WetlandsNewJointGuid ancebyD Jones

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Presentation to the American Council of Engineering Companies of Illinois by DONNA M. JONES, P.E. CHIEF, ENFORCEMENT SECTION OCTOBER 11, 2007

Mississippi Valley Division: 

Six districts 5,000+ employees 370,000 square mile boundary, encompassing all or parts of 12 states 4,267 miles of commercial waterways 44 flood control lakes/reservoirs Mississippi Valley Division

Rock Island District Regulatory Boundary: 

Rock Island District Regulatory Boundary

Regulatory Authorities: 

Regulatory Authorities Rivers and Harbors Act (RHA) of 1899 Regulation of activities in, over, or under navigable waters that may impact navigable capacity. Section 404 of the Clean Water Act Regulation of discharges of dredged or fill material into waters of the United States

Types of Authorization: 

Types of Authorization Nationwide Permits (NWPs) – 30-60 days Issued at the National level and applicable throughout the United States Regional Conditions have been added to address specific concerns within a region Authorize specific categories of activities determined to have minimal adverse impacts Regional (General) Permits – 30-60 days Issued at the District level for a category of activities not currently authorized by a NWP Region can not be larger than a State

Types of Authorization: 

Types of Authorization Letters of Permission – 30-60 days Issued for small, minor projects requiring authorization only under the RHA of 1899 Individual Permits – 90-120 days Issued for projects with large impacts Public Notice requesting public comment

NWPs 5 and 6: 

NWPs 5 and 6 Current NWPs became effective March 19, 2007 NWP 5 authorizes water measuring devices NWP 6 authorizes survey activities, including inspection trenches, provided area is restored to original elevation and contours

NWPs 7 and 12: 

NWPs 7 and 12 NWP 7 used when surface topography will change NWP 12 used when surface topography is restored or maintained.

NWP 13: 

NWP 13 IEPA conditioned the Section 401 Water Quality Certification and limits the project length to 500 feet

NWP 14: 

NWP 14 Mitigation required for impacts greater than 1/10 acre Continues to authorize temporary fills necessary to construct the project. Fills must be identified at the time of application. All temporary fills must be removed from the waterbody and the area restored to original elevations and contours

NWP 23: 

NWP 23 Categorical exclusions must meet current list of approved categorical exclusions. RGL 05-07 contains current listing Application should clearly indicate which categorical exclusion is appropriate for the project

NWP 27: 

NWP 27 Need to include sufficient information to identify location, impacts, and anticipated benefits of the project

NWPs 29 and 39: 

NWPs 29 and 39 All residential projects, individual and subdivisions, are considered under NWP 29 Individual residences are limited to ¼ acre impact by regional condition All commercial projects are considered under NWP 39

Information for Complete Application: 

Information for Complete Application Detailed project description Current site conditions Location map Construction methods Wetland delineation (if applicable) Estimates of impacts of project

Corps JurisdictionSupreme Court Decision: 

Corps Jurisdiction Supreme Court Decision Supreme Court Decision (Carabel/Rapanos Decision): June 2006 Scalia Test Kennedy Test Rapanos/Carabell Guidance: June 6, 2007.

Scalia Test: 

Scalia Test Only those relatively permanent, standing or continuously flowing bodies of water forming geographic features…. Does not include channels that rainfall drains through on an ephemeral or intermittent basis. Seasonally flowing channels may be jurisdictional. Adjacent wetlands must be “practicably indistinguishable” from ocean, river lake or stream.

Kennedy Test: 

Kennedy Test The Corps must establish jurisdiction case by case… Requires wetlands to have a “significant nexus” to navigable waters, but not necessarily a connection. Corps must trace jurisdiction carefully back to navigable water. Remote drains, ditches and streams with insubstantial flows likely excluded.

Joint Corps/EPA GuidanceJurisdictional Waters: 

Joint Corps/EPA Guidance Jurisdictional Waters Traditional Navigable Waters Wetlands Adjacent to Traditionally Navigable Waters Non-navigable Relatively Permanent Tributaries of Traditional Navigable Waters Wetlands that directly abut Non-navigable Relatively Permanent Tributaries of Traditional Navigable Waters

Joint Corps/EPA GuidanceAgencies Decide Jurisdiction: 

Joint Corps/EPA Guidance Agencies Decide Jurisdiction Non-navigable tributaries that are not relatively permanent Wetlands adjacent to non-navigable tributaries that are not relatively permanent Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary Decision is based on a Significant Nexus Analysis.

Joint Corps/EPA GuidanceNon-Jurisdictional Features: 

Joint Corps/EPA Guidance Non-Jurisdictional Features Swales or erosional features (eg. Gullies, small washes characterized by low volume, infrequent, or short duration flow) Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.

Significant NexusStandard: 

Significant Nexus Standard Assessment of the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditionally navigable waters. Includes consideration of both hydrologic and ecologic factors

Significant NexusStandard: 

Significant Nexus Standard Hydrologic Factors Volume, duration and frequency of flow, including certain physical characteristics of the tributary Proximity to traditionally navigable waters Size of watershed Average annual rainfall Average annual winter snow pack

Significant NexusStandard: 

Significant Nexus Standard Ecological Factors Potential of tributary to carry pollutants and flood waters to traditional navigable waters Provision of aquatic habitat that supports a traditional navigable water Potential of aquatic habitat that supports a traditional navigable water Maintenance of water quality in traditional navigable waters

Isolated Waters: 

Isolated Waters Jurisdictional calls on isolated waters were not affected by the Carabell/Rapanos Supreme Court Decision. Continue to make jurisdictional calls on isolated waters based on SWANCC Decision. Must coordinate with headquarters for all SWANCC-related jurisdictional calls.

Interagency Coordination: 

Interagency Coordination Isolated Waters Determinations Determinations based on Significant Nexus Standard Adds at least 15 days to the Jurisdictional Determination process and more if elevated to headquarters.

Final Jurisdiction Determination: 

Final Jurisdiction Determination Corps is required to use a 7-page form to document whether RHA or CWA jurisdiction exists Requires applicant to provide additional information to Corps for timely processing of requests

Information needed for Jurisdictional Determinations: 

Information needed for Jurisdictional Determinations Type of water to be impacted Description of waterbody Perennial or intermittent flow Drainage area and Precipitation data Frequency and duration of flow Typical cross-section and stream characteristics Ordinary High Water Mark Defined Bed and Banks Wetland delineation (if appropriate) Include data sheets Photographs of waterbody Source of all data provided

Information needed for Jurisdictional Determinations: 

Information needed for Jurisdictional Determinations Average annual rainfall & snowfall Is stream natural, artificial or manipulated? Average width, depth and side slopes of stream Stream substrate composition Stream condition – presence of riffle/pool complexes, aerial geometry (straight/meandering) Chemical characteristics Biological characteristics – Riparian corridor, wetland fringe, Federally listed species, fish spawning areas, aquatic/wildlife diversity

Information needed for Jurisdictional Determinations: 

Information needed for Jurisdictional Determinations Wetland size? Wetland type? Wetland quality? Is there a surface water connection between wetland and adjacent stream? Chemical and biological characteristics of the wetland? Opinion on the significance of the wetland in terms of water quality and biology.

Questions?: 

Questions? Contact Data: Donna M. Jones, P.E. Chief, Enforcement Section 309/794-5371 donna.m.jones@usace.army.mil FAX: 309/794-5191

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Artwork provided to the Rock Island District courtesy of Michael Blaser www.blaserstudio.com www.steamboatmikey.com expires July 2010