One Corps Serving the Army and the Nation U.S. Army Corps of Engineers Pittsburgh District Regulatory Branch Allen Edris (412)

One Corps Serving the Army and the Nation Regulatory Program Goals  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.

One Corps Serving the Army and the Nation Section 404 of the Clean Water Act Regulates discharge of dredged or fill material into waters of the United States

One Corps Serving the Army and the Nation Is this program really such a bear?

One Corps Serving the Army and the Nation So What Is a Water of the U.S.?

One Corps Serving the Army and the Nation Definition Section Definitions. a. The term "waters of the United States" means

One Corps Serving the Army and the Nation Waters of the U.S. 1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; 2. All interstate waters including interstate wetlands ;

One Corps Serving the Army and the Nation Waters of the U.S. 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

One Corps Serving the Army and the Nation Waters of the U.S. Such waters include: Which are or could be used by interstate or foreign travelers for recreational or other purposes; or From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or Which are used or could be used for industrial purpose by industries in interstate commerce;

One Corps Serving the Army and the Nation Waters of the U.S. 4. All impoundments of waters otherwise defined as waters of the United States under the definition; 5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section; 6. The territorial seas

One Corps Serving the Army and the Nation Waters of the U.S. 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR (m) which also meet the criteria of this definition) are not waters of the United States.

One Corps Serving the Army and the Nation Ordinary High Water Mark That line on the shore or stream bank established by the fluctuations of water and indicated by physical characteristics

One Corps Serving the Army and the Nation Ordinary High Water Mark Physical Characteristics include: 1. clear natural line impressed on the bank 2. shelving 3. changes in the character of soil

One Corps Serving the Army and the Nation Ordinary High Water Mark 4. destruction of terrestrial vegetation the presence of litter and debris, or 5. other appropriate means that consider the characteristics of the surrounding areas.

One Corps Serving the Army and the Nation Stream Types

One Corps Serving the Army and the Nation Stream Types 1. Ephemeral – flows during and for short duration after precipitation events, located above the water table year –round 2. Intermittent – flows during certain times of the year, surface and ground water contribution 3. Perennial – flows year-round during a normal precipitation year, groundwater is primary source of hydrology with some surface water contribution

One Corps Serving the Army and the Nation Intermittent Stream

One Corps Serving the Army and the Nation Is This a Water of the U.S.?

One Corps Serving the Army and the Nation Limits of Jurisdiction Non-tidal waters:  In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark, or  When adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands.  When the water of the United States consists only of wetlands the jurisdiction extends to the limit of the wetland.

One Corps Serving the Army and the Nation Is This a Water of the U.S.?

One Corps Serving the Army and the Nation YES! Captured stream such as those placed in culverts or stream enclosures remain waters of the U.S.

One Corps Serving the Army and the Nation Changes  Permanent changes of the shoreline configuration result in similar alterations of the boundaries of waters of the United States. Gradual changes which are due to natural causes and are perceptible only over some period of time constitute changes in the bed of a waterway which also change the boundaries of the waters of the United States.

One Corps Serving the Army and the Nation Changes  For example, changing sea levels or subsidence of land may cause some areas to become waters of the United States while siltation or a change in drainage may remove an area from waters of the United States. Man- made changes may affect the limits of waters of the United States;

One Corps Serving the Army and the Nation Is this a Water of the U.S.?

One Corps Serving the Army and the Nation Probably Not

One Corps Serving the Army and the Nation End of Ordinary High Water Mark

One Corps Serving the Army and the Nation End of Ordinary High Water Mark The stream channel loses definition The stream channel loses definition

One Corps Serving the Army and the Nation Stream Mitigation under Section 404

One Corps Serving the Army and the Nation Authorization For the Corps to authorize an activity under Section 404, the applicant must demonstrate, to the satisfaction of the Corps, that the proposed project represents the least environmentally damaging practicable alternative.

One Corps Serving the Army and the Nation Mitigation Sequencing I. AVOIDANCE: Taking all appropriate and practicable measures to avoid those adverse aquatic impacts that are not necessary requires that to permit a proposed project, it must be the least environmentally damaging practicable alternative.

One Corps Serving the Army and the Nation Mitigation Sequencing II. MINIMIZATION: Taking all appropriate and practicable measures to minimize those adverse impacts to the aquatic resource that cannot be reasonably avoided.

One Corps Serving the Army and the Nation Mitigation Sequencing III. COMPENSATORY MITIGATION: Implementing appropriate and practicable measures to compensate for adverse aquatic resource impacts.

One Corps Serving the Army and the Nation Purpose of Compensatory Mitigation To replace aquatic functions unavoidable lost or otherwise adversely affected by authorized activities

One Corps Serving the Army and the Nation Forms of Mitigation  Restoration  Enhancement  Creation  Preservation

One Corps Serving the Army and the Nation ELEMENTS OF COMPENSATORY MITIGATION Replacement of 1. Chemical 2. Physical 3. Biological FUNCTIONS lost or impaired as a result of a Section 404 authorization

One Corps Serving the Army and the Nation Mitigation Begins with Evaluation of Project Related Effects Requires understanding of baseline conditions and predicted effects

One Corps Serving the Army and the Nation Consider direct & indirect project effects

One Corps Serving the Army and the Nation Regulatory Guidance Letter The purpose of this document is to provide guidance on compensatory mitigation projects required to offset unavoidable aquatic resource impacts pursuant to Section 404

One Corps Serving the Army and the Nation Regulatory Guidance Letter Focuses On - Watershed Approach - Functional Assessment - Stream Mitigation - Definitions of Mitigation - Contents of Mitigation Plans

One Corps Serving the Army and the Nation Watershed Approach

One Corps Serving the Army and the Nation Watershed Approach - Considers entire systems and their constituent parts. Recognizes that healthy main stem stream reaches are only as healthy as the many tributaries of which they are composed. -Identifies specific functions lost or impaired within watersheds and focuses on replacing those functions.

One Corps Serving the Army and the Nation Watershed Approach - Relies on information and input from other federal, tribal, state, and local resource management programs. - Recognizes the role of zoning, regional planning, land use initiatives, and factors of local interest.

One Corps Serving the Army and the Nation Functional Assessment

One Corps Serving the Army and the Nation Functional Assessment - Tools used to qualitatively and quantitatively identify the nature and extent of anticipated adverse impacts associated with a given project, in addition to beneficial effects associated with mitigation projects.

One Corps Serving the Army and the Nation Some Examples - The Eastern Kentucky Stream Assessment Protocol - West Virginia Stream Assessment Protocol (currently being developed) - EPA’s Rapid Bioassessment Protocol - West Virginia Stream Condition Index - Water Quality sampling

One Corps Serving the Army and the Nation Irrespective of the Numbers Don’t Lose Sight of the Goal FUNCTIONAL REPLACEMENT

One Corps Serving the Army and the Nation Stream Mitigation So difficult it can make your hair stand on end?

One Corps Serving the Army and the Nation The Goal of Mitigation is

One Corps Serving the Army and the Nation FUNCTIONAL REPLACEMENT Consequently it is imperative to remember that small ephemeral and intermittent stream functions are very different from those of perennial streams

One Corps Serving the Army and the Nation Mitigation Plans When preparing stream mitigation plans, it is important to document baseline conditions to substantiate that particular mitigation elements and/or techniques area needed and are appropriate for the given situation.

One Corps Serving the Army and the Nation Learn to Read the Stream Considerations: 1.What are the current conditions of this stream telling me? 2.What do comparisons to historic conditions tell me? 3.Is the system in transition, or in a state of dynamic equilibrium 4.Are impacts affecting the system, and is so, in what ways 5.Would reasonably foreseeable future watershed changes affect this system, and how?

One Corps Serving the Army and the Nation Learn to Read the Stream Considerations: 6.Is the stream aggrading or degrading? 7.Is it widening or narrowing? 8.Are banks eroded or bare? 9.Is the associated riparian area vegetated or bare? 10.What is the stream type relative to entrenchment ratios?

One Corps Serving the Army and the Nation Learn to Read the Stream Considerations: 11.Does the stream exhibit appropriate sinuosity relative to its slope and roughness? 12.Is there sufficient input of course woody debris? 13. Is there a particular feature that may be acting as grade control? 14. Identify appropriate reference reaches for data collection

One Corps Serving the Army and the Nation Determine Stream Present Type Consider Future Stream Type

One Corps Serving the Army and the Nation Is the Stream Aggrading or Degrading

One Corps Serving the Army and the Nation Baseline Information Water quality sampling

One Corps Serving the Army and the Nation Baseline Information Benthic macro- invertebrate sampling

One Corps Serving the Army and the Nation Baseline Information Identify any historic impacts or activities

One Corps Serving the Army and the Nation Wildlife Functions Endangered Species Currently there are approximately 2,500 officially listed imperiled and endangered species, many of which utilize aquatic resources for all or part of their life cycle Myotis sodalis canidae Indiana Bat Dog

One Corps Serving the Army and the Nation Wildlife Functions Maintain and/or enhance integrity of the food web

One Corps Serving the Army and the Nation Wildlife Functions West Virginia has 34 species of salamanders that range in length from 4 inches to 2 feet. Their habitats include to aquatic to semiaquatic habitats such as ephemeral and intermittent streams, riparian zones, springs, and moist, forested hillsides.

One Corps Serving the Army and the Nation - Focus on the functions you are seeking to replace, - Provide aquatic resource benefits commensurate with authorized impacts, - Incorporate appropriate channel plan, profile and dimension, - Consider needs of the watershed, - Function as a long term sustainable system, A Stream Mitigation Design Should A Stream Mitigation Design Should

One Corps Serving the Army and the Nation - Consider shear stress and identify areas of vulnerability, - Appropriately factor for Manning’s n, (roughness) - Carefully consider and design for the most appropriate channel size (bankfull event) - To the extent practicable incorporate elements to enhance the physical, chemical, and biological characteristics of the stream. A Stream Mitigation Design Should A Stream Mitigation Design Should

One Corps Serving the Army and the Nation - Be compatible with other activities in the watershed, - Wherever possible be sited adjacent to contiguous mitigation projects or protected lands, - Use of native plants (exclusively) - Incorporate overall habitat improvements - Overhanging vegetation for shading - Snags for wildlife habitat - Fingerling escape channels, to allow downstream escape for fry trapped in pools during dry times of year A Stream Mitigation Design Should A Stream Mitigation Design Should

One Corps Serving the Army and the Nation Definitions of Mitigation

One Corps Serving the Army and the Nation Restoration Manipulation of the physical, chemical, or biological characteristics of a former or substantially degraded wetland, stream or other aquatic resources to return natural and/or historical functions.

One Corps Serving the Army and the Nation Enhancement Manipulation of the physical, chemical, or biological characteristics of an aquatic resource to heighten, intensify, or improve a specific functions or to change the growth stage of composition of the vegetation present, and may include converting the site to a less destructive land use.

One Corps Serving the Army and the Nation Creation The establishment of a wetland or other aquatic resource where one did not formerly exist.

One Corps Serving the Army and the Nation Preservation The legal and physical protection of existing ecologically important streams, wetlands and/or other aquatic resources for an extended period of time, usually in perpetuity.

One Corps Serving the Army and the Nation Questions ?