HCPID-AED ( February 2010 Draft for Review)

Guidance Document

Waters of the United States, Including Wetlands

Delineations and USACE Permits

For Harris County Projects

Harris County Public Infrastructure Department—Architecture and

Engineering Division

February 2010

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CONTENTS

1.0 WETLANDS/WATERS DELINEATION AND JURISDICTIONAL DETERMINATIONS ..... 1

1.1 Technical Guidelines Used for HCPID-AED Delineations ............................................. 1 1.1.1 1987 Manual .......................................................................................................... 1 1.1.2 Regional Supplement ............................................................................................ 2 1.1.3 Surveying Methods ................................................................................................ 2 1.1.4 Field Delineation Flow Process ............................................................................. 3

1.2 HCPID-AED Delineation Report Components .............................................................. 3 1.2.1 Methodology .......................................................................................................... 3 1.2.2 Site Description ..................................................................................................... 3 1.2.3 Vegetation Communities Description .................................................................... 3 1.2.4 Soils Description .................................................................................................... 3 1.2.5 Hydrology Description ........................................................................................... 4 1.2.6 Delineated Features Description ........................................................................... 4

1.3 Report Maps and Figures .............................................................................................. 4 1.3.1 Vicinity Map ........................................................................................................... 4 1.3.2 Site Layout Maps ................................................................................................... 5 1.3.3 Delineation Data Forms ......................................................................................... 5 1.3.4 Photo Log .............................................................................................................. 5

1.4 Jurisdictional Determination (JD) Forms ....................................................................... 6

1.5 HCPID-AED Draft Delineation Report Review Procedures ........................................... 6

1.6 USACE Delineation Verification / Jurisdictional Determination Request Letter ............ 6

1.7 USACE Field Verifications and JDs .............................................................................. 7 1.7.1 Preliminary JD vs. Approved JD ............................................................................ 7 1.7.2 Consultant’s Role .................................................................................................. 7 1.7.3 USACE’s Role ....................................................................................................... 8 1.7.4 EPA’s Role ............................................................................................................ 8 1.7.5 Agency-Requested Amendments or Revisions to Delineation Reports/Maps ....... 8

1.8 Delineation Report Deliverables .................................................................................... 8 1.8.1 Report (Electronic and Hardcopies) ...................................................................... 8 1.8.2 Geo-referenced Data (GIS) ................................................................................... 8

2.0 USACE PERMITTING FOR ACTIVITIES IN WETLANDS AND/OR WATERS OF THE US ..................................................................................................................................... 9

2.1 Introduction.................................................................................................................... 9

2.2 Regulated Activities ....................................................................................................... 9 2.2.1 Section 404 of the Clean Water Act ...................................................................... 9 2.2.2 Section 10 of the Rivers and Harbors Act ........................................................... 10

2.3 Permitting Mechanisms ............................................................................................... 10 2.3.1 Nationwide Permits ............................................................................................. 11 2.3.2 Regional General Permits (RGPs) ...................................................................... 11 2.3.3 Letters of Permission (LOP) ................................................................................ 12

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2.3.4 Programmatic General Permits (PGPs) .............................................................. 12 2.3.5 Individual Permits ................................................................................................ 12

2.4 Permitting Considerations ........................................................................................... 13 2.4.1 Jurisdictional vs. Non-jurisdictional...................................................................... 13 2.4.2 Regional Conditions ............................................................................................ 14 2.4.3 401 Water Quality Certification ............................................................................ 14 2.4.4 Coastal Zone Management Programs................................................................. 15 2.4.5 Endangered Species Act ..................................................................................... 16 2.4.6 National Historic Preservation Act ....................................................................... 16 2.4.7 Public Involvement .............................................................................................. 17 2.4.8 Wetland Delineations .......................................................................................... 17 2.4.9 Prior-Converted Croplands Issue ....................................................................... 17 2.4.10 Other Permits or Reviews ................................................................................... 18

2.5 Exemptions.................................................................................................................. 18

2.6 Nationwide Permits Commonly Acquired for HCPID-AED Projects ............................ 18 2.6.1 NWP 3 – Maintenance ........................................................................................ 19 2.6.2 NWP 7 - Outfall Structures .................................................................................. 19 2.6.3 NWP 12 - Utility Line Activities ............................................................................ 19 2.6.4 NWP 13 - Bank Stabilization ............................................................................... 19 2.6.5 NWP 14 - Linear Transportation Projects ............................................................ 20 2.6.6 NWP 18 - Minor Discharges ................................................................................ 20 2.6.7 NWP 25 - Structural Discharges ......................................................................... 20 2.6.8 NWP 33 - Temporary Construction, Access, and Dewatering ............................. 20 2.6.9 NWP 36 - Boat Ramps ........................................................................................ 21 2.6.10 NWP 39 - Commercial and Institutional Developments ....................................... 21 2.6.11 NWP 41 - Reshaping of Existing Drainage Ditches ............................................. 21 2.6.12 NWP 43 - Stormwater Management Facilities ..................................................... 22 2.6.13 NWP 45 - Repair of Uplands Damaged by Discrete Events ................................ 22

2.7 USACE Permit Applications ........................................................................................ 22 2.7.1 Pre-Application Consultations / Joint Evaluation Meetings ................................. 22 2.7.2 Complete USACE Applications ........................................................................... 23

2.9 USACE Application Processes .................................................................................... 25 2.9.1 HCPID-AED NWP and IP Pre-Application Process ............................................. 25 2.9.2 USACE Application Process—Nationwide Permits ............................................. 26 2.9.3 USACE Application Process—Individual Permits................................................ 27

2.10 COMPLIANCE AND ENFORCEMENT ....................................................................... 30 2.10.1 Common Project Construction/Maintenance Considerations .............................. 31 2.10.2 Common Mitigation Issues .................................................................................. 31

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The purpose of this guidance manual chapter is to provide general information regarding the

delineation of „waters of the United States‟, in accordance with recognized regulations. This

chapter is intended for use by engineering consultants or delineation consultants as a guide

for executing wetland delineations for Harris County Public Infrastructure Department—

Architecture and Engineering Division (HCPID-AED).

The guidance provided in this chapter is intended for use by HCPID-AED and their

consultants to ensure compliance with HCPID-AED wetland delineation requirements. This

chapter is not intended to be an exhaustive technical manual. HCPID-AED delineation

consultants should possess detailed knowledge beyond this guidance. This chapter provides

insight to the HCPID-AED engineering consultants as to the activities of their in-house or

delineation sub-consultants. As part of this guidance manual, several checklists have been

developed to ensure compliance with HCPID-AED requirements. These checklists are

provided in Appendix A.

1.0 WETLANDS/WATERS DELINEATION AND JURISDICTIONAL DETERMINATIONS

Wetlands: “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.” -Jointly defined by USACE (Federal Register 1982) and EPA (Federal Register 1980)

1.1 Technical Guidelines Used for HCPID-AED Delineations

Wetland delineations conducted for HCPID-AED shall be conducted in conformance with the United

States Corps of Engineers Wetlands Delineation Manual (1987 Manual) and the Atlantic and Gulf

Coastal Plain Regional Supplement (Supplement). Additionally, ordinary high watermarks (OHWM)

and ditches shall be delineated in accordance with guidance provided in Appendix A.

1.1.1 1987 Manual

The 1987 Manual, issued by the United States Army Corps of Engineers (USACE), was the first method

backed by federal authority to provide a universal methodology for wetland delineation of the typical

palustrine system. The 1987 Manual relied on the presence of three criteria to delineate a wetland:

1. hydrophytic vegetation,

2. wetland hydrology, and

3. hydric soils.

―The 1987 Manual also stresses the need to use sound professional judgment, providing latitude to

demonstrate whether an area is a wetland or not based on a holistic and careful consideration of evidence

for all three parameters‖ (US Army Corps of Engineers Wetland Delineation Manual Modifications and

Clarifications, 1991).

Hydrophytic vegetation classification, according to the 1987 Manual, was based on the presence of more

than 50% of the dominant species designated with an indicator status of obligate wetland plants (OBL),

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facultative wetland plants (FACW), or facultative plants (FAC) (excluding FAC-). FACW, FAC, and

FACU indicators are also given a modifier (+ or -), a ―+‖ indicating it falls on the wetter extreme and a ―-

‖ indicating it falls on the drier extreme.

Wetland hydrology encompasses all hydrologic characteristics of areas that are periodically inundated or

have soils saturated to the surface at some time during the growing season (U.S. Army Corps of

Engineers, 1987). Indicators of wetland hydrology include inundation, saturation, drainage patterns, drift

lines, sediment deposits, watermarks, stream gage data and flood predictions, historic records, visual

observation of saturated soils, and visual observation of inundation.

Hydric soils are those soils that are developed under saturated or inundated conditions. Indicators for

hydric soil include the presence of gleyed and low-chroma soils, histosol, histic epipedon, sulfidic odor,

aquic moisture regime, reducing conditions, concretions, high organic content in the surface layer of

sandy soils, and organic streaking in sandy soils.

Resources for more detailed information on the 1987 Manual can be found at:

Corps of Engineers Wetlands Delineation Manual

U.S. Army Corps of Engineers Wetlands Delineation Manual Modifications and

Clarifications. SUBJECT: Questions & Answers on 1987 Manual

US Army Corps of Engineers Wetlands Delineation Manual Modifications and

Clarifications. SUBJECT: Regional Interpretation of the 1987 Manual

Munsell Soil Color Chart

1.1.2 Regional Supplement

Regional Supplements to the 1987 Manual were developed by the U.S. Army Engineer Research and

Development Center (ERDC) under the request of the USACE with funding from the Wetland Regulatory

Assistance Program (WRAP). Biological regions based on a United States Department of

Agriculture/Natural Resource Conservation Service (USDA/NRCS) classification were used for the basis

of the Regional Supplements. The purpose of the regional supplement is to update the 1987 Manual with

regards to regional conditions and current scientific practices.

HCPID-AED delineations shall be conducted in accordance with routine determination guidelines

provided in both the 1987 Manual and the newly published Interim Regional Supplement to the Corps

of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region (Supplement).

Resources for more detailed information on the Atlantic and Gulf Coastal Plain Regional Supplement can

be found at:

Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual:

Atlantic and Gulf Coastal Plain Region

Atlantic and Gulf Coastal Plain Supplement Public Comments and Responses

Comments of the Independent Peer-Review Team for the Interim Regional Supplement to the

Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region

1.1.3 Surveying Methods

The delineation Consultant may use either civil survey methods or GPS methods to geographically

reference features, such as data points and wetland boundaries, obtained during a field wetland

delineation. Civil surveys must be sealed by a Texas Registered Professional Land Surveyor (RPLS).

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GPS mapping methods must be performed in accordance with the 22 October 2003 SWG-GPS Standard

Operating Procedures (SOP). A copy of the SOP is provided in Appendix B. Geographic Information

System (GIS) software shall be used to analyze collected features, calculate areas, and generate the site

layout maps.

1.1.4 Field Delineation Flow Process

A flowchart will be depicted here outlining the wetland delineation process. A flowchart will be depicted here outlining the OHWM delineation process. A flowchart will be depicted here outlining HCPID-AED’s requirements on the delineation of roadside ditches.

1.2 HCPID-AED Delineation Report Components

In order to satisfy the basic requirements for HCPID-AED-commissioned wetland delineation reports,

each report shall possess the following information. A checklist of wetland delineation report

requirements is provided in Appendix A.

1.2.1 Methodology

This section of a wetland delineation report should describe methods the Consultant used to conduct the

wetland delineation such as routine determination guidelines, wetland and waterbody definitions, survey

area and how it was surveyed (e.g. 100-acres, 5 transects, 100-foot wide corridor), GPS and GIS

descriptions. Background review information shall include recent true-color and color-infrared aerial

photography, historical aerial photography, the NRCS Soil Survey, USFWS wetland mapping, as

available.

1.2.2 Site Description

This section of a wetland delineation report should provide a brief description of the project site and

project location. Reference this description with vicinity and site layout maps.

1.2.3 Vegetation Communities Description

This section of a wetland delineation report should describe all vegetation communities (e.g. palustrine

forested wetland (PFO), palustrine scrub-shrub wetland (PSS), palustrine emergent wetland (PEM),

forested upland, scrub-shrub upland, and herbaceous upland) observed on the project site and list

dominant vegetation observed within each community.

1.2.4 Soils Description

Using the NRCS Soil Survey for Harris County, all soil map units that are reported to occur on the project

site shall be identified. This section of a wetland delineation report should give a description of each

mapped soil series and state whether the soil is listed as a hydric soil by the Harris County Hydric Soils

List.

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1.2.5 Hydrology Description

This section of a wetland delineation report should provide floodplain data for the project site using

Federal Emergency Management Agency (FEMA) Flood Insurance Rate Maps, current and average

monthly rainfall data near project site, and state whether project site is below normal, at normal, or above

normal rainfall for the year during the field effort based on scientific analysis. A list of all wetland

hydrology indicators observed on project site should also be included.

1.2.6 Delineated Features Description

Consultants conducting HCPID-AED-commissioned wetland delineations shall delineate all

features within the project survey limits. This shall include all wetlands (jurisdictional and

non-jurisdictional), ponds (natural and man-made), excavations, roadside ditches, upland

swales, and any other topographical feature that has potential to make a „connection‟ between

a wetland and a jurisdictional wetland and/or waterbody.

1.2.6.1 WETLANDS

This section of a wetland delineation report should provide information regarding the number of each

type of wetland (i.e., PFO, PSS, or PEM), the size, location, and potential jurisdictional status, and any

other relevant information concerning each wetland within the project limits.

1.2.6.2 WATERBODIES

This section of a wetland delineation report should provide information regarding the number of each

type of waterbody (e.g., lake, stream), the size, location, and potential jurisdictional status, and any other

relevant information concerning each waterbody within the project limits.

1.2.6.3 OTHER FEATURES

This section of a wetland delineation report should provide information regarding number of each type of

other feature delineated (e.g. pond, excavations, roadside ditches, upland swales), the size, location, and

any other relevant information concerning the delineated feature within the project limits.

1.2.6.4 CONSULTANTS JURISDICTIONAL OPINION

The delineation consultant shall provide their opinion of the regulatory status of wetlands, waterbodies,

and other features identified in the report. This opinion shall be based on current USACE/United States

Environmental Protection Agency (EPA) guidance, applicable laws, and consultants experience. The

consultant shall provide support to justify their opinion.

1.3 Report Maps and Figures

1.3.1 Vicinity Map

Typically included within the report body or within an appendix, the Vicinity Map should illustrate the

location of the project site limits in relation to its surroundings at a scale showing nearby roads. An

Overview Map showing the project site in reference to the county is shown on a corner of the Vicinity

Map. All maps shall include a north arrow, scale bar, project and map name and date, and HCPID-AED

APIN number.

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1.3.2 Site Layout Maps

Typically included within the report body or within an appendix, the Site Layout Map(s) depicts the

project limits/survey boundary. Dependent upon the size of the project, multiple map pages may be

required to depict the project and associated features at a legible scale.

1.3.2.1 PROJECT/SURVEY BOUNDARY

Included on the Site Layout Map(s), the project limits/survey boundary is illustrated in a unique color and

line type, to aid in easy recognition. Boundary colors/line types and other relevant features are listed and

described in the legend.

1.3.2.2 TRANSECTS

Included on the Site Layout Map(s), delineation transects (if required due to the size of the project) are

illustrated in a unique color, and line type, to aid in easy recognition. Transect colors/line types and other

relevant features are listed and described in the legend.

1.3.2.3 DATAPOINTS

Included on the Site Layout Map, datapoints are usually depicted as white dots with associated unique

feature names to aid in easy recognition, identification, and cross-referencing to the report and delineation

datasheets. Datapoint icons and other relevant features are listed and described in the legend.

1.3.2.4 DELINEATED WETLANDS/WATERBODIES

Included on the Site Layout Map(s), delineated wetlands and/or waterbodies are illustrated in a unique

color and line type and/or fill texture and associated unique features name to aid in easy recognition,

identification, and cross-referencing to the report and delineation datasheets. Wetland and waterbody

icons and other relevant features are listed and described in the legend.

1.3.2.5 OTHER

Other important information or features may be depicted on the Site Layout Maps as necessary and listed

and described in the legend.

1.3.3 Delineation Data Forms

Typically included in the appendix of a wetland delineation report, Wetland Determination Data Forms –

Atlantic and Gulf Coast Plain Region (datasheets) are a condensed summary of field observations.

Delineation datasheets focus mainly on the three wetland criteria according to the USACE, hydrophytic

vegetation, wetland hydrology, and hydric soils. The purpose of a delineation datasheet is to determine if

a point is located in a wetland or upland.

Data Forms prepared for HCPID-AED projects may be typed or handwritten, but must be provided on the

forms provided in the Supplement.

1.3.4 Photo Log

Typically included in the appendix of a wetland delineation report, a photo log shall be provided that

contains representative photos of the project site and delineated features.

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1.4 Jurisdictional Determination (JD) Forms

Consultants conducting HCPID-AED-commissioned wetland delineations shall prepare Draft

Jurisdictional Determination (JD) Forms for each wetland and waterbody delineated within the project

site limits according to the methods specified in the U.S. Army Corps of Engineers Jurisdictional

Determination Form Instructional Guidebook (USACE JD Guidebook).

Consultants shall provide to HCPID-AED four (4) printed hardcopies, two (2) digital editable copy on

CD-rom, and a hardcopy and digital map of each delineated wetland or waterbody. HCPID-AED will

distribute a copy of each to the USACE as part of the request for delineation verification/jurisdictional

determination request.

Resources for more detailed information on the USACE delineation verification/JD request letter can be

found at:

U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook

Regulatory Guidance Letter (RGL 07-01): Practices for Documenting Jurisdiction under Section

9 & 10 of the Rivers & Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act

(CWA)

Regulatory Guidance Letter (RGL 05-02): Expiration of Geographic Jurisdictional

Determinations of Waters of the United States

Regulatory Guidance Letter (RGL 06-01): Determining the Timelines of Requests for Appeal

(RFA)

Regulatory Guidance Letter (RGL 05-05): Ordinary High Water Mark Identification

1.5 HCPID-AED Draft Delineation Report Review Procedures

Draft wetland delineation reports are submitted to either the engineering consultant (by a sub-consultant)

or directly to the HCPID-AED project manager for review. HCPID-AED will review and make

comments or accept as is. Comments will be sent to the delineation consultant. Consultants should

anticipate two rounds of revisions as a result of comments from an engineering consultant and

HCPID-AED.

Once comments are addressed, or the draft is accepted as is, the delineation consultant will provide to the

engineering consultant or directly to HCPID-AED four (4) final printed hardcopies and 1 CD-rom of the

report with a cover letter determination addressed to the appropriate USACE official requesting a

delineation verification and/or jurisdictional.

1.6 USACE Delineation Verification / Jurisdictional Determination Request Letter

Consultants should request a delineation verification and a jurisdictional determination. A delineation

verification from the USACE approves the boundaries of wetlands and waterbodies; a jurisdictional

determination from the USACE defines the regulatory status of wetlands and waterbodies on a project

site. This request may not be a stand alone letter, but may be incorporated into cover letter for PCN or IP

application.

Resources for more detailed information on the USACE delineation verification/JD request letter can be

found at:

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Regulatory Guidance Letter (RGL 05-02): Expiration of Geographic Jurisdictional

Determinations of Waters of the United States

U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook

1.7 USACE Field Verifications and JDs

1.7.1 Preliminary JD vs. Approved JD

―Approved jurisdictional determinations (JDs) and preliminary jurisdictional determinations (PJDs) are

tools used by the USACE to help implement Section 404 of the CWA and Section 10 of the RHA.‖ (RGL

08-02, 2008). ―An approved JD is an official Corps determination that jurisdictional ‗waters of the

United States,‘ or ‘navigable waters of the United States,‘ or both, are either present or absent on a

particular site. An approved JD precisely identifies the limits of those waters on the project site

determined to be jurisdictional under the CWA/RHA (33 CFR 331.2, 2002)‖ (RGL 08-02, 2008).

―Preliminary JDs are non-binding, written indications that there may be waters of the United States,

including wetlands, on a parcel or indications of the approximate location(s) of waters of the United

States or wetlands on a parcel. Preliminary JDs are advisory in nature and may not be appealed‘ (See 33

C.F.R. 331.2)‖ (RGL 08-02, 2008).

Due to changes that periodically occur to regulations, court cases, and agency interpretations/findings,

it is recommended to obtain an Approved (or Preliminary) Jurisdictional Determination (and

delineation verification) prior to commencing construction on HCPID-AED projects.

All delineation Consultants shall perform all work necessary, as well as draft the forms necessary, to

support a request for an approved JD. In certain circumstances, HCPID-AED may decide to pursue a

PJD in lieu of an approved JD to expedite the USACE approval process when proceeding under a

Nationwide Permit. Consultants may make recommendations on the type of JD that should be requested

but HCPID-AED will make the final decision. Circumstances that may warrant the use of a PJD include

a project where a relatively small acreage of wetland impacts are anticipated and the wetlands impacted

are anticipated to be jurisdictional PJDs may be a tool to expedite the USACE approval process;

however, they can have significant repercussions on mitigation costs and overall project budgets.

Additionally, PJDs could have impact the ability of HCPID-AED to pursue future expansion plans.

Preliminary JD‟s will only be pursued as directed by HCPID-AED.

Resources for more detailed information on Jurisdictional v. non-Jurisdictional can be found at:

33 CFR 331

Regulatory Guidance Letter (RGL 08-02): Jurisdictional Determinations

1.7.2 Consultant’s Role

The Consultant will conduct the wetland delineation and provide the delineation report, site maps, data

sheets, and draft JD forms to HCPID-AED.

For approved JDs, the wetland delineation Consultant will accompany the USACE on an on-site visit,

generally occurring over one day. The Consultant‘s role will be to direct the USACE to delineated

features and respond to questions pertaining to the delineation while in the field.

The Consultant shall notify and invite the HCPID-AED project manager and/or a representative from the

Environmental Section to all field verifications requested by the USACE.

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Under certain circumstances (e.g. USACE-determined isolated wetlands), the EPA may request an

additional site visit for their evaluation. The Consultant may be required to re-visit the site to direct the

EPA to delineated features and respond to questions. For initial budget considerations, the Consultant

is not required to anticipate and scope for EPA-requested site visits, edits, mapping, etc. in the initial

scope and budget submittal.

The Consultant may be required to re-map boundaries and re-submit maps and data to the USACE, based

on the results of the field delineation verification.

1.7.3 USACE’s Role

The USACE will assign a regulatory specialist to determine if verification is necessary after review of the

submitted delineation report. If necessary, the USACE will conduct an on-site delineation verification

and/or jurisdictional determination for the project area. The USACE will then approve or request changes

to the wetland boundaries delineated by the Consultant, and state their opinion to whether or not wetlands

are jurisdictional or isolated.

If the USACE determines any delineated wetlands or waterbodies are isolated, the USACE coordinates

with the EPA to receive its jurisdictional review. Once a delineation is approved or JD is issued, the

USACE will send letter documenting its decision.

1.7.4 EPA’s Role

The EPA has the final authority in determining whether a wetland is jurisdictional or isolated. In cases

where the USACE determines that a wetland or waterbody is isolated (i.e. non-jurisdictional), the EPA

has an opportunity to evaluate and either agree or reverse the decision. When the EPA disagrees with the

USACE‘s initial decision for an isolated or non-jurisdictional feature, the record is elevated to the

USACE Headquarters for resolution.

1.7.5 Agency-Requested Amendments or Revisions to Delineation Reports/Maps

After USACE verification, the USACE may request revisions to the delineation report, maps, data sheets,

or draft JD forms. For initial budget considerations, the Consultant must anticipate and scope for

reasonable USACE-requested edits, mapping, etc. in the initial scope and budget submittal.

1.8 Delineation Report Deliverables

1.8.1 Report (Electronic and Hardcopies)

The Consultant shall provide the engineering consultant and/or HCPID-AED with four copies of the final

delineation report, suitable for submission to the USACE.

1.8.2 Geo-referenced Data (GIS)

The Consultant shall provide a digital file copy of the delineation features GIS to both the USACE and

HCPID-AED. This digital file shall contain the project boundary, transects, datapoints, and delineated

wetland and/or waterbodies in the format required by each agency.

The USACE-required format is Universal Transverse Mercator (UTM); the HCPID-AED-required

format is State Plane.

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The purpose of this guidance manual chapter is to provide general information regarding the

permitting of impacts to „waters of the United States‟, in accordance with recognized

regulations. This chapter is intended for use by engineering consultants or permitting

consultants as a guide for USACE Clean Water Act and Rivers and Harbors Act permitting.

The guidance provided in this chapter is intended for use by HCPID-AED and their

consultants to ensure compliance with HCPID-AED permitting requirements. This chapter is

not intended to be an exhaustive technical manual. HCPID-AED permitting consultants

should possess detailed knowledge beyond this guidance. This chapter provides insight to the

HCPID-AED engineering consultants as to the activities of their in-house or permitting sub-

consultants. As part of this guidance manual several checklists and flowcharts have been

developed to ensure compliance with HCPID-AED requirements. These checklists are

provided in Appendix A.

2.0 USACE PERMITTING FOR ACTIVITIES IN WETLANDS AND/OR WATERS OF THE US

2.1 Introduction

The USACE, acting under Section 404 of the Clean Water Act, provides a vital function in protecting our

aquatic resources, including wetlands. The objective of this Act is to restore and maintain the chemical,

physical, and biological integrity of the Nation‘s waters. Under Section 404 of the Clean Water Act, the

Secretary of the Army is responsible for administering a Regulatory Program that requires permits for the

discharge of dredged or fill material into ‗waters of the United States‘, including wetlands. The Secretary

operates this program through the USACE. Each District Engineer and his/her staff carry out the day-to-

day functions of this program. The USACE also implements Section 10 of the Rivers and Harbors Act of

1899 in the Regulatory Program.

HCPID-AED projects occur in the USACE Galveston District.

2.2 Regulated Activities

2.2.1 Section 404 of the Clean Water Act

Section 404 (CWA) is the Nation‘s primary wetland regulatory authority. Under Section 404 a permit is

required from the USACE for any activity involving the discharge of dredged or fill material in ‗waters of

the United States‘, including wetlands. The term ―discharge of dredged material‖ includes any addition

of fill material and the redeposit of dredged or excavated material into a ‗water of the U.S.‘, when such

redeposit has the effect of destroying or degrading ‗waters of the U.S.‘. This includes the addition or

redeposit of material associated with traditional dredging operations, as well as with mechanized land

clearing, ditching, channelization, and other ground disturbing activities that result in more than

―incidental fallback‖. The term ―discharge of fill material‖ includes the addition of material into a ‗water

of the U.S.‘ for the purpose of replacing an aquatic area, such as a wetland, with dry land or of changing

the bottom elevation of a water body. An example of a discharge of fill material would be the placement

of clean soil into a wetland to create dry land so that an apartment complex or road could be built on the

site.

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Examples of dredge and fill material as listed in the Code of Federal Regulations (CFR) include:

Dredged Material (33 CFR 323.2(d))

Open water disposal

Ditch sidecasting

Prop wash dredging

Hopper dredging

Mining stockpiles

Fill Material (33 CFR 323.2(f))

Site development

Roads, dams, dikes, levees

Beach restoration

Backfill and Bedding

Artificial reefs

Revetments

Pile-supported platforms

HCPID-AED conducts activities that may not be regulated by the CWA. Examples of non-regulated

activities include „dipping out‟ roadside ditches or manually clearing trees within regulated „waters of

the U.S.‟, without more than incidental fallback resulting from the method used. The engineering

consultant and/or the permitting consultant should coordinate these activities with HCPID-AED to

ensure avoidance of violations of the CWA.

2.2.2 Section 10 of the Rivers and Harbors Act

Under Section 10 (RHA), the USACE regulates all work or structures in, or affecting, the course,

condition, or capacity of navigable waters of the United States. Examples of activities and structures that

require authorization under this statute include dredging, filling, excavation, weirs, power lines, tunnels,

piers, wharfs, dolphins, breakwaters, booms, bulkheads, revetments, riprap, jetties, permanent mooring

structures, aids to navigation, permanently moored floating facilities and pilings.

A list of Navigable Waters within the Galveston District Regulatory Boundaries, and their approximate

limits, is provided in Appendix B.

2.3 Permitting Mechanisms

USACE authorizations for regulated activities under Section 404 may be in one of three primary forms:

general permits, letters of permission, and standard individual permits. The purpose of the permit process

is to reduce the potential impact of construction projects on the nation‘s aquatic resources. Activities

requiring authorization that are similar in nature and would cause only minimal individual and cumulative

environmental impacts may qualify for general permits. These general permits may be either nationwide

or regional in scope.

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2.3.1 Nationwide Permits

Activities requiring authorization that are similar in nature and would cause only minimal individual and

cumulative environmental impacts may be authorized by a Nationwide Permit (NWPs). There are 43

NWPs currently in effect that address Section 404 and Section 10 activities. The NWPs that are most

commonly used by, or that have the greatest potential for use by HCPID-AED, are individually discussed

in Section 2.6.

In general, HCPID-AED prefers the use of NWPs to other permitting mechanisms to permit impacts to

‗waters of the U.S.‘ The use of NWPs reduces project delays, consulting fees, and overall project costs.

Authorization under some nationwide permits is contingent upon submittal of a pre-construction

notification (PCN) to the USACE in some or all situations. Use of some nationwide permits does not

require a PCN. However, the use of a nationwide permit requires that all of the terms and conditions of

that permit are met and that the adverse impacts of the proposed activity on the aquatic ecosystem are

minimal (Permit Information, 2008). Therefore, it is important that a project proponent is familiar with

the terms and conditions of the relevant nationwide permit (e.g. impact limits, usage within tidal or no-

tidal areas). The USACE Galveston District should be contacted for questions regarding the applicability

of a nationwide permit to a particular project. The project proponent may request confirmation from the

USACE that an activity complies with the terms and conditions of a nationwide permit even if a PCN is

not required. For projects that do not require a PCN, the consultant shall prepare a “Letter to File”

providing the justification why the project is authorized under the nationwide permit. If there is

uncertainty whether an activity is eligible under a nationwide permit, it is recommended that HCPID-

AED contact the USACE. It is unlawful to start work without a Department of the Army permit if one is

required.

Resources for more detailed information on Nationwide Permits can be found at:

33 CFR 330

Wetland Training Institute, Inc. 2007. Nationwide Permits Complete: Robert J. Pierce and Sam

Collinson, eds., David E. Dearing, contributing author. WTI 07-6.

Nationwide Permit Regional Conditions for the State of Texas

2.3.2 Regional General Permits (RGPs)

Regional general permits (RGPs) may be issued for certain types of projects and geographic areas. RGPs

may cover a variety of activities including utility lines and intake and outfall structures; aerial electric

power transmission and communication lines and cable crossings; boat ramps and minor facilities; and

oil, gas, and water exploration and production wells. RGPs expedite the authorization of minor, recurring

work. RGPs contain provisions intended to protect the environment, including natural and cultural

resources. Compliance with the conditions contained in an RGP does not guarantee authorization of the

work by the RGP. Work or structures that would have unacceptable impacts on the public interest are not

authorized. Activities requiring Department of the Army authorization that are not specifically authorized

by a RGP are prohibited unless they are authorized by nationwide or individual permit (33 CFR 320.1 (c),

322.2 (f), 323.2 (h), 325.2 (e)(2), and 330; General Permits, 2009).

Resources for more detailed information on General Permits can be found at:

33 CFR 320

33 CFR 322

33 CFR 323

33 CFR 325

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33 CFR 330

List of General Permits, Galveston District‘s Regulatory Branch

2.3.3 Letters of Permission (LOP)

The Letter of Permission (LOP) is another USACE permitting procedure. This is a form of individual

permit issued through an abbreviated process that includes coordination with federal and state fish and

wildlife agencies and a public interest evaluation, but without the publication of an individual public

notice (33 CFR 325.2(e)(1), Individual Permit, 2009). For cases subject to Section 404, the USACE must

issue a public notice requesting comments and offering an opportunity for public hearing on the

categories of activities and the proposed LOP procedures, and receive water quality certification from the

state, before using this approach. LOPs require the submittal of an application to the USACE in every

case. An LOP serves to reduce the administrative procedures and expedite permit decisions in routine

cases. An LOP is an individual permit that must be applied for at the appropriate USACE office. Each

LOP issued will include general conditions and any appropriate case-specific provisions necessary to

protect the environment, including natural and cultural resources. Work that does not comply with the

provisions of the LOP may require authorization by standard individual permit. Compliance with the

LOP procedure, including the general conditions, does not guarantee authorization of the work by an

LOP. Work or structures that would have unacceptable impacts on the public interest are not authorized.

Activities requiring Department of the Army authorization that are not specifically covered by an LOP are

prohibited unless authorized by a separate permit.

Resources for more detailed information on Letters of Permission can be found at:

33 CFR 325.2

Individual Permit, Letter of Permission Procedures; USACE Fort Worth District website

2.3.4 Programmatic General Permits (PGPs)

The Programmatic General Permit (PGP) is a general permit designed to avoid unnecessary duplication of

regulatory control exercised by another federal, state, or local agency provided it has been determined that

the environmental consequences of the action are individually and cumulatively minimal. No PGPs are

currently available to HCPID-AED.

2.3.5 Individual Permits

If a project does not meet the requirements of a general permit and cannot be authorized by a letter of

permission, a standard individual permit is required. The project evaluation process for this type of permit

includes: pre-application consultation; a public notice and comment period on the permit application;

preparation of permit decision documents, including a discussion of the environmental impacts of the

project, the findings of the USACE public interest review process and compliance determinations with the

Section 404(b)(1) Guidelines; and the permit decision. The USACE will issue a permit if the proposal

being reviewed is found not to be contrary to the public interest and meets the requirements of the Section

404(b)(1) Guidelines.

Resources for more detailed information on Individual Permits can be found at:

33 CFR 325

33 CFR 320

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2.4 Permitting Considerations

Numerous other environmental laws must be addressed in the evaluation of all permit applications,

including the National Environmental Policy Act, Endangered Species Act, and the National Historic

Preservation Act. While the final decision regarding Department of the Army permit applications rests

solely with the USACE, federal and state natural resource agencies have an important role in the

Regulatory Program. In addition, no permit can be issued under Section 404 without the issuance of

water quality certification by the state certifying agency (e.g. the Texas Commission on Environmental

Quality in the state of Texas).

2.4.1 Jurisdictional vs. Non-jurisdictional

Under Section 404 of the CWA, the USACE regulates the discharge of dredge or fill material into ―waters

of the United States‖, including wetlands. On June 5, 2007 the United States Environmental Protection

Agency (USEPA) and USACE issued a guidance memorandum (Clean Water Act Jurisdiction Following

the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States) (guidance)

(add to References) regarding CWA jurisdiction in response to the 2006 U.S. Supreme Court decision of

Rapanos v. United States and Carabell v. United States (Rapanos) (add to References). The Rapanos

decision specifically addressed the term ―waters of the United States‖ and altered the process in which

jurisdictional determinations had been performed following the 2001 Supreme Court decision, Solid

Waste Agency of Northern Cook County v. USACE (SWANCC) (add to References). The guidance

memorandum states that the USEPA and USACE will assert jurisdiction over the following categories of

waterbodies and wetlands:

Traditional navigable waters (TNWs)

Wetlands adjacent to TNWs

Non-navigable tributaries of TNWs that are relatively permanent waters (RPW) where the

tributaries typically flow year-round or have continuous flow at least seasonally (e.g.

typically three months)

Wetlands that directly abut such tributaries (Grumbles and Woodley, 2007a)

The USEPA and the USACE decide jurisdiction over the following waters based on a fact-specific

analysis to determine whether they have a significant nexus to a TNW:

Non-navigable tributaries that are not relatively permanent (non-RPW)

Wetlands adjacent to non-navigable tributaries that are not relatively permanent

Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable

tributary (Grumbles and Woodley, 2007a)

The USEPA and the USACE generally will not take jurisdiction over the following features:

Swales or erosional features

Ditches (including roadside ditches) excavated wholly in and draining only uplands and that

do not carry a relatively permanent flow of water (Grumbles and Woodley, 2007a)

Wetlands that are isolated from tributary systems

Waterbodies that are isolated from tributary systems

―A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and

the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect

the chemical, physical and biological integrity of downstream TNWs. A significant nexus [analysis]

includes consideration of hydrologic and ecologic factors‖ (Grumbles and Woodley, 2007a).

14

Informal guidance and recent experience with the USACE—Galveston District has suggested that the

District is continuing to use the pre-Rapanos method of using the 100-year floodplain to establish

adjacency (i.e. potential jurisdiction). Under this methodology, wetlands or waterbodies occurring

outside of the 100-year floodplain and which have no other natural or man-made connection to a water of

the U.S. are determined to be non-jurisdictional, isolated features. While the USACE-Galveston District

continues to informally use this method to determine jurisdiction, the USEPA has taken a much more

unpredictable and liberal view of determining jurisdiction.

Resources for more detailed information on Jurisdictional v. non-Jurisdictional can be found at:

33 CFR 331

U. S. Army Corps of Engineers Jurisdictional Determination Form Instructional

Guidebook

Clean Water Act Jurisdiction Following the U.S. Supreme Court‘s Decision in Rapanos

v. United States & Carabell v. United States

Regulatory Guidance Letter (RGL 05-02): Expiration of Geographic Jurisdictional

Determinations of Waters of the United States

Regulatory Guidance Letter (RGL 06-01): Determining the Timeliness of Requests for

Appeal (RFA)

Regulatory Guidance Letter (RGL 07-01): Practices for Documenting Jurisdiction under

Sections 9 & 10 of the Rivers and Harbors Act (RHA) of 1899 and Section 404 of the

Clean Water Act (CWA)

2.4.2 Regional Conditions

The Division Engineer has added certain additional regional conditions that apply to all NWPs issued

within the State of Texas, and that apply only within the Galveston District in the State of Texas (regional

conditions also exist applying to the Galveston District specifically within the State of Louisiana).

A full detail of Nationwide Permit Conditions and Nationwide Permit Regional Conditions for the State

of Texas (2007) is provided in Appendix B.

2.4.3 401 Water Quality Certification

Section 401 of the federal Clean Water Act grants States certifying authority with respect to federally-

granted permits such as Section 404 permits. No Section 404 permit (NWP, RGP, LOP, PGP or

Individual) is valid without CWA Section 401 Water Quality Certification issued by the state in which the

project will occur. The TCEQ is the lead state agency that administers the Section 401 certification

program in Texas except with respect to oil and gas exploration, which is the responsibility of the

Railroad Commission of Texas.

The TCEQ has granted 401 Water Quality Certification to activities authorized by NWPs 1, 2, 4, 5, 8, 9,

10, 11, 20, 23, 24, 28, 34, 35, and 48. The TCEQ has granted conditional 401 Water Quality Certification

to activities authorized by NWPs 3, 6, 7, 12, 13, 14, 15, 17, 18, 19, 21, 22, 25, 27, 29, 30, 31, 32, 33, 36,

37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, and 50. A copy of TCEQ‘s April 2007 letter issuing

certification to NWPs and specific water quality certification conditions for NWPs is provided in

Appendix C.

If not proceeding under a Nationwide Permit, project proponents must obtain an individual water quality

certification from the TCEQ. The TCEQ acts upon the 401 certification request independently of the

USACE; however, the Water Quality Certification process is run concurrently with the USACE permit

15

process through a joint evaluation and public notice process. Dependent on project impacts, a project

may be required to file a Tier I or Tier II Water Quality Certification request:

Tier I: Project directly impacts 3 acres or less of ‗waters of the U.S.‘, or 1500 linear feet of

streams (one acre of impact is considered equivalent to 500 linear feet of stream)

Tier II: Project directly impacts 3 acres or more of ‗waters of the U.S.‘, or 1500 linear feet of

streams

Conditions issued as part of a permit‘s 401 Water Quality Certification are considered part of the USACE

permit.

A copy of TCEQ‘s 401 Water Quality Certification Overview, Tier I Checklist, Description of BMPs for

Tier I Projects, and Tier II Certification Questionnaire and Alternatives Analysis Checklist are provided

in Appendix C.

Resources for more detailed information on Individual 401 Water Quality Certifications can be found at:

Section 401 of the federal Clean Water Act

30 TAC Chapter 279 – 401 Certification Rules

30 TAC Chapter 307 – Surface Water Quality Standards

CWA Section 303 – Water Quality Standards

2.4.4 Coastal Zone Management Programs

USACE permits must also comply with Section 306 of the Coastal Zone Management Act of 1972 and

applicable coastal zone management programs that are authorized to ensure consistency with the coast

plan. In Texas, the Texas General Land Office (TGLO) administers the federally-approved Texas Coastal

Management Program (TCMP). The purpose of the TCMP is to improve the management of Texas‘s

coastal natural resource areas and to ensure the long-term productivity of the coast. TCMP accomplishes

this, in part, by conducting ―consistency reviews‖ on activities permitted by the USACE within the

TCMP boundary.

Areas within Harris County that are subject to regulation under this program generally occur south of

Interstate 10, east of Interstate 610 (East Loop), and east of Interstate 45. Also included is an

approximately 2-mile wide corridor, centered on Buffalo Bayou, and extending upstream nearly to

Interstate 610 (West Loop).

TCMP zone boundary GIS shapefiles are available free from these websites:

http://www.glo.state.tx.us/gisdata/gisdata.html or

http://koordinates.com/layer/813-texas-coastal-management-zone-boundary-1996/.

Boundaries are subject to revision; therefore, permit applicants should review current boundary

information to determine if TCMP compliance is required.

If a project site is within the coastal zone management area the applicant must certify a statement and

justification that affirms that the proposed activity complies with the relevant enforceable policies of the

TCMP. A copy of the TCMP Consistency Form is provided in Appendix B.

Resources for more detailed information on Coastal Zone Consistency can be found at:

Texas Coastal Management Program (http://www.glo.state.tx.us/coastal/cmp.html)

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2.4.5 Endangered Species Act

USACE Permits must also comply with the Endangered Species Act of 1973. Section 7 of this Act

requires federal agencies, such as the USACE, to ensure that any action authorized, funded, or carried out

by them is not likely to jeopardize the continued existence of a listed endangered species or modification

of their listed critical habitat.

In order to facilitate the USACE‘s review of potential impacts to endangered species or critical habitats,

the Consultant shall review the most current protected species lists for Harris County provided by the US

Fish and Wildlife Service (USFWS) and Texas Parks and Wildlife Department (TPWD) to identify and

become familiar with the protected species that have the potential to occur within or in the vicinity of the

project area. The consultant shall review the ecological habitat requirements for each of these species.

They may also review aerial photographs, U.S. Geological Survey (USGS) 7.5-minute topographic

quadrangle maps, and NRCS soil survey maps depicting conditions on the project site. They will

compare the on-site conditions noted during the resource review to the ecological habitat requirements for

each of the protected species. The consultant will document their professional opinion on whether or not

habitat for any protected species potentially exists on the project site in either a concise report. Site

photos and a written logical justification of the opinion(s) shall be provided within the report.

Even if a USACE permit is avoided, any federally-funded activity is subject to compliance with the ESA.

Resources for more detailed information on the Endangered Species Act can be found at:

Endangered Species Act of 1973

http://www.tpwd.state.tx.us/huntwild/wild/species/endang/index.phtml

http://www.fws.gov/southwest/

2.4.6 National Historic Preservation Act

USACE permits must also comply with the National Historic Preservation Act (NHPA) of 1966, as

amended. Section 106 of this Act requires federal agencies, such as the USACE, to ensure that any action

authorized, funded, or carried out by them take into account the effect of the undertaking on any district,

site, building, structure, or object that is included in or eligible for inclusion in the National Register.

In order to facilitate the USACE‘s review of potential impacts to these features, the consultant shall

conduct a background archaeological and historic resource literature and records review of the project

site. For this research, the consultant will search the Texas Historical Commission‘s Texas

Archaeological Sites Atlas (Atlas), an online database, for any previously conducted surveys and

previously recorded historic or prehistoric archaeological sites and/or aboveground historic resources (e.g.

historic bridge, culvert, building) located in or near the project area. In addition to identifying previously

recorded archaeological sites, the Atlas review will include the following types of information: National

Register of Historic Places (NRHP) properties, State Archaeological Landmarks (SALs), Official Texas

Historical Markers (OTHMs), Registered Texas Historic Landmarks (RTHLs), cemeteries, and local

neighborhood surveys. The results of the review will be presented as part of the USACE permit

application.

Even if a USACE permit is avoided, any federally-funded activity is subject to compliance with the

NHPA.

Resources for more detailed information on the National Historic Preservation Act can be found at:

National Historic Preservation Act of 1966, As amended through 2006

17

The National Historic Preservation Program: Overview

2.4.7 Public Involvement

Under an Individual Permit and some Nationwide Permits, the USACE solicits public comments

regarding proposed actions. Additionally, the TCEQ would issue a joint solicitation with the USACE to

address water quality issues. This public involvement process is public interest review of the proposed

action. The public interest review can include opposition to the project, as well as support from project

proponents.

2.4.8 Wetland Delineations

Wetland delineations are required for most USACE permit applications. HCPID-AED requires field

wetland delineations for all projects. Wetland delineations conducted for HCPID-AED are discussed in

Chapter 1.

2.4.9 Prior-Converted Croplands Issue

Prior-converted (PC) croplands can be designated in areas farmed or capable of being farmed as of 1985

(per issuance of the 1985 Farm Bill). PC croplands, once designated by the NRCS, are perpetually

exempt from the provisions of the ―Swampbuster‖ program as outlined in the Farm Bill. However, they

are not perpetually exempt from the provisions of Section 404 of the CWA (USACE jurisdiction). PC

croplands only retain their PC exempt status with the USACE if planted at least once every five years and

there is no change in land use.

Considerations used to establish whether or not a wetland area within PC cropland is jurisdictional under

the CWA may vary between USACE districts or even USACE project managers within a district. Thus,

establishing whether or not the USACE has jurisdiction under the CWA in PC croplands can be

extremely complicated. Based on conversations with Lee Davis (NRCS) and Dwayne Johnson (USACE

Galveston District) in May 2000, the following checklist has been developed in an effort to clarify the

issue.

If the answer to all of the questions below is ―Yes,‖ the USACE Galveston District typically does not

consider the area jurisdictional.

1. Farmed within last 5 years?

2. Designated PC by NRCS?

3. Has a ―Certified Wetland Determination‖ (i.e. NRCS conducted determination after 1994)?

4. Proposed project requires no change in land use? (i.e., pipeline installation is not considered a

change in land use by the USACE so long as preconstruction contours are returned and

agricultural activity continues).

If the answer to any of the above questions is ―No,‖ the USACE Galveston District may consider the area

jurisdictional. Project proponents have two options:

1. Get the NRCS to conduct a Certified Wetland Determination (CWD). CWD requests require

formal initiation by the landowner and may take several weeks to complete. Depending upon the

outcome of the CWD, the USACE may still need to be contacted.

2. Submit project for USACE review (if project impacts are not covered under a Nationwide Permit

with no pre-construction notification) and assume that area is jurisdictional.

18

This checklist is provided for general information purposes only. Final determination of jurisdiction lies

with the USACE and issues concerning PC croplands should be carefully considered and discussed with

the USACE and NRCS prior to project initiation. In short, the need to coordinate with the USACE is

not removed just because an area is designated PC.

2.4.10 Other Permits or Reviews

Authorization by a USACE permit does not relieve HCPID-AED of the responsibility to obtain other

required permits and/or agency reviews. Examples of other permits or project reviews include GLO

easements, Coast Guard permits, locally-designated historic reviews, or compliance with municipal

ordinances.

2.5 Exemptions

Certain activities in waters of the United States are exempted by law from regulation under Section

404(f), including certain farming, ranching, and forestry activities. Included are normal farming,

silvacultural, and ranching activities, maintenance of recently damaged structures, construction and

maintenance of farm ponds and irrigation ditches, construction of temporary sedimentation basins, and

construction and maintenance of farm, forest, and mining roads using approved best management

practices. However, the exemptions are applied carefully and are not intended to exempt activities with

more than minor adverse impacts to the aquatic ecosystem.

Exemptions from Section 404 per 33CFR 323.4(a):

Normal farming, ranching, and silvicultural activities

Maintenance of fill structures

Pond/irrigation ditch/drainage ditch maintenance

Irrigation ditch construction

Temporary sedimentation basins

208 Program

Farm/forest roads & temporary mining roads

404(f)(2) Recapture states that the 404(f)(1) exemptions cannot be used if the project: ―is part of an

activity whose purpose is to convert an area of the ‗waters of the U.S.‘ into a use to which it was not

previously subject, where the flow or circulation of ‗waters of the U.S.‘ may be impaired or the reach of

such waters is reduced.‖

2.6 Nationwide Permits Commonly Acquired for HCPID-AED Projects

HCPID-AED‟s preference is to permit projects under applicable Nationwide Permits. Full

consideration must be made regarding the extent of the project impacts and to whether a project is

considered „single and complete‟ in relation to other HCPID-AED projects. Permitting consultants

should coordinate with HCPID-AED and/or the engineering consultant to determine the project limits

and any other associated actions, and develop a rationale for a single and complete project. The

engineer must review and certify, by signature, the project limits and scope.

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2.6.1 NWP 3 – Maintenance

This nationwide permit allows for the repair or replacement of an existing structure or fill within ‗waters

of the U.S.‘ that were previously authorized by the USACE, provided that the structure or fill is not put to

uses differing from those specified for it in the original authorization.

This nationwide permit requires submittal of a pre-construction notification and a wetland delineation

under certain circumstances.

2.6.2 NWP 7 - Outfall Structures

NWP 7 authorizes the construction or modification of outfall structures within ‗waters of the U.S.‘ (where

the effluent from the outfall is authorized, conditionally authorized, or specifically exempted, or is

otherwise in compliance with regulations issued under the National Pollutant Discharge Elimination

System Program (section 402 of the CWA)).

This nationwide permit always requires a pre-construction notification and wetland delineation.

2.6.3 NWP 12 - Utility Line Activities

This nationwide permit allows for the construction, maintenance, repair, or removal of utility lines (e.g.

pipelines, electric lines) and associated features within ‗waters of the U.S.‘ as long as there is a loss of no

more than 1/2 acre of ‗waters of the U.S.‘ per crossing.

Nationwide Permit 12 also authorizes the construction of access roads for utility lines, provided that the

access road:

Does not result in the permanent loss of greater than 0.5 acre of ‗waters of the U.S.‘;

Must be constructed to the minimum width necessary;

Must be constructed so that the length of the road minimizes any adverse effects to ‗waters of the

U.S.‘;

Must be as near as possible to pre-construction contours and elevations; and

Must be properly bridged or culverted when constructed above pre-construction contours.

This nationwide permit requires pre-construction notification and a wetland delineation if:

The activity involves mechanized land clearing in a forested wetland;

A section 10 permit is required to cross a navigable waterbody (Rivers and Harbors Act);

The utility line exceeds 500 feet in length through any single crossing of a ―water of the U.S.‖;

The utility line is placed within a jurisdictional area (i.e. ―water of the U.S.‖) and it runs parallel

to a stream bed that is within that jurisdictional area;

Discharges that result in the permanent loss of greater than 0.1 acre of ‗waters of the U.S.‘;

Permanent access roads are constructed above grade in ‗waters of the U.S.‘ for a distance of

more than 500 feet; or

Permanent access roads are constructed in ‗waters of the U.S.‘ with impervious materials.

2.6.4 NWP 13 - Bank Stabilization

NWP 13 authorizes bank stabilization activities necessary for erosion prevention within ‗waters of the

U.S.‘, provided each of the following criteria are met:

20

The activity does not exceed 500 feet in length along the bank (subject to written waiver by the

D.E.);

The activity will not result in greater than 1 cubic yard of fill material per linear running foot

below the OHWM (subject to written waiver by the D.E.); or

The activity will not involve discharges into special aquatic sites (e.g. wetlands) (subject to

written waiver by the D.E.).

This nationwide permit requires submittal of a pre-construction notification and a wetland delineation if

any of the above listed criteria are not met.

2.6.5 NWP 14 - Linear Transportation Projects

NWP 14 authorizes the construction or modification of linear transportation projects (e.g. roadways,

railways, runways, trails) within ‗waters of the U.S.‘, provided the following criteria are met:

there is a loss of no more than 1/2 acre in non-tidal waters per crossing, or

there is a loss of no more than 1/3 acre in tidal ‗waters of the U.S.‘ per crossing.

This nationwide permit requires submittal of a pre-construction notification and a wetland delineation if:

The loss of ‗waters of the U.S.‘ exceeds 1/10 acre; or

There is a discharge into a special aquatic site, including wetlands.

2.6.6 NWP 18 - Minor Discharges

NWP 18 authorizes for the excavation and placement of up to 25 cubic yards of fill in less than 1/10 acre

of all ‗waters of the U.S.‘ (below the OHWM or high tide line (HTL)) as long as it is not placed for the

purpose of a stream diversion.

This nationwide permit requires submittal of a pre-construction notification and a wetland delineation if:

The discharge or volume of excavated exceeds 10 cubic yards below the OHWM or HTL, or

The discharge is in a special aquatic site, including wetlands.

2.6.7 NWP 25 - Structural Discharges

NWP 25 authorizes the ―discharge of materials such as concrete, sand, rock, etc. into tightly sealed forms

or cells where the material will be used as a structural member for standard pile supported structures such

as bridges, transmission line footings, and walkways, or for general navigation‖ (Wetland Training

Institute, 2007).

This nationwide permit does not require the submittal of a pre-construction notification or a wetland

delineation; however, the structure itself may require a Section 10 permit if located in a Section 10

navigable water of the U.S.

2.6.8 NWP 33 - Temporary Construction, Access, and Dewatering

NWP 33 allows for the placement of temporary structures or fill material necessary for construction

activities, access fills, or dewatering of construction sites within ‗waters of the U.S.‘ provided that the

associated primary activity is authorized by the USACE or U.S. Coast Guard. This nationwide permit

requires pre-construction notification and a wetland delineation in all cases.

21

Frequently, projects that would not require a PCN for the primary action (e.g. bank stabilization or utility

line activities below a PCN threshold), will require a PCN and delineation in order for the construction

method to be authorized. An example construction method requiring use of NWP 33 is the use of coffer

dams during a bank stabilization project that falls below the PCN threshold for NWP 13.

2.6.9 NWP 36 - Boat Ramps

This nationwide permit allows for the construction of boat ramps within ‗waters of the U.S.‘, provided

each of the following criteria are met:

The discharge into ‗waters of the U.S.‘ does not exceed 50 cubic yards (subject to written waiver

by the D.E.)

The boat ramp does not exceed 20 feet in width (subject to written waiver by the D.E.)

The base material is crushed stone, gravel, or other structurally stable material

The excavation is limited to the area necessary for site preparation and excavated material is

removed to the upland, and

No material is placed in special aquatic sites, including wetlands.

This nationwide permit requires submittal of a pre-construction notification and a wetland delineation if

the discharge into ‘waters of the U.S.’ exceeds 50 cubic yards, or the boat ramp exceeds 20 feet in width.

2.6.10 NWP 39 - Commercial and Institutional Developments

NWP 39 authorizes discharges if dredged or fill material in non-tidal ‗waters of the U.S.‘ for the

construction of or expansion of commercial and institutional building foundations and building pads and

attendant features that are necessary for the use and maintenance of the structures, provided each of the

following criteria are met:

The discharge must not cause the loss of greater than ½ acre of non-tidal ‗waters of the U.S.‘,

including the loss of no more than 300 linear feet of stream bed* (subject to written waiver by the

D.E.).

*The 300 linear feet of stream bed limit, if for intermittent and/or ephemeral stream beds, may be waived

in writing by the D.E.

Institutional developments include schools, fire stations, government office buildings, public works

buildings, etc.

This nationwide permit always requires the submittal of a pre-construction notification and a wetland

delineation.

2.6.11 NWP 41 - Reshaping of Existing Drainage Ditches

This nationwide permit allows for modifications to the cross-sectional configuration of currently

serviceable jurisdictional drainage ditches, with certain limitations. The reshaping of the drainage ditch

cannot increase drainage capacity beyond the original as-built capacity nor can it expand the area drained

by the ditch as originally constructed. NWP 41 does not authorize the relocation of drainage ditches,

stream channelization, or stream relocation.

This nationwide permit requires submittal of a pre-construction notification if more than 500 linear feet

of drainage ditch will be reshaped.

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2.6.12 NWP 43 - Stormwater Management Facilities

This nationwide permit allows for the construction and excavation of stormwater management facilities

within ‗waters of the U.S.‘ provided each of the following criteria are met:

The discharge must not cause the loss of greater than ½ acre of non-tidal ‗waters of the U.S.‘,

including the loss of no more than 300 linear feet of stream bed* (subject to written waiver by the

D.E.).

The discharge can not be into non-tidal wetlands adjacent to tidal waters.

The discharge of dredged or fill material for the construction of new stormwater facilities can not

be placed in perennial streams.

*The 300 linear feet of stream bed limit, if for intermittent and/or ephemeral stream beds, may be waived

in writing by the D.E.

Stormwater management facilities includes stormwater ponds, detention basins, and retention basins,

water control structures, outfall structures and emergency spillways, and the maintenance dredging of

existing stormwater management ponds and detention and retention basins.

This nationwide permit requires submittal of a pre-construction notification and a wetland delineation for

the construction of new stormwater management facilities. Maintenance activities limited to restoring

original design capacities do not require a pre-construction notification.

2.6.13 NWP 45 - Repair of Uplands Damaged by Discrete Events

This nationwide permit allows for discharges into all ‗waters of the U.S.‘ for the purpose of restoring

upland areas damaged by storms, floods or other discrete events, provided each of the following criteria

are met:

The restoration, including bank stabilization to protect the restoration area, can not exceed the

contours or OHWM that existed before the damage occurred.

The restoration must commence, or be under contract to commence, within two years of the date

of damage* (subject to written waiver by the D.E.).

Minor dredging, if necessary, is limited to the restoration area and must not significantly alter the

pre-existing bottom contours of a waterbody.

This nationwide permit requires submittal of a pre-construction notification within 12 months of the date

of the damage.

2.7 USACE Permit Applications

2.7.1 Pre-Application Consultations / Joint Evaluation Meetings

Dependent upon the complexity of a proposed project, or anticipated pubic or multi-agency interest, a

project proponent may elect to request an informal pre-application consultation with a regulatory

specialist and/or a Joint Evaluation Meeting (JEM). JEMs are generally only necessary for larger or more

complex projects and may be requested prior to or after the submittal of an application.

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The basic purpose of a pre-application meeting is to provide for informal discussions about the pros and

cons of a proposed activity relative to its effects on the aquatic environment while the applicant is still in

the planning process. The process allows for a consideration of potentially less environmentally

damaging alternatives available to accomplish the project purpose, to discuss measures for reducing the

impacts of a project, and to inform the applicant of the factors the USACE must consider in its decision-

making process.

JEM‘s serve a similar function and may include the input from the U.S. Fish and Wildlife Service,

National Marine Fisheries Service, Environmental Protection Agency, Texas Commission on

Environmental Quality, Texas Parks and Wildlife Department, Texas General Land Office and the Permit

Service Center.

The Galveston District Office holds JEMs on the 2nd Wednesday of each month. The Galveston

District‘s Joint Evaluation Meeting Process Web Guidance is provided in Appendix B.

2.7.2 Complete USACE Applications

2.7.2.1 NATIONWIDE PERMIT PRE-CONSTRUCTION NOTIFICATION COMPONENTS

A pre-construction notification (PCN) is ―a request submitted by the project proponent to the Corps for

confirmation that a particular activity is authorized by a nationwide permit. The request may be a permit

application, letter, or similar document that includes information about the proposed work and its

anticipated environmental effects. PCNs may be required by the terms and conditions of a nationwide

permit, or by regional conditions. A PCN may be voluntarily submitted in cases where pre-construction

notification is not required and the project proponent wants confirmation that the activity is authorized by

a nationwide permit‖ (Wetland Training Institute, 2007). PCNs for HCPID-AED must include all items

identified on the PCN Notification Checklist provided in Appendix A.

PCNs submitted to the USACE must include:

Permittee name, address, telephone number;

Authorized agent‘s name, address, telephone number (if applicable);

Location and limits of the proposed project;

Description of the proposed project;

The project's purpose and need;

Direct and indirect adverse environmental effects;

Discussion regarding potential impacts to federally listed endangered or threatened species and

historic properties;

Mitigation Plan for greater than 1/10 acre impact to wetlands that are ‗waters of the U.S.‘;

Other nationwide permits or individual permits to be used (if applicable);

Wetland Delineation and/or Jurisdictional Determination.

While the standard individual permit application form (ENG 4345) is accepted by the USACE for a PCN

for a nationwide permit (if clearly marked as such), HCPID-AED requires that a cover letter and

attachment format to be used for all PCN submittals. Consultants should not use ENG 4345 for

HCPID-AED NWP PCNs.

Refer to Section 2.8.2.2.2 for a discussion of Mitigation Plan requirements, if a Mitigation Plan is

required for a Nationwide Permit. Permit applications will not be considered complete, for purposes of

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starting the Nationwide Permit (NWP) Pre-Construction Notification (PCN) 45-day review clock, without

a ―draft‖ mitigation plan.

Resources for more detailed information on NWP PCN‘s can be found at:

Wetland Training Institute, Inc. 2007. Nationwide Permits Complete: Robert J. Pierce and Sam

Collinson, eds., David E. Dearing, contributing author. WTI 07-6.

Nationwide Permit Regional Conditions for the State of Texas

2.8.2.2 INDIVIDUAL PERMIT APPLICATION COMPONENTS

Individual Permit applications for HCPID-AED must include all items identified on the Individual

Permit Checklist provided in Appendix A. The permitting consultant must provide a completed

Individual Permit Checklist to HCPID-AED that is signed by the engineering consultant and the

permitting sub-consultant, where applicable.

2.8.2.2.1 ENG FORM 4345

ENG 4345 is the standard form that is used for individual permit applications.

2.8.2.2.2 Mitigation Plans

All permit applications must describe the proposed mitigation for unavoidable wetland impacts or explain

why compensatory mitigation should not be required for the project. Submittal of permit applications

without a detailed ―draft‖ wetland mitigation plan will result in a delay of USACE permit processing until

a draft mitigation plan can be provided. In 2008, a new wetland mitigation rule aimed at establishing

equivalent standards for all types of mitigation under the Clean Water Act Section 404 regulatory

program. This ‗new rule‘ is detailed in Federal Register, Vol. 73, No. 70, pages 19594 to 19669 (2008)

and an overview of how it is applied by the USACE is provided in Section 2.9.3.2.4 of this guidance.

If the permittee can use a mitigation bank or In-Lieu Fee (ILF) program, the mitigation plan simply

needs to identify the name of the bank or program, provide detailed baseline information about the impact

site (i.e. the information typically found in a wetland delineation report), and provide the number and

resource type of credits to be secured with an explanation as to how the number of credits was

determined.

If a mitigation bank or ILF program is not available, the permittee must use permittee-responsible

mitigation (PRM). PRM sites should be determined using a ―watershed approach‖ to the extent

appropriate and practicable. The goal of a watershed approach is ―to maintain and improve the quality

and quantity of aquatic resources within watersheds through strategic selection of compensatory

mitigation sites.‖ The mitigation plan must provide information to the USACE justifying how the

mitigation project will benefit the overall watershed.

If a watershed approach is not practicable, the USACE will first prefer on-site, in-kind, mitigation. The

permittee must demonstrate whether or not on-site, in-kind, mitigation is practicable. If not, the USACE

may allow off-site, in-kind, or even off-site, out-of-kind, (if the benefit is great enough) mitigation. Still,

the site and type of mitigation proposed must be justified, and that justification documented within the

mitigation plan.

In order to establish a PRM site, a draft mitigation plan must first be presented to the USACE,

commented on and revised if necessary, then approved as final by the USACE. This can delay the permit

review process.

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If the permittee has no other option but for a PRM site, the draft mitigation plan must contain several

more sections than previously required. These new sections include a detailed functional assessment of

both the impact and mitigation sites and a formal adaptive management plan. The USACE will also

require a wetland delineation of the proposed PRM site as part of the mitigation plan.

The adaptive management plan must describe how unexpected challenges that develop during the course

of the mitigation project will be addressed. It provides a formal process for addressing changes that may

be necessary to the mitigation plan, mitigation bank instrument, monitoring, and long-term management

of the mitigation site.

Financial assurances must be established and in place prior to commencing work in ‗waters of the U.S.‘,

including jurisdictional wetlands. The new rule requires much more rigorous financial assurances than

before, especially for PRM, including consideration of costs for complete replacement of mitigation, such

as land acquisition, planning/engineering, legal fees, mobilization, construction, planting, and monitoring.

Financial assurances can be phased out once the mitigation site‘s success criteria are met. However,

financing mechanisms for long-term active management needs, such as invasive species control or on-

going site maintenance, will have to be established in advance of permit issuance and remain in place

even after success criteria have been met and the initial financial assurances have been released. In short,

financing necessary to ensure the continued sustainability of a PRM site will have to be established and

approved prior to commencing the permitted activity.

Long-term management responsibilities for a PRM site may be transferred to a third-party, including a

private land manager, after review and approval by the USACE. The third party need not be identified in

the original permit action.

Long-term protection mechanisms for PRM sites must be approved by the USACE in advance of

construction causing the authorized impacts. Conservation easements have become the most preferred

form of long-term mitigation site protection. USACE districts are showing preference to conservation

easements over deed restrictions or other restrictive covenants. The USACE considers conservation

easements less risky than other forms of restrictive covenants because conservation easements must be

held by a third-party, typically a non-profit organization such as The Nature Conservancy.

In summary, PRM mitigation plans are now closer to abbreviated wetland mitigation banking agreements

and require extensive functional analysis, site justification, and up-front financial and long-term

protection instrument development.

2.9 USACE Application Processes

A flowchart will be depicted here for the NWP and IP process.

2.9.1 HCPID-AED NWP and IP Pre-Application Process

For both Nationwide Permits and Individual Permits, the HCPID-AED Pre-Application Process is as

follows:

1) HCPID-AED or HCPID-AED‘s engineering consultant shall provide the environmental

consultant with a project description, the purpose and need for the project, project

engineering plans and profiles, and the project impacts calculated from the wetland

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delineation and the engineering plans and profiles. The project description shall identify the

"complete" HCPID-AED project, which may include adjacent/contiguous roadway projects,

detention basins built for several projects, stockpiles/borrow sites, etc.

2) HCPID-AED and/or HCPID-AED‟s engineering consultant must continually

update/inform the environmental consultant if there are changes/updates to the project

design or project boundaries.

3) The environmental consultant prepares draft permit application package based on information

and specifications provided by HCPID-AED.

4) The draft permit application package is provided to HCPID-AED for review. It is the

responsibility of the engineering consultant to review the environmental sub-consultant's

documents for accuracy and completeness prior to submittal to HCPID-AED; this includes

the complete project limits, activities, quantities, and purpose/need of the project.

5) The engineering consultant is responsible for coordinating any updates/revisions to the

environmental consultant.

6) HCPID-AED and/or HCPID-AED‟s engineering consultant must review and certify the

project limits and scope.

7) HCPID-AED will provide comments on the draft application (or accept as is); these will be

sent to the environmental consultant.

8) The environmental consultant will make edits, if necessary, and provide four (4) copies of the

final application package to HCPID-AED, along with a cover letter addressed to the

appropriate USACE official.

9) HCPID-AED will prepare a standard cover letter and submit the HCPID-AED cover letter,

the environmental consultant‘s cover letter, and the application package to the USACE. The

environmental consultant will be copied so that they are aware that the documents were

submitted. The HCPID-AED cover letter will explain that HCPID-AED, Environmental

Services is the point-of-contact on the permit submittal and that all correspondence should be

directed to the contact listed , with a copy furnished to the environmental consultant.

10) Once the application request is in the USACE system, the environmental consultant will

coordinate as necessary with the USACE to ensure that the permit process moves along. The

environmental consultant should copy both HCPID-AED and engineering consultant (if the

environmental consultant is a sub-consultant) on all requests for information received from

the USACE.

11) The HCPID-AED project manager and/or a representative from the Environmental Section

should be invited to all permitting meetings requested by the USACE.

2.9.2 USACE Application Process—Nationwide Permits

Once an application is received by the USACE, an application number and USACE project manager will

be assigned. An Acknowledgement Form will be sent to the applicant, and/or authorized agent,

identifying the date the application was received by the USACE, the USACE project manager and contact

information, and application number. Occasionally, the USACE will send the Acknowledgement Form to

HCPID-AED without copying the authorized agent; therefore, it is recommended that the HCPID-AED

project manager communicate with the authorized agent to ensure that the agent is aware of the USACE‘s

assigned project manager and application number.

Following receipt, the USACE will check permit applications for completeness. According to

regulations, the USACE has 30 days to notify an applicant if a permit is complete. If an application is

determined to be incomplete, the USACE will notify the applicant and request information to complete

the application. If a permit application is determined to be incomplete, the permit review process will not

start until the USACE receives all requested information. Once the application is determined to be

complete, the USACE will review the project details, permit request, and mitigation plan. The USACE

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will either grant the nationwide permit or request changes to the project design, permit request, or

mitigation plan.

2.9.3 USACE Application Process—Individual Permits

The USACE receipt and assignment of an application number and USACE project manager for Individual

Permits is the same as the process for Nationwide Permits (Section 1.9.2).

2.9.3.1 PERMIT COMPLETENESS REVIEW

Following receipt, the USACE will check permit applications for completeness. For Individual Permits,

there is no specified timeframe or deadline imposed on the USACE to notify an applicant if a permit is

complete. If an application is determined to be incomplete, the USACE will notify the applicant and

request information to complete the application. Once the application is determined to be complete, the

USACE will review the project details, permit request, and mitigation plan.

2.9.3.2 SECTION 404 (B) (1) ANALYSES FOR INDIVIDUAL PERMITS

The Section 404(b)(1) Guidelines, published by EPA, are the substantive aquatic ecosystems standards by

which all Section 404 permit applications are evaluated. To highlight the efforts of the USACE to protect

waters of the United States and heighten our environmental sensitivity, the USACE has entered into a

Memorandum of Agreement (MOA) with EPA for determining the type and level of mitigation necessary

to demonstrate compliance with the Section 404(b)(1) Guidelines. The joint memorandum prescribes a

sequence of steps for evaluating proposed projects that require an individual permit. This sequence begins

with an evaluation of all practicable alternatives. The USACE will authorize only the practicable

alternative that is the least damaging to the aquatic ecosystem and does not cause or contribute to

significant degradation of waters of the United States. This reflects the objective of avoiding adverse

impacts to aquatic ecosystems whenever possible.

Once the appropriate alternative is identified, all practicable steps must be taken to minimize impacts to

the aquatic ecosystem. Finally, the USACE must insure that appropriate and practicable compensation is

provided for any unavoidable adverse impacts.

2.9.3.2.1 Alternatives Analysis

The process begins by describing the alternatives that would meet your overall project purpose

considering the following:

a. The proposed alternative.

b. Alternatives that would involve no discharges of dredged or fill material into waters of the

United States, including wetlands (no action, off-site, on-site).

c. Alternatives that would involve discharges that would have less adverse impact to waters of the

United States, including wetlands (on-site, off-site).

d. Alternatives that would involve discharges that would have greater adverse impact to waters of

the United States, including wetlands (on-site, off-site). Consider alternatives that would involve

both smaller and larger aerial coverage as well as alternatives that would be sited in different

locations. Focus this analysis on potential alternatives that might have less adverse impact on the

aquatic ecosystem, but consider alternatives that would have more impact on the aquatic

ecosystem but less adverse impact on the environment overall.

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2.9.3.2.2 Practicability

Next, address the practicability of the above alternatives. Practicability depends on cost, technical, and

logistic factors. To be practicable, an alternative must be available and capable of being done after taking

into consideration cost, existing technology, and logistics in light of overall purposes. If it is otherwise a

practicable alternative, an area not presently owned by the applicant which could reasonably be obtained,

utilized, expanded, or managed in order to fulfill the overall purpose of the proposed activity should be

considered. Technical and logistical factors that should be considered include, but are not necessarily

limited to: access, transportation needs, utilities, topography, and available construction techniques.

Address the consequences on the applicant and the public of not implementing the project.

2.9.3.2.3 Environmental Impact

After addressing practicability, assess the impact (adverse and beneficial) of each alternative on the

aquatic ecosystem and the environment overall. Compare the impact of the alternatives and identify

which, in your view, is the least environmentally damaging practicable alternative and why. Identify

practicable alternatives that have no significant or easily identifiable difference in impact from the least

environmentally damaging practicable alternative.

2.9.3.2.4 Mitigation

If the alternative identified as the least environmentally damaging practicable alternative still has adverse

impacts to the aquatic ecosystem, an applicant must identify how they propose to further minimize those

impacts and provide compensatory mitigation for any remaining unavoidable adverse impacts.

Mitigation is a three-step sequential process, with the steps employed in the following order:

Avoid: Take all appropriate and practicable measures to avoid adverse impacts to the aquatic ecosystem.

Minimize: Take all appropriate and practicable measures to minimize those adverse impacts to the

aquatic ecosystem that cannot reasonably be avoided.

Compensate: Implement appropriate and practicable measures to compensate for adverse project impacts

to the aquatic ecosystem that cannot reasonably be avoided or minimized. Known as compensatory

mitigation.

While this sequential mitigation process is normally applied only during the individual permit process,

most nationwide and regional general permits do require that discharges of dredged and fill material into

‗waters of the U.S.‘ be avoided and minimized to the maximum extent practicable, unless the District

Engineer approves a compensation plan that is more beneficial to the environment than minimization or

avoidance measures undertaken at the project site.

The District Engineer will normally require, on a case-by-case basis, all practicable and appropriate

compensation as a condition of Department of the Army authorization. The purpose of compensatory

mitigation is to replace those aquatic ecosystem functions that would be lost or impaired because of an

authorized activity. The amount and type of compensatory mitigation required for a particular activity

should be commensurate with the nature and extent of the activity‘s adverse impact on aquatic functions

and be practicable in terms of cost, existing technology, and logistics, in light of the overall project

purpose.

Aquatic functions, which are most simply defined as ―the things that aquatic systems do,‖ include

sediment trapping and nutrient removal; flood storage and conveyance; erosion control; providing habitat

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for fish and wildlife, including endangered species; groundwater recharge; water supply; production of

food, fiber, and timber; and recreation. The number and extent of these and other aquatic functions vary

widely among the myriad aquatic sites found throughout the country.

Compensatory mitigation may include the restoration, enhancement, creation, or, in exceptional cases,

preservation of wetlands and other aquatic resources. Restoration is the re-establishment or rehabilitation

of functions and characteristics that have either ceased to exist or exist in a substantially degraded state;

enhancement includes activities conducted on, or adjacent to, existing wetlands and other aquatic

resources that are intended to enhance one or more aquatic functions such as conversion to a less

destructive land use or improvement of the existing plant community; re-establishment (formerly termed

‗creation‘) of a wetland or other aquatic resource where one did not formerly exist; and preservation is

the protection of existing ecologically important wetlands and other aquatic resources in perpetuity by

implementing certain legal and physical mechanisms.

Preservation is normally appropriate only in exceptional cases, such as when a high-value aquatic

resource would be lost to lawful activities were it not protected by preservation. Restoration and

enhancement are preferred to creation because they are normally less expensive, more successful, and

less likely to adversely affect existing upland and open water habitats.

A compensatory mitigation project that involves ground disturbing activities in waters of the United

States may itself require Department of the Army authorization. It is important to remember that the goal

is to replace the affected aquatic functions to the extent that they would be lost or impaired by the

proposed activity, that is, compensation should generally be ―in-kind.‖

Compensation should be provided as close to the site of the adverse impacts as practicable to minimize

losses to the local aquatic system. However, off-site compensation may be more appropriate when the

compensation cannot reasonably be conducted at the impact site or would be more beneficial to the

aquatic ecosystem if conducted at another location. In some cases, it may be acceptable to provide partial

compensation at multiple locations. For example, it may be necessary to compensate for flood storage

impacts on site while compensating for wildlife habitat impacts at another location.

In 2008, new regulations were issued that affect processing of USACE permits and established

equivalent standards and criteria for compensatory mitigation. This ―new rule‖ can be found in the

Federal Register, Vol. 73, No. 70, pages 19594 to 19669 (2008). The rule amends 33 CFR chapter II,

Part 325 (Processing of Department of the Army Permits) and adds Part 332 (Compensatory Mitigation

for Losses of Aquatic Resources), which pertains to the USACE. This same rule amends 40 CFR part

230 (Section 404 (b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material),

adding Subpart J (Compensatory Mitigation for Losses of Aquatic Resources), which pertains to the U.S.

Environmental Protection Agency (EPA). A copy of the new rule is available for download at

http://www.usace.army.mil/cw/cecwo/reg/citizen.htm.

The „new rule‟ formalizes several initial permit requirements that must be addressed early in the

permit process. In short, the new rule requires almost all the mitigation details for a specific

project be established up-front in the permit application, before the permit is issued or work can

commence in „waters of the U.S.‟, including jurisdictional wetlands. Permits can no longer be

issued using a “conceptual” mitigation plan.

Once the draft mitigation plan has been reviewed and commented on by the USACE, a final mitigation

plan must then be approved by the USACE before an individual permit can be issued or a permittee can

commence work in ‗waters of the U.S.‘ using a NWP or other general permit.

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The USACE now has a general order of preference for mitigation mechanisms. This order must be

followed per the new rule, except in cases where the overall benefits to the watershed are greater by using

one mitigation mechanism over the other:

1. Mitigation banks;

2. In-lieu fee (ILF) programs; then

3. Permitte-responsible mitigation (PRM)

HCPID-AED prefers using mitigation banks to offset project impacts to „waters of the U.S.‟. Where

stream impacts are unavoidable, HCPID-AED‟s preferences are to propose constructing riffle/pool

complexes at the project site, and/or allowing the riparian zone to revegetate naturally.

Mitigation banks provide consolidated off-site compensation for numerous authorized activities in

advance of adverse project impacts. A mitigation bank is developed and operated under the terms of a

mitigation banking instrument among the bank owner, the USACE, and other natural resource agencies.

In most cases, Department of the Army authorization is also required to develop the bank.

There are three currently operating mitigation banks within the HCPID-AED service area: Greens

Bayou Wetland Mitigation Bank, Katy Cypress, and Mill Creek. Credit availability varies at the

time of this publication.

In-lieu fee programs provide a Department of the Army permittee an opportunity to pay a fee in lieu of

conducting project-specific compensation activities. Fees are used to fund projects designed to restore,

enhance, create, or, in some cases, preserve aquatic ecosystem functions. These projects should reflect

both the nature and extent of aquatic functions adversely affected by permitted activities. Typically, in-

lieu systems pertain to unspecified future mitigation projects, while fee-based systems involve specific,

identified mitigation projects, that are either complete or under development as fees are collected.

Only one ILF program is actively operating in the USACE Galveston District at this time. The

Spring Creek In-Lieu Fee Program purchases and restores property near Houston along Spring

Creek between Harris and Montgomery Counties (which also form the boundaries of their service

area.). Katy Prairie Conservancy, located west of Houston, historically conducted ILF mitigation

on a limited basis, though no projects have occurred in the recent past. Their service area is

primarily limited to Harris, Waller, Austin and Fort Bend Counties.

Permittee-responsible mitigation, formerly called ―project-specific‖ mitigation, involves any mitigation

option other than the mitigation banks or in-lieu fee programs. This is the only option available to

permittees whose impacts are located in an area that is not included in the service area of a mitigation

bank or in-lieu fee program with available credits appropriate for the impacted resource type.

A permittee-responsible mitigation project is typically designed and implemented by the permittee in

conjunction with the authorized activity and is often located on-site or near the authorized activity. The

permittee is also responsible for monitoring and assuring the success of the mitigation project.

2.10 COMPLIANCE AND ENFORCEMENT

Enforcement authority is shared by the USACE and EPA under Section 404 and is the sole responsibility

of the USACE under Section 10. The partnering effort with EPA in Section 404 in identifying potential

violations is very important in the implementation of the regulatory program. Unauthorized activities may

be discovered by a number of methods, including reporting by other agencies and the public. When

31

unauthorized activities are discovered, the USACE works to ensure compliance through various means,

including voluntary restoration, other remedial measures, and after-the-fact permitting. Substantial

penalties and fines may be used to deter further violations. The USACE also monitors authorized projects

for compliance with permit terms and conditions, and to confirm that impacts to the aquatic system are no

greater than expected and that any mitigation work is completed and successful.

The Section 404 Regulatory Program has civil and criminal penalties for failure to comply. Liability

extends to anyone who performs work or has responsibility or control over such work.

CWA – Negligent Discharge (2nd Conviction) – up to $50,000/day; 2 years in prison

CWA – Knowing Discharge (2nd Conviction) – up to $100,000/day; 6 years in prison

2.10.1 Common Project Construction/Maintenance Considerations

To ensure compliance under a USACE-authorized project, the following project construction and/or

maintenance considerations must be addressed:

A copy of the USACE permit must be included in the Project Plans and Specifications

Required BMPs must be identified in the Project Plans and Specifications

Costs associated with BMPs (e.g. silt fence) and revegetation must be included in the engineer

estimate and the construction contractor estimate

Permit requirements must be discussed at the pre-construction meeting

BMPs identified in the TCEQ 401 Water Quality Certification and the project Stormwater

Pollution Prevention Plan (SWPPP) must be in place at the start of construction

The USACE post-construction notification must be provided to the USACE

Responsible parties must be identified for the post-construction monitoring and maintenance

activities

2.10.2 Common Mitigation Issues

Examples to be provided by HCPID-AED.

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References

33 Code of Federal Regulations (CFR) 329. 2009. Definition of Navigable Waters of the United States,

Geographic and jurisdictional limits of rivers and lakes.

33 United States Code (USC) 401. 2009. Construction of bridges, causeways, dams or dikes

generally; exemptions.

401 Certification Reviews. 2009. Texas Comission on Environmental Quality‘s permitting website.

(http://www.tceq.state.tx.us/permitting/water_quality/wq_

assessment/401certification/401certification_definition.html)

Dunn D. 2003. SWG-Standard Operating Procedures (SOP); Recording Jurisdictional Delineations

Using Global Positioning Systems (GPS). CESWG-PE-R.

EPA Wetland Regulatory Authority, Regulatory Requirements. 2008. EPA843-F-04-001.

(http://www.epa.gov/owow/wetlands/pdf/reg_authority_pr.pdf)

General Permit. 2009. USACE Fort Worth District‘s regulatory website.

(http://www.swf.usace.army.mil/pubdata/environ/regulatory/permitting/gp.asp)

Grumbles B.H, John Paul Woodley. 2007a. ―Clean Water Act Jurisdiction Following the U.S. Supreme

Court‘s Decision in Rapanos v United States & Carabell v. United States‖. EPA memorandum.

(http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf)

Grumbles B.H., John Paul Woodley. 2007b. ―U.S. Army Corps of Engineers Jurisdictional

Determination Form Instructional Guidebook‖.

(http://www.usace.army.mil/CECW/Documents/cecwo/reg/cwa_guide/jd_guidebook_051207fina

l.pdf)

Individual Permit. 2009. USACE Forth Worth District‘s regulatory website.

(http://www.swf.usace.army.mil/pubdata/environ/regulatory/permitting/ip.asp)

McLaughlin, Kim. 2004. CWA Section 404: A Regulatory Briefing power point presentation, Harris

County Flood Control District

Neumann, Ali. 2008. ―Wetland Rule and Regulations Past, Present, and Future‖. Diss. Texas A&M

University.

Permit Information. 2008. USACE Galveston District‘s regulatory website.

(http://www.swg.usace.army.mil/reg/permits.asp)

Riley, D., 2005. Regulatory Guidance Letter (RGL) 05-02, SUBJECT: Expiration of Geographic

Jurisdictional Determinations of Waters of the United States.

(http://www.usace.army.mil/CECW/Documents/cecwo/reg/cwa_guide/app_f_rgl05-02.pdf)

Scope of Corps‘ Regulatory Jurisdiction in the San Francisco District. 2008. US Army Corps of

Engineers San Francisco District.(http://www.spn.usace.army.mil/ regulatory/jd.html).

33

Section 106 Regulations Summary. 2002. Advisory Council on Historic Preservation‘s Working with

Section 106 website. (http://www.achp.gov/106summary.html)

Studt, J.F, 1991. U.S. Army Corps of Engineers Wetlands Delineation Manual Modifications and

Clarifications. SUBJECT: Questions & Answers on 1987 Manual.

(http://www.wetlands.com/coe/ce07oc91.htm)

The Universal Transverse Mercator (UTM) Grid, Fact Sheet 077-01. 2001. United States Geological

Survey. (http:// egsc.usgs.gov /isb/pubs/factsheets/fs07701.html)

U. S. Army Corps of Engineers. 1987. USACE wetlands delineation manual. Environmental Laboratory,

U.S. Army Corps of Engineers, Waterways Experiment Station, Vicksburg, MS, USA. Technical

Report Y-87–1.

U.S. Army Corps of Engineers. 2006. ―Interim Regional Supplement to the Corps of Engineers Wetland

Delineation Manual: Great Plains Region,‖ J. S. Wakeley, R. W. Lichvar, and C.V. Noble, eds.,

Technical Report _______, U.S. Army Engineer Research and Development Center, Vicksburg,

MS.

U.S. Army Corps of Engineers. 2007. ―Interim Regional Supplement to the Corps of Engineers Wetland

Delineation Manual: Atlantic and Gulf Coastal Plain Region,‖ J. S. Wakeley, R. W. Lichvar, and

C.V. Noble, eds., Technical Report _______, U.S. Army Engineer Research and Development

Center, Vicksburg, MS.

Wetland Training Institute, Inc. 2007. Nationwide Permits Complete: Robert J. Pierce and Sam

Collinson, eds., David E. Dearing, contributing author. WTI 07-6.

Terminology

Approved Jurisdictional Determination (JD) form: ―An official Corps determination that jurisdictional

―waters of the United States,‖ or ―navigable waters of the United States,‖ or both, are either present or

absent on a particular site‖ (RGL 08-02, 2008).

Hydrology: ―The science dealing with the properties, distribution, and circulation of water‖ (U.S. Army

Corps of Engineers, 1987)

Navigable Waters of the United States: Waters that are subject to tidal ebb and flow, and those that are

presently used, have been used in the past, or may be susceptible to use by the transport of interstate or

foreign commerce in the future. Wetlands are included in the jurisdiction only to the extent that they

affect the biological, chemical, and ecological integrity of the associated water of the United States (Clean

Water Act, Section 404)

Non-Relatively Permanent Water (non-RPW): A waterbody ―where the flow through the tributary is not

continuous at least seasonally‖ (Grumbles and Woodley, 2007b)

Nonwetland: ―Any area that has sufficiently dry conditions that indicators of hydrophytic vegetation,

hydric soils, and/or wetland hydrology are lacking. As used in this manual, any area that is neither a

wetland, a deepwater aquatic habitat, nor other special aquatic site‖ (U.S. Army Corps of Engineers,

1987)

Preliminary Jurisdictional (PJD) form: ―Non-binding. . .written indications that there may be waters of the

United States, including wetlands, on a parcel or indications of the approximate location(s) of waters of

the United States or wetlands on a parcel. Preliminary JDs are advisory in nature and may not be

appealed.‖ (See 33 C.F.R. 331.2.)‖ (RGL 08-02, 2008).

Relatively Permanent Water (RPW): A waterbody ―where the flow through the tributary (a natural, man-

altered, or man-made water body) is year-round or continuous at least ‗seasonally‘‖ (Grumbles and

Woodley, 2007b)

Traditional Navigable Water (TNW): ―Includes all of the ‗navigable waters of the US‘ defined in 33 CFR

Part 329 and by numerous decisions of the federal courts, plus all other waters that are navigable-in-fact

(e.g., the Great Salt Lake, UT and Lake Minnetonka, MN)‖ (Grumbles and Woodley, 2007b).

Transect: ―A line on the ground along which observations are made at some interval‖ (U.S. Army Corps

of Engineers, 1987).

Wetland: ―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. Wetlands generally include swamps, marshes, bogs,

and similar areas‖ (U.S. Army Corps of Engineers, 1987).

Wetland boundary: ―The point on the ground at which a shift from wetlands to nonwetlands or aquatic

habitat occurs. These boundaries usually follow contours‖ (U.S. Army Corps of Engineers, 1987).

Wetland determination: ―The process or procedure by which an area is adjudged a wetland or

nonwetland‖ (U.S. Army Corps of Engineers, 1987).

Waterbodies: (i.e. creeks, streams, etc.) are identified by the presence of an ordinary high water mark

(OHWM), usually identifiable by indicators such as the level of water present, scouring of the channel, or

a vegetation line within the channel.

Waters of the United States: (a)Waters that are or have been used for foreign or interstate trade and those

waters affected by tidal ebb and flow; (b) all interstate waters and interstate wetlands; (c) all waters in

which the use and degradation of could affect interstate or foreign commerce (including the recreation

and shellfish industries); (d) impoundments of water otherwise defined as waters of the United States; (e)

tributaries associated with above mentioned waters of the United States; (f) territorial seas; and (g)

wetlands adjacent to above mentioned waters of the United States. Waste water treatment facilities and

prior convert croplands are not considered ―Waters of the United States‖ (40 CFR 230.3(s)).

Acronyms 1987 Manual Corps of Engineers Wetlands Delineation Manual Atlas Texas Historical Commission’s Texas Archaeological Site Atlas CFR Code of Federal Regulations CWA Clean Water Act CZM Coastal Zone Management ERDC US Army Corps of Engineers Research and Development Center FAC Facultative Plants FACU Facultative Upland Plants FACW Facultative Wetland Plants FEMA Federal Emergency Management Agency GIS Geographic Information System GPS Global Positioning System HCPID-AED Harris County Public Infrastructure Department ILF In-Lieu Fee IP Individual Permit JD Jurisdictional Determination LOP Letter of Permission Non-RPW Non-Relatively Permanent Water NRCS Natural Resource Conservation Service NRHP National Register of Historic Places NWP Nationwide Permit OBL Obligate Wetland Plants OTHM Official Texas Historical Markers PCN Pre-Construction Notification PEM Palustrine Emergent Wetland PFO Palustrine Forested Wetland PRM Permittee-Responsible Mitigation PSS Palustrine Scrub-Shrub Wetland Rapanos Rapanos v United States and Carabell v United States RGP Regional General Permit RHA Rivers and Harbors Act of 1899 RPW Relatively Permanent Water RTHL Registered Texas Historic Landmark SAL State Archeological Landmark Section 10 Section 10 of the Rivers and Harbors Act of 1899 Section 106 Section 106 of the National Historic Preservation Act of 1966 Section 404 Section 404 of the Clean Water Act SOP Standard Operating Procedures SWANCC Solid Waste Agency of Northern Cook County TCEQ Texas Commission on Environmental Quality TNW Traditional Navigable Water TPWD Texas Parks and Wildlife Department UPL Obligate Upland Plants USACE US Army Corps of Engineers USDA United States Department of Agriculture USEPA US Environmental Protection Agency USFWS US Fish and Wildlife Service USGS US Geological Survey WRAP Wetland Regulatory Assistance Program

APPENDIX A

HCPID-AED Wetland Delineation Report Requirements Checklist

Methodology

Site Description

Vegetation Communities Description

Soils Description

Hydrology Description

Delineated Features Description

o Wetlands

o Waterbodies

o Other Features

Consultants Jurisdictional Opinion

Report Maps and Figures

o Vicinity Map

o Site Layout Maps

Project Survey Boundary

Transects

Datapoints

Delineated Wetlands/Waterbodies

Other

Delineation Datasheets

Photolog

Name (Print): Signature: Organization: Title: Date:

HCPID-AED Nationwide Permit PCN Checklist

HCPID-AED cover letter identifying the project and the consultant as the

authorized agent for HCPID-AED

Consultant‟s cover letter identifying the NWP authorization requested

PCN Information Documentation

Prospective Permittee Contact Information- include both permittee and authorized agent

information if applicable. In general, the consultant shall act as HCPID-AED‟s

authorized agent.

Proposed Project Location

Proposed Project Description

Delineation of Affected Special Aquatic Sites, Including Wetlands, Vegetated Shallows,

and Riffle and Pool Complexes

Mitigation Requirements or Restoration Plan

Threatened and Endangered Species Review

Cultural and Historic Resources Review

Project Vicinity Map

Plan and Profile Exhibits – must be on 8.5 x 11 sheets

401 Water Quality Tier I Checklist

CZM Consistency Statement (if project is in the CMZ)

Wetland Delineation

JD Forms (hardcopy and editable CD-rom)

Threatened & Endangered Species Review Documentation

Cultural Constraints Analysis

Name (Print): Signature: Organization: Title: Date:

HCPID-AED Individual Permit Checklist

HCPID-AED cover letter identifying the project and the consultant as the

authorized agent for HCPID-AED

Consultants cover letter identifying the authorization requested

ENG 4345

Applicant‘s name, address, and phone number

Authorized Agent‘s name, title, address, and phone number (agent is not required)

Project name or title

Name of waterbody (if known and applicable)

Project street address (if applicable)

Location of project

Other location descriptions (if known)

Directions to the site

Nature of Activity (description of project, include all features)

Project purpose (describe the reason or purpose of the project)

Reason(s) for discharge

Types of Material being discharged and the amount of each type in cubic yards

Surface area in acres of wetlands or other waters filled

Description of work completed

Addresses of adjoining property owners, lessees, etc., whose property adjoins the

waterbody

List of other certifications or approvals/denials received from other federal, state, or

local agencies for work described in this application

Drawings or illustrations

Vicinity map

Plan view or a Typical cross-section map

Project Vicinity Map

Plan and Profile Exhibits – must be on 8.5 x 11 sheets

401 Water Quality Tier I Checklist or Tier II Analysis

CZM Consistency Statement (if in CMZ)

Wetland Delineation

JD Forms (hardcopy and editable CD-rom)

Threatened & Endangered Species Review Documentation

Cultural Constraints Analysis

Name (Print): Signature: Organization: Title: Date:

APPENDIX B

(attached to this draft as a separate .pdf file)

APPENDIX C

(attached to this draft as a separate .pdf file)

ACKNOWLEDGEMENTS

Technical Advisory Committee: Patrick D. Garrett, P.E. (HCPID-AED) Frank Y. Ma, P.E. (HCPID-AED) Teresa L. Beavers, P.E. (HCPID-AED) (primary contact) Kathy L. Williams (HCPID-AED) (primary contact) C. Dwayne Rogers (HCPID-AED) (primary contact) Diane L. Jones (HCPID-AED)

CONDITIONAL USE OF THIS DOCUMENT

This document is meant as guidance only; additional or revised information may be required.