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Clean Water Act Section 404 Compliance

Natural and Cultural Compliance Workshop

October 11, 2016

Clean Water Act Section 404 Compliance

Natural and Cultural Compliance Workshop

October 11, 2016

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We all want Clean Water!We all want Clean Water!

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Reporter Richard Ellis dips his hand in the

Cuyahoga River on a boat trip in the 1960s

Reporter Richard Ellis dips his hand in the

Cuyahoga River on a boat trip in the 1960s

August 1, 1969

“No Visible Life. Some river!

Chocolate-brown, oily, bubbling

with subsurface gases, it oozes

rather than flows. "Anyone who

falls into the Cuyahoga does

not drown," Cleveland's citizens

joke grimly. "He decays." The

Federal Water Pollution Control

Administration dryly notes: "The

lower Cuyahoga has no visible

life, not even low forms such as

leeches and sludge worms that

usually thrive on wastes." It is

also—literally —a fire hazard.”

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Cuyahoga River TodayCuyahoga River Today

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What is Section 404?What is Section 404?

� Section 404 of the Clean Water Act (1972, as amended)

� Required for the discharge of dredged or fill material

into waters of the U.S.

� City needs to perform construction, maintenance, and

repair activities in the waters of the U.S. hundreds of

times a year

� www.spl.usace.army.mil/regulatory/

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Waters of the US

under U.S. Army Corps of Engineers Jurisdiction

Include:

Waters of the US

under U.S. Army Corps of Engineers Jurisdiction

Include:

� Rivers/Streams

� Dry Washes/Arroyos

� Ponds/Lakes*

� Wetlands*

� Constructed Canals/Laterals*

* fed by or conveys natural drainage flows

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What Is Regulated Under Section 404?What Is Regulated Under Section 404?

Any activity that results in ground-disturbing activities (i.e., dredging or filling) within waters of the U.S.

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Example Project

South Mountain Park Emergency Storm Repair

Example Project

South Mountain Park Emergency Storm Repair

Desert Ridge

Marketplace

Wildfire

Golf Course

at Desert Ridge

Project Location

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South Mountain Emergency Storm RepairSouth Mountain Emergency Storm Repair

� September 8, 2014 storm damage

� 12 sites total, only Site 1/2 exceeded

0.1 acre

� Damage Assessment for Site 1/2

� Excessive soil and rock debris

deposited in wash

� Roadway and historic headwall and

footer undermined

� Erosion created deep (5-10 feet)

crevasses between the roadways and

headwalls

� Wingwall Deterioration

� Outlet headwall, wingwalls, and

bottom of CMP exposed and damaged

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Always

Need

To

Identify:

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Jurisdictional Delineation ConsiderationsJurisdictional Delineation Considerations

Change in terrestrial vegetation Exposed roots

Change in soil characteristics Presence of litter/debris

Impression of water line Sediment deposits

Shelving or cut banks Water stains

JD Characteristics Example 1JD Characteristics Example 1

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JD Characteristics Example 2JD Characteristics Example 2

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JD Characteristics, Example 3JD Characteristics, Example 3

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Upstream of Path Crossing

Downstream of Path Crossing

Indian Bend Wash

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Impacted Unnamed WashImpacted Unnamed Wash

City-owned parcel

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Jurisdictional DelineationJurisdictional Delineation

Informal JD submitted as

part of Preconstruction

Notification

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Two Types of Jurisdictional DelineationsTwo Types of Jurisdictional Delineations

Preliminary JD

- Non-Binding

- Assume all likely areas are jurisdictional

- No Significant Nexus Analysis

- Does not require EPA approval

- Allows projects to move forward

Approved JD

- Binding

- Definitive re non-jurisdictional areas

- Significant Nexus Analysis

- Requires EPA approval

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General Notes for Draft Submittals to PhoenixGeneral Notes for Draft Submittals to Phoenix

� High quality aerials and photographs

� Page size no greater than 11” x 17”

� 8 ½” x 11” preferred

� Include table

� Electronic version ok

� Include draft cover letter

� Include blank set of aerials

� Make sure everything is clear and easy to

understand

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Always

Need

To

Identify:

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South Mountain Scope and Footprint in

WUS

South Mountain Scope and Footprint in

WUS

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Impacts to WUSImpacts to WUS

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Impacts CalculationImpacts Calculation

0.464 acres

Linear feet x WUS width (feet) = square footage of impact; convert to acreage

Permanent Impacts = Permanent placement of dredged or fill material (e.g., more than incidental fallback from

soil removal, installation of new structures [culverts, wingwalls], etc.)

Temporary Impacts = Impacts that will not result in a permanent change or addition in WUS (e.g., equipment

maneuvering, in-kind replacement of existing structure, etc.)

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Types of

Section 404

Permits

Types of

Section 404

Permits

Individual

§ 404 Permit

Impacts to

Waters

of the U.S.

any amount of wetland

impacted

No § 404

Permit

Non-Notifying

Nationwide

§ 404 Permit

No

Impacts

Impact

less than or

equal to

1/10 acre

(varies by NWP)

Notifying

Nationwide

§ 404 Permit (PCN)Or may affect

cultural resources

or federally listed species

Impact greater

than 1/10 acre,

but less than

or equal to ½ acre

(varies by NWP)

•2–4 months +

•Jurisdictional

delineation

required

Start work today!

Obey conditions.

6 months to 1 year +

If need jurisdictional

delineation,

Corps review is usually

2–3 months

Start work today!

No conditions!

Impact greater than ½

acre (varies by

activity) or Regional

General

Permit 63

Certain emergency

situations

Remember to always check the

particular NWP’s conditions!

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South Mountain: Nationwide Permit No. 14

Linear Transportation Projects

South Mountain: Nationwide Permit No. 14

Linear Transportation Projects

� Impacts to Water of the U.S. must be less than ½ acre

� Must notify Corps

� If impacts had been 1/10 acre, no notification would have been necessary

� Rejected RGP 63 in favor of NWP 14

� Sites with impacts < 0.1 acre were covered under a non-notifying permit and

work could start at those sites immediately, buying time for Site 1/2 permitting

�NWP 14 process more straightforward and less time-intense following completion

of work

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Always

Need

To

Identify:

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Address T&E and Other Biological ConcernsAddress T&E and Other Biological Concerns

Sonoran Desert tortoise (Candidate species at

the time of project) and Arizona chuckwalla

were documented within 2 miles of the project

vicinity.

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Addressing Biological ConcernsAddressing Biological Concerns

� Mitigation measures included in Project Specifications for:

�Sonoran Desert tortoise

�Control of invasive species

� Migratory Bird Treaty Act

�Four trees to be removed at Site 1/2, removal to occur outside normal

breeding season

� Native Plants

�Removed trees to be destroyed on-site; no notification to Arizona

Department of Agriculture required

� Other Species (Arizona chuckwalla, bats, etc.)

�Unlikely to be present but if present, are mobile and would be expected to vacate

the project area during construction

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Always

Need

To

Identify:

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Address Cultural ResourcesAddress Cultural Resources

� Cultural Resources Present

�Historic walls

�South Mountain Park (TCP and

Phoenix historic district)

�Petroglyphs (nearby)

�Emergency Section 106

Consultation

�Construction can begin

immediately

�Continuing Section 106

�Post-Construction

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Types of

Section 404

Permits

Types of

Section 404

Permits

Individual

§ 404 Permit

Impacts to

Waters

of the U.S.

any amount of wetland

impacted

No § 404

Permit

Non-Notifying

Nationwide

§ 404 Permit

No

Impacts

Impact

less than or

equal to

1/10 acre

Notifying

Nationwide

§ 404 Permit (PCN)Or may affect

cultural resources

or federally listed species

Impact greater

than 1/10 acre,

but less than

or equal to

½ acre

•2–4 months +

•Jurisdictional

delineation

required

Start work today!

Obey conditions.

6 months to 1 year +

If need jurisdictional

delineation,

Corps review is usually

2–3 months

Start work today!

No conditions!

Impact greater than ½

acre orRegional

General

Permit 63

Certain emergency

situations

Greatest Single

Permanent Impact to Waters of the U.S.

= 0.464 acre

No adverse effect on cultural resources,

Species of concern, and no wetlands

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Nationwide Permit (NWP) ProgramNationwide Permit (NWP) Program

� Corps reviews and reissues the NWP program every 5 years

� Current set of NWPs:

� Issued March 19, 2012

� Expire March 18, 2017

� Verification letter from Corps is generally valid for term of the

current NWP program

�Grandfathering projects under new NWP program

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2012-2017 Nationwide Permit

Elements of Preconstruction Notification (PCN)

2012-2017 Nationwide Permit

Elements of Preconstruction Notification (PCN)

� Cover Letter

�Project location maps (unless previously submitted with JD)

� Engineering Form 4345

� Recent aerials with jurisdiction, permanent impact and

temporary impact areas identified

�Plan sheets for work in Waters of U.S.

�Nationwide Permit General and Regional Conditions

�Attachments (e.g., biology report, Section 106 letters)

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South Mountain Park PCN

Select General Conditions

South Mountain Park PCN

Select General ConditionsGeneral Condition Project Compliance

18. Endangered Species Habitat for Sonoran Desert tortoise present. The following measures will be implemented:

• Construction workers will be provided an environmental awareness briefing including information on

possible presence of tortoises, how to avoid impacts and what to do if a tortoise is observed

• A copy of the City of Phoenix Sonoran Desert Tortoise Construction Flyer will be provided to the

contractor. If a tortoise is observed, the contractor will adhere to the guidance in the flyer.

19. Migratory Birds and Bald and

Golden Eagles

The project area does not contain suitable nesting habitat for bald and golden eagles. Four mature trees will

be removed during non-breeding season for migratory birds. Adult birds that may be using the trees would

flee the area to other mature trees in the vicinity.

20. Historic Properties Petroglyphs in South Mountain Park must be avoided; none of the known petroglyphs are near project sites.

Historic rock walls are part of South Mountain Park Historic District. Emergency work will have no adverse

effect (SHPO concurred.)

21. Discovery of Previously

Unknown Remains and Artifacts

If previously unidentified remains/artifacts are encountered, contractor shall stop work and City archaeologist

and Corps district office will be notified immediately.

If dislodged petroglyph panels are encountered, all work in the area shall cease and City archaeologist must

be notified immediately.

23. Mitigation Project construction will result in 0.46 acre of permanent impacts and overall disturbance area of 0.75 acre.

Efforts have been made to minimize impacts as a result of the project as described in previous General

Conditions and areas not otherwise stabilized will be seeded with a native seed mix. Therefore, mitigation is

not required for this project.

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Corps Guidance ResourcesCorps Guidance Resources

�LA District Regulatory Website

o http://www.spl.usace.army.mil/Missions

/Regulatory/PermitProcess.aspx

�Guidance for all levels of

permitting

�2016 Arid West Regional

Wetland Plant List

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Map StandardsMap Standards

http://www.spl.usace.army.mil/Portals/17/docs/publicnotices/SPD-RG_map-drawing-standards_final_20120806v3.pdf

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Questions?Questions?