Jurisdiction, Wetland Delineations and Datasheets

Transcription

1 Jurisdiction, Wetland Delineations and Datasheets Presented by Regulatory Project Managers from the USACE Detroit District Regulatory Office and MDEQ Water Resources Division October 26, 2016 US Army Corps of Engineers BUILDING STRONG

2 Agenda Establishing Corps & DEQ regulatory jurisdiction in Michigan Michigan and the Section 404 Assumption Corps & DEQ Ordinary High Water Mark Jurisdiction Determinations Wetland Delineations and Datasheets Atypical situations Differences in wetland boundaries

3 Corps Regulatory Authorities Section 10 Rivers and Harbors Act of 1899 Navigable waters of the U.S. Structures and work Section 404 Clean Water Act Waters of the U.S., including wetlands Discharge of dredged or fill material

4 Navigable Waters of the U.S. Navigable Waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce (33 CFR Part 329). Soo Locks

5 Navigable Waters Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

6 Section years, Industry, & Landfill

7 Section 10 Limits of Navigability

8 Section 404 Corps Waters of the U.S. Navigable waters of the U.S. Tributaries to Navigable Waters of the U.S. Wetlands adjacent to waters listed above All interstate waters including interstate wetlands. Lake (as part of a tributary) Tributaries (all the way upstream) Adjacent Wetlands Navigable Water of the U.S.

9 CFR 328.3(a) a. The term "waters of the United States" means 1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; 2. All interstate waters including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or iii. Which are used or could be used for industrial purpose by industries in interstate commerce

10 Regulatory authorities Base Outline Getting a jurisdiction determination Corps wetland delineation and when to get a consultant OHWM WAP What a consultant should provide the landowner and send to the Corps/State for review Common errors in data sheets BUILDING STRONG

11 Michigan and the Section 404 Assumption In 1984 a portion of the Corps regulatory responsibilities was assumed by the Michigan Department of Environmental Quality (MDEQ) Unless otherwise notified, a separate authorization from the Corps is not required

12 Navigable Waters and Adjacent Wetlands

13 When to get a Corps JD You should request a Jurisdiction Determination any time a proposed project is in one of the Great Lakes, a tributary to a Great Lake, or in adjacent wetlands When in doubt give us a call

14 Corps Preliminary vs. Approved JDs Preliminary JD Approved JD Advisory in nature May shorten the processing time Not appealable Official Corps determination May take longer Appealable (33 CFR Part 331) Valid for 5 years

15 The Corps Ordinary High Water Mark The U.S. Army Corps of Engineers Ordinary High Water Mark (OHWM) is a jurisdictional benchmark for administering its regulatory program in navigable waterways under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. The OHWM is the line on the shore coincident with the elevation contour that represents the approximate location of the line on the shore established by fluctuations of water and indicated by physical characteristics such as shelving, destruction of terrestrial vegetation, presence of litter or debris, or changes in the character of soil. The OHWM varies from lake to lake and within each of the connecting channels (e.g., St. Marys River, St. Clair River). A table of OHWMs for several locations throughout the Great Lakes region can be found below. The elevation reference system used to define Great Lakes water levels is the 1985 International Great Lakes Datum, which is commonly known by the acronym IGLD 1985.

16 Ordinary High Water Mark (OHWM) Jurisdictional limit for waterways Physical characteristics of the shoreline Typically determined by a site visit OHWM by elevation on the Great Lakes Used when OHWM can not be clearly determined by physical characteristics

17 Corps & DEQ OHWMs IGLD 1985 Corps DEQ Lake Superior Lake Michigan/Huron Lake St. Clair Lake Erie

18 OHWM Corps OHWM (581.5 IGLD 1985) Corps Jurisdictional Area Approx 1 DEQ OHWM 580.5

19 Corps & DEQ OHWM Corps DEQ

20 Corps OHWM

21 Corps Ordinary High Water Mark OHWM Corps Jurisdictional Area Current Water Elevation

22 Corps Ordinary High Water Mark One year later OHWM Corps Jurisdictional Area Last Year s Water Elevation Current Water Elevation

23 Example Corps Ordinary High Water Mark

24 Example Corps Ordinary High Water Mark

25 Corps Section 10 Jurisdiction Navigable Waterway (Sections 10 and 404)

26 Corps Jurisdiction in Tributaries Portions of drain where bottom elevation is below OHWM of Navigable Water (Sections 10 and 404) Navigable Waterway (Sections 10 and 404)

27 Corps Jurisdiction in Tributaries Adjacent Wetlands (Section 404) Portions of tributary where bottom elevation is below OHWM of Navigable Water (Sections 10 and 404) Navigable Waterway (Sections 10 and 404)

28 Example Corps Ordinary High Water Mark

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30 Example Corps Jurisdiction Drain Cleanout Jurisdictional Area for Dredging Ordinary High Water Mark Elevation of Navigable Waterway Existing bottom along centerline of drain Top of bank Navigable Waterway A B C Water level D Proposed bottom after dredging

31 Example Corps Jurisdiction Drain Cleanout Cross-section A Water level OHWM Existing bottom elevation Proposed bottom elevation for dredging

32 Example Corps Jurisdiction Drain Cleanout Cross-section B Water level OHWM Existing bottom elevation Proposed bottom elevation for dredging

33 Example Corps Jurisdiction Drain Cleanout Cross-section C Water level Proposed bottom elevation for dredging Existing bottom elevation OHWM

34 Example Corps Jurisdiction Drain Cleanout Cross-section D Water level Proposed bottom elevation for dredging Existing bottom elevation OHWM

35 Corps Jurisdiction - Example Jurisdictional Area OHWM Elevation

36 Corps Jurisdiction - Example OHWM Elevation Jurisdictional Structure

37 Structures Overhead Jurisdictional Structure OHWM Elevation

38 Corps Jurisdiction - Example OHWM Elevation

39 Corps Jurisdiction - Example Non- Jurisdictional Fill Jurisdictional Fill OHWM Elevation

40 Corps Jurisdiction - Example OHWM Elevation Excavation area

41 Corps Jurisdiction - Example OHWM Elevation Excavation area

42 Corps Jurisdiction - Example Jurisdictional Work Non- Jurisdictional Work OHWM Elevation Excavation area

43 OHWM Elevation

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45 Applying Jurisdiction

46 Proposed Project Site

47 DEQ Jurisdiction Part 301 Ordinary High Water Mark Part 303 Vicinity to inland lake or stream or > 5 acres in size Part 325 Elevation of IGLD85 Part 31 Drainage area of > 2sq miles Part 315 Dam greater than 6ft high Part 323 and 353 Areas designated on map

48 DEQ Wetlands

49 OHWM

50 DEQ OHWM Part 325 IGLD 1985 Corps DEQ Lake Superior Lake Michigan/Huron Lake St. Clair Lake Erie

51 DEQ Part 323 and 353 High Risk Erosion area Critical Dune area Interactive map at or PDF maps available at

52 DEQ Part 325: Example on Lake Michigan Corps regulates to IGLD85 DEQ regulates to IGLD85 Critical Dunes

53 DEQ Part 323 jurisdiction Water Level Erosion Hazard Line Property Line Great Lake 30-Year SB Readily- Moveable Structures Only Readily Moveable or Non-Readily- Moveable Structure Allowed 60-Year SB Erosion rates are parcel specific and can change over time. Property Line

54 DEQ Part 31 Streams and drains with a drainage area of > 2 sq. miles Occupation Filling Grade changes within the floodplain All streams and drains have a floodplain Non-mapped floodplains may be regulated!

55 DEQ Part 31 We do not have a publically available map of all regulated floodplain areas. Please call your local floodplain engineer to determine if the drainage area for your project is > or < 2 sq. miles.

56 DEQ Wetlands Regulated wetlands do not stop at property lines. Paired sampling points are required to show that wetlands are not connected.

57 Paired sampling points Orange dots = wetland characteristics Purple area = upland characteristics Both sets of data need to be turned in with an application or delineation.

58 Inland Lake and Stream jurisdiction example Many statues overlap. Depending on where your project area is, three or more statutes may apply.

59 Dam height is > than 6ft or impoundment area is greater than 5 acres DEQ Part 315

60 Many regulated activities will involve more than one state law and gov t agency Inland Lakes and Streams and Wetlands (Part 301 and Part 303) Corps permit if on Section 10

61 High Risk Erosion Areas Critical Dune Areas Critical Dunes Part 353 High Risk Erosion Area Part 323 Great Lakes Submerged lands Great Lakes Part 325 Corps authorization

62 Floodplain regulations Authorization under Part 301, Part 31 and Part 315 approval. Part 303 if wetland in the impoundment area. Corps permit if changing navigability and Section 10. Dam Safety

63 DEQ jurisdiction example DEQ has the same jurisdiction Property lines DEQ has a different jurisdiction for: OHWM Floodplains Additional Wetlands Additional Stream Riparian interest area

64 Michigan s Wetland Identification Program (WIP) The DEQ offers wetland delineations to determine the regulated wetlands on the property. Keto Gyekis, , gyekisk@michigan.gov Benefits: Jurisdictional determination Wetlands are clearly identified for an application Due diligence for property buy/sell agreements

65 WIP fee structure Level 1: DEQ Wetland inventory maps Level 2: On-site review of an identified area, up to five acres, by DEQ staff $500 for 1 st acre, $250 per additional acre Level 3: On-site verification of a delineation done by a wetland professional and/or consultant $500 for 1 st acre, $50 per additional wetland acre, $20 per additional upland acre

66 The Dirt on Wetland Delineations and Datasheets

67 Wetlands Hydrology Soils Vegetation

68 Technical Resources

69 Wetland Delineation Resources

70 Wetland Verification Delineation may be required for application completeness Considering wetlands during development of plan helps with avoidance/minimization You may be able to avoid wetland impacts (possibly avoiding need for permit we can help you identify areas to avoid) Correctly quantify impacts minimize delays later in evaluation

71 Important Distinctions The Corps and DEQ are separate regulatory authorities and cannot speak for each other s programs, verify wetland boundaries, or determine jurisdiction. ONLY the Corps can make a jurisdictional determination for the Corps of Engineers. A consultant can provide a wetland delineation but cannot make a final jurisdiction determination.

72 Data Sheets: Common Issues Correct Data Sheets Missing Information don t leave blanks Data point location Give accurate coordinates Provide a map Inadequate review if you used the fillable form double check and review Use the comments section you should always share your observations

73 Focus on probable boundaries Which tells you more about the wetland boundary location?

74 Use Correct Datasheet Midwest or Northcentral/Northeast Most recent: Version 2.0 Hydric soil and wetland hydrology indicators may vary Plant indicator status may vary Refer to USACE National Wetland Plant List for current taxonomy and indicator status Datasheets that predate the regional supplements may not reflect current methodology.

75 Hydrology indicators Make sure these two sections are consistent. If a water table is present, then saturation is also present, usually a few inches above the water table. If surface water is present, a water table is usually present (0 inches depth).

76 Hydric Soil Indicators How do these sections relate? Refer to the regional supplement for step-by-step definitions. Go through each indicator that may apply for the relevant soil texture (all soils, sandy, or loamy/clayey). More than one indicator may apply.

77 Atypical Situations: Disturbed Sites

78 Industrial past Covered with fill Atypical Situations: Disturbed Areas Excavated Altered by mowing, plowing, planting, drainage, flooding, etc.

79 Delineation of Disturbed Areas Delineate early in the season Use procedures in the manual and seek additional resources Describe the problem in the remarks section of the data sheets Provide all documentation used to inform your decisions

80 Regional Supplements

81 Automated Data Form Microsoft Excel spreadsheet Automatically generates wetland hydrology, hydrophytic vegetation, and hydric soil indicators Contains the current indicator information Printed form looks like the form in the Regional Supplement

82 Automated Data Form Currently only Northcentral/Northeast Region and Midwest Region available Other Regions under Corps HQ review Permits/Automated-Wetland-Determination-Data-Form

83 Questions?