1. US Army Corps of Engineers BUILDING STRONG ® Intracoastal Waterway Setback Guidance Shelley Trulock Project Manager, Programs & Project Management Division Tori White Deputy, Regulatory Division September 13, 2014

2. BUILDING STRONG ® Outline  Navigation & Dredging Requirements  Requirements for Structures -  Setback Guidance  Questions

3. BUILDING STRONG ® Federal Waterway Navigation  Congressionally authorized project  12’ deep x 125’ wide, Jacksonville to Fort Pierce  10’ deep x 125’ wide, Fort Pierce to Miami  Corps must maintain a safe waterway  Efficient and cost-effective  Limited federal funds  Contributed funds  Partnership with FIND

4. BUILDING STRONG ® Federal Waterway Navigation  Various sections at minimum width to maintain current navigation needs  All structures can affect navigation, safety and the Corps’/FIND’s ability to maintain the channel

5. BUILDING STRONG ® Impact of Structures on Waterway Maintenance  Growing number of fixed shoreline structures ► Docks ► Dock pilings ► Bulkheads ► Rock revetments ► Boatlifts ► Moored vessels ► Marginal docks

6. BUILDING STRONG ® Impact of Structures on Waterway Maintenance Channel shoaling + Channel conditions on the waterway = Potentially dangerous situations and maintenance difficulty

7. BUILDING STRONG ® Impact of Structures on Waterway Maintenance  Must manage the waterway smartly! ► The decisions we make now will have impacts later

8. BUILDING STRONG ® Typical Dredging Method for Shallow Waterways  Due to limited maneuver space, shallow waterways require different types of operations than deep waterways  Anchor booms move the dredge left to right  Dredge is propelled forward by rear spuds

9. BUILDING STRONG ® A Clear Federal Channel

10. BUILDING STRONG ® Federal Channel with Docks/Structures Federal Channel with Docks/Structures

11. BUILDING STRONG ® Distance Dredged Before Repositioning  Impact on dredging of structures placed at following distances from edge of federal channel :  No structure(s) 150’ dredged before repositioning  100’ from channel edge 50’ dredged before repositioning  62.5’ from channel edge 32’ dredged before repositioning  36’ from channel edge 22’ dredged before repositioning  30’ from channel edge 19’ dredged before repositioning

12. BUILDING STRONG ® Distance Dredged Before Repositioning  The closer the structure to the edge of the federal channel, the more frequent the dredge must be repositioned.  The more frequently the dredge has to be repositioned, the longer dredging takes and the more it costs.  Limited federal funding  Increased cost to dredge = more contributed funds from FIND

13. BUILDING STRONG ® Requirements for Structures in Federal Navigation Waterways  Obtain Department of the Army Permit  Obtain Consent to Easement and §408 approval if within right-of-way ► Ensure no unreasonable obstruction to navigation ► Maintain integrity of federal project

14. BUILDING STRONG ® History of Regulating Navigation  1155 First of Nottingham Charters: Clear River Trent of fish weirs that impeded navigation  1215 Magna Carta: “All fish weirs shall be removed from the Thames, the Medway and throughout the whole of England, except on the seacoast.”  1607 English colonies: Followed common law of England, including the public right to navigation.  1787 U.S. Constitution: States gave to U.S. Congress the right “to regulate commerce with foreign nations, among the states, and with Indian tribes.” (Commerce Clause)  1899 Rivers and Harbors Act: Rewrite of 1890 Act

15. BUILDING STRONG ® Consideration of Property Ownership “A riparian landowner’s general right of access to navigable waters of the United States is subject to the similar rights of access held by nearby riparian landowners and to the general public’s right of navigation on the water surface. In the case of proposals which create undue interference with access to, or use of, navigable waters, the authorization will generally be denied.” - 33 CFR 320.4 (g)(3)

16. BUILDING STRONG ® Structures for Small Boats (1) In the absence of overriding public interest, favorable consideration will generally be given to applications from riparian owners for permits for piers, boat docks, moorings, platforms and similar structures for small boats. Particular attention will be given to the location and general design of such structures to prevent possible obstructions to navigation with respect to both the public's use of the waterway and the neighboring proprietors' access to the waterway. Obstructions can result from both the existence of the structure, particularly in conjunction with other similar facilities in the immediate vicinity, and from its inability to withstand wave action or other forces which can be expected. District engineers will inform applicants of the hazards involved and encourage safety in location, design, and operation. District engineers will encourage cooperative or group use facilities in lieu of individual proprietary use facilities. - 33 CFR 322.5(d)

17. BUILDING STRONG ® “District engineers are authorized to deny permits without issuing a public notice or taking other procedural steps…where he determines that the activity will clearly interfere with navigation…” - 33 CFR 325.8(b)

18. BUILDING STRONG ® Permit Special Condition “The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States.”

19. BUILDING STRONG ® Setback Guidance History  The first official setback criteria for the IWW in Florida was established in 1935.  Where normal high water shoreline is >60 feet from the near design edge of the channel, structures shall not be located less than 60 feet from edge.  Where normal high water shoreline is <60 feet from the near design edge of the channel, structures/vessel shall not be allowed closer than 10 feet from edge.  Updated in 1954. The only change was to go from a standard of 60 feet to 80 feet and make absolute minimum distance 25 feet rather than 10 feet.

20. BUILDING STRONG ® Setback Guidance History  Amended in 1968 to change from a standard of 80 feet to 100 feet.  First “modern” version of setback in 1996  “Need” to be located less than standard setback  “Substantial justification” if closer than < 72.5 feet  Approval of marginal docks located < 62.5 feet  Amended in 1998  Placement of docking structures only < 62.5’  Establishes absolute minimum at “top of slope.”  Required X&Y coordinates.  Provided application of setback to existing structures proposed to be repaired, modified, or replaced. 20

21. BUILDING STRONG ® Revised Setback Guidance  Current version released 18 July 2013 and revised 18 December 2013  Allows for safe navigation and effective operation and maintenance of federal channel  Structures should be no closer than 100’ of the near design edge of the channel  With proper justification, variances allow for structures to be located a lesser distance from the near design edge of the channel

22. BUILDING STRONG ®  Reiterates allowance for the placement of docking structures only less than 62.5’ from edge of channel  Requires proof that dredging would not be allowed for proposals located less than 62.5’ from the edge of channel  Expands restrictions to include riprap, submerged bulkheads and wave breaks - generally not allowed less than 62.5’ from near design edge of channel Revised Setback Guidance

23. BUILDING STRONG ®  Adds width restriction for structures located less than 62.5’ from near design edge of channel.  Revises absolute minimum setback from 3X project depth (top of slope) to 3X project depth plus 2’.  Provides application of setback to existing structures proposed to be repaired, modified, or replaced. Revised Setback Guidance

24. BUILDING STRONG ® Federal Land Interests  Corps has land interests, generally easements, associated with federal projects  Land encumbered by federal interests cannot be disposed unless the land interest is no longer needed in support of the operation, use, and maintenance of the federal project  A Consent to Easement authorizes permanent structures on federal land interests  Failure to obtain a Consent to Easement invalidates a Department of the Army regulatory permit  Federal regulation has zero tolerance for unauthorized encroachments on federal land interests  Title 36 CFR Section 327.20

25. BUILDING STRONG ® Modifications of Federal Projects  Pursuant to Section 14 of the RHA (33 U.S.C. 408) the Secretary of the Army may grant permission to alter a USACE civil works project if ► Does not impair usefulness of the project ► Not injurious to the public interest 1165-2-216 “Requests to Alter USACEProjects” published on July 31, 2014  Engineer Circular 1165-2-216 “Requests to Alter USACE Projects” published on July 31, 2014 Only applies to alterations within Real Estate Interests  Only applies to alterations within Real Estate Interests  Section 408 approvals are distinct from and must be granted prior to any Department of the Army regulatory permit

26. BUILDING STRONG ® Role of the Non-federal Sponsor  Because non-federal sponsors are cost-share partners and/or have O&M responsibilities – ► Section 408 requests must come from or have written concurrence of the non-federal sponsor ► If there are multiple sponsors, each sponsor must provide concurrence ► Written acknowledgment and acceptance of any new O&M requirements

27. BUILDING STRONG ® Federal Channel

28. BUILDING STRONG ® Questions?