Waters of the United States, Including Wetlands. Delineations and USACE Permits. For Harris County Projects

Transcription

1 Guidance Document Waters of the United States, Including Wetlands Delineations and USACE Permits For Harris County Projects Harris County Public Infrastructure Department Architecture and Engineering Division February 2010 HCPID-AED ( February 2010 Draft for Review)

2 CONTENTS 1.0 WETLANDS/WATERS DELINEATION AND JURISDICTIONAL DETERMINATIONS Technical Guidelines Used for HCPID-AED Delineations Manual Regional Supplement Surveying Methods Field Delineation Flow Process HCPID-AED Delineation Report Components Methodology Site Description Vegetation Communities Description Soils Description Hydrology Description Delineated Features Description Report Maps and Figures Vicinity Map Site Layout Maps Delineation Data Forms Photo Log Jurisdictional Determination (JD) Forms HCPID-AED Draft Delineation Report Review Procedures USACE Delineation Verification / Jurisdictional Determination Request Letter USACE Field Verifications and JDs Preliminary JD vs. Approved JD Consultant s Role USACE s Role EPA s Role Agency-Requested Amendments or Revisions to Delineation Reports/Maps Delineation Report Deliverables Report (Electronic and Hardcopies) Geo-referenced Data (GIS) USACE PERMITTING FOR ACTIVITIES IN WETLANDS AND/OR WATERS OF THE US Introduction Regulated Activities Section 404 of the Clean Water Act Section 10 of the Rivers and Harbors Act Permitting Mechanisms Nationwide Permits Regional General Permits (RGPs) Letters of Permission (LOP) i

3 2.3.4 Programmatic General Permits (PGPs) Individual Permits Permitting Considerations Jurisdictional vs. Non-jurisdictional Regional Conditions Water Quality Certification Coastal Zone Management Programs Endangered Species Act National Historic Preservation Act Public Involvement Wetland Delineations Prior-Converted Croplands Issue Other Permits or Reviews Exemptions Nationwide Permits Commonly Acquired for HCPID-AED Projects NWP 3 Maintenance NWP 7 - Outfall Structures NWP 12 - Utility Line Activities NWP 13 - Bank Stabilization NWP 14 - Linear Transportation Projects NWP 18 - Minor Discharges NWP 25 - Structural Discharges NWP 33 - Temporary Construction, Access, and Dewatering NWP 36 - Boat Ramps NWP 39 - Commercial and Institutional Developments NWP 41 - Reshaping of Existing Drainage Ditches NWP 43 - Stormwater Management Facilities NWP 45 - Repair of Uplands Damaged by Discrete Events USACE Permit Applications Pre-Application Consultations / Joint Evaluation Meetings Complete USACE Applications USACE Application Processes HCPID-AED NWP and IP Pre-Application Process USACE Application Process Nationwide Permits USACE Application Process Individual Permits COMPLIANCE AND ENFORCEMENT Common Project Construction/Maintenance Considerations Common Mitigation Issues ii

4 The purpose of this guidance manual chapter is to provide general information regarding the delineation of waters of the United States, in accordance with recognized regulations. This chapter is intended for use by engineering consultants or delineation consultants as a guide for executing wetland delineations for Harris County Public Infrastructure Department Architecture and Engineering Division (HCPID-AED). The guidance provided in this chapter is intended for use by HCPID-AED and their consultants to ensure compliance with HCPID-AED wetland delineation requirements. This chapter is not intended to be an exhaustive technical manual. HCPID-AED delineation consultants should possess detailed knowledge beyond this guidance. This chapter provides insight to the HCPID-AED engineering consultants as to the activities of their in-house or delineation sub-consultants. As part of this guidance manual, several checklists have been developed to ensure compliance with HCPID-AED requirements. These checklists are provided in Appendix A. 1.0 WETLANDS/WATERS DELINEATION AND JURISDICTIONAL DETERMINATIONS Wetlands: 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. -Jointly defined by USACE (Federal Register 1982) and EPA (Federal Register 1980) 1.1 Technical Guidelines Used for HCPID-AED Delineations Wetland delineations conducted for HCPID-AED shall be conducted in conformance with the United States Corps of Engineers Wetlands Delineation Manual (1987 Manual) and the Atlantic and Gulf Coastal Plain Regional Supplement (Supplement). Additionally, ordinary high watermarks (OHWM) and ditches shall be delineated in accordance with guidance provided in Appendix A Manual The 1987 Manual, issued by the United States Army Corps of Engineers (USACE), was the first method backed by federal authority to provide a universal methodology for wetland delineation of the typical palustrine system. The 1987 Manual relied on the presence of three criteria to delineate a wetland: 1. hydrophytic vegetation, 2. wetland hydrology, and 3. hydric soils. The 1987 Manual also stresses the need to use sound professional judgment, providing latitude to demonstrate whether an area is a wetland or not based on a holistic and careful consideration of evidence for all three parameters (US Army Corps of Engineers Wetland Delineation Manual Modifications and Clarifications, 1991). Hydrophytic vegetation classification, according to the 1987 Manual, was based on the presence of more than 50% of the dominant species designated with an indicator status of obligate wetland plants (OBL), 1

5 facultative wetland plants (FACW), or facultative plants (FAC) (excluding FAC-). FACW, FAC, and FACU indicators are also given a modifier (+ or -), a + indicating it falls on the wetter extreme and a - indicating it falls on the drier extreme. Wetland hydrology encompasses all hydrologic characteristics of areas that are periodically inundated or have soils saturated to the surface at some time during the growing season (U.S. Army Corps of Engineers, 1987). Indicators of wetland hydrology include inundation, saturation, drainage patterns, drift lines, sediment deposits, watermarks, stream gage data and flood predictions, historic records, visual observation of saturated soils, and visual observation of inundation. Hydric soils are those soils that are developed under saturated or inundated conditions. Indicators for hydric soil include the presence of gleyed and low-chroma soils, histosol, histic epipedon, sulfidic odor, aquic moisture regime, reducing conditions, concretions, high organic content in the surface layer of sandy soils, and organic streaking in sandy soils. Resources for more detailed information on the 1987 Manual can be found at: Corps of Engineers Wetlands Delineation Manual U.S. Army Corps of Engineers Wetlands Delineation Manual Modifications and Clarifications. SUBJECT: Questions & Answers on 1987 Manual US Army Corps of Engineers Wetlands Delineation Manual Modifications and Clarifications. SUBJECT: Regional Interpretation of the 1987 Manual Munsell Soil Color Chart Regional Supplement Regional Supplements to the 1987 Manual were developed by the U.S. Army Engineer Research and Development Center (ERDC) under the request of the USACE with funding from the Wetland Regulatory Assistance Program (WRAP). Biological regions based on a United States Department of Agriculture/Natural Resource Conservation Service (USDA/NRCS) classification were used for the basis of the Regional Supplements. The purpose of the regional supplement is to update the 1987 Manual with regards to regional conditions and current scientific practices. HCPID-AED delineations shall be conducted in accordance with routine determination guidelines provided in both the 1987 Manual and the newly published Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region (Supplement). Resources for more detailed information on the Atlantic and Gulf Coastal Plain Regional Supplement can be found at: Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region Atlantic and Gulf Coastal Plain Supplement Public Comments and Responses Comments of the Independent Peer-Review Team for the Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region Surveying Methods The delineation Consultant may use either civil survey methods or GPS methods to geographically reference features, such as data points and wetland boundaries, obtained during a field wetland delineation. Civil surveys must be sealed by a Texas Registered Professional Land Surveyor (RPLS). 2

6 GPS mapping methods must be performed in accordance with the 22 October 2003 SWG-GPS Standard Operating Procedures (SOP). A copy of the SOP is provided in Appendix B. Geographic Information System (GIS) software shall be used to analyze collected features, calculate areas, and generate the site layout maps Field Delineation Flow Process A flowchart will be depicted here outlining the wetland delineation process. A flowchart will be depicted here outlining the OHWM delineation process. A flowchart will be depicted here outlining HCPID-AED s requirements on the delineation of roadside ditches. 1.2 HCPID-AED Delineation Report Components In order to satisfy the basic requirements for HCPID-AED-commissioned wetland delineation reports, each report shall possess the following information. A checklist of wetland delineation report requirements is provided in Appendix A Methodology This section of a wetland delineation report should describe methods the Consultant used to conduct the wetland delineation such as routine determination guidelines, wetland and waterbody definitions, survey area and how it was surveyed (e.g. 100-acres, 5 transects, 100-foot wide corridor), GPS and GIS descriptions. Background review information shall include recent true-color and color-infrared aerial photography, historical aerial photography, the NRCS Soil Survey, USFWS wetland mapping, as available Site Description This section of a wetland delineation report should provide a brief description of the project site and project location. Reference this description with vicinity and site layout maps Vegetation Communities Description This section of a wetland delineation report should describe all vegetation communities (e.g. palustrine forested wetland (PFO), palustrine scrub-shrub wetland (PSS), palustrine emergent wetland (PEM), forested upland, scrub-shrub upland, and herbaceous upland) observed on the project site and list dominant vegetation observed within each community Soils Description Using the NRCS Soil Survey for Harris County, all soil map units that are reported to occur on the project site shall be identified. This section of a wetland delineation report should give a description of each mapped soil series and state whether the soil is listed as a hydric soil by the Harris County Hydric Soils List. 3

7 1.2.5 Hydrology Description This section of a wetland delineation report should provide floodplain data for the project site using Federal Emergency Management Agency (FEMA) Flood Insurance Rate Maps, current and average monthly rainfall data near project site, and state whether project site is below normal, at normal, or above normal rainfall for the year during the field effort based on scientific analysis. A list of all wetland hydrology indicators observed on project site should also be included Delineated Features Description Consultants conducting HCPID-AED-commissioned wetland delineations shall delineate all features within the project survey limits. This shall include all wetlands (jurisdictional and non-jurisdictional), ponds (natural and man-made), excavations, roadside ditches, upland swales, and any other topographical feature that has potential to make a connection between a wetland and a jurisdictional wetland and/or waterbody WETLANDS This section of a wetland delineation report should provide information regarding the number of each type of wetland (i.e., PFO, PSS, or PEM), the size, location, and potential jurisdictional status, and any other relevant information concerning each wetland within the project limits WATERBODIES This section of a wetland delineation report should provide information regarding the number of each type of waterbody (e.g., lake, stream), the size, location, and potential jurisdictional status, and any other relevant information concerning each waterbody within the project limits OTHER FEATURES This section of a wetland delineation report should provide information regarding number of each type of other feature delineated (e.g. pond, excavations, roadside ditches, upland swales), the size, location, and any other relevant information concerning the delineated feature within the project limits CONSULTANTS JURISDICTIONAL OPINION The delineation consultant shall provide their opinion of the regulatory status of wetlands, waterbodies, and other features identified in the report. This opinion shall be based on current USACE/United States Environmental Protection Agency (EPA) guidance, applicable laws, and consultants experience. The consultant shall provide support to justify their opinion. 1.3 Report Maps and Figures Vicinity Map Typically included within the report body or within an appendix, the Vicinity Map should illustrate the location of the project site limits in relation to its surroundings at a scale showing nearby roads. An Overview Map showing the project site in reference to the county is shown on a corner of the Vicinity Map. All maps shall include a north arrow, scale bar, project and map name and date, and HCPID-AED APIN number. 4

8 1.3.2 Site Layout Maps Typically included within the report body or within an appendix, the Site Layout Map(s) depicts the project limits/survey boundary. Dependent upon the size of the project, multiple map pages may be required to depict the project and associated features at a legible scale PROJECT/SURVEY BOUNDARY Included on the Site Layout Map(s), the project limits/survey boundary is illustrated in a unique color and line type, to aid in easy recognition. Boundary colors/line types and other relevant features are listed and described in the legend TRANSECTS Included on the Site Layout Map(s), delineation transects (if required due to the size of the project) are illustrated in a unique color, and line type, to aid in easy recognition. Transect colors/line types and other relevant features are listed and described in the legend DATAPOINTS Included on the Site Layout Map, datapoints are usually depicted as white dots with associated unique feature names to aid in easy recognition, identification, and cross-referencing to the report and delineation datasheets. Datapoint icons and other relevant features are listed and described in the legend DELINEATED WETLANDS/WATERBODIES Included on the Site Layout Map(s), delineated wetlands and/or waterbodies are illustrated in a unique color and line type and/or fill texture and associated unique features name to aid in easy recognition, identification, and cross-referencing to the report and delineation datasheets. Wetland and waterbody icons and other relevant features are listed and described in the legend OTHER Other important information or features may be depicted on the Site Layout Maps as necessary and listed and described in the legend Delineation Data Forms Typically included in the appendix of a wetland delineation report, Wetland Determination Data Forms Atlantic and Gulf Coast Plain Region (datasheets) are a condensed summary of field observations. Delineation datasheets focus mainly on the three wetland criteria according to the USACE, hydrophytic vegetation, wetland hydrology, and hydric soils. The purpose of a delineation datasheet is to determine if a point is located in a wetland or upland. Data Forms prepared for HCPID-AED projects may be typed or handwritten, but must be provided on the forms provided in the Supplement Photo Log Typically included in the appendix of a wetland delineation report, a photo log shall be provided that contains representative photos of the project site and delineated features. 5

9 1.4 Jurisdictional Determination (JD) Forms Consultants conducting HCPID-AED-commissioned wetland delineations shall prepare Draft Jurisdictional Determination (JD) Forms for each wetland and waterbody delineated within the project site limits according to the methods specified in the U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook (USACE JD Guidebook). Consultants shall provide to HCPID-AED four (4) printed hardcopies, two (2) digital editable copy on CD-rom, and a hardcopy and digital map of each delineated wetland or waterbody. HCPID-AED will distribute a copy of each to the USACE as part of the request for delineation verification/jurisdictional determination request. Resources for more detailed information on the USACE delineation verification/jd request letter can be found at: U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook Regulatory Guidance Letter (RGL 07-01): Practices for Documenting Jurisdiction under Section 9 & 10 of the Rivers & Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act (CWA) Regulatory Guidance Letter (RGL 05-02): Expiration of Geographic Jurisdictional Determinations of Waters of the United States Regulatory Guidance Letter (RGL 06-01): Determining the Timelines of Requests for Appeal (RFA) Regulatory Guidance Letter (RGL 05-05): Ordinary High Water Mark Identification 1.5 HCPID-AED Draft Delineation Report Review Procedures Draft wetland delineation reports are submitted to either the engineering consultant (by a sub-consultant) or directly to the HCPID-AED project manager for review. HCPID-AED will review and make comments or accept as is. Comments will be sent to the delineation consultant. Consultants should anticipate two rounds of revisions as a result of comments from an engineering consultant and HCPID-AED. Once comments are addressed, or the draft is accepted as is, the delineation consultant will provide to the engineering consultant or directly to HCPID-AED four (4) final printed hardcopies and 1 CD-rom of the report with a cover letter determination addressed to the appropriate USACE official requesting a delineation verification and/or jurisdictional. 1.6 USACE Delineation Verification / Jurisdictional Determination Request Letter Consultants should request a delineation verification and a jurisdictional determination. A delineation verification from the USACE approves the boundaries of wetlands and waterbodies; a jurisdictional determination from the USACE defines the regulatory status of wetlands and waterbodies on a project site. This request may not be a stand alone letter, but may be incorporated into cover letter for PCN or IP application. Resources for more detailed information on the USACE delineation verification/jd request letter can be found at: 6

10 Regulatory Guidance Letter (RGL 05-02): Expiration of Geographic Jurisdictional Determinations of Waters of the United States U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook 1.7 USACE Field Verifications and JDs Preliminary JD vs. Approved JD Approved jurisdictional determinations (JDs) and preliminary jurisdictional determinations (PJDs) are tools used by the USACE to help implement Section 404 of the CWA and Section 10 of the RHA. (RGL 08-02, 2008). An approved JD is an official Corps determination that jurisdictional waters of the United States, or navigable waters of the United States, or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters on the project site determined to be jurisdictional under the CWA/RHA (33 CFR 331.2, 2002) (RGL 08-02, 2008). Preliminary JDs are non-binding, written indications that there may be waters of the United States, including wetlands, on a parcel or indications of the approximate location(s) of waters of the United States or wetlands on a parcel. Preliminary JDs are advisory in nature and may not be appealed (See 33 C.F.R ) (RGL 08-02, 2008). Due to changes that periodically occur to regulations, court cases, and agency interpretations/findings, it is recommended to obtain an Approved (or Preliminary) Jurisdictional Determination (and delineation verification) prior to commencing construction on HCPID-AED projects. All delineation Consultants shall perform all work necessary, as well as draft the forms necessary, to support a request for an approved JD. In certain circumstances, HCPID-AED may decide to pursue a PJD in lieu of an approved JD to expedite the USACE approval process when proceeding under a Nationwide Permit. Consultants may make recommendations on the type of JD that should be requested but HCPID-AED will make the final decision. Circumstances that may warrant the use of a PJD include a project where a relatively small acreage of wetland impacts are anticipated and the wetlands impacted are anticipated to be jurisdictional PJDs may be a tool to expedite the USACE approval process; however, they can have significant repercussions on mitigation costs and overall project budgets. Additionally, PJDs could have impact the ability of HCPID-AED to pursue future expansion plans. Preliminary JD s will only be pursued as directed by HCPID-AED. Resources for more detailed information on Jurisdictional v. non-jurisdictional can be found at: 33 CFR 331 Regulatory Guidance Letter (RGL 08-02): Jurisdictional Determinations Consultant s Role The Consultant will conduct the wetland delineation and provide the delineation report, site maps, data sheets, and draft JD forms to HCPID-AED. For approved JDs, the wetland delineation Consultant will accompany the USACE on an on-site visit, generally occurring over one day. The Consultant s role will be to direct the USACE to delineated features and respond to questions pertaining to the delineation while in the field. The Consultant shall notify and invite the HCPID-AED project manager and/or a representative from the Environmental Section to all field verifications requested by the USACE. 7

11 Under certain circumstances (e.g. USACE-determined isolated wetlands), the EPA may request an additional site visit for their evaluation. The Consultant may be required to re-visit the site to direct the EPA to delineated features and respond to questions. For initial budget considerations, the Consultant is not required to anticipate and scope for EPA-requested site visits, edits, mapping, etc. in the initial scope and budget submittal. The Consultant may be required to re-map boundaries and re-submit maps and data to the USACE, based on the results of the field delineation verification USACE s Role The USACE will assign a regulatory specialist to determine if verification is necessary after review of the submitted delineation report. If necessary, the USACE will conduct an on-site delineation verification and/or jurisdictional determination for the project area. The USACE will then approve or request changes to the wetland boundaries delineated by the Consultant, and state their opinion to whether or not wetlands are jurisdictional or isolated. If the USACE determines any delineated wetlands or waterbodies are isolated, the USACE coordinates with the EPA to receive its jurisdictional review. Once a delineation is approved or JD is issued, the USACE will send letter documenting its decision EPA s Role The EPA has the final authority in determining whether a wetland is jurisdictional or isolated. In cases where the USACE determines that a wetland or waterbody is isolated (i.e. non-jurisdictional), the EPA has an opportunity to evaluate and either agree or reverse the decision. When the EPA disagrees with the USACE s initial decision for an isolated or non-jurisdictional feature, the record is elevated to the USACE Headquarters for resolution Agency-Requested Amendments or Revisions to Delineation Reports/Maps After USACE verification, the USACE may request revisions to the delineation report, maps, data sheets, or draft JD forms. For initial budget considerations, the Consultant must anticipate and scope for reasonable USACE-requested edits, mapping, etc. in the initial scope and budget submittal. 1.8 Delineation Report Deliverables Report (Electronic and Hardcopies) The Consultant shall provide the engineering consultant and/or HCPID-AED with four copies of the final delineation report, suitable for submission to the USACE Geo-referenced Data (GIS) The Consultant shall provide a digital file copy of the delineation features GIS to both the USACE and HCPID-AED. This digital file shall contain the project boundary, transects, datapoints, and delineated wetland and/or waterbodies in the format required by each agency. The USACE-required format is Universal Transverse Mercator (UTM); the HCPID-AED-required format is State Plane. 8

12 The purpose of this guidance manual chapter is to provide general information regarding the permitting of impacts to waters of the United States, in accordance with recognized regulations. This chapter is intended for use by engineering consultants or permitting consultants as a guide for USACE Clean Water Act and Rivers and Harbors Act permitting. The guidance provided in this chapter is intended for use by HCPID-AED and their consultants to ensure compliance with HCPID-AED permitting requirements. This chapter is not intended to be an exhaustive technical manual. HCPID-AED permitting consultants should possess detailed knowledge beyond this guidance. This chapter provides insight to the HCPID-AED engineering consultants as to the activities of their in-house or permitting subconsultants. As part of this guidance manual several checklists and flowcharts have been developed to ensure compliance with HCPID-AED requirements. These checklists are provided in Appendix A. 2.0 USACE PERMITTING FOR ACTIVITIES IN WETLANDS AND/OR WATERS OF THE US 2.1 Introduction The USACE, acting under Section 404 of the Clean Water Act, provides a vital function in protecting our aquatic resources, including wetlands. The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation s waters. Under Section 404 of the Clean Water Act, the Secretary of the Army is responsible for administering a Regulatory Program that requires permits for the discharge of dredged or fill material into waters of the United States, including wetlands. The Secretary operates this program through the USACE. Each District Engineer and his/her staff carry out the day-today functions of this program. The USACE also implements Section 10 of the Rivers and Harbors Act of 1899 in the Regulatory Program. HCPID-AED projects occur in the USACE Galveston District. 2.2 Regulated Activities Section 404 of the Clean Water Act Section 404 (CWA) is the Nation s primary wetland regulatory authority. Under Section 404 a permit is required from the USACE for any activity involving the discharge of dredged or fill material in waters of the United States, including wetlands. The term discharge of dredged material includes any addition of fill material and the redeposit of dredged or excavated material into a water of the U.S., when such redeposit has the effect of destroying or degrading waters of the U.S.. This includes the addition or redeposit of material associated with traditional dredging operations, as well as with mechanized land clearing, ditching, channelization, and other ground disturbing activities that result in more than incidental fallback. The term discharge of fill material includes the addition of material into a water of the U.S. for the purpose of replacing an aquatic area, such as a wetland, with dry land or of changing the bottom elevation of a water body. An example of a discharge of fill material would be the placement of clean soil into a wetland to create dry land so that an apartment complex or road could be built on the site. 9

13 Examples of dredge and fill material as listed in the Code of Federal Regulations (CFR) include: Dredged Material (33 CFR 323.2(d)) Open water disposal Ditch sidecasting Prop wash dredging Hopper dredging Mining stockpiles Fill Material (33 CFR 323.2(f)) Site development Roads, dams, dikes, levees Beach restoration Backfill and Bedding Artificial reefs Revetments Pile-supported platforms HCPID-AED conducts activities that may not be regulated by the CWA. Examples of non-regulated activities include dipping out roadside ditches or manually clearing trees within regulated waters of the U.S., without more than incidental fallback resulting from the method used. The engineering consultant and/or the permitting consultant should coordinate these activities with HCPID-AED to ensure avoidance of violations of the CWA Section 10 of the Rivers and Harbors Act Under Section 10 (RHA), the USACE regulates all work or structures in, or affecting, the course, condition, or capacity of navigable waters of the United States. Examples of activities and structures that require authorization under this statute include dredging, filling, excavation, weirs, power lines, tunnels, piers, wharfs, dolphins, breakwaters, booms, bulkheads, revetments, riprap, jetties, permanent mooring structures, aids to navigation, permanently moored floating facilities and pilings. A list of Navigable Waters within the Galveston District Regulatory Boundaries, and their approximate limits, is provided in Appendix B. 2.3 Permitting Mechanisms USACE authorizations for regulated activities under Section 404 may be in one of three primary forms: general permits, letters of permission, and standard individual permits. The purpose of the permit process is to reduce the potential impact of construction projects on the nation s aquatic resources. Activities requiring authorization that are similar in nature and would cause only minimal individual and cumulative environmental impacts may qualify for general permits. These general permits may be either nationwide or regional in scope. 10

14 2.3.1 Nationwide Permits Activities requiring authorization that are similar in nature and would cause only minimal individual and cumulative environmental impacts may be authorized by a Nationwide Permit (NWPs). There are 43 NWPs currently in effect that address Section 404 and Section 10 activities. The NWPs that are most commonly used by, or that have the greatest potential for use by HCPID-AED, are individually discussed in Section 2.6. In general, HCPID-AED prefers the use of NWPs to other permitting mechanisms to permit impacts to waters of the U.S. The use of NWPs reduces project delays, consulting fees, and overall project costs. Authorization under some nationwide permits is contingent upon submittal of a pre-construction notification (PCN) to the USACE in some or all situations. Use of some nationwide permits does not require a PCN. However, the use of a nationwide permit requires that all of the terms and conditions of that permit are met and that the adverse impacts of the proposed activity on the aquatic ecosystem are minimal (Permit Information, 2008). Therefore, it is important that a project proponent is familiar with the terms and conditions of the relevant nationwide permit (e.g. impact limits, usage within tidal or notidal areas). The USACE Galveston District should be contacted for questions regarding the applicability of a nationwide permit to a particular project. The project proponent may request confirmation from the USACE that an activity complies with the terms and conditions of a nationwide permit even if a PCN is not required. For projects that do not require a PCN, the consultant shall prepare a Letter to File providing the justification why the project is authorized under the nationwide permit. If there is uncertainty whether an activity is eligible under a nationwide permit, it is recommended that HCPID- AED contact the USACE. It is unlawful to start work without a Department of the Army permit if one is required. Resources for more detailed information on Nationwide Permits can be found at: 33 CFR 330 Wetland Training Institute, Inc Nationwide Permits Complete: Robert J. Pierce and Sam Collinson, eds., David E. Dearing, contributing author. WTI Nationwide Permit Regional Conditions for the State of Texas Regional General Permits (RGPs) Regional general permits (RGPs) may be issued for certain types of projects and geographic areas. RGPs may cover a variety of activities including utility lines and intake and outfall structures; aerial electric power transmission and communication lines and cable crossings; boat ramps and minor facilities; and oil, gas, and water exploration and production wells. RGPs expedite the authorization of minor, recurring work. RGPs contain provisions intended to protect the environment, including natural and cultural resources. Compliance with the conditions contained in an RGP does not guarantee authorization of the work by the RGP. Work or structures that would have unacceptable impacts on the public interest are not authorized. Activities requiring Department of the Army authorization that are not specifically authorized by a RGP are prohibited unless they are authorized by nationwide or individual permit (33 CFR (c), (f), (h), (e)(2), and 330; General Permits, 2009). Resources for more detailed information on General Permits can be found at: 33 CFR CFR CFR CFR

15 33 CFR 330 List of General Permits, Galveston District s Regulatory Branch Letters of Permission (LOP) The Letter of Permission (LOP) is another USACE permitting procedure. This is a form of individual permit issued through an abbreviated process that includes coordination with federal and state fish and wildlife agencies and a public interest evaluation, but without the publication of an individual public notice (33 CFR 325.2(e)(1), Individual Permit, 2009). For cases subject to Section 404, the USACE must issue a public notice requesting comments and offering an opportunity for public hearing on the categories of activities and the proposed LOP procedures, and receive water quality certification from the state, before using this approach. LOPs require the submittal of an application to the USACE in every case. An LOP serves to reduce the administrative procedures and expedite permit decisions in routine cases. An LOP is an individual permit that must be applied for at the appropriate USACE office. Each LOP issued will include general conditions and any appropriate case-specific provisions necessary to protect the environment, including natural and cultural resources. Work that does not comply with the provisions of the LOP may require authorization by standard individual permit. Compliance with the LOP procedure, including the general conditions, does not guarantee authorization of the work by an LOP. Work or structures that would have unacceptable impacts on the public interest are not authorized. Activities requiring Department of the Army authorization that are not specifically covered by an LOP are prohibited unless authorized by a separate permit. Resources for more detailed information on Letters of Permission can be found at: 33 CFR Individual Permit, Letter of Permission Procedures; USACE Fort Worth District website Programmatic General Permits (PGPs) The Programmatic General Permit (PGP) is a general permit designed to avoid unnecessary duplication of regulatory control exercised by another federal, state, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal. No PGPs are currently available to HCPID-AED Individual Permits If a project does not meet the requirements of a general permit and cannot be authorized by a letter of permission, a standard individual permit is required. The project evaluation process for this type of permit includes: pre-application consultation; a public notice and comment period on the permit application; preparation of permit decision documents, including a discussion of the environmental impacts of the project, the findings of the USACE public interest review process and compliance determinations with the Section 404(b)(1) Guidelines; and the permit decision. The USACE will issue a permit if the proposal being reviewed is found not to be contrary to the public interest and meets the requirements of the Section 404(b)(1) Guidelines. Resources for more detailed information on Individual Permits can be found at: 33 CFR CFR

16 2.4 Permitting Considerations Numerous other environmental laws must be addressed in the evaluation of all permit applications, including the National Environmental Policy Act, Endangered Species Act, and the National Historic Preservation Act. While the final decision regarding Department of the Army permit applications rests solely with the USACE, federal and state natural resource agencies have an important role in the Regulatory Program. In addition, no permit can be issued under Section 404 without the issuance of water quality certification by the state certifying agency (e.g. the Texas Commission on Environmental Quality in the state of Texas) Jurisdictional vs. Non-jurisdictional Under Section 404 of the CWA, the USACE regulates the discharge of dredge or fill material into waters of the United States, including wetlands. On June 5, 2007 the United States Environmental Protection Agency (USEPA) and USACE issued a guidance memorandum (Clean Water Act Jurisdiction Following the U.S. Supreme Court s Decision in Rapanos v. United States & Carabell v. United States) (guidance) (add to References) regarding CWA jurisdiction in response to the 2006 U.S. Supreme Court decision of Rapanos v. United States and Carabell v. United States (Rapanos) (add to References). The Rapanos decision specifically addressed the term waters of the United States and altered the process in which jurisdictional determinations had been performed following the 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County v. USACE (SWANCC) (add to References). The guidance memorandum states that the USEPA and USACE will assert jurisdiction over the following categories of waterbodies and wetlands: Traditional navigable waters (TNWs) Wetlands adjacent to TNWs Non-navigable tributaries of TNWs that are relatively permanent waters (RPW) where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g. typically three months) Wetlands that directly abut such tributaries (Grumbles and Woodley, 2007a) The USEPA and the USACE decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus to a TNW: Non-navigable tributaries that are not relatively permanent (non-rpw) 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 (Grumbles and Woodley, 2007a) The USEPA and the USACE generally will not take jurisdiction over the following features: Swales or erosional features Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water (Grumbles and Woodley, 2007a) Wetlands that are isolated from tributary systems Waterbodies that are isolated from tributary systems A significant nexus analysis will assess 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 TNWs. A significant nexus [analysis] includes consideration of hydrologic and ecologic factors (Grumbles and Woodley, 2007a). 13

17 Informal guidance and recent experience with the USACE Galveston District has suggested that the District is continuing to use the pre-rapanos method of using the 100-year floodplain to establish adjacency (i.e. potential jurisdiction). Under this methodology, wetlands or waterbodies occurring outside of the 100-year floodplain and which have no other natural or man-made connection to a water of the U.S. are determined to be non-jurisdictional, isolated features. While the USACE-Galveston District continues to informally use this method to determine jurisdiction, the USEPA has taken a much more unpredictable and liberal view of determining jurisdiction. Resources for more detailed information on Jurisdictional v. non-jurisdictional can be found at: 33 CFR 331 U. S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook Clean Water Act Jurisdiction Following the U.S. Supreme Court s Decision in Rapanos v. United States & Carabell v. United States Regulatory Guidance Letter (RGL 05-02): Expiration of Geographic Jurisdictional Determinations of Waters of the United States Regulatory Guidance Letter (RGL 06-01): Determining the Timeliness of Requests for Appeal (RFA) Regulatory Guidance Letter (RGL 07-01): Practices for Documenting Jurisdiction under Sections 9 & 10 of the Rivers and Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act (CWA) Regional Conditions The Division Engineer has added certain additional regional conditions that apply to all NWPs issued within the State of Texas, and that apply only within the Galveston District in the State of Texas (regional conditions also exist applying to the Galveston District specifically within the State of Louisiana). A full detail of Nationwide Permit Conditions and Nationwide Permit Regional Conditions for the State of Texas (2007) is provided in Appendix B Water Quality Certification Section 401 of the federal Clean Water Act grants States certifying authority with respect to federallygranted permits such as Section 404 permits. No Section 404 permit (NWP, RGP, LOP, PGP or Individual) is valid without CWA Section 401 Water Quality Certification issued by the state in which the project will occur. The TCEQ is the lead state agency that administers the Section 401 certification program in Texas except with respect to oil and gas exploration, which is the responsibility of the Railroad Commission of Texas. The TCEQ has granted 401 Water Quality Certification to activities authorized by NWPs 1, 2, 4, 5, 8, 9, 10, 11, 20, 23, 24, 28, 34, 35, and 48. The TCEQ has granted conditional 401 Water Quality Certification to activities authorized by NWPs 3, 6, 7, 12, 13, 14, 15, 17, 18, 19, 21, 22, 25, 27, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, and 50. A copy of TCEQ s April 2007 letter issuing certification to NWPs and specific water quality certification conditions for NWPs is provided in Appendix C. If not proceeding under a Nationwide Permit, project proponents must obtain an individual water quality certification from the TCEQ. The TCEQ acts upon the 401 certification request independently of the USACE; however, the Water Quality Certification process is run concurrently with the USACE permit 14

18 process through a joint evaluation and public notice process. Dependent on project impacts, a project may be required to file a Tier I or Tier II Water Quality Certification request: Tier I: Project directly impacts 3 acres or less of waters of the U.S., or 1500 linear feet of streams (one acre of impact is considered equivalent to 500 linear feet of stream) Tier II: Project directly impacts 3 acres or more of waters of the U.S., or 1500 linear feet of streams Conditions issued as part of a permit s 401 Water Quality Certification are considered part of the USACE permit. A copy of TCEQ s 401 Water Quality Certification Overview, Tier I Checklist, Description of BMPs for Tier I Projects, and Tier II Certification Questionnaire and Alternatives Analysis Checklist are provided in Appendix C. Resources for more detailed information on Individual 401 Water Quality Certifications can be found at: Section 401 of the federal Clean Water Act 30 TAC Chapter Certification Rules 30 TAC Chapter 307 Surface Water Quality Standards CWA Section 303 Water Quality Standards Coastal Zone Management Programs USACE permits must also comply with Section 306 of the Coastal Zone Management Act of 1972 and applicable coastal zone management programs that are authorized to ensure consistency with the coast plan. In Texas, the Texas General Land Office (TGLO) administers the federally-approved Texas Coastal Management Program (TCMP). The purpose of the TCMP is to improve the management of Texas s coastal natural resource areas and to ensure the long-term productivity of the coast. TCMP accomplishes this, in part, by conducting consistency reviews on activities permitted by the USACE within the TCMP boundary. Areas within Harris County that are subject to regulation under this program generally occur south of Interstate 10, east of Interstate 610 (East Loop), and east of Interstate 45. Also included is an approximately 2-mile wide corridor, centered on Buffalo Bayou, and extending upstream nearly to Interstate 610 (West Loop). TCMP zone boundary GIS shapefiles are available free from these websites: or Boundaries are subject to revision; therefore, permit applicants should review current boundary information to determine if TCMP compliance is required. If a project site is within the coastal zone management area the applicant must certify a statement and justification that affirms that the proposed activity complies with the relevant enforceable policies of the TCMP. A copy of the TCMP Consistency Form is provided in Appendix B. Resources for more detailed information on Coastal Zone Consistency can be found at: Texas Coastal Management Program ( 15

19 2.4.5 Endangered Species Act USACE Permits must also comply with the Endangered Species Act of Section 7 of this Act requires federal agencies, such as the USACE, to ensure that any action authorized, funded, or carried out by them is not likely to jeopardize the continued existence of a listed endangered species or modification of their listed critical habitat. In order to facilitate the USACE s review of potential impacts to endangered species or critical habitats, the Consultant shall review the most current protected species lists for Harris County provided by the US Fish and Wildlife Service (USFWS) and Texas Parks and Wildlife Department (TPWD) to identify and become familiar with the protected species that have the potential to occur within or in the vicinity of the project area. The consultant shall review the ecological habitat requirements for each of these species. They may also review aerial photographs, U.S. Geological Survey (USGS) 7.5-minute topographic quadrangle maps, and NRCS soil survey maps depicting conditions on the project site. They will compare the on-site conditions noted during the resource review to the ecological habitat requirements for each of the protected species. The consultant will document their professional opinion on whether or not habitat for any protected species potentially exists on the project site in either a concise report. Site photos and a written logical justification of the opinion(s) shall be provided within the report. Even if a USACE permit is avoided, any federally-funded activity is subject to compliance with the ESA. Resources for more detailed information on the Endangered Species Act can be found at: Endangered Species Act of National Historic Preservation Act USACE permits must also comply with the National Historic Preservation Act (NHPA) of 1966, as amended. Section 106 of this Act requires federal agencies, such as the USACE, to ensure that any action authorized, funded, or carried out by them take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. In order to facilitate the USACE s review of potential impacts to these features, the consultant shall conduct a background archaeological and historic resource literature and records review of the project site. For this research, the consultant will search the Texas Historical Commission s Texas Archaeological Sites Atlas (Atlas), an online database, for any previously conducted surveys and previously recorded historic or prehistoric archaeological sites and/or aboveground historic resources (e.g. historic bridge, culvert, building) located in or near the project area. In addition to identifying previously recorded archaeological sites, the Atlas review will include the following types of information: National Register of Historic Places (NRHP) properties, State Archaeological Landmarks (SALs), Official Texas Historical Markers (OTHMs), Registered Texas Historic Landmarks (RTHLs), cemeteries, and local neighborhood surveys. The results of the review will be presented as part of the USACE permit application. Even if a USACE permit is avoided, any federally-funded activity is subject to compliance with the NHPA. Resources for more detailed information on the National Historic Preservation Act can be found at: National Historic Preservation Act of 1966, As amended through