2 Topics Today: 1) Waters that are Regulated 2) What are Wetlands? 3) Approved vs - Preliminary Determinations 4) Jurisdiction: Commerce vs - Significant Nexus Pacesetters Building Strong!
3 Afternoon: Topics Today: 1) Types of Department of the Army Permits 2) NWP & Environmentally sensitive areas 3) Letter of Permission 4) Standard Permits & Evaluation Process 5) Mitigation 6) Appeals 7) Enforcement Pacesetters Building Strong!
4 U.S. ARMY CORPS OF ENGINEERS GALVESTON DISTRICT
5 Galveston District Boundary Walker Trinity Polk Tyler Vernon Jasper Newton Beauregard San Jacinto Fayette Austin Waller Montgomery Harris Liberty Hardin Calcasieu Orange Chambers Jefferson Cameron McMullen Duval Colorado Fort Bend Gonzales Lavaca Galveston Wharton Brazoria DeWitt Jackson Karnes Matagorda Victoria Goliad Calhoun Bee Refugio Live Oak Aransas Jim Wells San Patricio Nueces Kleberg Gulf of Mexico Zapata Jim Hogg Brooks Kenedy Kenedy Starr Hidalgo Willacy Cameron Pacesetters Building Strong!
6 How the Corps is Organized Corps of Engineers Headquarters Corps of Engineers Southwest Division Fort Worth District Tulsa District Galveston District Civil Works Program - Dredging - Flood Control Military Program Regulatory Program - Evaluation - Compliance - Policy Pacesetters Building Strong!
7 Regulatory Program Goals Protect the Aquatic Environment Enhance regulatory program efficiency Make fair and reasonable decisions Ensure safe and navigable waterways Pacesetters Building Strong!
8 Corps Primary Regulatory Authorities: Section 404 of the Clean Water Act Regulates the discharge of dredged and/or fill material into all waters of the United States; which includes adjacent wetlands. Section 10 of Rivers & Harbors Act of 1899 Regulates work and/or structures in/or affecting navigable waters of the United States. Pacesetters Building Strong!
9 Rivers and Harbors Act of 1899 Geographic Extent
10 Section 10 Rivers and Harbors Act; What is Regulated? Structures in Navigable Waters Such as piers, docks, boathouses, pilings, oil rigs, pipelines, jetties, power transmission line, permanently moored vessel Work in Navigable Waters Dredging or disposal of dredged material, excavation, filling, or other modification effecting a navigable water Pacesetters Building Strong!
13 Restore and maintain the chemical, physical, and biological integrity of the Nation s waters Pacesetters Building Strong!
14 Section 404 Federal Waters Pollution Control Act (now the Clean Water Act); What is Regulated? - A Department of the Army Permit is required prior to the discharge of any dredged and/or fill material into any waters of the United States. Pacesetters Building Strong!
15 Material that has the effect of replacing a water of the U.S. with dry land or changing the bottom elevation of a water of the U.S. Examples include rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining, etc. Pacesetters Building Strong!
16 Waters used for interstate commerce including all tidal waters (navigable) Interstate waters, including wetlands Intrastate waters that could affect interstate commerce Impoundments of waters of the United States Tributaries of waters of the United States Wetland adjacent to waters above Pacesetters Building Strong!
17 Special Aquatic Sites - Sanctuaries and refuges - Wetlands - Mud flats - Vegetated shallows - Coral Reefs - Riffle and pool complexes Pacesetters Building Strong!
18 Areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Pacesetters Building Strong!
19 Flood retention Improve water quality Protect shorelines from erosion Filter pollutants from stormwater Provide habitat for fish and wildlife Produce nutrients and detritus for the food chain Pacesetters Building Strong!
20 1) Sufficient hydrology to support this aquatic ecosystem at or near the surface AND 2) Predominance of hydrophytic plants ( emergent macrophytes/plants adapted for wet conditions) AND 3) Hydric soils *Under normal conditions/circumstances* Pacesetters Building Strong!
21 Pacesetters Building Strong!
22 Pacesetters Building Strong!
23 Galveston District covered by Atlantic and Gulf Coastal Plain Region and Great Plains Region Supplements. Methods will remain in 1987 Wetland Delineation Manual. Supplements cover regional indicators. Most changes in hydrology and hydric soils. New data sheets using the 1 June 2012 plant indicator status list. Pacesetters Building Strong!
24 Wetland Hydrology (primary) 1987 Manual AGCP GP Inundation Surface water (A1) Surface water (A1) Saturation High water table (A2) High water table (A2) Water marks Saturation (A3) Saturation (A3) Drift lines Water marks (B1) Water marks (B1) Sediment deposits Sediment deposits B2 Sediment deposits (B2) Drainage patterns Drift deposits (B3) Drift deposits (B3) Algal mat (B4) Algal mat (B4) Iron deposits (B5) Iron deposits (B5) Inundation aerial (B7) Inundation aerial (B7) H₂O-stain leaves (B9) H₂O-stain leaves (B9) Pacesetters Building Strong!
25 Wetland Hydrology (primary) 1987 Manual AGCP GP Aquatic fauna (B13) Marl deposits (B15) H₂S odor (C1) Oxidized rhizos on living roots (C3) Reduced Iron (C4) Salt crust (B11) Aquatic inverts (B13) H₂S odor (C1) Dry-season water table (C2) Oxidized rhizos on living roots (C3) Recent Fe reduction Reduced Iron (C4) tilled soils (C6) Thin muck surface C7 Thin muck surface (C7) Pacesetters Building Strong!
26 National Wetland Plant List Gulf cordgrass (S. spartinae) FACW+ OBL FAC Sea Ox Eyed daisy FACW+ OBL FACW (Borrichia frutscens) Chinese tallow (T. sebifera) FACU+ FAC FAC Black Willow (Salix nigra) FACW+ OBL FACW Dollarweed OBL FACW FACW (Hydrocotyle bonariensis) Baccharis FACW- FAC FAC (Baccharis halimifolia) Broom-sedge FACU+ FAC FACU (Andropogon virginicus) Pacesetters Building Strong!
28 Delineations vs. Determinations A determination is qualitative in that it only provides an answer if there is a jurisdictional area within the project area. A delineation is quantitative in that it provides boundaries and acreage measurements for each individual type of water of the United States present in the project area. Pacesetters Building Strong!
29 Approved JD appealable; may or may not delineate extent of jurisdiction; requires more information to confirm. Preliminary JD not appealable; assumes all aquatic resources on site are jurisdictional; not as stringent to confirm (approximate locations); cannot be used to determine no wetlands or no jurisdictional wetlands. Pacesetters Building Strong!
33 Corps Primary Regulatory Authorities: Section 404 of the Clean Water Act Regulates the discharge of dredged and/or fill material into all waters of the United States; which includes adjacent wetlands. Section 10 of Rivers & Harbors Act of 1899 Regulates work and/or structures in/or affecting navigable waters of the United States. Pacesetters Building Strong!
34 Step Wise Process: Avoid Minimize Compensate
35 Department of the Army Permit is the trigger that subjects the regulated activity to jurisdiction of other laws If no DA permit is required, these other acts may not apply to the proposed action
36 Laws that impact USACE Regulatory Process (coordination) National Environmental Policy Act Fish and Wildlife Coordination Act Endangered Species Act Coastal Zone Management Act National Historic Preservation Act Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat (NMFS)
37 Types Of Permits General = 85-95% of permit actions (last 3 yrs) Regional Nationwide Individual /Standard
38 Wetlands historically viewed as wastelands, with drainage and filling required to render them productive 1950 s -70 s, >50% of nations wetlands destroyed due to agricultura practices and residential, commercial, & industrial development Realization of hidden values and functions of wetlands 1987, National Wetlands Policy Forum created to study wetlands Development of NO NET LOSS policy
39 Regional General Permits The issuing authority will determine and add appropriate conditions to protect the public interest. If, on a case-by-case basis, that the concerns for the aquatic environment would be too great, the Corps will require an individual permit review.
40 General Permits 9 General Permits 1 Site Specific GPs (Lake Livingston) 9 Specific GP with the TxGLO
41 Nationwide Permits Already issued to the Nation (NOTE: Regional conditions) Pre-coordinated with agencies for water quality impacts, endangered species Some require notification to the Corps (Preconstruction Notification = PCN) Some don t require notification - applicant can just use the permit Feb. 27, 2013 Fed reg. extended expiration for NWP to the length of the 5 year cycle (March 19, 2017)
42 Current Nationwide Permits Federal Register 21 Feb (1-52) Aids to Navigation (1) Structures in Artificial Canals (2) Maintenance (3) Fish and Wildlife Devices (4) Scientific Measurement Devices (5) Survey Activities (6) Outfall Structures (7) Oil & Gas Structures on Outer Continent Shelf (8) Structures in fleeting& Anchorage areas (9) Mooring Buoys (10) Temporary Recreation Structures (11)
43 Current Nationwide Permits ( continued) Utility Line Activities (12) Bank Stabilization (13) Road Crossings (14) U.S. Coast Guard approved bridges (15) Return water from upland CDAs (16) Hydropower Projects (17) Minor Discharges (18) Minor Dredging (19) Oil & Hazardous Spill Cleanup (20) Surface Coal Mining Activities (21) Removal of Vessels (22) Categorical Exclusions (23)
44 Current Nationwide Permits ( continued) Utility Line Activities (12) Bank Stabilization (13) Road Crossings (14) U.S. Coast Guard approved bridges (15) Return water from upland CDAs (16) Hydropower Projects (17) Minor Discharges (18) Minor Dredging (19) Oil & Hazardous Spill Cleanup (20) Surface Coal Mining Activities (21) Removal of Vessels (22) Categorical Exclusions (23)
45 Shoreline Stabilization
46 Current Nationwide Permits (continued) Indian Tribes & State 404 (24) Structural Discharges (25) Aquatic habitat and restoration (27) Modification to existing Marinas (28) Residential development (29) Moist Soil Management for Wildlife (30) Maintenance of existing Flood Control facilities (31) Completed enforcement actions (32) Temporary construction, access, and dewatering (33) Cranberry production (34) Maintenance dredging of existing basins (35) Boat Ramps (36)
47 Current Nationwide Permits (continued) Emergency watershed protection (37) Cleanup of hazardous & toxic waste (38) Commercial & Institution Developments (39) Agricultural Activities (40) Reshaping Existing g Drainage Ditches (41) Recreational Facilities (42) Stormwater Mgmt (43) Mining Activities (44) Repair of Upland damaged by Discrete Events (45)
48 Current Nationwide Permits ( continued) Discharges in Ditches (46) Commercial Shellfish Aquaculture Activates (48) Coal Remining Activities (49) Underground Coal Mining Activities (50) Land-based renewal Energy Generating Facilities (51) Water-based renewal Energy Generating Pilot Projects (52)
49 Permitting Mechanisms General Permits Programmatic Nationwide Regional Individual Permits Letter of permission Standard
50 Letter of Permission: Type of permit issued through an abbreviated process and coordination with the federal and state resource agencies as required by the Fish and Wildlife Coordination Act; primary only Section 10 structures (e.g. piers and docks) Pacesetters Building Strong!
51 Standard Permits: Elements of Evaluation include: 1) Impacts to Aquatic Resources 2) Section 404(B)(1) Guidelines 3) Section 401 Water Quality Certification issued by state 4) Compliance with ALL related laws (ESA; CZMA, NHPA; EFH etc..) 5) Public Notice / Public input 6) Public Interest Review Factors 7) Compliance with 404(b)1 Guidelines Pacesetters Building Strong!
52 Permit Evaluation Process Many pieces involved in the permit evaluation process ESA 404(b)(1) Public interest CZM 401
53 Sequencing Process Demonstrate various onsite and offsite project alternatives considered and why they were/not selected. Discuss geographic scope of alternatives search, list relevant factors. Select Least Damaging Practicable Alternative. Demonstrate how impacts to wetlands at that site have been avoided, and minimized. Discuss remaining unavoidable impacts, and propose compensation.
54 Public Groups & agencies neighbors NMFS USACE EPA TPWD TCEQ FWS
55 404(b)(1) Guidelines Section 404(b)(1) of CWA requires EPA, to develop the guidelines in conjunction with the Corps. Guidelines state that a permit cannot be issued if it does not comply with the guidelines (33 CFR 320.4). Corps has final responsibility for determining compliance.
56 404(b)(1) Guidelines For non-water dependent projects proposed in wetlands (and other special aquatic sites ), a presumption exists that other less environmentally damaging sites are available. We must permit the least damaging practicable alternative.
57 404(b)(1) Guidelines An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics, in light of the overall project purpose. Available - that which could be reasonably obtained, utilized, expanded or managed by the applicant. Level of review commensurate to impact (RGL 93-2) Corps makes final determination of compliance.
58 PUBLIC INTEREST REVIEW
59 Public Interest Review Factors 33 CFR (A)(1) Conservation Economics Aesthetics General Environment Wetlands Cultural Values Fish & Wildlife Values Land Use Flood Hazards Property Ownership Flood Plain Values Navigation Recreation Shore Erosion &Accretion Water Supply / Quality Energy Needs Safety Mineral Needs Food & Fiber production Needs / Welfare of People
60 Flooding Traffic, Air Quality
61 Permit Evaluation Process Public Groups & agencies neighbors NMFS USACE EPA TPWD TCEQ FWS
62 Wetland Mitigation Banking
63 Slide 63 Compensatory Mitigation
64 332.3 Establishes Preference (hierarchy) 1) use of credits from a mitigation bank, 2) use of credits from an in-lieu fee program, 3) permittee-responsible mitigation Slide 64
65 332.4 requires 12 components: 1) Objective(s) of the compensatory mitigation project 2) Site selection information 3) Site protection instrument to be used 4) Baseline information (impact and compensation site) 5) Number of credits to be provided 6) Mitigation work plan 7) Maintenance plan 8) Ecological performance standards 9) Monitoring requirements 10) Long-term management plan 11) Adaptive management plan 12) Financial assurances Slide 65
68 Summary Corps regulates structures and work in navigable waters (10) and discharges of dredged and fill materials into waters of the U.S. including wetlands (404). District Engineer makes final decision to issue or deny a permit based on impacts to the aquatic environment, consultation with other agencies, public interest, and compliance with the 404(b)(1) guidelines.
69 Summary (continued) Applicants must avoid and minimize impacts to wetlands first, then compensate for unavoidable impacts (404). On-site, in-kind mitigation is preferred but flexibility is allowed based on wetland functions and values (404). Project must be the least damaging practicable alternative (404).
70 Summary (continued) Goal is no net loss of wetland functions and values Nationwide Permits have already been issued to the nation for certain activities, but these have limitations and requirements Regional General Permits are issued by districts for certain activities, also have limitations and requirements
71 Department of the Army Permit is the trigger that subjects the regulated activity to jurisdiction of other laws The DA permit is the action that initiates review under ESA, NHPA, NEPA and others. If no DA permit is required, these other acts may not apply to the proposed action
72 A) Denied or Declined Permits B) Approved Corps Jurisdictional determinations -*NOTE: NAP MUST be received within 60 days of notice with justification
74 Types of Enforcement Unauthorized activity enforcement Individual does regulated work without a permit Corps does most U/A enforcement -- EPA can also Resolutions voluntary restoration -- partial or full after the fact permit -- partial or full civil litigation -- can have consent decree criminal litigation -- flagrant knowing violator
78 Tools for Reaching Compliance Close case (no further action) Cease & Desist Orders Voluntary Restoration Allowing violator to apply for an After-the-fact permit Cases referred to EPA Cases referred to DOJ Adminstrative penalty ($32,500 for 404)
79 Cases referred to EPA when... Involves Section 404 CWA Repeat Violator Flagrant Violator (obvious or prior knowledge) EPA requests the case Corps recommends an Administrative Penalty
80 Cases referred to DOJ When District Engineer determines that legal action is appropriate Can include Settlement Court ordered restoration Civil Penalties Criminal Penalties
81 Types of Enforcement cont Permit compliance enforcement Individual does not conduct work under permit Corps only authority -- DO NOT refer to EPA Resolutions restoration of work that exceeds permit required mitigation caused to be completed modify permit to authorized work that is okay revoke permit -- civil or criminal action
82 Potential Resolutions to Violations Voluntary Restoration After-the-Fact Permit Referral to EPA Litigation Alternate Dispute Resolution (ADR)
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