Assessing Wetland Impacts

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Assessing Wetland Impacts
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Outline

• Statutory Authorities and Agency Roles
• Clean Water Act Sections 404 and 401
• EPA, Corps of Engineers, states
• Procedures and information needs
• Determining Potential Impacts
• Wetlands, presence/absence, impacts
• Delineation vs. jurisdictional determination
• Addressing potential impacts

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Outline

• Resolving Impacts, Assuring Compliance
• Permits, mitigation
• SEC oversight of applicants and consultants
• Knowing when the process is complete

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Authorities and Roles
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Regulatory Overview

• Clean Water Act (CWA) - Sections 404 and 401
• Executive Order (EO) 11990, Wetlands
• USDA DR 9500-3 Land Use Policy
• Consolidated Farm and Rural Development Act
• 1940-G Exhibit C
• All of the above require an Alternatives Analysis
  to be completed prior to authorization of wetland
  impact.
• The Alternatives analysis must document
• There is no practicable alternative present to
  the proposed wetland impact which would have a
  less adverse impact and meet the purpose and need
  of the proposal.
• If a practicable alternative exists it must be
  implemented.
• If there are wetland impacts mitigation is
  required.

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CWA, Section 404

• U.S. Army Corps of Engineers (USACE)
• Issues General, Individual and Nationwide
  Permits
• Enforces permit requirements and best management
  practices including mitigation activities
• (specifically, S. 404(b)(1))
• Conducts and verifies jurisdictional
• determinations
• Regulations and policy.

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CWA Section 404

• U.S. Environmental Protection Agency (EPA)
• Delegated some of its Section 404 authority to
  USACE
• Develops and interprets policy, guidance and
  environmental criteria used in evaluating permit
  applications
• Determines scope of geographic jurisdiction and
  applicability of exemptions
• Approves and oversees State and Tribal
  assumption
• Reviews and comments on individual permit
  applications
• Has authority to prohibit, deny, or restrict the
  use of any defined area as a disposal site
  (Section 404(c))
• Can elevate specific cases (Section 404(q))
• Enforces Section 404 provisions.

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CWA Sections 404 401

• Role of the states
• State program general permits, water quality
  certification (401), or program assumption
• States (as well as Tribes and local authorities)
  can assume the S. 404 permitting program MI and
  NJ have done so
• S. 401 allows states to take a more active role
  in wetland decisions, better accounts for
  state-specific concerns, and is usually conducted
  simultaneously with 404 review

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More on Section 401

• 401 permits regulate discharge to state or Tribal
  waters the broad purpose is to protect water
  quality
• Allows states and authorized tribes to address
  the aquatic resource impacts of federally issued
  permits and licenses, including S. 404, but also
  other types
• Since the applicant is required, if necessary, to
  secure a 404 permit, they also must also provide
  to the permitting agency (USACE) a (401)
  certification from the state in which the
  discharge originates.
• As of 2010, 36 tribes had been granted 401
  certification authority

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Section 401 (contd)

• This permit program provides states and tribes an
  additional tool to protect waters of particular
  importance to them, and incorporates in some
  cases numerical limits on specific chemical,
  physical and biological parameters these
  parameters are defined elsewhere in the CWA (
  301-303, 306, 307)
• If a federal permit or license is not required,
  or would authorize impacts only to waters that
  are not waters of the U.S., the activity is not
  subject to CWA 401.

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Process and Procedure

• How or when does the Corps become involved?
• What information needs to be provided?
• What does (Corps) jurisdiction/non-jurisdiction
  mean?
• Is a S. 401 permit always necessary?

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What is the ConAct?

• The ConAct is the Consolidated Farm and Rural
  Development Act and S. 363 prohibits wetland
  impact for the following programs
• CF Direct and Guaranteed Loans
• Water Waste Disposal Direct Guaranteed Loans
• Water, Wastewater Essential CF Loans
• Business and Industry Direct and Guaranteed Loan
• Rural Transportation (RBEG earmarks and/or set
  asides)
• Intermediary Relending Program
• National Sheep Industry Improvement Center
• Northern Great Plains Regional Authority
• The ConAct S. 363 will not allow you to fill or
  manipulate a wetland under these programs.

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• Programs EXEMPT from ConAct
• Exemptions
• Utility or water lines are not subject to the
  ConAct therefore the agency may allow wetland
  impacts for these programs.
• Prior converted wetlands (as defined by NRCS
  converted before 1985)
• Please note the 2012 Waiver for CF Programs
  expired on Sept. 30, 2012
• Programs Not Subject to ConAct SFH direct and
  guaranteed, MFH direct and guaranteed, renewable
  energy, all grants,

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Determining Potential Impacts
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Wetlands

• The Food Security Act of 1985 contains the
  following definition of a wetland
• The term wetland, except when such term is part
  of the term converted wetland means land that
  
• has a predominance of hydric soils
• is inundated or saturated by surface or
  groundwater at a frequency and duration
  sufficient to support a prevalence of hydrophytic
  vegetation typically adapted for life in
  saturated soil conditions and
• under normal circumstances does support a
  prevalence of such vegetation. For purposes of
  this Act, and any other Act, this term shall not
  include lands in Alaska identified as having high
  potential for agricultural development which have
  a predominance of permafrost soils.
• This definition includes both jurisdictional
• and non-jurisdictional (or isolated) wetlands

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Definitions

• Wetland Delineation Biologist marks
  (delineates) wetland areas with flags according
  to 1987 USACE Manual.
• Preliminary Jurisdictional Determination USACE
  issues. These are advisory in nature and may not
  be appealed. Used for proposals that are
  avoiding potential wetlands located on the site.
  (Desk review only.)
• Approved Jurisdictional Determination USACE
  issues an official (written) determination that
  waters of the U.S. and/or navigable waters of
  the U.S. are either present or absent on a
  particular site. Significant Nexus Analysis
  performed and reviewed by USEPA. (Field review.)
  For large controversial projects or projects
  where there is a question in wetland impact areas.

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Tools for Wetland Identification for RD
Construction Proposals

• NRCS Soil Survey websoil survey
  (http//websoilsurvey.nrcs.usda.gov/app)
• Soil Surveys show mapped hydric soils Review
  for presence of hydric soils or hydric soil
  inclusions. If they exist, a site visit should
  be made. Soil Survey Maps are more reliable than
  NWI maps for specific projects, but not meant to
  delineate small wetland areas.
• USFWS National Wetland Inventory Maps - Wetlands
  Mapper (http//www.fws.gov/wetlands/Data/Mapper.ht
  ml ) Database developed to identify wetlands
  that exist on large land tracts (1 to 5 acres of
  land), not useful for detailed site
  investigations involving construction.
• Private Environmental Consultants Perform
  Delineation according to USACE 1987 Wetlands
  Delineation Manual (http//www.wetlands.com/regs/t
  lpge02e.htm ) A biologist marks (delineates)
  wetland areas with flags according to the USACE
  1987 Delineation Manual.

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Site Visits

• If there is no design professional for the
  proposal, but there is a question regarding the
  presence of wetlands on the site, visit the site
  and look for
• Standing water, wet ground, water in hole, water
  marks, surface soil cracks, hard salt crust etc.
  or presence of hydric soil indicators listed
  above.
• Presence of water loving plants or grasses,
  (rushes, sedges, etc.) or forested species that
  tolerate water.
• Location within a low area, near a creek, stream,
  river, spring, or within a 100 year floodplain.

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If wetlands/waterways present

• Try to avoid the wetland area (obtain preliminary
  JD if there is a question as to the location of
  the wetlands)
• If a design professional is procured for this
  proposal and it is not clear where wetlands are
  located, have the applicant hire a wetlands
  biologist to perform a delineation.
• Have applicant contact USACE to verify
  jurisdictional status of wetlands (preliminary or
  approved JD)
• If wetlands must be disturbed, applicant must
  obtain USACE and any applicable state/local
  permits

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Impact Assessment

• What is or is not a wetland, and are there any
  present?
• Is a delineation or JD necessary?
• If there are wetlands, can they be avoided, and
  if not how can impacts be minimized?

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Wetland Mitigation

• May consist of the following
• Avoidance of wetland impact
• Minimization of wetland impact
• Compensatory Mitigation (including, but not
  limited to, wetland creation, restoration,
  enhancement, conservation easement, etc.)

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Permit Decision-making

• Essentially (and statutorily) a Corps decision
  based on their JD and analysis of project impacts
• JDs in and of themselves do not include
  determinations that a particular activity
  requires a permit.

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• Section 404 - General and Individual Permits
• For larger projects (typically greater than 1
  acre)
• fills for development (housing)
• water resources proposals (dams/levees)
• infrastructure developments (highways/airports)
• Public noticing is required, so coordinate RD
  public noticing with USACEs if possible.
• Applicants must follow requirments and guidelines
  as stated in permit.

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Section 404 Nation Wide Permits (NWPs)

• Utilized for small routine impacts associated
  with
• Outfall Structures (NWP 7)
• Utility lines (NWP 12)
• Road Crossings (NWP 14)
• Filling of Isolated Waters (NWP 26)
• Requirements check individual NWP requirements
  but in most cases
• must conform with standard environmental
  management conditions (best management practices)
  contained in the permit.
• applicant must notify USACE of NWP use and issue
  a Pre-Construction Notification 30 days prior to
  commencement of activity.
• A list of the current NWP (2012) is here
  http//www.usace.army.mil/Portals/2/docs/civilwork
  s/nwp/2012/NWP2012_sumtable_15feb2012.pdf

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Useful Resources

• EPA wetlands webpage http//water.epa.gov/type/we
  tlands/ the Definitions and Fact Sheets links
  are particularly useful
• USACE Regulatory webpage http//www.usace.army.mi
  l/Missions/CivilWorks/RegulatoryProgramandPermits.
  aspx
• - Among others, contains links to current list
  of Nationwide Permits, updated National Wetland
  Plant List, and Regulatory Guidance Letters, and
  jurisdictional information

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More Useful Resources

• Section 401 Fact Sheet - http//water.epa.gov/type
  /wetlands/outreach/fact24.cfm
• EPA Section 401 Handbook (Interim, 2010) -
  http//water.epa.gov/lawsregs/guidance/cwa/upload/
  cwa-401-handbook-2010-interim.pdf

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Example Questions More Resources
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Question 1 When Adopting other Agencys EAs,
does RD need to review the Wetland Impact
Alternatives Analyses?

• Answer 1
• Yes, if our agency adopts an EA of another
  federal agency, RD is still required to review
  the Alternative Analysis (AA), and supplement it
  if its deficient. However, most federal
  agencies must also comply with the CWA, therefore
  they will likely include adequate AA coverage.
  It would be rare to have to supplement.
• RD also needs to ensure that we get a copy of
  issued permit and include any required mitigation
  within our conditions.
• Our Agency cannot fund if the program is one that
  prohibits wetland impact by the ConAct.

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• Question 2
• How is a loan specialist supposed to identify the
  three wetland parameters that must be present to
  have a wetland (hydrophytic (water loving)
  vegetation, hydric soils and wetland hydrology)?

Photo 1 Wetland Specialists performing wetland
delineation.
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• Answer 2 Loan Specialists are not expected to
  identify wetlands.
• The agency does not expect loan specialists to be
  trained wetland specialists. If there is no
  design professional for the project, and a
  wetland specialist cannot be hired, the best tool
  for loan specialists to use to identify wetlands
  is to require the applicant to submit a copy of
  the project boundaries overlaid onto the
  published NRCS Soil Survey located here
  http//websoilsurvey.nrcs.usda.gov/app/
• The agency relies on the soil survey to identify
  the potential for wetlands. Soil surveys are not
  100 accurate, so utilize photographs or a site
  visit whenever possible. If theres a question,
  or if hydric soils or their inclusions are
  present we can request that the applicant obtain
  a JD from USACE or hire a wetland specialist.

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The Web soil survey can be used to create pdfs
showing either hydric soils (or Important
Farmland Soils) like the one above. See
separate powerpoint Web Soil Survey on
sharepoint site for how to do this.
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Question 3 1) An applicant for a CF Project
indicates there are no wetlands on the site,
however there are hydric soils mapped on the
site. There are no obvious signs of wetlands
from the photographs of the site taken in
spring/summer and fall. Does the agency still
need to ask the applicant to hire a wetland
specialist to complete a survey or at a minimum
contact the USACE for a Preliminary JD?
Photo 2 Proposed Site for CF Project
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Answer 3 YES! Wetland Survey or JD should be
required. Wetland Delineation can be extremely
complex. This type of wetland has Difficult
Hydrology, and only ponds water for a few weeks
or months during the winter, so standing water is
not present year round.
Photo 3 Emergent Wetland, only seasonally wet.
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Interpreting Wetland HydrologyGroundwater fed
wetlands (seeps) on slopes are difficult to
identify. Identified by hydric soil inclusions
or by a wetland scientist or USACE representative
who knows the vegetation.
Photo 4 Wetland Seep, occurs at spring seeps
along and at bases of steep terrain
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Interpreting Wetland Hydrology Surface and
groundwater fed wetlands like this vernal pool
are difficult to identify. They are identified
by the presence of hydric soil inclusions or by a
trained wetland scientist or USACE representative.
Photo 5 Vernal Pool, intermittent depressional
hydrology
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Question 4 Theres a stock tank/pond used for
cattle on the lot for new construction of a SFH.
The applicant submits this picture. How do I
know if this is a wetland? What are your next
steps?
Photo 6 Active stock pond (taken during
drought), artificial hydrology.
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Answer 4 a) Review the Soil Survey for
presence of Hydric Soils or Hydric Soil
Inclusions. Have the applicants provide this
information if possible. b) If hydric soils are
present, a site visit can be used to determine if
wetlands are present or the Loan Specialist can
require the applicant to obtain a preliminary JD
from the USACE. A Wetland Specialist is not
required if a Preliminary JD is obtained and
wetlands can be avoided. If wetland impact is
proposed, must do alternatives analysis. c) If
hydric soils are not present, RD could conclude
this pond was not a wetland because the soils
appear to be excavated in upland soils, the
vegetation is scarce, and therefore this would
not meet the RD definition of a wetland. A JD
from the USACE would not be required.
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Example of a Wetland used for a Stock Pond. RD
would take jurisdiction of this pond because it
appears to have been excavated in wetland (hydric
soils), supports prolific water loving vegetation
and would likely meet the RD definition of a
wetland. This is a wetland that was used as a
stock pond but is being placed back into
conservation.
Photo 7 Emergent Wetland formerly used as stock
pond.
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Resources

• Useful information to assist you in identifying
  the signs of wetlands while reviewing
  applications, photographs, or making field
  visits.

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Hydric Soil Indicators Below are photos of 3
common hydric soil indicators that you may
recognize in the field. NRCS has published
Field Indicators of Hydric Soils in the United
States to assist wetland specialists, it is
located here www.itc.nl/rossiter/Docs/NRCS/Field
Indicators_v5_01.pdf
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Wetland Hydrology Indicators The USACE 1987
Manual Contains descriptions of each of the
hydrological indicators located here
http//el.erdc.usace.army.mil/wetlands/pdfs/wlman8
7.pdf
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Photo 8 Saturated Soils
Common Wetland Hydrology Indicator Saturate
Soils After digging a small hole, if you
observe a high water table in the soil pit and it
hasnt just rained, you are likely in a wetland.
The upper foot of soil only needs to be
saturated for a few weeks during the growing
season to be a wetland.
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Other Wetland Hydrology Indicators Crawfish
burrows are an excellent sign you are in either
or wetland or near a stream. If you see these
your applicant needs to provide more information.
Photo 9 Crawfish burrows
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Photo 10 Buttressed tree trunks
Other Wetland Hydrology Indicators Buttressed
Tree Trunks are a sure sign of a wetland.
Another characteristic is many trees are down
due to shallow root depth.
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Photo 11 Surface soil cracks in a seasonally
ponded wetland
Other Wetland Hydrology Indicators Surface Soil
Cracks
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Photo 12 A hard salt crust in a dry temporary
pool
Wetland Hydrology Indicator Hard Salt Crust
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Hydrophytic Vegetation USACE publishes the
National Wetlands Plant List located here
http//rsgisias.crrel.usace.army.mil/nwpl_static/s
tatic.html Photo 13 Example of Water
Loving Vegetation
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Tree Identification Smart Phone App (For
Northeastern US only currently)

• Leafsnap (FREE)
• Users can identify trees by taking a photo or
  "snap" of its leaves. Leafsnap functions like
  face-recognition software, but it's leaf
  recognition software.
• Supply the tree's name, but it also provides
  high-quality photos and information about the
  tree's bark, flowers, fruits and seeds. You
  would need to cross reference with the National
  Wetlands Plant List (http//rsgisias.crrel.usace.a
  rmy.mil/nwpl_static/static.html)
• Although Leafsnap's current database only
  includes the trees of the Northeastern United
  States, it will soon feature trees from the whole
  continental US.

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Soil Survey Smart Phone App

• Soil Web (Free)
• Uses GPS and NRCS online soil surveys to give you
  detailed soils information where ever you are
• http//blogs.usda.gov/2012/02/03/a-smartphone-app-
  provides-new-way-to-access-soil-survey-information
  /more-38023

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Email or call with any comments or questions on
this webinar to Juliet.Bochicchio_at_wdc.usda.gov or
202-205-8242