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Assessing Wetland Impacts

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... hydrophytic vegetation, and hydric soils. Hydrophytic vegetation means plants that are adapted to living in saturated soils (or anaerobic soil conditions). – PowerPoint PPT presentation

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Title: Assessing Wetland Impacts


1
Assessing Wetland Impacts
2
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

3
Outline
  • Resolving Impacts, Assuring Compliance
  • Permits, mitigation
  • SEC oversight of applicants and consultants
  • Knowing when the process is complete

4
Authorities and Roles
5
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.

6
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.

7
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.

8
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

9
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

10
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.

11
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?

12
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.

13
  • 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,

14
Determining Potential Impacts
15
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

16
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.

17
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.

18
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.

19
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

20
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?

21
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.)

22
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.

23
  • 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.

24
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

25
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

26
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

27
Example Questions More Resources
28
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.

29
  • 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.
30
  • 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.

31
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.
32
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
33
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.
34
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
35
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
36
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.
37
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.
38
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.
39
Resources
  • Useful information to assist you in identifying
    the signs of wetlands while reviewing
    applications, photographs, or making field
    visits.

40
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
41
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
42
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.
43
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
44
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.
45
Photo 11 Surface soil cracks in a seasonally
ponded wetland
Other Wetland Hydrology Indicators Surface Soil
Cracks
46
Photo 12 A hard salt crust in a dry temporary
pool
Wetland Hydrology Indicator Hard Salt Crust
47
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
48
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.

49
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

50
Email or call with any comments or questions on
this webinar to Juliet.Bochicchio_at_wdc.usda.gov or
202-205-8242
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