US Army Corps of EngineersBUILDING STRONG®

Section 404 Clean Water Act Permitting

Kathleen TuckerSenior Project Manager, Arizona Branch

Regulatory DivisionLos Angeles District

January 24, 2017

Regulatory Mission

• Protect aquatic resources

• Allow reasonable development

• Fair, timely, and balanced permit decisions

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What is Section 404?

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

q Required for the discharge of dredged or fill material into waters of the U.S. (WOUS)

q Common projects are construction, maintenance, and repair activities in the waters of the U.S.

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Regulatory Process

1) What is the scope of the project?

2) Is there geographic jurisdictional waters?

3) Are there regulated activities?

4) What type of permit is needed?

Regulator’s Process

1) What is the scope of the project?

2) Is there geographic jurisdictional waters?

3) Are there regulated activities?

4) What type of permit is needed?

Scope of Project

q Location information• Vicinity map• Coordinates• Directions to site• Permission to access

q Clearly define project area boundaryq Describe all proposed activities

§ Single and complete projectq Recent, good quality aerial photos

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Regulatory Process

1) What is the scope of the project?

2) Is there geographic jurisdictional waters?

3) Are there regulated activities?

4) What type of permit is needed?

Waters of the United StatesqNavigable Waters (Colorado River)qTributaries with physical and biological indicators of

flowqWetland boundary

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Examplesq Rivers/Streamsq Dry Washes/Arroyosq Ponds/Lakes*q Wetlands*q Constructed Canals/Laterals** fed by or conveys natural drainage flows

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Jurisdictional Delineation (JD) 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

Ordinary high water mark (OHWM) means that line on the shore established by the fluctuations of water and indicated by physical characteristics…..

JD Characteristics

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Example 1

Example 2

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Jurisdictional Delineation

Informal JD submitted as part of Preconstruction Notification

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Two 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

Regulatory Process

1) What is the scope of the project?

2) Is there geographic jurisdictional waters?

3) Are there regulated activities?

4) What type of permit is needed?

Regulated Activities

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Any activity that results in ground-disturbing activities (i.e., dredging or filling) within waters of the U.S.• Fills (e.g., for construction of buildings, parking lots,

etc.) • Roads (culverts)• Rip-Rap• Grading (moving material from one area to another

within the waterway)• Stockpiles• Utility Lines• Mechanized removal of vegetation

What Is NOT Regulated Under Section 404?

qExcavation “Scoop and haul”qFences qDrivingqHerbicidesqOther activities regulated by Section 402

(Stormwater Pollution Prevention Plan)

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Impacts to WOUS

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Regulatory Process

1) What is the scope of the project?

2) Is there geographic jurisdictional waters?

3) Are there regulated activities?

4) What type of permit is needed?

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Types ofSection 404

Permits

Individual§ 404 Permit

Impacts toWaters

of the U.S.?

No § 404Permit

Non-NotifyingNationwide§ 404 Permit

No Impacts

Impact – less than threshold(varies by NWP) and Complies with General and Regional Conditions

NotifyingNationwide

§ 404 Permit (PCN)

Impact greaterthan threshold

or equal to ½ acre (varies by NWP)

Or may affectcultural resources or

federally listed species

•2–4 months +•Jurisdictional delineationrequired

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 any

amount of wetland impacted

Regional General

Permit 63

Certain emergency situations

Remember to always check theparticular NWP’s conditions!

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• Threshold for notification • 1/10 acre and/or• Special aquatic site and/or• Perennial waterway

• Endangered Species Impact• Historic Properties Impact

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Address Threatened and Endangered Species and Other Biological Concerns

q The Corps will accept FHWA’s biological documents and consultations with USFWS.

§If an activity associated with WOUS impacts may directly or indirectly jeopardize the continued existence….

• threatened, endangered or proposed species and their critical habitat or proposed critical habitat

§Other Biological Concerns

•Other species of concern by the state, other federal agencies, or candidate

• Migratory Bird Treaty Act

•Native Plant Law

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Address Cultural ResourcesqThe Corps will accept FHWA’s cultural concurrence letters from SHPO, Tribes, etc

§If an activity associated with WOUS impact may affect properties listed, or eligible for listing, in the National Register of Historic Places

§Comply with Section 106 of the National Historic Preservation Act

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Nationwide Permit (NWP) Program

q Corps reviews and reissues the NWP program every 5 yearsq Current set of NWPs:

§ Issued March 19, 2012

§ Expire March 18, 2017

q Verification letter from Corps is generally valid for term of the current NWP program

qGrandfathering projects under new NWP program

Sequential Approach

q Avoidq Minimizeq Mitigateq Document Compliance with permit terms and conditions

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CAVE BUTTES DAM

SECTION 408

What 408 is NOT

q Not (necessarily) related to Section 404 of the Clean Water Act

q Not newq Not the responsibility of Regulatory Division

408 is:q 33 U.S.C. 408 (Section 408) “Rivers and Harbors

Appropriation Act of 1899”, dated March 3, 1899q A permit required for modification to a USACE federally

authorized projectq Applies to all USACE federally authorized projectsq Modification can mean altering, restoring or improving the

projectq Modification can also mean encroachment including

actions that pass over, under or through the federal project.

q Responsibility of Engineering Division

q Adobe Damq Alamo Lake Damq Arizona Canal Diversion Channelq Cave Buttes Dam/Detention Basin/Channelq Cave Creek Dam/Detention Basinq Dreamy Draw Dam/Detention Basinq Holbrook Leveeq McMicken Channel/Dam/Dam Outletq Middle Gila River Channelq New River Channel/ Dam/Detention Basinq Nogales Wash Damq Skunk Creek Channel/Dam/Detention Basinq Tat Momolikot Damq Trilby Wash - McMicken Dam Detention Basinq Tucson Diversion Channel/Inlet Channel/Leveeq Whitlow Ranch Dam

Plan Ahead!qConduct a preapplication meeting with Corps

qDesignate team member responsible for Section 404 matters – have Section 404 agenda item in meetings

q Early and continuous resource assessment• Identify jurisdictional waters• Establish resource values (cultural, biological)• Avoid and minimize impacts where practical • Continuously reassess project direction for Section 404 impacts

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Arizona Regulatory Branch3636 N. Central Ave., Suite 900

Phoenix, AZ 85012-1939602-230-6956 (Kathleen)

Kathleen.a.tucker@usace.army.mil602-230-6949 (General)

splregulatoryaz@usace.army.mil

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