An Introduction to the Corps of Engineers Regulatory Program Kathleen Buckler Biologist/Project Manager Regulatory Branch NY Permit Evaluation Section Kathleen.a.buckler@usace.army.mil

Discussion Topics Regulatory program Forms of permits Goals Authority Other related laws Jurisdiction Waters of the U.S. Jurisdictional determinations Work requiring permits Exempt activities Other laws NYSDEC WQC NYSDOS Coastal Zone Forms of permits Compensatory mitigation

Regulatory Program To provide strong protection of the Nation’s aquatic environment, including wetlands. To enhance the efficiency of the Corps administration of its regulatory program. To ensure that the Corps provides the regulated public with fair and reasonable decisions. To achieve no net loss of aquatic resources

Authority Two laws delegate the authority to regulate waters of the United States (WOUS) to the Corps of Engineers Section 10 of the Rivers and Harbors Act of 1899 Section 404 of the Clean Water Act

Section 10 of the Rivers and Harbors Act of 1899 Under this law, a permit is required for any structure or activity that takes place in, under, or over navigable water, or wetlands adjacent to navigable waters of the U.S. Navigable Waters - waters that are subject to the ebb and flow of the tide, and/or are presently used, have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Section 404 of the Clean Water Act Under this law, a permit is required for activities that involve a discharge of fill material into a water of the U.S. Applies to ‘waters of the United States’ (33 CFR 328.3) Goal - to preserve the physical, chemical and biological integrity of U.S. waters

USEPA Oversight EPA issued Section 404(b)(1) Guidelines to facilitate fulfillment of regulatory program goals: Least environmentally damaging practicable alternative (LEDPA) “no discharge of fill material shall be permitted if there is a practicable alternative…” Is the project water dependent? “When the proposed project does not require access or proximity to a wous to fulfill its basic purpose, practicable alternatives are presumed to exist…” Avoid, minimize, mitigate

Other Related Laws Affecting the Regulatory Program Coastal Zone Management Act Endangered Species Act Fish and Wildlife Coordination Act Federal Power Act National Environmental Policy Act National Historical Preservation Act (SHPO) Marine Protection, Research and Sanctuaries Act Section 7(a) of the Wild and Scenic Rivers Act

Waters of the U.S. Navigable Waters (TNW) Wetlands adjacent to/abutting TNW’s Relatively permanent tributaries to TNW’s and wetlands that directly abut such tributaries Adjacent wetlands Bordering, contiguous, neighboring Every water body that has a significant nexus with a TNW.

Significant Nexus A significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Consider the volume, duration, and frequency of the flow of water in the tributary and the proximity of the tributary to a TNW, plus the hydrologic, ecologic, and other functions performed by the trib. and all of its adjacent wetlands.

Non-Waters of the U.S. Isolated waters: are geographically isolated and lack links to interstate commerce sufficient to serve as a basis for jurisdiction Isolated vernal pool Isolated wetland

Ditches Ditches excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water generally are not jurisdictional because they are not tributaries or they do not have a significant nexus to a TNW.

Swales Generally not WOUS because they are not tributaries or they do not have a significant nexus to TNW’s Even when not themselves WOUS, swales may still contribute to a surface hydrologic connection between an adjacent wetland and a TNW.

Erosional Features Erosional features, including gullies, are generally not WOUS because they are not tributaries or they do not have a significant nexus to TNW’s.

Wetland Definition “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.”

Wetland Delineation Must be delineated according to the 1987 Manual and appropriate Regional Supplement Hydrophytic vegetation Hydric soils Hydrology

Jurisdictional Determinations USACE required to document jurisdiction for all permit actions. Two options: Approved JD Preliminary JD Approved JD (RGL 07-01) Requires USACE completion of 8 page AJD form for each water Must document each water’s connectivity to a navigable water Requires significant nexus determination for non-relatively permanent waters and adjacent wetlands that do not directly abut a relatively permanent water

Jurisdictional Determinations Preliminary JD (RGL 08-02) requires completion of PJD form & applicant signature assumes all waters in project area are jurisdictional not appealable does not waive right to request an approved JD

Department of the Army Permit is Required For activities which involve a discharge of dredged or fill material into a water of the United States (Sec. 404, Clean Water Act). For any structure or work that takes place in, under, or over a navigable water, or wetlands adjacent to or abutting navigable waters (Sec. 10, Rivers and Harbors Act).

Work that May Require a Permit Construction of piers, wharves, docks, and ramps Section 10 (navigable) water bodies Section 404 must be a discharge or fill in order to be covered under 404 Open piles are not considered to be fill Timber crib docks are considered to be fill Mechanized land clearing in waters of the U.S. Dredging in navigable waters Stream channelization and relocation Shoreline protection/bank stabilization

Exempt Activities Normal farming, silviculture and ranching activities Plowing, seeding, cultivating, etc. for the production of food, fiber, and forest products Maintenance that does not include any modification that changes the character, scope, or size of the original project Construction or maintenance of farm or stock ponds or irrigation ditches Construction of sedimentation basins Construction or maintenance of farm roads, forest roads, or temporary roads

Other Approvals Mandated by Law 401 Water Quality Certification New York State Department of Environmental Conservation (NYSDEC) Coastal Zone Management Program (CZM) Consistency Certification by the New York State Department of State (NYSDOS)

NYSDEC 401 Water Quality Certification CWA assigns responsibility for control of non-point sources of pollution to the states Applicant is responsible for compliance with WQC conditions Some NWP’s have received General WQC from the DEC Other NWP’s have been denied WQC, and must receive an Individual WQC NWP is not valid until DEC issues WQC

NYS Environmental Conservation Law Article 24 Freshwater Wetlands Permit Program DEC classified regulated freshwater wetlands according to their respective functions, values, and benefits: Class I, II, III, of IV DEC regulates wetlands 12.4 acres in size or larger

NYS Environmental Conservation Law Stream classification AA/A: use for drinking water B: swimming C: support fisheries D: lowest standard T indicates that the stream supports a trout population Classification C(t) or higher are protected

NYS Coastal Consistency NYS Department of State (NYSDOS) Coastal Zone Management Consistency Determination applicable to all NWP’s located in the NYS Coastal Zone (CZ) To see if your project lies within the CZ, see: http://nyswaterfronts.com NWP is not valid until NYSDOS consistency determination is issued

Department of the Army Permits Include: General Permits Regional Permits (RP) Nationwide Permits (NWP) Individual Permits Letter of Permission (LOP) Standard Individual Permit (IP)

Regional Permits District wide permit or geographic area Authorize proposals commonly applied for within the District Pre-determined to result in minimal impacts to aquatic environment Minor activities not covered by NWPs Most require notification and affirmation by Corps prior to use

Nationwide Permits (NWP) A type of general permit used to authorize specific types of activities Minimal impact to aquatic environment Expedite permit review process 50 different NWPs 28 general conditions Regional conditions developed by District/state agencies Mitigation may be required Valid for 5 years The rulemaking process for reauthorization of NWPs is in progress

2007 Nationwide Permit Program Published in the March 2007 Federal Register Effective March 19, 2007 Expire March 18, 2012 Available online at: http://www.irb.usace.army.mil/regulatory/nwp/htm Note: once affirmed by USACE, absent any changes to the current Nationwide Permits, reverification of the applicability of your project under the Nationwide Permit is not required if work is completed by March 18, 2010.

Examples of 2007 Nationwide Permits NWP 3 – Maintenance NWP 12 – Utility Line Activities NWP 13 – Bank Stabilization NWP 14 – Linear Transportation Projects NWP 18 – Minor Discharges NWP 19 – Minor Dredging NWP 27 – Aquatic Habitat Restoration, Establishment, and Enhancement Activities NWP 29 – Residential Developments NWP 33 – Temporary Construction, Access, and Dewatering NWP 39 – Commercial and Institutional developments

Regional Conditions Each district is provided with the opportunity to add Regional Conditions to the NWP’s Specific conditions to ensure minimal impact within watershed

Buffalo District Regional Condition No. 10 All culverts shall be installed to ensure safe passage of fish and other organisms

Standard Permits Letters of Permission: Authorize minor activities that exceed limits of general permits Non-controversial Require 15 day coordination with resource agencies and adjacent property owners

Standard Permits Individual Permits: Full public interest review Public Notice (usually 30 days) Determination of compliance with USEPA Section 404(b)(1) Guidelines Preparation of Environmental Assessment (EA) and statement of findings (SOF) Results in permit issuance or denial

Compensatory Mitigation The New Mitigation Rule: Effective June 9, 2008 Three compensatory mitigation mechanisms Mitigation banks In-lieu fee Permittee-responsible

Compensatory Mitigation Wetland impacts greater than 0.10 acre will require compensatory mitigation Replacement ratio dependent upon: The method of mitigation (restoration, enhancement, establishment, preservation) The likelihood of success Temporal losses of resource functions Difficulty in replacing lost functions Distance between impact area and compensation site

Compensatory Mitigation Order Mitigation bank credits In-lieu fee credits Permittee-responsible: watershed approach Permittee-responsible: on-site and in-kind Permittee-responsible: off-site and/or out of kind

Compensatory Mitigation Mitigation site should be located in the same watershed as impacted waters Should be located where it is most likely to succeed Must be reviewed and approved by the Corps

Mitigation Banks Impacts must be located in the service area of an approved bank Bank must have the appropriate number and resource type of credits Lower risk of uncertainty

In-Lieu Fee (ILF) Program Agreement between a regulatory entity and a single sponsor Funds are paid to an approved natural resource management entity Larger, more ecologically valuable parcels More rigorous scientific and technical analysis

Permittee-responsible under a watershed approach Resource type and location is determined using the principles of a watershed approach Used when a watershed plan is available Goal: to maintain and improve the quality and quantity of aquatic resources within watersheds through strategic selection of mitigation sites

Permittee-responsible: on-site, in-kind Site must be ecologically suitable Consider the following Hydrological conditions Habitat connectivity Compatibility with adjacent land Development trends

Permittee-responsible: off site/out of kind When all else fails… An alternative and practicable off-site and/or out of kind mitigation opportunity will be identified Usually results in a higher mitigation ratio

Mitigation Plan 7. Maintenance plan Objectives Site selection Site protection instruments Baseline info Credit determination methodology Mitigation work plan 7. Maintenance plan 8. Ecological performance standards 9. Monitoring requirements 10. Long-term management 11. Adaptive management plan 12. Financial assurances

Discussion Topics Regulatory program Forms of permits Goals Authority USEPA oversight Other related laws Jurisdiction Waters of the U.S. Jurisdictional determinations Work requiring permits Exempt activities Other laws NYSDEC WQC NYSDOS Coastal Zone Forms of permits Compensatory mitigation

Questions? Thank you!