 13 – Bank Stabilization

• NWP 19 – Minor Dredging

• NWP 35 – Maintenance Dredging of Existing Basins

• NWP 16 – Water Quality Certification for return water

from upland disposal

BE SURE TO CHECK:

• Pre-Construction Notification (PCN) requirement

• General Conditions (All NWPS)

• Regional Conditions (by state or geographic region)

http://www.swg.usace.army.mil/BusinessWitUs/RegulatoryBranch/Permits.aspx

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Commonly used NWPs

NWP 3 Maintenance

NWP 7 Outfall Structures

NWP 12 Utility Line Activities (pipelines, power lines)

NWP 13 Bank Stabilization (bulkheads, riprap)

NWP 14 Linear Transportation Projects (roads, railways)

NWP 15 U.S. Coast Guard Approved Bridges

NWP 16 Return Water from Upland Contained Disposal Areas

NWP 18 Minor Discharges (fill material)

NWP 19 Minor Dredging

NWP 33 Temporary Construction Access and Dewatering

NWP 35 Maintenance Dredging

Each project is unique, not all projects qualify for a NWP

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Applying for a DA Permit

• Engineer Form 4345, with

original signatures

• Signed Agent Authorization

• Complete description of the

proposed activity including

supporting documentation,

and plans sufficient for

Public Notice

[Per 33 CFR 325.1(d)(1)]

Call the Corps if you have

questions!

http://www.swg.usace.army.mil/BusinessWithUs/RegulatoryBranch/Permits/PermitApplication.aspx

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ENG 4345 Application Form

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Items to Include with the

application

• Site Vicinity Map

• Plan and cross sectional drawings reflecting:

• Named waterbody and/or all aquatic

resources within the project boundaries

• Acreage/Linear feet of the aquatic resource

• Acreage/Linear feet of the impact to the

aquatic resource

• Mean high water or ordinary high water mark

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Items to Include with the

application

• Plan and cross sectional drawings reflecting:

• Cubic yards of fill material (if applicable)

• Wetland Delineation (if applicable)

• Dimensions and cubic yards of material

removed during dredging (if applicable)

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Project Plans (Drawings)• 8.5” by 11” paper, color is ok if legible.

• Include all jurisdictional work, adjacent structures,

access roads, staging AND Dredge Material

Placement Areas (DMPAs).

• Good vicinity map(s), including DMPAs.

• Scale or stated dimensions

• Complete Legend

• All Drawings must be consistent - Tables and written

descriptions MUST MATCH drawings!

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Why does the permit

process take so long?

Primary cause of delay for

applications is:

•incomplete,

•inaccurate, or

•contradictory information.

Written descriptions and/or tables

provided must match what is

reflected on the project plans

(drawings)

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Vicinity Maps:As if you’ve never been there before

• Compass or North Arrow

• Show location in relation to some known point.

• Lat/Lon or UTM coordinates are extremely helpful.

• Old plans and maps may need to be updated for

permit amendments, if they are no longer legible.

Insufficient Good

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Example Plans

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TMI

(Too Much Information)!

Limit

information

to only what

is necessary

for permit

evaluation

purposes.

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Example Plans:

Dredge sitehttp://www.swg.usace.army.mil/BusinessWithUs/RegulatoryBranch/Permits/PermitApplication.aspx

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Example Plans:

Confined Placement Area with Levees

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Submitting the Application

• Attach all supporting information - maps, drawings,

photos, etc.

• Sign and date the Application (Engineer Form 4345)

• Review for 3 “C”s:

► Correctness

► Consistency

► Completeness

• Keep copies of all submitted pages.

• Mail application with original signatures.

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Federal Nexus

Department of the Army Permit is the trigger that

subjects the regulated activity to jurisdiction of

other laws.

If no DA permit is

required, these other acts

may not apply to the

proposed action

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Laws that impact USACE

Regulatory Process (coordination) National Environmental Policy Act

Fish and Wildlife Coordination Act

Endangered Species Act

Coastal Zone Management Act

National Historic Preservation Act

Magnuson-Stevens Fishery Conservation and Management Act► Essential Fish Habitat (NMFS)

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Goal: No Net Loss

Wetlands historically viewed as wastelands, with

drainage and filling required to render them productive

1950’s -70’s, >50% of nations wetlands destroyed due to agricultural

practices and residential, commercial, & industrial development

Realization of hidden values and functions of wetlands

1987, National Wetlands Policy Forum created to study wetlands loss

Development of “NO NET LOSS” policy

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Programmatic General Permits

A Programmatic General Permit (PGP) is a type of

regional general permit founded on an existing state,

local or other Federal agency program and designed to

avoid duplication with that program. Application for use

of these programmatic general permits should be made

to the agencies which administer them.

Examples: certain piers, certain oil and gas exploration

Administrators: Trinity River Authority, Texas General

Land Office

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Regional General Permits

A regional general permit (RGP) is a type of general

permit that authorizes categories of activities in a specific

geographic area that causes only minimal individual and

cumulative environmental impacts.

Examples: Section 10 aerial crossings and directional

drilling, certain piers larger than PGP, certain other

activities.

Administrator: Corps Only

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Nationwide Permits

Already issued at the National Level

(NOTE: Regional conditions)

Pre-coordinated with agencies for water quality impacts, endangered species

Some require notification to the Corps (Pre-construction Notification = PCN)

Some don’t require notification - applicant can just use the permit

Feb. 27, 2013 Fed reg. extended expiration for NWP to the length of the 5 year cycle (March 19,2017).

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Letters of Permission

Letters of Permission (LOP), is a type of permit

issued through an abbreviated processing

procedure which includes coordination with

Federal and state fish and wildlife agencies, as

required by the Fish and Wildlife Coordination

Act, and a public interest evaluation, but without

the publishing of an individual public notice.

In SWG – Only Certain Section 10 Activities

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Standard/Individual Permits

1) Impacts to Aquatic Resources

2) Section 404(B)(1) Guidelines

3) Section 401 Water Quality Certification

► issued by state

4) Compliance with ALL related laws (ESA;

CZMA, NHPA; EFH etc..)

5) Public Notice / Public input

6) Public Interest Review Factors

7) Compliance with 404(b)1 Guidelines

Elements of Evaluation include:

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Sequencing Process

Demonstrate various onsite and offsite project alternatives considered and why they were/not selected.

Discuss geographic scope of alternatives search, list relevant factors.

Select “Least Damaging Practicable Alternative.”

Demonstrate how impacts to wetlands at that site have been avoided, and minimized.

Discuss remaining “unavoidable” impacts, and propose compensation.

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404(b)(1) Guidelines

Section 404(b)(1) of CWA requires EPA, to develop the guidelines in conjunction with the Corps.

Guidelines state that a permit cannot be issued if it does not comply with the guidelines (33 CFR 320.4).

Corps has final responsibility for determining compliance

For non-water dependent projects proposed in wetlands

(and other “special aquatic sites”), a presumption exists

that other less environmentally damaging sites are

available.

We must permit the “least damaging practicable

alternative”.

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404(b)(1) Guidelines

An alternative is “practicable” if it is “available” and capable of being done after taking into consideration cost, existing technology, and logistics, in light of the overall project purpose.”

“Available” - that which could be reasonably obtained, utilized, expanded or managed by the applicant.

Level of review commensurate to impact (RGL 93-2)

Corps makes final determination of compliance.

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Compensatory Mitigation

Implementing equivalent, effective standards

Ensuring predictability and efficiency

Emphasizing best available science

► Watershed approach

► Preference/Hierarchy

► Functional Assessments

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§332.3 Establishes Preference

(hierarchy) 1) use of credits from a mitigation bank,

2) use of credits from an in-lieu fee program,

3) permittee-responsible mitigation

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Wetland Mitigation Banking

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§332.4 – Mitigation - Requires 12

Components 1) Objective(s) of the compensatory mitigation project

2) Site selection information

3) Site protection instrument to be used

4) Baseline information (impact and compensation site)

5) Number of credits to be provided

6) Mitigation work plan

7) Maintenance plan

8) Ecological performance standards

9) Monitoring requirements

10) Long-term management plan

11) Adaptive management plan

12) Financial assurances

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Currency and Tools

Currency (In-Kind Credit Type)

- Stream

- Wetlands (4 SWG iHGM Models)

Functional Assessment Tools

- SWG Stream Method (Tier 1,2,3)

- SWG iHGM Models (Riverine., Tidal, Lacustrine)

- HGM Regional Guidebooks (TF)

Ratio Method (Can be used if nothing else is applicable)

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Enforcement

Compliance ► Typically a permit requirement

► Corps inspects numerous throughout year.

► If non-compliance is found, enforcement may initiate.

Unauthorized Activities► Individual does regulated work without a permit

► Corps does most U/A enforcement -- EPA can also

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Resolution of Non-Compliance

Permit compliance enforcement

►Individual does not conduct work under permit

►Corps only authority -- DO NOT refer to EPA

►Resolutions

• restoration of work that exceeds permit

• required mitigation caused to be completed

• modify permit to authorized work that is okay

• revoke permit -- civil or criminal action

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Resolution of Unauthorized

Activities

Voluntary Restoration

After-the-Fact Permit

Referral to EPA

Referral to DOJ

Litigation

Alternate Dispute Resolution (ADR)

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Appeals

A) Denied or Declined Permits

B) Approved Corps Jurisdictional

determinations

- *NOTE: NAP MUST be received within 60

days of notice with justification

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Proposed Development

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Proposed Development

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Summary Corps regulates structures and work in navigable waters (10) and

discharges of dredged and fill materials into waters of the U.S.

including wetlands (404).

District Engineer makes final decision to issue or deny a permit

based on impacts to the aquatic environment, consultation with

other agencies, public interest, and compliance with the 404(b)(1)

guidelines.

Applicants must avoid and minimize impacts to wetlands first, then compensate for unavoidable impacts (404).

On-site, in-kind mitigation is preferred but flexibility is allowed based on wetland functions and values (404).

Project must be the least damaging practicable alternative (404).

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Summary Continued…

Applicants must avoid and minimize impacts to wetlands first, then compensate for unavoidable impacts (404).

On-site, in-kind mitigation is preferred but flexibility is allowed based on wetland functions and values (404).

Project must be the least damaging practicable alternative (404).

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Questions?

John Davidson

Team Lead/Technical Specialist

US Army Corps of Engineers

Galveston District

Regulatory Division; Compliance Branch

P.O. Box 1229

Galveston, Texas 77553

Phone: (409)-766-3933

John.Davidson@usace.army.mil