Application and Mitigation Requirements

Application and Mitigation Requirements
Information required to process Section 404 Clean Water Act (CWA) and Section 10 Rivers and Harbors Act of 1899 (RHA) applications

US Army Corps of Engineers Organization
8 Divisions - Ex. Great Lakes and Ohio River Cincinnati 38 Districts Nationwide 7 Districts comprise the Lakes and River Division -Louisville District Buffalo District -Chicago District Detroit District -Huntington District Nashville District -Pittsburgh District

Louisville District Boundary

Newburgh Regulatory Office

AUTHORITY The Corps of Engineers exercises jurisdiction on navigable and other “waters of the United States” under Section 10 of the Rivers and Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act (CWA)(1972)

Section 10 RHA Section 10 protects navigation interests and prohibits obstruction or alteration of navigable waters. Prior authorization required for any work proposed in, on, over, and/or under navigable waters. - Examples: Fleeting, loading/unloading facilities, marinas, commercial dredging, maintenance dredging, utility lines, underground mining.

Examples of Navigable Section 10 Waters within the Louisville District
Ohio River Wabash River – Mouth to Wells/Adams Co. Line (441.9 miles) White River – 66.2 miles above mouth East Fork White River – 21.9 miles above mouth Various Creeks, Backwater affects Ex. Pigeon Creek 5.9 miles Complete Section 10 water list published on Public Notice 83-LD-016

Section 404 of the CWA “Waters of the United States” includes wetlands, streams, rivers, lakes, ponds, natural or manmade. Discharge of dredged or fill material into “waters of the United States” requires prior authorization under Section 404.

Non-jurisdictional “Waters” under Section 404 CWA
Water bodies that do not have a conveyance to other “Waters of the United States” Water treatment systems constructed and maintained in compliance with Section 402 CWA Ex: Isolated Depressional areas/potholes, upland lakes/ponds without surface connections (spillway), waste water treatment systems

Determining Limits of Jurisdiction
WETLANDS Corps of Engineers Wetland Delineation Manual - 3 parameters required for wetland - Hydric Soils - Hydrophytic Vegetation - Hydrology *Note – In the process of being regionalized.

Rivers and Streams “Ordinary high water mark" means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, 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.

Ephemeral Stream: An ephemeral stream has flowing water only during and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow.

Intermittent Stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow.

Perennial Stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow.

IMPORTANT Any active mine operations that require the discharge of dredged or fill materials into “waters of the United States” that are not currently authorized under Section 404 CWA or Section 10 RHA must contact the Corps Immediately.

Authorization Types Standard Permits (i.e. Individual Permit)
General Permits (e.g. NWP 21, NWP 14)

Useful Guidance US Army Corps of Engineers Standard Operating Procedures for Nationwide Permit 21 Processing March 19, 2004 US Army Corps of Engineers Louisville District Mitigation Guidelines issued September 22, 2004 Regulatory Guidance Letter, No. 02-2, December 24, 2002, Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899

Application Requirements (All Permit Types)
Requirements for a complete Pre-Construction Notification (PCN) when submitting for a Nationwide Permit #21, Surface Coal Mining Activities, or for an Individual Permit.* * Note: The Corps determines appropriate authorization type

Public Interest Factors
Conservation Economics Aesthetics General Environmental Concerns Wetlands Fish and Wildlife Values Historic Properties Flood Hazards Flood Plain Values Land Use Navigation Shoreline erosion & accretion Recreation Water supply & conservation Water quality Energy Needs Safety Food & fiber production Mineral needs Property ownership Needs & welfare of people

Thoroughly describe the project’s purpose.
Project Purpose Thoroughly describe the project’s purpose.

Drainage Area Identify each watershed within which the project area lies. Provide the drainage area (acreage) for each watershed.

Fill Describe the type and quantity of dredged or fill material proposed to be discharged into “waters.”

Time Provide the date that you propose to begin work on the project (impacts to “waters”) and the date that the work is expected to be completed.

ALTERNATIVE ANALYSIS To meet the compliance requirements of 40 Code of Federal Regulations (CFR) Part (a), provide an alternative analysis to the proposed project showing why there is no other practicable alternative to the discharging of dredged or fill material to “waters of the U.S.” that would cause less adverse impact to the aquatic ecosystem.

What is in the AA The proposed alternative discussion should include a No Action Alternative (forego the proposed operation), a Proposed Action Alternative (complete the action as proposed), and Alternatives Considered but Eliminated (move the operation to another location, reduce the size of the operation, and/or use alternative methods).

Examples for the AA NO ACTION ALTERNATIVE - What would be the result if you did forego the proposed project, in other words what if you don't mine through streams, open waters, or wetlands that would otherwise be impacted?

AA cont. PROPOSED ACTION ALTERNATIVE - What would be the result if the project was completed as proposed? Impacts to aquatic resources vs. realization of coal recovery (economics/energy needs/mitigation for impacts providing enhancement of aquatic functions)?

AA cont. ALTERNATIVES CONSIDERED - What alternatives were considered (and these should have been considered - if not - please consider them) but eliminated in favor of the action as it is proposed? Is it practical to go underground for these seams so as to avoid the waters, is it practical to auger these seams so as to avoid the waters, is it practical for you to go around the aquatic resources altogether and leave that reserve or a portion behind? Explain why or why not. If you considered other alternatives please include them.

Application Requirements (Nationwide Permit 21)
Specific Issue – Minimal Impact Determination

Minimal Impact Determination
Information that will allow the District Engineer (DE) to determine if the proposed project would result in minimal adverse environmental effects on the aquatic environment, both individually and cumulatively. The DE will utilize this information to determine if the proposed project should be considered for a Nationwide Permit or should be evaluated under a Standard (Individual) Permit review process. Primarily for NWP # 21 Applications Can work together with Alternative Analysis

What constitutes a MID? Inventory of existing aquatic resources Avoidance and Minimization Impact Analysis - Loss of aquatic functions Mitigation - Gain of aquatic functions

Avoidance and Minimization Are there practicable alternatives to the proposed impacts. Discuss the other alternatives considered. Demonstrate avoidance of “waters” that have high functions and values. Demonstrate sediment basins are as close to fill activities as practicable.

Application Requirements (All Permit Types) Continued

Quantify “Waters” to be Impacted
Streams Direct impacts - quantify area and flow regimes for streams to be directly impacted. This should include all impacts such as mining through and berm footprints (sediment basins). Indirect impacts – quantify area of streams that would be otherwise impacted but not filled. Ex. sediment basin – linear footage within pool or from sediment pool to nearest fill activity.

Wetlands Provide delineation of the project site in accordance with the ’87 Corps of Engineers Wetlands Delineation Manual. Delineation must be submitted to the Corps for concurrence.

Other Special Aquatic Sites Includes Sanctuaries/Refuges, Mud flats, Vegetated Shallows, Coral reefs, and Riffle/Pool complexes. Primarily Riffle/Pool complexes for this area. These sites must be delineated and included in the application.

Cumulative Impacts Must include an evaluation of the impacts of the proposed activity which incorporates incremental impacts of the proposed activity when added to other past, present and reasonably foreseeable future actions regardless of what agency or entity undertakes them. (Ex: mining, logging, agriculture and other land disturbance activities in the same watershed.)

QUESTIONS?

Assessment and Classification of “Waters”
Provide a description of the aquatic resources that would be directly affected, as well as the resources in proximity (upstream, downstream and riparian areas) that would be impacted indirectly.

Streams Provide a description of stream quality utilizing approved assessment/classification methodologies.

Common methodologies utilized include: U.S. EPA Rapid Bioassessment Protocol for Use in Wadeable Streams and Rivers Rosgen’s Applied River Morphology

Use of USEPA RBP

Stream Examples

Use of Rosgen

Stream Assessment Assessments must include information on the stream pattern, profile and dimensions. PATTERN – sinuosity, meander (wavelength), belt width, radius of curvature. PROFILE – slope, riffle/pool sequence, step/pool sequence. DIMENSION – channel width, bankfull width, mean depth, maximum depth, bankfull depth, width/depth ratio, flood prone width, entrenchment ratio.

Stream Assessment The description shall provide a functional assessment of the streams within the project area and how the proposed project will impact those functions and values.

Stream Assessment Provide a chemical analysis of the waters proposed to be impacted and compare to the quality of the greater watershed.

Wetland Assessment Provide acreage and wetland types to be impacted (HGM subclass and Cowardin Classification.) Provide an assessment of the functions and values of the wetland(s) (hydrologic, biogeochemical, habitat and food support).

Stream/Wetland Assessment
All data sheets must be submitted to the Corps with the stream/wetland assessment(s). Dates that the work was completed, contact information for the assessor, and a site map (photos) referencing data collection points to the data sheets must be included.

Compensatory Mitigation
Mitigation and monitoring plan (plan) must be submitted with an application that proposes impacts to “waters”. The plan must document how the mitigation proposal offsets the functional losses of the proposed project’s impacts. Corps recommends submitting the plan as a stand-alone document or an attachment/appendix to the application.

Mitigation Types Establishment (creation) Restoration Enhancement
Protection/maintenance (preservation) Applicants may propose the use of mitigation banks or in-lieu fee arrangements as alternatives to the above.

Mitigation Amount of mitigation can be based on either functional replacement and/or linear footage/acreage. Utilize baseline assessments (location, size, type, quality, etc.) to determine mitigation requirements. Talk about ratios, in-kind/out of kind, and on-site/off-site. Implications for each decision.

Mitigation Site Selection
Detail the factors considered in the site selection process. These could include: Watershed considerations/needs Practicability Adjacent land uses Presence/Absence of nuisance/exotic species in the vicinity of the mitigation area

Measurable Goals and Objectives
Mitigation Measurable Goals and Objectives Provide a discussion of the functions and values of the resource(s) to be impacted and compare that to the functions and values proposed in the mitigation.

Mitigation Time Provide expected time sequence of the various aspects of mitigation construction and commencement of monitoring. These could include: Construction timeframes (i.e. creation of channel, grading, installation of in-stream structures, etc.) Planting dates First monitoring event

At a minimum the plan should consist of the following:
Mitigation At a minimum the plan should consist of the following: Boundaries of proposed mitigation site Construction methods, timing and sequencing Elevations and slopes Hydrology and hydrologic source Connectivity to other waters Proposed plantings Control of volunteer and invasive vegetation, and

At a minimum the plan should consist of the following (cont.):
Mitigation At a minimum the plan should consist of the following (cont.): Erosion control Geomorphology and special stream structures Site management, maintenance plan, and long term plan for the site.

Stream Mitigation Provide existing vs proposed pattern, profile and
dimensions

Stream Mitigation

Submit a typical existing and proposed pattern.
Stream Mitigation Submit a typical existing and proposed pattern.

Typical Stream Restoration/Creation
Provide typical design plans illustrating proposed structures to be utilized. These structures can be used to provide functional replacement and enhancement.

Typical Stream Restoration/Creation Utilize what is available.

Instead of utilizing uniform rip rap lined chutes/channels, design a stable channel to achieve a higher mitigation credit and a more stable site.

Useful sites to find examples of design standards. * List is not all inclusive

Stream Mitigation Riparian Plantings
Proposed plantings should target hard mast producing species, but can be project dependent.

Stream Mitigation Planting guidelines for Forested portion of Riparian Mitigation Bare Root Seedlings RPM* tree’s Planting rate Minimum 450 seedlings/acre gallon containers/acre Percentage for one species at initial planting No one species may make up more than 20% of initial planting (min 5 spp) Monitoring Period 5 years** 3-5 years** TBD by project at final count up more than 25% of final surviving stock Survival Requirement 80% of initial stock*** 90% initial stock***

Stream Mitigation Planting guidelines for Scrub/Shrub component of Riparian Mitigation Bare Root Seedlings RPM* tree’s Planting rate Minimum 450 seedlings/acre gallon containers/acre Percentage for one species at initial planting No one species may make up more than 33% of initial planting (min 3 spp) Monitoring Period 5 years** 3-5 years** TBD by project at final count up more than 40% of final surviving stock Survival Requirement 50% of initial stock*** 90% initial stock***

Planting guidelines for Herbaceous component of Riparian Mitigation
Stream Mitigation Planting guidelines for Herbaceous component of Riparian Mitigation Planting Rate Broadcast or transplant to be determined by individual permit review. Species per acre Minimum of five species Monitoring Period 5 years** Ground Cover Requirement Planted species must account for 70% ground cover at the end of monitoring Ground Cover for individual species No one species may comprise more than 40% of the final cover

Stream Mitigation Planting Guidelines
Notes: 1 – All proposed planting lists must be resubmitted to the Corps for final approval prior to planting. 2 – Individual permit reviews may require that the vegetative mitigation zones be managed to provide 2 or 3 components. See project manager for specific criteria in those cases. 3 - These guidelines are subject to change according to permit needs and do not cover all mitigation monitoring and success requirements.

Success Criteria for Stream Mitigation
The plan must include measurable success criteria. Examples: Minimum 90% of the mitigation stream linear footage will score in the “sub-optimal” or “optimal” range for epifaunal substrate category as outlined in the RBP Provide stable width/depth ratio. Stable Rosgen Type “?” stream Maintain stable riffle/pool sequence similar to design “ABC” (riffle/pool ratio one per 300 linear feet of stream) Riparian vegetation plantings will carry 80% survival rate at end of 5 year monitoring period.

QUESTIONS?

Wetland Mitigation Provide existing wetland data such as a map showing delineation data collection points, source of hydrology and connectivity. Provide design information illustrating how wetland mitigation would be constructed. Avoid over designing a project with features (water control structures) that require long term management. Design mitigation to be self sustaining.

Wetland Mitigation Design

Forested Wetland Plantings
Wetland Mitigation Forested Wetland Plantings Proposed plantings should target hard mast producing species, but can be project dependent.

Wetland Mitigation Planting guidelines for Forested component of Wetland Mitigation Bare Root Seedlings RPM* tree’s Planting rate Minimum 450 seedlings/acre gallon containers/acre Percentage for one species at initial planting No one species may make up more than 20% of initial planting (min 5 spp) Monitoring Period 5 years** 3-5 years** TBD by project at final count up more than 25% of final surviving stock Survival Requirement 50% of initial stock*** 90% initial stock*** Indicator Status Complete community must carry greater than 70 % Fac or wetter status

Planting guidelines for Scrub/Shrub component of Wetland Mitigation
Bare Root Seedlings RPM* tree’s Planting rate Minimum 450 seedlings/acre gallon containers/acre Percentage for one species at initial planting No one species may make up more than 33% of initial planting (min 3 spp) Monitoring Period 5 years** 3-5 years** TBD by project at final count up more than 40% of final surviving stock Survival Requirement 50% of initial stock*** 90% initial stock*** Indicator Status Complete community must carry greater than 70 % Fac or wetter status

Wetland Mitigation Planting guidelines for Herbaceous component of Wetland Mitigation Planting Rate Broadcast or transplant to be determined by individual permit review. Species per acre Minimum of five species Monitoring Period 5 years** Ground Cover Requirement Planted species must account for 70% ground cover at the end of monitoring Ground Cover for individual species No one species may comprise more than 30% of the final cover. At least 70 % of the surviving ground cover Must carry a Fac or wetter indicator status

Mitigation Planting Guidelines
Notes: 1 – All proposed planting lists must be resubmitted to the Corps for final approval prior to planting. 2 – Individual permit reviews may require that the vegetative mitigation zones be managed to provide 2 or 3 components. See project manager for specific criteria in those cases. 3 - These guidelines are subject to change according to permit needs and do not cover all mitigation monitoring and success requirements.

Success Criteria for Wetland Mitigation
The plan must include measurable success criteria. Examples: Tree density will be 450 trees/acre at the end of the monitoring period At the end of the monitoring period the mean density per acre of trees should match the proposed mean density per acre of trees initially planted and shall be composed of at least 50% of the approved plant species. A wetland delineation will be conducted and the mitigation area will meet the definition of a wetland as defined in the Corps ’87 Manual.

Mitigation Monitoring Requirements
Minimum 5 year monitoring period. Biannual monitoring event documented in annual report, which is due January 30 for the previous year. As-built plans for any mitigation areas constructed within the previous year must be submitted with the annual report (due January 30). Mitigation assessments must utilize the same methodology as was used to document baseline conditions. The report shall document and discuss the progress of the mitigation areas towards meeting the success criteria in the mitigation plan/permit conditions. See RGL The report shall include permanent photo/assessment stations to be utilized throughout the monitoring period.

Vegetation Portion of Mitigation Bare Root Seedlings RPM* tree’s Monitoring Period 5 Years 3-5 Years TBD by project Inspection Schedule Biannual inspection – First and Last Month of the Growing Season Annual Reports Due by January 31 after the first full growing season

Mitigation Monitoring Requirements Photo Stations
Streams Wetlands Reporting requirement Utilized for each annual monitoring report Rate 1 per 300 linear feet of Perennial Stream 1 per 500 linear feet of Intermittent Stream 1 per 1500 linear feet of Ephemeral Stream 1 station per 3 acres per wetland classification Notes: 1 – Photo stations should be selected to reflect data collected at the mitigation site (i.e.. stream structures, wetland conditions). 2 – These stations must be mapped and utilized throughout monitoring for comparative purposes.

Utilize baseline assessment methodologies to evaluate both physical and chemical characteristics.

Responsible Parties Identify all responsible parties for completing the proposed project, mitigation construction, monitoring, and reporting.

Site Protection Discuss what protection the mitigation site will be afforded (e.g. conservation easement, deed restriction, etc.).

Mitigation Success Mitigation success is determined by the Corps based upon monitoring reports and field inspections.

Contingency Plan Reporting Protocol: If a success criterion is not met for all or any portion of the compensatory mitigation project, and/or if the success criteria are not satisfied, the permittee shall prepare an analysis of the cause(s) of failure. If determined necessary by the Corps, the permittee shall propose remedial action for the failure. Response to unsuccessful remediation: Indicate course of action to be taken in the event that the Corps determines the compensatory mitigation cannot be successfully achieved at the intended site.

Other Required Information
Section 7 of the Endangered Species Act Provide any correspondence and information regarding coordination with the United States Fish and Wildlife Service (USFWS) National Historic Preservation Act Provide any correspondence and information regarding coordination with the State Historic Preservation Officer (SHPO). *this information would include any surveys.

Other Required Information
Description of the physical and chemical properties of the geologic strata that will be used for reclamation at the mitigation site (i.e. stream substrate and overburden). Pre and post mine land use information (i.e. text and map). Prime and Unique Farmland acreage

Application Submittal
Initially submit one copy for Corps review. Once the review is complete and revisions complete, if necessary, submit one original and five copies. Copies may be on CD, but make sure to include one hardcopy for the Corps office file and public review. * Please remember, each project has unique circumstance and may require additional information specific to that project.

Contact Information US Army Corps Of Engineers Newburgh Regulatory Office PO Box 489 6855 State Road 66* Newburgh, IN 47620 *For UPS/Fed Ex the zip code is 47630 (812)

Project Managers Mike Ricketts (812)853-0472 Sam Werner (812)842-2768
Katie McCafferty(812) George DeLancey(812) Rusty Retherford(812) Jarrod Bonnick(812)

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