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US Army Corps of Engineers
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Regulatory Program Overview
John Davidson
Team Lead, Compliance Branch
Galveston District
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Southwestern Division
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Galveston District
Wh artonBrazo ria
For t B end
Harr is
Walle r
Aus tin
Gon zales
Fayette
Colorado
Lav aca
Jackso nMatago rda
Calho un
Montg omery
Walker
San Jac in to
Liberty
Jef fer son
Chambers
Hard in
TylerPolk
Trin ity
Galveston
Oran ge
Jasp erNewto n
Vern on
Beaureg ard
Calcasieu
Camero n
Karnes
DeW itt
Vic toria
Goliad
RefugioBee
Live O ak
McMullen
Duv al
Jim W ells
Nueces
San Pa tric io
Kleberg
Zapata
Jim H og g
Broo ks
Kenedy
Willacy
Camero n
Hidalgo
Sta rr
Aran sas
Kenedy
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Regulatory Program Goals
“The Regulatory Program is committed to
protecting the nation's aquatic resources, while
allowing reasonable development through fair,
flexible and balanced permit decisions. The
Corps evaluates permit applications for
essentially all construction activities that occur in
the nation's waters, including wetlands.”
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Corps’ Primary Regulatory Authorities
Section 10 of Rivers & Harbors Act of 1899
►Regulates work and/or structures in/or
affecting navigable waters of the United
States
Section 404 of the Clean Water Act
►Regulates the discharge of dredged and/or fill
material into all waters of the United States;
which includes adjacent wetlands.
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Clean Water Act Goal
Restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters
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Commerce Clause
Power listed in the U.S. Constitution
that allows Congress to regulate
commerce with foreign Nations, and
among the several states, and with
Indian Tribes.
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Clean Water Act History 1880s and 1890s, Congress directed the
Corps to prevent dumping and filling in the
Nation’s harbors.
Rivers and Harbors Act of 1899 – illegal to
discharge refuse matter of any kind into
navigable waters or tributaries of
navigable waters. Also illegal to alter the
course, condition or capacity of any port,
harbor, channel, or any other areas within
the reach of the Act.
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Clean Water Act History
1912 – Public Health Service Act. Expanded
mission of U.S. Public Health Service to study
problems of sanitation, sewage, and pollution.
1924– Oil Pollution Act. Prohibited intentional
discharge of fuel oil into tidal waters. Repealed
by 1972 Federal Water Pollution Control Act.
1948 – Federal Water Pollution Control Act.
Created comprehensive set of water quality
programs. Enforcement limited to interstate
waters
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Clean Water Act History
1972 – Federal Water Pollution Control
Act significantly reorganized and
expanded.
1977 – With amendments, became the
Clean Water Act. Through Section 404,
mandated to develop effective program for
controlling pollution of Nation’s 76 million
acres of wetlands. One goal was to
eliminate all discharges by 1985.
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Clean Water Act History
1985 – U.S. v. Riverside Bayview Homes
– U.S. Supreme Court held that
intermingled (adjacent) wetlands of
navigable waters are subject to Section
404 of the Clean Water Act.
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Clean Water Act History 1986 – EPA clarified that waters of the U.S. at
40 CFR 328.3 also include waters which are or
would be used as habitat by birds protected by
the Migratory Bird Treaties; or which are or
would be used as habitat by other migratory
birds which cross state lines; or which are used
as habitat for endangered species; or used to
irrigate crops sold in interstate commerce. Also
introduced non-waters (presented later). Both in
preamble to 1986 regulations.
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Clean Water Act History 2001 – Solid Waste Agency of Northern Cook
County; 5-4 Decision in U.S. Supreme Court.
Concluded you can not solely use the Migratory
Bird Rule to exert jurisdiction over isolated
waters.
2006 – Rapanos & Carabell; 5 separate opinions
(one plurality, two concurring, two dissenting) in
U.S Supreme Court with no single opinion
commanding a majority. Vacated and remanded
case back down to 6th Circuit Court of Appeals.
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Clean Water Act History
Rapanos & Carabell Opinions
Plurality – (Scalia, Roberts, Thomas, Alito)
concluded that Section 404 should extend only
to relatively permanent, standing or continuously
flowing bodies of water connected to traditional
navigable waters and to wetlands with a
continuous surface connection to such relatively
permanent waters.
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Clean Water Act HistoryRapanos & Carabell Opinions
Kennedy – concluded that wetlands are waters
of the U.S. if the wetlands either alone or in
combination with similarly situated lands in the
region, significantly affect the chemical, physical,
and biological integrity of other covered waters
more readily understood as navigable. If the
wetlands effects on water quality are speculative
or insubstantial, they fall outside the statutory
term ‘navigable waters’.
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Clean Water Act History
Rapanos & Carabell Opinions
Dissenting – (Stevens, Souter, Ginsburg,
Breyer) concluded that EPA’s and Corps’
interpretation of waters of the U.S. was a
reasonable interpretation of the Clean Water
Act.
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Clean Water Act History
Rapanos & Carabell Opinions
When there is no majority opinion in a Supreme
Court case, controlling legal principles may be
derived from those principles espoused by five
or more justices. Therefore, jurisdiction under
the Clean Water Act exists if a waterbody meets
the plurality or Kennedy’s standard.
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Clean Water Act History
Rapanos & Carabell Opinions
Received guidance based on Rapanos &
Carabell opinions on 5 June 2007.
Received revised guidance on 2
December 2008.
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Corps/EPA Guidance
• In response to Rapanos & Carabell
opinions
• Coordination required with the EPA and
Corps HQ on some waters
• JD sheet required for each aquatic
resource
• New definitions
Traditional Navigable Waters (TNWs)
Relatively Permanent Waters (RPWs)
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Corps/EPA Joint Guidance
Aquatic resources not coordinated with EPA
(Agencies will assert jurisdiction over the following
waters)
‐ Traditional navigable waters (TNWs)
‐ Wetlands adjacent to TNWs
‐ Relatively permanent waters (RPWs)
‐ Wetlands abutting RPWs
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Corps/EPA Join Guidance
Aquatic resources coordinated with EPA
(Agencies will decide jurisdiction based on a fact-
specific analysis to determine if they have a
significant nexus with a TNW)
‐ Tributaries above RPWs
‐ Wetlands adjacent to but not abutting RPWs
- Wetlands adjacent to non-RPWs
‐ Isolated wetlands
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Corps/EPA Joint Guidance
Non-waters of the U.S.
(Agencies generally will not assert
jurisdiction over these features)
- Swales or erosional features
- Ditches excavated wholly in an
draining only uplands and that do not carry
a relatively permanent flow of water.
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Corps/EPA Joint GuidanceSignificant Nexus Analysis
- Assess the flow characteristics and functions
of the tributary itself and the functions performed
by all the adjacent wetlands to determine if they
significantly affect the chemical, physical, and/or
biological integrity of the downstream TNW.
- Includes consideration of hydrologic and
ecologic factors such as volume, duration,
frequency of flow, pollutant carrying capacity, flood
storage, habitat, nutrient and organic carbon
transfer capacity.
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Clean Water Rule New rule published in Federal Register on 29
June 2015
Became effective on 28 August 2015 (60 days
after publication)
Changed definition of waters of the U.S.
6th Circuit Court of Appeals issued a nationwide
stay on the CWR on 9 October 2015
6th Circuit Court of Appeals on 22 February 2016
ruled they had jurisdiction to issue the
nationwide stay
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Introduced Bills HR 1310 – Frank Pallone – Clean Water
Protection Act, 3 March 2009, amend the
CWA by redefining Fill Material to mean
any pollutant that replaces portions of
waters of the United States with dry land
or that changes the bottom elevation of a
water body for any purpose and to exclude
any pollutant discharged into water
primarily to dispose of waste, mountaintop
mining. NO ACTION
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Introduced Bills
S 787 – Russell Feingold – Clean Water
Restoration Act, 2 April 2009, amend the
CWA to replace the term "navigable
waters“ with the term "waters of the United
States,“ to the fullest extent that these
waters, or activities affecting them, are
subject to the legislative power of
Congress under the Constitution. NO
ACTION
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Introduced Bills
HR 5088 – James Oberstar – America’s
Commitment to Clean Water Act, 21 April
2010, restore the definition of waters of the
United States to that in place before the
SWANCC and Rapanos decisions.
(Replace Navigable waters with Waters of
the United States) NO ACTION
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Introduced Bills
14 April 2011 – 170 members of the
House of Representatives sent a letter to
President Obama asking him to end efforts
to broaden Federal protection of wetlands
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Introduced Bills S 2245 – John Barrasso – Preserve the Waters of the
United States Act, 28 March 2012, - Prohibits the
USACE and the EPA from: (1) finalizing the proposed
guidance described in the notice of availability and
request for comments entitled "EPA and Army Corps of
Engineers Guidance Regarding Identification of Waters
Protected by the CWA"; or (2) using such guidance, or
any substantially similar guidance, as the basis for any
decision regarding the scope of the CWA or any
rulemaking. Provides that the use of such guidance as
the basis for any rule shall be grounds for vacation of
such rule. NO ACTION
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Introduced Bills HR 4965 – John Mica – Preserve existing rights with
respect to waters of the U.S., 27 April 2012, Prohibits the
USACE and EPA from: (1) finalizing, adopting,
implementing, administering, or enforcing the proposed
guidance described in the notice of availability and
request for comments entitled "EPA and Army Corps of
Engineers Guidance Regarding Identification of Waters
Protected by the CWA"; or (2) using such guidance, or
any substantially similar guidance, as the basis for any
decision regarding the scope of the CWA or any
rulemaking. Sent to House or Senate on 7 June 2012
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Introduced Bills HR 5325 – Rodney Frelinghuysen – Energy and
Water Development Bill, 2 May 2012, None of
the funds made available by this Act…may be
used by the Corps of Engineers to develop,
adopt, implement, administer, or enforce a
change or supplement to the rule dated
November 13, 1986, or guidance documents
dated January 15, 2003 and December 2, 2008,
pertaining to the definition of waters under the
jurisdiction of the Federal Water Pollution
Control Act. Passed House on 6 June 2012
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Limits of Jurisdiction (approx.)
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Section 10 Rivers and Harbors Act;
What is Regulated?
Structures in Navigable Waters
► Such as piers, docks, boathouses, pilings, oil rigs,
pipelines, jetties, power transmission line,
permanently moored vessel
Work in Navigable Waters
► Dredging or disposal of dredged material, excavation,
filling, or other modification effecting a navigable
water
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Section 404 of the Clean Water Act
What is Regulated?
A Department of the Army Permit is required
prior to the discharge of any dredged and/or fill
material into any waters of the United States.
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What is Fill?
Material that has the effect of replacing a water
of the U.S. with dry land or changing the bottom
elevation of a water of the U.S. Examples
include rock, sand, soil, clay, plastics,
construction debris, wood chips, overburden
from mining, etc.
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Waters of the United States• Waters used for interstate commerce
including all tidal waters (navigable)
• Interstate waters, including wetlands
• Intrastate waters that could affect
interstate commerce
• Impoundments of waters of the United
States
• Tributaries of waters of the United States
• Wetlands adjacent to waters above
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Non-Waters of the U.S.• Non-tidal drainage and irrigation ditches
excavated on dry land that do not have
relatively permanent flow.
• Artificially irrigated areas that would revert
to uplands if irrigation ceased.
• Artificial lakes and ponds created by
excavating or diking dry land to collect water
for stock watering, irrigation, settling basins,
or rice growing.
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Non-Waters of the U.S.• Artificial reflecting or swimming pools or
other water bodies excavated from dry land
to retain water for primarily aesthetic
reasons
• Waterfilled depressions created in dry land
incidental to construction and pits excavated
in dry land for obtaining fill, sand, or gravel
until abandoned and the resulting body of
water meets the definition of waters of the
United States
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Special Aquatic Sites (defined in NEPA 40 CFR 230)
- Sanctuaries and refuges
- Wetlands
- Mud flats
- Vegetated shallows
- Coral Reefs
- Riffle and pool complexes
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Definition of Wetlands
“Areas that are inundated or saturated by
surface or ground water at a frequency
and duration sufficient to support, and
under normal circumstances do support, a
prevalence of vegetation typically adapted
for life in saturated soil conditions.”
33CFR328.3(b)
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Wetland Functions
• Flood retention
• Improve water quality
• Protect shorelines from erosion
• Filter pollutants from storm water
• Provide habitat for fish and wildlife
• Produce nutrients and detritus for the food
chain
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What makes a Wetland*?
• Hydrology (water)
AND
• Hydrophytic plants (plants adapted for wet
conditions)
AND
• Hydric (wet) soils
*Under normal conditions/circumstances*
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How to Delineate a Wetland
Proper application of the appropriate
Regional supplement to the 1987 Corps of
Engineers Wetland Delineation Manual.
1987 Corps of Engineers Wetland
Delineation Manual maintains the
technical guidance and procedures.
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Wetland Delineations
For wetland delineation purposes, an area
is considered to be vegetated if it has 5%
or more total plant cover during the peak
of the growing season
Use National Wetland Plant List. Revised
in 2012 for all plant indicator status.
Updated every two years or so.
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Plant Indicator Status
OBL – occurs in wetlands 99% of
time
FACW – occurs in wetlands 66-99%
FAC – occurs in wetlands 33-66%
FACU – occurs in wetlands 1-33%
UPL – occurs in wetland 1% of time
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Vegetation Strata
►Trees
►Saplings
►Shrubs
►Woody Vines
►Herbs
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Wetland Vegetation
Use 30-foot sampling radius for tree, sapling,
shrub, woody vine and herb strata
All dominant species across all strata are OBL or
FACW based on visual assessment (Rapid Test)
50/20 Rule to select dominants
> 50% of dominants FAC or wetter (Dominance
Test)
Use 50/20 rule within the stratum and the
dominance test across all strata
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Hydric Soils
►Dig hole and describe profile to 20
inches
►Look at soil colors in the profile and
match to NTCHS’s Field Indicators of
Hydric Soils in the United States,
Version 7.0
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Hydric Soils
All Soils
►Histosol (A1)
►Histic Epipedon (A2)
►Black Histic (A3)
►Hydrogen Sulfide (A4)
►Stratified Layers (A5)
►Organic Bodies (A6)
►5 cm Mucky Mineral (A7)
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Hydric Soils
►Muck Presence (A8)
►1 cm Muck (A9)
►Depleted Below Dark Surface (A11)
►Thick Dark Surface (A12)
►Coast Prairie Redox (A16)
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Hydric Soils
Sandy Soils – loamy fine sand and coarser
►Sandy Mucky Mineral (S1)
►Sandy Gleyed Matrix (S4)
►Sandy Redox (S5)
►Stripped Matrix (S6)
►Dark Surface (S7)
►Polyvalue Below Surface (S8)
►Thin Dark Surface (S9)
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Hydric Soils
Loamy and Clayey Soils – loamy very fine
sand and finer
►Loamy Mucky Mineral (F1)
►Loamy Gleyed Matrix (F2)
►Depleted Matrix (F3)
►Redox Dark Surface (F6)
►Depleted Dark Surface (F7)
►Redox Depressions (F8)
►Marl (F10)
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Hydric Soils
Loamy and Clayey Soils (cont’d)
►Depleted Ochric (F11)
►Iron-Manganese Masses (F12)
►Umbric Surface (F13)
►Delta Ochric (F17)
►Reduced Vertic (F18)
►Piedmont Floodplain Soils (F19)
►Anomalous Bright Loamy Soils (F20)
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Hydric Soils
Problem Soils
►2 cm Muck (A10)
►Red Parent Material (TF2)
►Very Shallow Dark Surface (TF12) (new)
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Wetland Hydrology
Atlantic and Gulf Coastal Plains
Groups
►A – Observation of surface water or saturated
soils
►B – Evidence of recent inundation
►C – Evidence of current or recent soil
saturation
►D – Evidence from other site conditions or
data
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Wetland Hydrology (Primary)
►Surface water (A1)
►High water table (A2)
►Saturation (A3)
►Water marks (B1)
►Sediment deposits (B2)
►Drift deposits (B3)
►Algal mat or crust (B4)
►Iron deposits (B5)
►Inundation visible on aerial imagery (B7)
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Wetland Hydrology (Primary)
►Water-stained leaves (B9)
►Aquatic fauna (B13)
►Marl deposits (B15)
►Hydrogen sulfide odor (C1)
►Oxidized rhizospheres along living roots (C3)
►Presence of reduced iron (C4)
►Recent iron reduction in tilled soils (C6)
►Thin muck surface (C7)
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Wetland Hydrology
(Secondary)
►Surface soil cracks (B6)
►Sparsely vegetated concave surface (B8)
►Drainage patterns (B10)
►Moss trim lines (B16)
►Dry-season water table (C2)
►Crayfish burrows (C8)
►Saturation visible on aerial imagery (C9)
►Geomorphic position (D2)
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Wetland Hydrology
►Shallow aquitard (D3)
►FAC-neutral test (D5)
►Sphagnum moss (D8) (new
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Corps Regulatory Actions
Determinations/Delineations/Verifications
Permits
Compliance Inspections on Permits
Enforcement
Appeals
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Determinations/Delineations/
Verifications
A determination is qualitative in that it only
provides an answer if there is a jurisdictional
area within the project area. (Yes or No)
A delineation is quantitative in that it provides
boundaries and acreage measurements for
each individual type of water of the United
States present in the project area. (Area)
A verification is a confirmation of the accuracy
and precision of a delineation.
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Expectations for Submitting Jurisdictional
Determinations
Letter requesting jurisdictional determination
(property owner or agent)
Vicinity map indicating project site boundaries
Detailed map showing property boundaries &
sample locations
Other supporting info such as CIR aerials, Quad
map, floodplain map, site photos, etc.
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Depicting Project Sites
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The Corps of Engineers Delineation
Verification Process
• Corps assigns project to PM and enters data
• Corps sends acknowledgement letter
• PM determines if site visit is necessary
• Conduct site visit for accuracy/adjustments
• Complete JD form for each aquatic resource
• Coordinate JD form with EPA if required
• PM writes memo and final letter
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Corps of Engineers - Expectations for Submitting Delineation Reports
• Complete Data Sheets
• Delineation map with transects, sample points,
aquatic resource and upland areas
• Acreages of wetlands, open waters, uplands
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Corps of Engineers Requirements for Field Verifications
• Project boundaries must be staked/marked
• Aquatic resources must be staked/marked
• Transects, data points must be marked
• Delineator must be able to explain why an area
is or is not called a wetland/water
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Approved/Preliminary
Jurisdictional Determinations
Approved JD - official USACE determination that
jurisdictional waters of the U.S. or navigable
waters of the U.S. are present or absent on a
particular site or a written statement and map
identifying the limits of waters.
Preliminary JD – written indication that there
may be waters of the U.S. on a parcel or of the
approximate locations of waters
Source: 33 CFR 331.2
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AJD/PJD Continued…
Approved JD – appealable; may or may not
delineate extent of jurisdiction; requires more
information to confirm.
Preliminary JD – not appealable; assumes all
aquatic resources on site are jurisdictional; not
as stringent to confirm (approximate locations);
cannot be used to determine no wetlands or no
jurisdictional wetlands.
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Jurisdiction under Rapanos
• Aquatic resources not coordinated with EPA
(Agencies will assert jurisdiction over the following
waters)
‐ Traditional navigable waters (TNWs)
‐ Wetlands adjacent to TNWs
‐ Relatively permanent waters (RPWs)
‐ Wetlands abutting RPWs
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Jurisdiction under Rapanos (cont.)
• Non-waters of the U.S.
(Agencies generally will not assert jurisdiction over
these features)
- Swales or erosional features
- Ditches excavated wholly in an draining only
uplands and that do not carry a relatively
permanent flow of water.
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Significant Nexus Analysis
It is an analysis to see if this reach of a tributary in
conjunction with all of the similarly situated wetlands
provide more than a “speculative or insubstantial” effect
upon the physical, chemical, and/or biological integrity of
the downstream traditional navigable water.
(Test required to coordinate with EPA for non-
RPW, wetlands adjacent to non-RPW, and
wetland neighboring RPW)
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Isolated Non-Jurisdictional Waters
Isolated waters means those non-tidal waters of
the United States that are:
► (1) Not part of a surface tributary system to interstate
or navigable waters of the United States; and
► (2) Not adjacent to such tributary waterbodies
(33CFR330.2(e))
There is no know interstate or foreign commerce
associated with the specific aquatic resource.
(Commerce Clause)
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Permit Types
General Permits
►Programmatic General Permits
►Regional General Permits
►Nationwide Permits
Letters of Permission
Standard/Individual Permits
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Types of Permits General Permits (GP)
• For activities having minor impacts
Nationwide General Permits (NWP)
• Subject to Section 10 and Section 404 for specific activities)
• These permits are developed by USACE Headquarters
• Already issued to the nation and have been pre-coordinated with other agencies for water quality impacts, endangered species concerns, etc.
• Some permits require notification to the Corps = Pre-Construction Notification (PCN)
• Also has Regional Conditions for the Galveston District
Regional General Permits (RGP)
• Subject to Section 10 (for specific activities). These permits are developed by the USACE districts
Standard Permits (SP)
• For activities having more than minor
impacts
Letters of Permission (LOP)
• Subject to Section 10 only
• These permits require a 15 Day Interagency Coordination
• Do not require Section 401 CWA Certification
Individual Permits (SP)
• Subject to Section 10 and Section 404
• The permits include a 15/30 Day Public Notice
• Requires all other elements of permit evaluation
http://www.swg.usace.army.mil/BusinessWithUs/Regulatory/Permits.aspx
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Nationwide Permits (NWPs) for
Docks and Dredging
• NWP 3 – Maintenance (does not including dredging)
• NWP 13 – Bank Stabilization
• NWP 19 – Minor Dredging
• NWP 35 – Maintenance Dredging of Existing Basins
• NWP 16 – Water Quality Certification for return water
from upland disposal
BE SURE TO CHECK:
• Pre-Construction Notification (PCN) requirement
• General Conditions (All NWPS)
• Regional Conditions (by state or geographic region)
http://www.swg.usace.army.mil/BusinessWitUs/RegulatoryBranch/Permits.aspx
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Commonly used NWPs
NWP 3 Maintenance
NWP 7 Outfall Structures
NWP 12 Utility Line Activities (pipelines, power lines)
NWP 13 Bank Stabilization (bulkheads, riprap)
NWP 14 Linear Transportation Projects (roads, railways)
NWP 15 U.S. Coast Guard Approved Bridges
NWP 16 Return Water from Upland Contained Disposal Areas
NWP 18 Minor Discharges (fill material)
NWP 19 Minor Dredging
NWP 33 Temporary Construction Access and Dewatering
NWP 35 Maintenance Dredging
Each project is unique, not all projects qualify for a NWP
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Applying for a DA Permit
• Engineer Form 4345, with
original signatures
• Signed Agent Authorization
• Complete description of the
proposed activity including
supporting documentation,
and plans sufficient for
Public Notice
[Per 33 CFR 325.1(d)(1)]
Call the Corps if you have
questions!
http://www.swg.usace.army.mil/BusinessWithUs/RegulatoryBranch/Permits/PermitApplication.aspx
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ENG 4345 Application Form
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Items to Include with the
application
• Site Vicinity Map
• Plan and cross sectional drawings reflecting:
• Named waterbody and/or all aquatic
resources within the project boundaries
• Acreage/Linear feet of the aquatic resource
• Acreage/Linear feet of the impact to the
aquatic resource
• Mean high water or ordinary high water mark
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Items to Include with the
application
• Plan and cross sectional drawings reflecting:
• Cubic yards of fill material (if applicable)
• Wetland Delineation (if applicable)
• Dimensions and cubic yards of material
removed during dredging (if applicable)
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Project Plans (Drawings)• 8.5” by 11” paper, color is ok if legible.
• Include all jurisdictional work, adjacent structures,
access roads, staging AND Dredge Material
Placement Areas (DMPAs).
• Good vicinity map(s), including DMPAs.
• Scale or stated dimensions
• Complete Legend
• All Drawings must be consistent - Tables and written
descriptions MUST MATCH drawings!
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Why does the permit
process take so long?
Primary cause of delay for
applications is:
•incomplete,
•inaccurate, or
•contradictory information.
Written descriptions and/or tables
provided must match what is
reflected on the project plans
(drawings)
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Vicinity Maps:As if you’ve never been there before
• Compass or North Arrow
• Show location in relation to some known point.
• Lat/Lon or UTM coordinates are extremely helpful.
• Old plans and maps may need to be updated for
permit amendments, if they are no longer legible.
Insufficient Good
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Example Plans
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TMI
(Too Much Information)!
Limit
information
to only what
is necessary
for permit
evaluation
purposes.
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Example Plans:
Dredge sitehttp://www.swg.usace.army.mil/BusinessWithUs/RegulatoryBranch/Permits/PermitApplication.aspx
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Example Plans:
Confined Placement Area with Levees
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Submitting the Application
• Attach all supporting information - maps, drawings,
photos, etc.
• Sign and date the Application (Engineer Form 4345)
• Review for 3 “C”s:
► Correctness
► Consistency
► Completeness
• Keep copies of all submitted pages.
• Mail application with original signatures.
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Federal Nexus
Department of the Army Permit is the trigger that
subjects the regulated activity to jurisdiction of
other laws.
If no DA permit is
required, these other acts
may not apply to the
proposed action
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Laws that impact USACE
Regulatory Process (coordination) National Environmental Policy Act
Fish and Wildlife Coordination Act
Endangered Species Act
Coastal Zone Management Act
National Historic Preservation Act
Magnuson-Stevens Fishery Conservation and Management Act► Essential Fish Habitat (NMFS)
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Goal: No Net Loss
Wetlands historically viewed as wastelands, with
drainage and filling required to render them productive
1950’s -70’s, >50% of nations wetlands destroyed due to agricultural
practices and residential, commercial, & industrial development
Realization of hidden values and functions of wetlands
1987, National Wetlands Policy Forum created to study wetlands loss
Development of “NO NET LOSS” policy
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Programmatic General Permits
A Programmatic General Permit (PGP) is a type of
regional general permit founded on an existing state,
local or other Federal agency program and designed to
avoid duplication with that program. Application for use
of these programmatic general permits should be made
to the agencies which administer them.
Examples: certain piers, certain oil and gas exploration
Administrators: Trinity River Authority, Texas General
Land Office
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Regional General Permits
A regional general permit (RGP) is a type of general
permit that authorizes categories of activities in a specific
geographic area that causes only minimal individual and
cumulative environmental impacts.
Examples: Section 10 aerial crossings and directional
drilling, certain piers larger than PGP, certain other
activities.
Administrator: Corps Only
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Nationwide Permits
Already issued at the National Level
(NOTE: Regional conditions)
Pre-coordinated with agencies for water quality impacts, endangered species
Some require notification to the Corps (Pre-construction Notification = PCN)
Some don’t require notification - applicant can just use the permit
Feb. 27, 2013 Fed reg. extended expiration for NWP to the length of the 5 year cycle (March 19,2017).
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Letters of Permission
Letters of Permission (LOP), is a type of permit
issued through an abbreviated processing
procedure which includes coordination with
Federal and state fish and wildlife agencies, as
required by the Fish and Wildlife Coordination
Act, and a public interest evaluation, but without
the publishing of an individual public notice.
In SWG – Only Certain Section 10 Activities
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Standard/Individual Permits
1) Impacts to Aquatic Resources
2) Section 404(B)(1) Guidelines
3) Section 401 Water Quality Certification
► issued by state
4) Compliance with ALL related laws (ESA;
CZMA, NHPA; EFH etc..)
5) Public Notice / Public input
6) Public Interest Review Factors
7) Compliance with 404(b)1 Guidelines
Elements of Evaluation include:
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Sequencing Process
Demonstrate various onsite and offsite project alternatives considered and why they were/not selected.
Discuss geographic scope of alternatives search, list relevant factors.
Select “Least Damaging Practicable Alternative.”
Demonstrate how impacts to wetlands at that site have been avoided, and minimized.
Discuss remaining “unavoidable” impacts, and propose compensation.
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404(b)(1) Guidelines
Section 404(b)(1) of CWA requires EPA, to develop the guidelines in conjunction with the Corps.
Guidelines state that a permit cannot be issued if it does not comply with the guidelines (33 CFR 320.4).
Corps has final responsibility for determining compliance
For non-water dependent projects proposed in wetlands
(and other “special aquatic sites”), a presumption exists
that other less environmentally damaging sites are
available.
We must permit the “least damaging practicable
alternative”.
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404(b)(1) Guidelines
An alternative is “practicable” if it is “available” and capable of being done after taking into consideration cost, existing technology, and logistics, in light of the overall project purpose.”
“Available” - that which could be reasonably obtained, utilized, expanded or managed by the applicant.
Level of review commensurate to impact (RGL 93-2)
Corps makes final determination of compliance.
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Compensatory Mitigation
Implementing equivalent, effective standards
Ensuring predictability and efficiency
Emphasizing best available science
► Watershed approach
► Preference/Hierarchy
► Functional Assessments
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§332.3 Establishes Preference
(hierarchy) 1) use of credits from a mitigation bank,
2) use of credits from an in-lieu fee program,
3) permittee-responsible mitigation
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Wetland Mitigation Banking
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§332.4 – Mitigation - Requires 12
Components 1) Objective(s) of the compensatory mitigation project
2) Site selection information
3) Site protection instrument to be used
4) Baseline information (impact and compensation site)
5) Number of credits to be provided
6) Mitigation work plan
7) Maintenance plan
8) Ecological performance standards
9) Monitoring requirements
10) Long-term management plan
11) Adaptive management plan
12) Financial assurances
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Currency and Tools
Currency (In-Kind Credit Type)
- Stream
- Wetlands (4 SWG iHGM Models)
Functional Assessment Tools
- SWG Stream Method (Tier 1,2,3)
- SWG iHGM Models (Riverine., Tidal, Lacustrine)
- HGM Regional Guidebooks (TF)
Ratio Method (Can be used if nothing else is applicable)
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Enforcement
Compliance ► Typically a permit requirement
► Corps inspects numerous throughout year.
► If non-compliance is found, enforcement may initiate.
Unauthorized Activities► Individual does regulated work without a permit
► Corps does most U/A enforcement -- EPA can also
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Resolution of Non-Compliance
Permit compliance enforcement
►Individual does not conduct work under permit
►Corps only authority -- DO NOT refer to EPA
►Resolutions
• restoration of work that exceeds permit
• required mitigation caused to be completed
• modify permit to authorized work that is okay
• revoke permit -- civil or criminal action
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Resolution of Unauthorized
Activities
Voluntary Restoration
After-the-Fact Permit
Referral to EPA
Referral to DOJ
Litigation
Alternate Dispute Resolution (ADR)
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Appeals
A) Denied or Declined Permits
B) Approved Corps Jurisdictional
determinations
- *NOTE: NAP MUST be received within 60
days of notice with justification
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Proposed Development
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Proposed Development
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Summary Corps regulates structures and work in navigable waters (10) and
discharges of dredged and fill materials into waters of the U.S.
including wetlands (404).
District Engineer makes final decision to issue or deny a permit
based on impacts to the aquatic environment, consultation with
other agencies, public interest, and compliance with the 404(b)(1)
guidelines.
Applicants must avoid and minimize impacts to wetlands first, then compensate for unavoidable impacts (404).
On-site, in-kind mitigation is preferred but flexibility is allowed based on wetland functions and values (404).
Project must be the least damaging practicable alternative (404).
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Summary Continued…
Applicants must avoid and minimize impacts to wetlands first, then compensate for unavoidable impacts (404).
On-site, in-kind mitigation is preferred but flexibility is allowed based on wetland functions and values (404).
Project must be the least damaging practicable alternative (404).
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Questions?
John Davidson
Team Lead/Technical Specialist
US Army Corps of Engineers
Galveston District
Regulatory Division; Compliance Branch
P.O. Box 1229
Galveston, Texas 77553
Phone: (409)-766-3933
John.Davidson@usace.army.mil
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