Transcript Application and Mitigation Requirements Information required to process Section 404 Clean Water Act (CWA) and Section 10 Rivers and Harbors Act of 1899 (RHA) applications.

Application and Mitigation
Requirements
Information required to process
Section 404 Clean Water Act (CWA)
and Section 10 Rivers and Harbors Act
of 1899 (RHA) applications
US Army Corps of Engineers
Organization
 8 Divisions - Ex. Great Lakes and Ohio RiverCincinnati
 38 Districts Nationwide
 7 Districts comprise the Lakes and River
Division
-Louisville District
-Chicago District
-Huntington District
-Pittsburgh District
-Buffalo District
-Detroit District
-Nashville District
Louisville District Boundary
Newburgh Regulatory Office
AUTHORITY
The Corps of Engineers exercises jurisdiction
on navigable and other “waters of the United
States” under Section 10 of the Rivers and
Harbors Act (RHA) of 1899 and Section 404
of the Clean Water Act (CWA)(1972)
Section 10 RHA
 Section 10 protects navigation interests and
prohibits obstruction or alteration of navigable
waters.
 Prior authorization required for any work proposed
in, on, over, and/or under navigable waters.
- Examples: Fleeting, loading/unloading facilities, marinas,
commercial dredging, maintenance dredging, utility
lines, underground mining.
Examples of Navigable Section 10
Waters within the Louisville District
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Ohio River
Wabash River – Mouth to Wells/Adams Co. Line (441.9 miles)
White River – 66.2 miles above mouth
East Fork White River – 21.9 miles above mouth
Various Creeks, Backwater affects Ex. Pigeon
Creek 5.9 miles
 Complete Section 10 water list published on
Public Notice 83-LD-016 http://www.lrl.usace.army.mil/
Section 404 of the CWA
 “Waters of the United States” includes
wetlands, streams, rivers, lakes, ponds,
natural or manmade.
 Discharge of dredged or fill material into
“waters of the United States” requires prior
authorization under Section 404.
Non-jurisdictional “Waters” under
Section 404 CWA
 Water bodies that do not have a conveyance
to other “Waters of the United States”
 Water treatment systems constructed and
maintained in compliance with Section 402
CWA
Ex: Isolated Depressional areas/potholes, upland lakes/ponds without
surface connections (spillway), waste water treatment systems
Determining Limits of Jurisdiction
WETLANDS
- 1987 Corps of Engineers Wetland
Delineation Manual
- 3 parameters required for wetland
- Hydric Soils
- Hydrophytic Vegetation
- Hydrology
*Note – In the process of being regionalized.
Determining Limits of Jurisdiction
 Rivers and Streams
“Ordinary high water mark" means that line on
the shore established by the fluctuations of water
and indicated by physical characteristics such as
clear, natural line impressed on the bank, shelving,
changes in the character of soil, destruction of
terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider
the characteristics of the surrounding areas.
Determining Limits of Jurisdiction
 Ephemeral Stream: An ephemeral stream
has flowing water only during and for a short
duration after, precipitation events in a
typical year. Ephemeral stream beds are
located above the water table year-round.
Groundwater is not a source of water for the
stream. Runoff from rainfall is the primary
source of water for stream flow.
Determining Limits of Jurisdiction
 Intermittent Stream: An intermittent stream
has flowing water during certain times of the
year, when groundwater provides water for
stream flow. During dry periods, intermittent
streams may not have flowing water. Runoff
from rainfall is a supplemental source of
water for stream flow.
Determining Limits of Jurisdiction
 Perennial Stream: A perennial stream has
flowing water year-round during a typical
year. The water table is located above the
stream bed for most of the year.
Groundwater is the primary source of water
for stream flow. Runoff from rainfall is a
supplemental source of water for stream
flow.
IMPORTANT
Any active mine operations that require the
discharge of dredged or fill materials into
“waters of the United States” that are not
currently authorized under Section 404 CWA
or Section 10 RHA must contact the Corps
Immediately.
Authorization Types
 Standard Permits (i.e. Individual Permit)
 General Permits (e.g. NWP 21, NWP 14)
Useful Guidance
 US Army Corps of Engineers Standard Operating
Procedures for Nationwide Permit 21 Processing March
19, 2004
 US Army Corps of Engineers Louisville District Mitigation
Guidelines issued September 22, 2004
 Regulatory Guidance Letter, No. 02-2, December 24, 2002,
Guidance on Compensatory Mitigation Projects for Aquatic
Resource Impacts Under the Corps Regulatory Program
Pursuant to Section 404 of the Clean Water Act and
Section 10 of the Rivers and Harbors Act of 1899
 www.lrl.usace.mil
Application Requirements
(All Permit Types)
Requirements for a complete PreConstruction Notification (PCN) when
submitting for a Nationwide Permit #21,
Surface Coal Mining Activities, or for an
Individual Permit.*
* Note: The Corps determines appropriate authorization type
Public Interest Factors
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Conservation
Economics
Aesthetics
General Environmental
Concerns
Wetlands
Fish and Wildlife Values
Historic Properties
Flood Hazards
Flood Plain Values
Land Use
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Navigation
Shoreline erosion & accretion
Recreation
Water supply & conservation
Water quality
Energy Needs
Safety
Food & fiber production
Mineral needs
Property ownership
Needs & welfare of people
Project Purpose
Thoroughly describe the project’s purpose.
Drainage Area
 Identify each watershed within which the
project area lies.
 Provide the drainage area (acreage) for
each watershed.
Fill
Describe the type and quantity of dredged or
fill material proposed to be discharged into
“waters.”
Time
Provide the date that you propose to begin
work on the project (impacts to “waters”)
and the date that the work is expected to be
completed.
ALTERNATIVE ANALYSIS
To meet the compliance requirements of 40
Code of Federal Regulations (CFR) Part
230.10(a), provide an alternative analysis to
the proposed project showing why there is
no other practicable alternative to the
discharging of dredged or fill material to
“waters of the U.S.” that would cause less
adverse impact to the aquatic ecosystem.
What is in the AA
 The proposed alternative discussion should
include a No Action Alternative (forego the
proposed operation), a Proposed Action
Alternative (complete the action as
proposed), and Alternatives Considered but
Eliminated (move the operation to another
location, reduce the size of the operation,
and/or use alternative methods).
Examples for the AA
 NO ACTION ALTERNATIVE - What would
be the result if you did forego the proposed
project, in other words what if you don't
mine through streams, open waters, or
wetlands that would otherwise be impacted?
AA cont.
 PROPOSED ACTION ALTERNATIVE What would be the result if the project was
completed as proposed? Impacts to aquatic
resources vs. realization of coal recovery
(economics/energy needs/mitigation for
impacts providing enhancement of aquatic
functions)?
AA cont.
 ALTERNATIVES CONSIDERED - What
alternatives were considered (and these should
have been considered - if not - please consider
them) but eliminated in favor of the action as it is
proposed? Is it practical to go underground for
these seams so as to avoid the waters, is it
practical to auger these seams so as to avoid the
waters, is it practical for you to go around the
aquatic resources altogether and leave that
reserve or a portion behind? Explain why or why
not. If you considered other alternatives please
include them.
Application Requirements
(Nationwide Permit 21)
Specific Issue – Minimal Impact
Determination
Minimal Impact Determination
Information that will allow the District Engineer
(DE) to determine if the proposed project would
result in minimal adverse environmental effects on
the aquatic environment, both individually and
cumulatively. The DE will utilize this information
to determine if the proposed project should be
considered for a Nationwide Permit or should be
evaluated under a Standard (Individual) Permit
review process.
 Primarily for NWP # 21 Applications
 Can work together with Alternative Analysis
Minimal Impact Determination
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What constitutes a MID?
Inventory of existing aquatic resources
Avoidance and Minimization
Impact Analysis - Loss of aquatic functions
Mitigation - Gain of aquatic functions
Minimal Impact Determination
Avoidance and Minimization
 Are there practicable alternatives to the
proposed impacts. Discuss the other
alternatives considered.
 Demonstrate avoidance of “waters” that
have high functions and values.
 Demonstrate sediment basins are as close
to fill activities as practicable.
Application Requirements
(All Permit Types)
Continued
Quantify “Waters” to be Impacted
Streams
 Direct impacts - quantify area and flow regimes
for streams to be directly impacted. This should
include all impacts such as mining through and
berm footprints (sediment basins).
 Indirect impacts – quantify area of streams that
would be otherwise impacted but not filled. Ex.
sediment basin – linear footage within pool or from
sediment pool to nearest fill activity.
Quantify “Waters” to be Impacted
Wetlands
 Provide delineation of the project site in
accordance with the ’87 Corps of Engineers
Wetlands Delineation Manual.
 Delineation must be submitted to the Corps for
concurrence.
Quantify “Waters” to be Impacted
Other Special Aquatic Sites
 Includes Sanctuaries/Refuges, Mud flats,
Vegetated Shallows, Coral reefs, and Riffle/Pool
complexes.
 Primarily Riffle/Pool complexes for this area.
 These sites must be delineated and included in
the application.
Cumulative Impacts
Must include an evaluation of the impacts of the
proposed activity which incorporates incremental
impacts of the proposed activity when added to
other past, present and reasonably foreseeable
future actions regardless of what agency or entity
undertakes them.
(Ex: mining, logging, agriculture and other land
disturbance activities in the same watershed.)
QUESTIONS?
Assessment and Classification of
“Waters”
Provide a description of the aquatic resources
that would be directly affected, as well as
the resources in proximity (upstream,
downstream and riparian areas) that would
be impacted indirectly.
Assessment and Classification of
“Waters”
Streams
Provide a description of stream quality utilizing
approved assessment/classification
methodologies.
Assessment and Classification of
“Waters”
Common methodologies utilized include:
 U.S. EPA Rapid Bioassessment Protocol for
Use in Wadeable Streams and Rivers
 Rosgen’s Applied River Morphology
Use of USEPA RBP
Use of USEPA RBP
Stream Examples
Use of Rosgen
Use of Rosgen
Stream Assessment
Assessments must include information on the stream pattern,
profile and dimensions.
 PATTERN – sinuosity, meander (wavelength), belt width,
radius of curvature.
 PROFILE – slope, riffle/pool sequence, step/pool
sequence.
 DIMENSION – channel width, bankfull width, mean depth,
maximum depth, bankfull depth, width/depth ratio, flood
prone width, entrenchment ratio.
Stream Assessment
The description shall provide a functional
assessment of the streams within the project
area and how the proposed project will
impact those functions and values.
Stream Assessment
Provide a chemical analysis of the waters
proposed to be impacted and compare to
the quality of the greater watershed.
Wetland Assessment
 Provide acreage and wetland types to be
impacted (HGM subclass and Cowardin
Classification.)
 Provide an assessment of the functions and
values of the wetland(s) (hydrologic,
biogeochemical, habitat and food support).
Stream/Wetland Assessment
 All data sheets must be submitted to the
Corps with the stream/wetland
assessment(s). Dates that the work was
completed, contact information for the
assessor, and a site map (photos)
referencing data collection points to the data
sheets must be included.
Compensatory Mitigation
 Mitigation and monitoring plan (plan) must be
submitted with an application that proposes
impacts to “waters”.
 The plan must document how the mitigation
proposal offsets the functional losses of the
proposed project’s impacts.
 Corps recommends submitting the plan as a
stand-alone document or an attachment/appendix
to the application.
Mitigation Types
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Establishment (creation)
Restoration
Enhancement
Protection/maintenance (preservation)
Applicants may propose the use of mitigation
banks or in-lieu fee arrangements as
alternatives to the above.
Mitigation
 Amount of mitigation can be based on either
functional replacement and/or linear
footage/acreage.
 Utilize baseline assessments (location, size,
type, quality, etc.) to determine mitigation
requirements.
Mitigation
Site Selection
Detail the factors considered in the site selection
process. These could include:
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Watershed considerations/needs
Practicability
Adjacent land uses
Presence/Absence of nuisance/exotic species in
the vicinity of the mitigation area
Mitigation
Measurable Goals and Objectives
Provide a discussion of the functions and
values of the resource(s) to be impacted
and compare that to the functions and
values proposed in the mitigation.
Mitigation
Time
Provide expected time sequence of the various aspects of
mitigation construction and commencement of monitoring.
These could include:
 Construction timeframes (i.e. creation of channel, grading,
installation of in-stream structures, etc.)
 Planting dates
 First monitoring event
Mitigation
At a minimum the plan should consist of the
following:
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Boundaries of proposed mitigation site
Construction methods, timing and sequencing
Elevations and slopes
Hydrology and hydrologic source
Connectivity to other waters
Proposed plantings
Control of volunteer and invasive vegetation, and
Mitigation
At a minimum the plan should consist of the
following (cont.):
 Erosion control
 Geomorphology and special stream structures
 Site management, maintenance plan, and long
term plan for the site.
Stream Mitigation
Provide existing vs
proposed pattern,
profile and
dimensions
Stream Mitigation
Stream Mitigation
Submit a typical existing and proposed
pattern.
Typical Stream Restoration/Creation
Provide typical design plans illustrating proposed structures
to be utilized. These structures can be used to provide
functional replacement and enhancement.
Typical Stream Restoration/Creation
Utilize what is available.
Typical Stream Restoration/Creation
Utilize what is available.
Typical Stream Restoration/Creation
Instead of utilizing uniform rip rap lined
chutes/channels, design a stable channel to
achieve a higher mitigation credit and a more
stable site.
Typical Stream Restoration/Creation
Useful sites to find examples of design
standards.
 http://www.bae.ncsu.edu/programs/extension/wqg/sri/strea
m_rest_guidebook/guidebook.html
 http://www.wildlandhydrology.com/
 http://www.mde.state.md.us/Programs/WaterPrograms/Wet
lands_Waterways/documents_information/guide.asp
* List is not all inclusive
Stream Mitigation
Riparian Plantings
Proposed plantings should target hard mast
producing species, but can be project
dependent.
Stream Mitigation
Planting guidelines for Forested portion of
Riparian Mitigation
Bare Root Seedlings
RPM* tree’s
Planting rate
Minimum 450 seedlings/acre
60 2-3 gallon containers/acre
Percentage for one species
at initial planting
No one species may make
up more than 20% of initial
planting (min 5 spp)
No one species may make
up more than 20% of initial
planting (min 5 spp)
Monitoring
Period
5 years**
3-5 years**
TBD by project
Percentage for one species
at final count
No one species may make
up more than 25% of final
surviving stock
No one species may make
up more than 25% of final
surviving stock
Survival Requirement
80% of initial stock***
90% initial stock***
Stream Mitigation
Planting guidelines for Scrub/Shrub
component of Riparian Mitigation
Bare Root Seedlings
RPM* tree’s
Planting rate
Minimum 450 seedlings/acre
60 2-3 gallon containers/acre
Percentage for one species
at initial planting
No one species may make
up more than 33% of initial
planting (min 3 spp)
No one species may make
up more than 33% of initial
planting (min 3 spp)
Monitoring
Period
5 years**
3-5 years**
TBD by project
Percentage for one species
at final count
No one species may make
up more than 40% of final
surviving stock
No one species may make
up more than 40% of final
surviving stock
Survival Requirement
50% of initial stock***
90% initial stock***
Stream Mitigation
Planting guidelines for Herbaceous
component of Riparian Mitigation
Planting Rate
Broadcast or transplant to be determined by
individual permit review.
Species per acre
Minimum of five species
Monitoring
Period
5 years**
Ground Cover
Requirement
Planted species must account for 70% ground cover at
the end of monitoring
Ground Cover for
individual species
No one species may comprise more than 40% of the
final cover
Stream Mitigation
Planting Guidelines
Notes: 1 – All proposed planting lists must be resubmitted to
the Corps for final approval prior to planting.
2 – Individual permit reviews may require that the
vegetative mitigation zones be managed to
provide 2 or 3 components. See
project manager for specific criteria in those
cases.
3 - These guidelines are subject to change
according to permit needs and do not cover all
mitigation monitoring and success requirements.
Success Criteria for Stream
Mitigation
The plan must include measurable
success criteria.
Examples:
 Minimum 90% of the mitigation stream linear footage will
score in the “sub-optimal” or “optimal” range for epifaunal
substrate category as outlined in the RBP
 Provide stable width/depth ratio.
 Stable Rosgen Type “?” stream
 Maintain stable riffle/pool sequence similar to design “ABC”
(riffle/pool ratio one per 300 linear feet of stream)
 Riparian vegetation plantings will carry 80% survival rate at
end of 5 year monitoring period.
QUESTIONS?
Wetland Mitigation
 Provide existing wetland data such as a map
showing delineation data collection points, source
of hydrology and connectivity.
 Provide design information illustrating how wetland
mitigation would be constructed. Avoid over
designing a project with features (water control
structures) that require long term management.
Design mitigation to be self sustaining.
Wetland Mitigation Design
Wetland Mitigation Design
Wetland Mitigation
Forested Wetland Plantings
Proposed plantings should target hard mast
producing species, but can be project
dependent.
Wetland Mitigation
Planting guidelines for Forested
component of Wetland Mitigation
Bare Root Seedlings
RPM* tree’s
Planting rate
Minimum 450 seedlings/acre
60 2-3 gallon containers/acre
Percentage for one
species
at initial planting
No one species may make
up more than 20% of initial
planting (min 5 spp)
No one species may make
up more than 20% of initial
planting (min 5 spp)
Monitoring Period
5 years**
3-5 years**
TBD by project
Percentage for one
species
at final count
No one species may make
up more than 25% of final
surviving stock
No one species may make
up more than 25% of final
surviving stock
Survival
Requirement
50% of initial stock***
90% initial stock***
Indicator Status
Complete community must carry greater than 70 %
Fac or wetter status
Complete community must carry greater than 70 %
Fac or wetter status
Wetland Mitigation
Planting guidelines for Scrub/Shrub
component of Wetland Mitigation
Bare Root Seedlings
RPM* tree’s
Planting rate
Minimum 450 seedlings/acre
60 2-3 gallon containers/acre
Percentage for one
species
at initial planting
No one species may make
up more than 33% of initial
planting (min 3 spp)
No one species may make
up more than 33% of initial
planting (min 3 spp)
Monitoring Period
5 years**
3-5 years**
TBD by project
Percentage for one
species
at final count
No one species may make
up more than 40% of final
surviving stock
No one species may make
up more than 40% of final
surviving stock
Survival
Requirement
50% of initial stock***
90% initial stock***
Indicator Status
Complete community must carry greater than 70 %
Fac or wetter status
Complete community must carry greater than 70 %
Fac or wetter status
Wetland Mitigation
Planting guidelines for Herbaceous
component of Wetland Mitigation
Planting Rate
Broadcast or transplant to be determined by
individual permit review.
Species per acre
Minimum of five species
Monitoring
Period
5 years**
Ground Cover
Requirement
Planted species must account for 70% ground cover at
the end of monitoring
Ground Cover for
individual species
No one species may comprise more than 30% of the
final cover. At least 70 % of the surviving ground cover
Must carry a Fac or wetter indicator status
Mitigation
Planting Guidelines
Notes: 1 – All proposed planting lists must be resubmitted to
the Corps for final approval prior to planting.
2 – Individual permit reviews may require that the
vegetative mitigation zones be managed to
provide 2 or 3 components. See
project manager for specific criteria in those
cases.
3 - These guidelines are subject to change
according to permit needs and do not cover all
mitigation monitoring and success requirements.
Success Criteria for Wetland
Mitigation
The plan must include measurable
success criteria.
Examples:
 Tree density will be 450 trees/acre at the end of the
monitoring period
 At the end of the monitoring period the mean density per
acre of trees should match the proposed mean density per
acre of trees initially planted and shall be composed of at
least 50% of the approved plant species.
 A wetland delineation will be conducted and the mitigation
area will meet the definition of a wetland as defined in the
Corps ’87 Manual.
Mitigation Monitoring Requirements
 Minimum 5 year monitoring period.
 Biannual monitoring event documented in annual report,
which is due January 30 for the previous year.
 As-built plans for any mitigation areas constructed within
the previous year must be submitted with the annual report
(due January 30).
 Mitigation assessments must utilize the same methodology
as was used to document baseline conditions.
 The report shall document and discuss the progress of the
mitigation areas towards meeting the success criteria in the
mitigation plan/permit conditions. See RGL 06-03.
 The report shall include permanent photo/assessment
stations to be utilized throughout the monitoring period.
Mitigation Monitoring Requirements
Vegetation Portion of Mitigation
Bare Root Seedlings
RPM* tree’s
Monitoring Period
5 Years
3-5 Years
TBD by project
Inspection Schedule
Biannual inspection – First and Last
Month of the Growing Season
Biannual inspection – First and Last
Month of the Growing Season
Annual Reports
Due by January 31 after the first full growing season
Due by January 31 after the first full growing season
Mitigation Monitoring Requirements
Photo Stations
Streams
Wetlands
Reporting requirement
Utilized for each annual
monitoring report
Utilized for each annual
monitoring report
Rate
1 per 300 linear feet of
Perennial Stream
1 per 500 linear feet of
Intermittent Stream
1 per 1500 linear feet of
Ephemeral Stream
1 station per 3 acres per
wetland classification
Notes: 1 – Photo stations should be selected to reflect data collected at the
mitigation site (i.e.. stream structures, wetland conditions).
2 – These stations must be mapped and utilized throughout
monitoring for comparative purposes.
Mitigation Monitoring Requirements
 Utilize baseline assessment methodologies
to evaluate both physical and chemical
characteristics.
Mitigation Monitoring Requirements
Responsible Parties
Identify all responsible parties for completing
the proposed project, mitigation
construction, monitoring, and reporting.
Mitigation Monitoring Requirements
Site Protection
Discuss what protection the mitigation site will
be afforded (e.g. conservation easement,
deed restriction, etc.).
Mitigation Monitoring Requirements
Mitigation Success
Mitigation success is determined by the Corps
based upon monitoring reports and field
inspections.
Mitigation Monitoring Requirements
Contingency Plan
 Reporting Protocol:
If a success criterion is not met for all or any portion of the
compensatory mitigation project, and/or if the success
criteria are not satisfied, the permittee shall prepare an
analysis of the cause(s) of failure. If determined necessary
by the Corps, the permittee shall propose remedial action
for the failure.
 Response to unsuccessful remediation:
Indicate course of action to be taken in the event that the
Corps determines the compensatory mitigation cannot be
successfully achieved at the intended site.
Other Required Information
 Section 7 of the Endangered Species Act
Provide any correspondence and information
regarding coordination with the United States Fish and
Wildlife Service (USFWS)
 National Historic Preservation Act
Provide any correspondence and information regarding
coordination with the State Historic Preservation Officer
(SHPO).
*this information would include any surveys.
Other Required Information
 Description of the physical and chemical
properties of the geologic strata that will be
used for reclamation at the mitigation site
(i.e. stream substrate and overburden).
 Pre and post mine land use information (i.e.
text and map).
 Prime and Unique Farmland acreage
Application Submittal
Initially submit one copy for Corps review.
Once the review is complete and revisions
complete, if necessary, submit one original
and five copies. Copies may be on CD, but
make sure to include one hardcopy for the
Corps office file and public review.
* Please remember, each project has unique circumstance and may
require additional information specific to that project.
Contact Information
US Army Corps Of Engineers
Newburgh Regulatory Office
PO Box 489
6855 State Road 66*
Newburgh, IN 47620
*For UPS/Fed Ex the zip code is 47630
(812)853-5631
Project Managers
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Mike Ricketts (812)853-0472
Sam Werner (812)842-2768
Katie McCafferty(812)853-9713
George DeLancey(812)842-2807
Rusty Retherford(812)853-7632
Jarrod Bonnick(812)853-9715
QUESTIONS?