2. U.S. Army Corps of Engineers REGULATORY PROGRAM WILMINGTON DISTRICT March 13, 2008

3. U.S. Army Corps of Engineers Regulatory Program l Regulatory Program Goals s Protect the aquatic environment s Enhance program efficiency through timeliness and accountability s Professional, honest, and respectful s Make fair and reasonable decisions

4. U.S. Army Corps of Engineers History 1899 Rivers and Harbors Act1899 Rivers and Harbors Act - Section 10 Corps permit required for any work or construction in navigable waters - Section 10 Corps permit required for any work or construction in navigable waters - 1899 to 1935, decisions navigation only - 1935, permit denied on alternatives and aesthetics; Supreme Court upholds - Corps Counsel opinion: can deny for fish and wildlife concerns

5. U.S. Army Corps of Engineers History, cont’d 1972 1972 Federal Water Pollution Control Act Amendments 1977 1977 Clean Water Act (amended 1972 FWPCA) 1993 1993 Tulloch Rule; permits for excavation 1997 1997 Tulloch Rule vacated by Circuit Court 2001 2001 Solid Waste Agency of Northern Cook County (SWANCC) Supreme Court Decision 2006 2006 Rapanos Supreme Court Decision

6. U.S. Army Corps of Engineers Authorities – Section 10 (33 U.S.C. 401, et seq.) l Section 10 Rivers and Harbors Act of 1899 s Regulates activities that affect course, location, and navigable capacity s Prohibits unauthorized obstruction or alteration of any navigable water of U.S. s All work (dredging, docks, pilings, marinas, fill, etc )

7. U.S. Army Corps of Engineers Authorities - Section 10 Geographic jurisdiction includes all navigable waters of the U.S. defined (33 CFR Part 329) as “those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce.” Geographic jurisdiction includes all navigable waters of the U.S. defined (33 CFR Part 329) as “those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce.” U.S. Army Corps of Engineers Wilmington District

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10. U.S. Army Corps of Engineers Authorities – Section 404 (33 U.S.C. 1344) Section 101.(a) The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Section 404 established a permit program to be administered by the U.S. Army Corps of Engineers.

11. U.S. Army Corps of Engineers Authorities – Section 404 l Section 404, Clean Water Act (1972) s All waters of the U.S. (including all wetlands) s Discharge of dredged or fill material (including mechanized landclearing)

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14. U.S. Army Corps of Engineers Authorities - Section 103 Section 103 Marine, Protection, Research and Sanctuaries Act (1972) Section 103 Marine, Protection, Research and Sanctuaries Act (1972)  Ocean waters outside of territorial seas  Disposal of dredged material in designated sites U.S. Army Corps of Engineers Wilmington District

15. U.S. Army Corps of Engineers Related Laws Affecting Permit Procedures and Policy Section 401, Clean Water Act Section 401, Clean Water Act Endangered Species Act Endangered Species Act Section 307©, Coastal Zone Section 307©, Coastal Zone Management Act Management Act National Environmental Policy Act, National Environmental Policy Act, 1969 1969 Fish and Wildlife Coordination Act Fish and Wildlife Coordination Act

16. U.S. Army Corps of Engineers Definition of Wetlands 33CFR 328.3(b) l“l“l“l“The term ‘wetlands’ means 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.”

17. U.S. Army Corps of Engineers Three Parameters for Identifying Wetlands l Hydrophytic Vegetation - The area must have a dominance of facultative or wetter plant species. l Hydric Soils - The area must be underlain with hydric soils. l Wetland Hydrology - The area must be saturated/inundated for at least 5% of the growing season.

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22. U.S. Army Corps of Engineers Timelines l Public Notices issued within 15 days of complete application l Public Notice comment no more than 30 days nor less than 15 days l Decisions on permits within 60 days of Public Notice date l Extensions of Public Notice comment period up to 30 days

23. U.S. Army Corps of Engineers Public Hearings l Whenever needed for making decision on application/project l Public opportunity to present views, information l DE may determine issues insubstantial or no valid interest served and may deny request l DE, DDE, or other designated person may preside l Legal adviser optional l Oral or written statement accepted l Time limits can be imposed on speakers l No cross-examination l Transcript required

24. U.S. Army Corps of Engineers Decision Documents l Environmental Assessment (EA)-project not have a significant impact on the quality of the human environment (FONSI), SOF l Environmental Impact Statement (EIS)- project has significant impact on the quality of the human environment, ROD l Section 404(b)(1) analysis l Decision documents may be combined into one document

25. U.S. Army Corps of Engineers l Individual permits s Consider alternatives, even other sites s Evaluation commensurate with impacts s Avoid impacts onsite l General permits s Never consider offsite alternatives s Avoid impacts onsite Alternatives Analysis ( cont)

26. U.S. Army Corps of Engineers Regional General Permits l Authorizations effective within a region (i.e North Carolina) for commonly recurring activities that have minimal cumulative adverse impacts to the environment l All have general and special conditions l Some require notification (written application to the DE) for verification that the work meets the terms and conditions of the permit

27. U.S. Army Corps of Engineers Regional General Permit Examples l Maintenance dredging of existing channels and canals l Bulkheads, rip-rap, and other shoreline stabilization l Boat ramps l Specified activities in TVA or power company reservoirs l Ongoing commercial sand mining

28. U.S. Army Corps of Engineers Nationwide General Permits (NWP) l Authorization on a nationwide basis for commonly recurring activities that have minimal cumulative adverse impacts to the environment l All have standard conditions and many have special and/or regional conditions l Some require notification (written application) to the DE for verification that the work meets the terms and conditions of the permit

29. U.S. Army Corps of Engineers Nationwide Permit Examples l Aids l Aids to navigation l Utility l Utility line backfill and bedding l Road l Road crossings (minor) l Boat l Boat ramps l Farm l Farm buildings l Residential l Residential houses subdivisions and commercial development

30. U.S. Army Corps of Engineers Conditions of Nationwide Permits l Must have Water Quality Certification from the State l No activity jeopardizing the continued existence of a threatened or endangered species l No activity which may adversely affect historic properties l Discharge must be free of toxic materials l Etc.

31. U.S. Army Corps of Engineers Regional Conditions for Nationwide Permits l Notification to DE prior to use affecting State designated “Outstanding Resource Waters”, “High Quality Waters”, “Primary Nursery Areas”, barrier islands, bogs l Notification to DE prior to use for construction of animal waste facilities l Notification to DE prior to use in trout waters within 25 designated counties l Etc.

32. U.S. Army Corps of Engineers Section 404(f) Exemptions l Normal farming, silviculture, and ranching activities, including minor drainage l Maintenance of currently serviceable structures l Construction/maintenance of farm/stock ponds/irrigation ditches, or maintenance of drainage ditches l Construction of temporary sedimentation basins on construction sites where no fill material in the navigable waters l Construction or maintenance of farm/ forest roads or temporary roads for moving mining equipment

33. U.S. Army Corps of Engineers Corps asserts CWA jurisidiction where (significant nexus determination not required) A TNW is present –Wetlands Adjacent (abutting and not abutting) to TNW’s –Non-Navigable tributaries of TNW’s that are relatively permanent (RPW) where the tributaries flow year round or have continuous flow at least seasonally (3 months). –Wetlands that directly abut such tributaries

34. U.S. Army Corps of Engineers A Significant Nexus determination is required where: Non-Navigable tributaries that are not relatively permanent (e.g. flow less than 3 months). Wetlands adjacent to non-navigable tributaries that are not relatively permanent. Wetlands adjacent to but that do not abut a relatively permanent non-navigable tributary. –**NOTE: Wetlands for which we cannot establish a significant nexus are not isolated, they are simply not jurisdictional under the CWA.

35. U.S. Army Corps of Engineers RAPANOS AND CARABELL RAPANOS AND CARABELL