3US Army Corps of Engineers Organization 8 Divisions - Ex. Great Lakes and Ohio River Cincinnati38 Districts Nationwide7 Districts comprise the Lakes and River Division-Louisville District Buffalo District-Chicago District Detroit District-Huntington District Nashville District-Pittsburgh District
6AUTHORITYThe 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)
7Section 10 RHASection 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.
8Examples of Navigable Section 10 Waters within the Louisville District Ohio RiverWabash River – Mouth to Wells/Adams Co. Line (441.9 miles)White River – 66.2 miles above mouthEast Fork White River – 21.9 miles above mouthVarious Creeks, Backwater affects Ex. Pigeon Creek 5.9 milesComplete Section 10 water list published on Public Notice 83-LD-016
9Section 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.
10Non-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 CWAEx: Isolated Depressional areas/potholes, upland lakes/ponds withoutsurface connections (spillway), waste water treatment systems
11Determining Limits of Jurisdiction WETLANDSCorps of Engineers Wetland Delineation Manual- 3 parameters required for wetland- Hydric Soils- Hydrophytic Vegetation- Hydrology*Note – In the process of being regionalized.
12Determining Limits of Jurisdiction 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.
13Determining Limits of Jurisdiction 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.
14Determining Limits of Jurisdiction 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.
15Determining Limits of Jurisdiction 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.
16IMPORTANTAny 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.
17Authorization Types Standard Permits (i.e. Individual Permit) General Permits (e.g. NWP 21, NWP 14)
18Useful GuidanceUS Army Corps of Engineers Standard Operating Procedures for Nationwide Permit 21 Processing March 19, 2004US Army Corps of Engineers Louisville District Mitigation Guidelines issued September 22, 2004Regulatory 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
19Application 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
21Thoroughly describe the project’s purpose. Project PurposeThoroughly describe the project’s purpose.
22Drainage AreaIdentify each watershed within which the project area lies.Provide the drainage area (acreage) for each watershed.
23FillDescribe the type and quantity of dredged or fill material proposed to be discharged into “waters.”
24TimeProvide 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.
25ALTERNATIVE ANALYSISTo 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.
26What is in the AAThe 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).
27Examples for the AANO 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?
28AA 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)?
29AA 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.
31Minimal 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 ApplicationsCan work together with Alternative Analysis
32Minimal Impact Determination What constitutes a MID?Inventory of existing aquatic resourcesAvoidance and MinimizationImpact Analysis - Loss of aquatic functionsMitigation - Gain of aquatic functions
33Minimal Impact Determination Avoidance and MinimizationAre 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.
34Application Requirements (All Permit Types) Continued
35Quantify “Waters” to be Impacted StreamsDirect 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.
36Quantify “Waters” to be Impacted WetlandsProvide 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.
37Quantify “Waters” to be Impacted Other Special Aquatic SitesIncludes 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.
38Cumulative ImpactsMust 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.)
40Assessment 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.
41Assessment and Classification of “Waters” StreamsProvide a description of stream quality utilizing approved assessment/classification methodologies.
42Assessment and Classification of “Waters” Common methodologies utilized include:U.S. EPA Rapid Bioassessment Protocol for Use in Wadeable Streams and RiversRosgen’s Applied River Morphology
49Stream AssessmentAssessments 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.
50Stream AssessmentThe description shall provide a functional assessment of the streams within the project area and how the proposed project will impact those functions and values.
51Stream AssessmentProvide a chemical analysis of the waters proposed to be impacted and compare to the quality of the greater watershed.
52Wetland AssessmentProvide 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).
53Stream/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.
54Compensatory 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.
55Mitigation 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.
56MitigationAmount 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.
57Mitigation Site Selection Detail the factors considered in the site selection process. These could include:Watershed considerations/needsPracticabilityAdjacent land usesPresence/Absence of nuisance/exotic species in the vicinity of the mitigation area
58Measurable Goals and Objectives MitigationMeasurable Goals and ObjectivesProvide 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.
59MitigationTimeProvide 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 datesFirst monitoring event
60At a minimum the plan should consist of the following: MitigationAt a minimum the plan should consist of the following:Boundaries of proposed mitigation siteConstruction methods, timing and sequencingElevations and slopesHydrology and hydrologic sourceConnectivity to other watersProposed plantingsControl of volunteer and invasive vegetation, and
61At a minimum the plan should consist of the following (cont.): MitigationAt a minimum the plan should consist of the following (cont.):Erosion controlGeomorphology and special stream structuresSite management, maintenance plan, and long term plan for the site.
62Stream Mitigation Provide existing vs proposed pattern, profile and dimensions
64Submit a typical existing and proposed pattern. Stream MitigationSubmit a typical existing and proposed pattern.
65Typical Stream Restoration/Creation Provide typical design plans illustrating proposed structures to be utilized. These structures can be used to provide functional replacement and enhancement.
66Typical Stream Restoration/Creation Utilize what is available.
67Typical Stream Restoration/Creation Utilize what is available.
68Typical Stream Restoration/Creation Instead of utilizing uniform rip rap lined chutes/channels, design a stable channel to achieve a higher mitigation credit and a more stable site.
69Typical Stream Restoration/Creation Useful sites to find examples of design standards.* List is not all inclusive
70Stream Mitigation Riparian Plantings Proposed plantings should target hard mast producing species, but can be project dependent.
71Stream MitigationPlanting guidelines for Forested portion of Riparian MitigationBare Root SeedlingsRPM* tree’sPlanting rateMinimum 450 seedlings/acregallon containers/acrePercentage for one speciesat initial plantingNo one species may makeup more than 20% of initialplanting (min 5 spp)MonitoringPeriod5 years**3-5 years**TBD by projectat final countup more than 25% of finalsurviving stockSurvival Requirement80% of initial stock***90% initial stock***
72Stream MitigationPlanting guidelines for Scrub/Shrub component of Riparian MitigationBare Root SeedlingsRPM* tree’sPlanting rateMinimum 450 seedlings/acregallon containers/acrePercentage for one speciesat initial plantingNo one species may makeup more than 33% of initialplanting (min 3 spp)MonitoringPeriod5 years**3-5 years**TBD by projectat final countup more than 40% of finalsurviving stockSurvival Requirement50% of initial stock***90% initial stock***
73Planting guidelines for Herbaceous component of Riparian Mitigation Stream MitigationPlanting guidelines for Herbaceous component of Riparian MitigationPlanting RateBroadcast or transplant to be determined byindividual permit review.Species per acreMinimum of five speciesMonitoringPeriod5 years**Ground CoverRequirementPlanted species must account for 70% ground cover atthe end of monitoringGround Cover forindividual speciesNo one species may comprise more than 40% of thefinal cover
74Stream 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. Seeproject 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.
75Success 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 RBPProvide stable width/depth ratio.Stable Rosgen Type “?” streamMaintain 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.
77Wetland MitigationProvide 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.
80Forested Wetland Plantings Wetland MitigationForested Wetland PlantingsProposed plantings should target hard mast producing species, but can be project dependent.
81Wetland MitigationPlanting guidelines for Forested component of Wetland MitigationBare Root SeedlingsRPM* tree’sPlanting rateMinimum 450 seedlings/acregallon containers/acrePercentage for one speciesat initial plantingNo one species may makeup more than 20% of initialplanting (min 5 spp)Monitoring Period5 years**3-5 years**TBD by projectat final countup more than 25% of finalsurviving stockSurvival Requirement50% of initial stock***90% initial stock***Indicator StatusComplete community must carry greater than 70 % Fac or wetter status
82Planting guidelines for Scrub/Shrub component of Wetland Mitigation Bare Root SeedlingsRPM* tree’sPlanting rateMinimum 450 seedlings/acregallon containers/acrePercentage for one speciesat initial plantingNo one species may makeup more than 33% of initialplanting (min 3 spp)Monitoring Period5 years**3-5 years**TBD by projectat final countup more than 40% of finalsurviving stockSurvival Requirement50% of initial stock***90% initial stock***Indicator StatusComplete community must carry greater than 70 % Fac or wetter status
83Wetland MitigationPlanting guidelines for Herbaceous component of Wetland MitigationPlanting RateBroadcast or transplant to be determined byindividual permit review.Species per acreMinimum of five speciesMonitoringPeriod5 years**Ground CoverRequirementPlanted species must account for 70% ground cover atthe end of monitoringGround Cover forindividual speciesNo one species may comprise more than 30% of thefinal cover. At least 70 % of the surviving ground coverMust carry a Fac or wetter indicator status
84Mitigation 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. Seeproject 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.
85Success 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 periodAt 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.
86Mitigation 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 RGLThe report shall include permanent photo/assessment stations to be utilized throughout the monitoring period.
87Mitigation Monitoring Requirements Vegetation Portion of MitigationBare Root SeedlingsRPM* tree’sMonitoring Period5 Years3-5 YearsTBD by projectInspection ScheduleBiannual inspection – First and LastMonth of the Growing SeasonAnnual ReportsDue by January 31 after the first full growing season
88Mitigation Monitoring Requirements Photo Stations StreamsWetlandsReporting requirementUtilized for each annualmonitoring reportRate1 per 300 linear feet ofPerennial Stream1 per 500 linear feet ofIntermittent Stream1 per 1500 linear feet ofEphemeral Stream1 station per 3 acres perwetland classificationNotes: 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.
89Mitigation Monitoring Requirements Utilize baseline assessment methodologies to evaluate both physical and chemical characteristics.
90Mitigation Monitoring Requirements Responsible PartiesIdentify all responsible parties for completing the proposed project, mitigation construction, monitoring, and reporting.
91Mitigation Monitoring Requirements Site ProtectionDiscuss what protection the mitigation site will be afforded (e.g. conservation easement, deed restriction, etc.).
92Mitigation Monitoring Requirements Mitigation SuccessMitigation success is determined by the Corps based upon monitoring reports and field inspections.
93Mitigation Monitoring Requirements Contingency PlanReporting 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.
94Other Required Information Section 7 of the Endangered Species ActProvide any correspondence and information regarding coordination with the United States Fish and Wildlife Service (USFWS)National Historic Preservation ActProvide any correspondence and information regarding coordination with the State Historic Preservation Officer (SHPO).*this information would include any surveys.
95Other 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
96Application 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.
97Contact InformationUS Army Corps Of EngineersNewburgh Regulatory OfficePO Box 4896855 State Road 66*Newburgh, IN 47620*For UPS/Fed Ex the zip code is 47630(812)
98Project Managers Mike Ricketts (812)853-0472 Sam Werner (812)842-2768 Katie McCafferty(812)George DeLancey(812)Rusty Retherford(812)Jarrod Bonnick(812)