Wetlands and Streams : The 5 W’s Behind Permit and Review Procedures

March 5, 2019

U.S. Army Corps of EngineersPresenters: Tina Stonemetz and Shawn Blohm

Buffalo District Field Office Locations:Oak Harbor (Ottawa County) and Stow (Summit County)

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Regulatory Program Goals(33 CFR 320 General Regulatory Policies)

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.

OUTLINE OF TOPICS

USACE Regulatory Authorities Waters of the US (WOUS) Wetlands Jurisdictional Determinations Regulatory Actions Types of Permits Permit/Monitoring Compliance Unauthorized Activities Enforcement Information for the State of Ohio

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REGULATORY AUTHORITY

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SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899

Applies to Navigable Waters - waters that are currently, historically and in the future could represent opportunity for interstate commerce (33 CFR 329.4)

All activities and structures within, above, or beneath navigable waters are regulated

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SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899

Limits of jurisdiction for navigable waters Upstream limit of interstate commerce Ordinary high water mark, in the absence of adjacent wetlands (i.e. Lake Erie

573.4 IGLD ) Extents to the ordinary high water mark

of the adjacent wetlands

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SECTION 404 OF THE CLEAN WATER ACT OF 1977

Applicable to ‘waters of the United States’ (33 CFR 328.3)

What is Regulated?Discharges of dredged or fill material into waters

of the U.S.

Goal - to preserve the physical, chemical and biological integrity of waters of the U.S.

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WATERS OF THE UNITED STATES

Lakes, wetlands, and some ponds, rivers, streams, canals, some ditches

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EXAMPLES OF ORDINARY HIGH WATER MARK PERENNIAL STREAM

Ordinary High Water Mark

Water in channel

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EXAMPLES OF ORDINARY HIGH WATER MARK INTERMITTENT STREAM

Ordinary High Water Mark

Water in channel

WETLAND IDENTIFICATION

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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.”33CFR 328.3 and 1987

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These are All Forested Wetlands!

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These are All Scrub/Shrub Wetlands!

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These are all Emergent Wetlands!

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WETLAND DELINEATIONThe physical surveying of a wetland boundary and data collection. Performed in accordance with 1987 US Army Corps of Engineers Wetland Delineation ManualAssociated Regional SupplementUSDA/NRCS Field Indicators of Hydric Soils in the United StatesNational Wetland Plant List

Three Wetland criteria:hydrophytic vegetationhydric soilshydrology

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1987 US ArmyCorps of EngineersWetland DelineationManual

Regional Supplement to1987 US ArmyCorps of EngineersWetland DelineationManual

REGIONAL SUPPLEMENTS IN OHIO Supplements to 1987 Corps

of Engineers Wetland Delineation Manual

3 Supplements in OhioMidwestNorthcental and NortheastEastern Mountains and Piedmont

All individuals required to use Supplement for their region

http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/reg_supp/

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HYDROPHYTIC VEGETATION

Vegetation that is “typically adapted for life in saturated soils” is referred to as hydrophytic vegetation or those plants that have adapted so they can live under saturated conditions.

http://plants.usda.gov/java/profile?symbol=CAGR5&photoID=cagr5_003_avp.tif

USACE NATIONAL WETLAND PLANT LISTINDICATOR STATUS

Obligate wetland plants (OBL) - almost always occur in wetlands. Facultative wetland plants (FACW) - usually occur in wetlands, but sometimes occur in uplands.Facultative plants (FAC) - occur equally in wetlands and uplands.Facultative upland plants (FACU) - usually occur in uplands, but sometimes occur wetlands.Upland plants (UPL) - almost always occur in uplands.

WET

DRY

VEGETATION

*National Wetland Plant List Indicator Definitions July 2012 – ERDC\CRREL TN-12-1

NWPL Website: http://wetland-plants.usace.army.mil/nwpl_static/index.html#

OBL PLANTS IN NCNE

Buttonbush (Cephalanthus occidentalis)

Poison sumac (Toxicodendron vernix)

FACW PLANTS IN THE NCNE

Swamp White Oak (Quercus bicolor)

Pin Oak (Quercus palustris)

FAC PLANTS IN THE NCNE

Red Maple (Acer rubrum) Barnyard Grass (Echinochloa crus-gauli)

FACW PLANTS IN THE NCNE

American elm(Ulmus americana)

Sensitive fern (Onoclea sensibilis)

Pale Touch-Me-Not (Impatiens pallida)

FACU PLANTS IN NCNE

Honesuckle (Loniceratatarica)

May-apple (Podophyllum peltatum)

UPL PLANTS IN NCNE

Maple-leaf viburnum (Viburnum acerifolium)

Queen Anne's-Lace (Daucus carota )

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INDICATORS OF WETLAND HYDROLOGY

Inundated or soil saturation within 12 inches of the soil surface for about two weeks during the growing season. Caution: Most wetlands

lack both standing water and waterlogged soils during at least part of the growing season.

A1 – SURFACE WATER

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B1 – WATER MARKS

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B2 - SEDIMENT DEPOSITS

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B9 - WATER-STAINED LEAVES

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HYDRIC SOILS

Those soils that are sufficiently wet in the upper part to develop anaerobic conditions during the growing season. Soils that formed under

conditions of saturation, flooding, or ponding. The color of the soil

components are often the most diagnostic indicator of hydric soils.

USDA-NRCS, Field Indicators of Hydric Soils

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F3.—Depleted Matrix. For use in all LRRs, exceptW, X, and Y; for testing in LRRs W, X, and Y. A layerthat has a depleted matrix with 60 percent or more chroma of 2 or less and that has a minimum thickness of either:

a. 5 cm (2 inches) if the 5 cm starts at a depth ≤10cm (4 inches) from the soil surface, or

b. 15 cm (6 inches), starting at a depth ≤25 cm (10 inches) from the soil surface.

User Notes: A depleted matrix requires a value of 4 or more and chroma of 2 or less (fig 29). Redox concentrations, including soft iron-manganesemasses and/or pore linings, are required in soils with matrix colors of 4/1, 4/2, or 5/2…

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WETLAND DETERMINATION Wetland determinations involve: rapid walk

through of a site in which one or more indicators wetland vegetation, hydric soil, and wetland hydrology are present.

If you observe definite indicators of any of the three characteristics, you should seek assistance from an expert at making wetland determinations.

If your project proposes to impact these areas you are required to conduct a full Wetland Delineation.

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QUESTIONS

JURISDICTIONAL DETERMINATIONS

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JURISDICTIONAL DETERMINATIONS

Identification of Potential Jurisdictional WatersWetland DelineationIdentification of Streams and other watersFloodplains that contain a water of the U.S. Corps has ultimate authority for Section 404 determinationsCorps will determine if waters are or are not Federally jurisdictional (i.e.

isolated)

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JURISDICTIONAL DETERMINATIONS

Approved Jurisdictional DeterminationCan be appealedValid for 5-years – "unless new information warrants revision before the

expiration date."

Preliminary JDCan not be appealed

No JD Regulatory Guidance Letter (RGL 16-01) Applicant does not request a JD or request that no JD be

completed Non-reporting Nationwide Permits No question concerning Corps jurisdiction

(Section 10 or other obvious waters on site)

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2015 CLEAN WATER RULE: APPLICABILITY

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The Clean Water Rule (CWR) is currently in effect in 22 states, the District of Columbia, and the US territories.

CHANGES

• New naming convention (33CFR328.3)•a’s = waters of the U.S. (WOTUS)•b’s = excluded waters•c’s = definitions

• No longer part of our vocabulary: • Isolated• Relatively permanent waters• Non-Relatively Permanent Waters• Relevant Reach

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WOTUS CATEGORIES

*These categories of WOTUS do not occur within the Buffalo District.42

Category Changes

(a)(1) Traditional Navigable Waters No changes

(a)(2) Interstate Waters No changes

(a)(3) Territorial Seas* No changes

(a)(4) Impoundments No changes

(a)(5) Tributaries Changes

(a)(6) Adjacent Waters Changes

(a)(7) Case-specific Waters* New category

(a)(8) Case-specific Waters New category

EXCLUSIONS

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Clean Water Rule - Paragraph (b) Exclusions Changes(b)(1) Waste Treatment Systems No changes(b)(2) Prior converted cropland No changes(b)(3) Certain ditches Changes(b)(4) Artificially irrigated areas

Artificial, constructed lakes and ponds Artificial reflecting pools or swimming pools Small ornamental waters Water-filled depressions incidental to mining

or construction activityErosional featuresLawfully constructed grassed waterwaysNon-wetland swalesPuddles

Changes: some similar, some added, some clarifications

(b)(5) Groundwater Added(b)(6) Stormwater control features Added(b)(7) Wastewater recycling structures Added

(a)(5) - TRIBUTARIES

• May include features that are:• Natural• Modified• Constructed

• Ephemeral, intermittent, and perennial tributaries are jurisdictional by Rule.

• Ditches have additional criteria for consideration.

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(a)(5) - TRIBUTARIES

A water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (a)(4) of this section), to a water identified in paragraphs (a)(1) through (3) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.

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(a)(5) – TRIBUTARIES: OHWM

Characterized by the presence of an ordinary high water mark (OHWM).• The OHWM is the line on the shore established by the fluctuations of water

and indicated by physical characteristics such as a clear, natural line impressed on the banks, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas 33 CFR 328.3(e).

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(a)(5) – TRIBUTARIES:

Contributes Flow:• Direct or indirect contribution of flow to the downstream (a)(1)-

(a)(3) water.• Can flow through a jurisdictional or non-jurisdictional feature.

Bed: the substrate (bottom) and sides of a channel between which flow is confined.

Banks: a break in slope between the edge of the bed and the surrounding terrain.

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(a)(5)- DITCHES AS TRIBUTARIES

• Ditches are an important example of (a)(5) constructed features.

• Ditches are jurisdictional under the Rule only if they both meet the definition of ‘‘tributary’’ and are not excluded.

• Alteration or modification of natural streams and rivers does not convert the tributary to a ditch.

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(a)(5)- DITCHES AS TRIBUTARIES

Q: How can it be determined that an intermittent ditch drains a wetland?

A: The segment of the ditch that physically intersects the wetland is draining the wetland. The

ditch must be currently draining such wetland. The jurisdictional status of upstream/downstream portions of ditch assessed based on case-specific

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QUESTIONS

WHAT REQUIRES A PERMIT?Examples of Projects Residential, Commercial,

Institutional and Industrial Power plants (scrubber upgrades,

loading & unloading) Landfills Transportation Pipelines (including Interstate

lines) Stormwater management facilities Environmental restoration

Any project involving waters of the U.S., including but not limited to:

• Filling to Create Dry Land• Mechanized Land Clearing• Re-grading/Landscaping• Excavation – Ponds

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TYPES OF PERMITS

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STANDARD INDIVIDUAL PERMIT

Formal application Alternative Analysis (LEDPA) Delineation Mitigation Public Notice with opportunity for Public Hearing 404(b)(1) Guideline Analysis EA/EIS and Decision Document (NEPA) Public Interest Review Permit Decision

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GENERAL PERMITS

Nationwide Permits (NWP)Type of General Permit which authorizes activities on a nationwide basis

unless specifically limited. (33CFR 330.2 Definitions)NWP’s are revised and renewed every 5-yearsNWP’s and general conditions became effective on March 19, 2017Verification of use of NWP’s are valid until the expiration of the NWPDistrict Engineer can elevate to a Standard Permit if the proposed

project’s impacts do not seem minimal

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NATIONWIDE PERMITS

Specific conditionsex. NWP 13 - Limits of bank stabilizationex. NWP 29 – Residential & NWP 39 Commercial General conditions Regional Conditions Special Conditions 401 certificationIndividual 401 may be required

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NATIONWIDE PERMIT CONDITIONS

Impact Limitations Still requires applicant to avoid and minimize impacts to

Waters of the US Pre-Construction NotificationWritten Notification to the USACE for many of the

NWPs Use the standard individual permit application form

(Form ENG 4345)

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PERMIT APPLICATIONS

What information are we looking for?Completed ENG Form 4345 Delineation of Aquatic ResourcesPhotographs of Aquatic ResourceSite Location MapDrawing of proposed project Compensatory Mitigation ProposalEndangered SpeciesHistoric Properties

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PROJECT PURPOSE

Pertinent to reviewRequired to determine type of permit.Assists in Public Interest Review.

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OHIO EPA 401 WATER QUALITY CERTIFICATION FOR NATIONWIDE PERMIT ELIGIBILITY

HTTP://WWW.APP.EPA.OHIO.GOV/GIS/MAPS/401NWP.HTML

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Possibly EligibleCategory Definitions:

Ineligible Areas (Shaded Purple): an individual 401 water quality certification is required.

Possibly Eligible Areas (Shaded Yellow): may require an individual water quality certificationif the streams which are proposed to be impacted exhibit habitat features indicative of

high quality waters, or if other Ohio general and special limitations and conditions for the nationwide permits are not met.

Eligible Areas (No Shading): may require an individual 401 water quality certificationif Ohio general and special limitations and conditions for the nationwide permits are not met.

REQUIRED INFORMATION

Required submittal of the following DETAILED information with each application: Any Agency Coordination – ODNR, Scenic Rivers…. USFWS - Sufficient information must be provided to determine the

proposed activity's compliance with the Endangered Species Act. Cultural Resources – Compile a basic preliminary review information that

includes the following

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ENDANGERED SPECIES

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Piping plover. Credit: Gene Nieminen/USFWS Massagua Photo courtesy of Joe Crowley/USFWS

Lakeside Daisy Photo Courtesy of U.S. Forest Service

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https://www.fws.gov/midwest/endangered/lists/ohio-spp.html (as of 8/20/2018)

Endangered Species

ENDANGERED SPECIES

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REGIONAL GENERAL CONDITIONS- USFWS

Nationwide Permits Regional Condition 5 a. Endangered and Threatened Species – Notification in accordance with NWP General Condition 32, RGC 6 and GC 18 is required for any regulated activity in jurisdictional Waters of the United States in Ohio that includes:

Removal of trees providing suitable roosting, foraging or traveling habitat for the federally endangered Indiana bat and federally threatened Northern Long eared bat.

Regulated work in the waterway or township of the corresponding counties listed in Appendix 1.

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REGIONAL GENERAL CONDITIONS- USFWS

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CULTURAL RESOURCES

Sufficient information must be provided in the PCN to determine the proposed activity may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Place (Section 106 of the National Historic Preservation Act (NHPA). A detailed description of the project site in its current

condition Description of past land uses in the project site Information regarding any past cultural resource studies

or coordination pertinent to the project area.

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CULTURAL RESOURCES - CONTINUED

A preliminary resource review that encompasses a search radius of two (2) miles, centered on the project area, and consists of the following resources: • OSHPO USGS 7.5’ series topographic maps;• Ohio Archaeological Inventory (OAI) files;• Ohio Historic Inventory files (OHI);• OSHPO Cultural Resources Management contract

archaeology files;• NRHP files including Historic Districts; and • County atlases, histories and historic USGS 15’ series

topographic map(s).

Applicants encouraged to consult with the Ohio State Historic Preservation Office (OSHPO) staff

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CULTURAL RESOURCES - CONTINUED

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PERMIT EVALUATION404(b)(1) Guideline Analysis►Alternatives Analysis

►Least Environmentally Damaging Practicable Alternative (LEDPA) –Regardless if it a NWP or IP

►Avoidance, Minimization, Compensation– Regardless if it a NWP or IP Public Interest Review Compliance with Other Statutes

► Clean Water Act – Sections 401 and 402► Section 106 of National Historic Preservation Act► Endangered Species Act► Fish and Wildlife Coordination Act► National Environmental Policy Act ► Wild and Scenic Rivers Act► Coastal Zone Management

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DRAWING SAMPLE 1

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DRAWING SAMPLE 2

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DRAWING SAMPLE 5

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Pre-Application Meetings to discussyour project are encouraged

• Gives applicant an opportunity to discuss project while in the developmental stage.

• Helps to evaluate if your project is the LEDPA• Timeliness of obtaining a permit

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QUESTIONS

PERMIT COMPLIANCE

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PERMIT/MONITORING COMPLIANCE

USACE performs compliance for all types of permits, including Nationwide Permits and Mitigation Review for adherence to all

conditions (General & Special) of the permit and associated drawings Goal – ensure compliance

with permit

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PERMIT/MONITORING COMPLIANCE

Compliance ReviewOutcomes

• Letter stating findings: Compliance or Non-Compliance• Permittee is in compliance• Permittee is in non-compliance

Non-compliance: Options to Resolve• Corrective Measures to get back into Compliance• Permit Modification • Permit Revocation• Permit Suspension • Administrative penalty• DOJ

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ENFORCEMENT OF UNAUTHORIZED ACTIVITIES

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ELEMENTS OF AN UNAUTHORIZED ACTIVITY

Discharge of dredge or fill material Jurisdictional Water (Water of the U.S.) Without authorization or exemption

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ENFORCEMENT - UNAUTHORIZED ACTIVITIES

Three federal agencies involved:Corps of Engineers – Typically the Lead Agency

• MOA between USACE and USEPAUnited States Environmental Protection Agency

• Is the lead agency when:Flagrant violatorRepeat violatorEPA requests lead agency status

Department of Justice • Consent agreements• Referral for court ordered restoration

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ENFORCEMENT OUTCOMES

Voluntary Restoration After the Fact (ATF) Permit Referral to USEPA Civil Litigation (DOJ)

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BEFORE

Enforcement- Unauthorized ActivitiesExamples of fill placed below the (OHWM) of a stream and

removal of fill and restoration of bank using shrubs

AFTER

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QUESTIONS

Buffalo District Field Office Locations:Oak Harbor (Ottawa County) and Stow (Summit County)

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DISTRICT CONTACTS IN OHIO

Huntington District502 8th StreetHuntington, WV 25701(304) 399-5210

Buffalo District1776 Niagara StreetBuffalo, New York 14207(716) 879-4330

Pittsburg DistrictWilliam S. Moorhead Federal Building1000 Liberty Avenue, Suite 2200Pittsburgh, PA 15222(412) 395-7170

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WEBSITES USACE Regulatory Headquarters

http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/

Buffalo Districthttp://www.lrb.usace.army.mil/Missions/Regulatory.aspx

Huntington Districthttp://www.lrh.usace.army.mil/Missions/Regulatory.aspx

Pittsburg Districthttp://www.lrp.usace.army.mil/Missions/Regulatory.aspx

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Thank You

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