Can Wetlands be Successfully Constructed on Clay Settling Areas

1
US Army Corps of Engineers Jacksonville District
Discussions on Clay Settling Areas November 12,
2002
2
Clay Settling Areas (CSAs)
The phosphate matrix is piped to a
beneficiation plant where the phosphate is
separated into different wastestreams. The clay
slurry portion is piped into a bermed enclosure
usually covering several hundreds of acres. The
suspended clay particulates are allowed to settle
out and consolidate over a period of time raising
the bottom levels until the final design
elevations are reached. This activity
is not considered to be a regulated fill subject
to the jurisdiction of Section 404 of the Clean
Water Act.
3
Can Wetlands be Successfully Constructed on Clay
Settling Areas?

• Does the technical community have sufficient
  information at this time to make a decision
  regarding the suitability of Clay Settling Areas
  (CSAs) as locations for wetland mitigation?
• What research needs to be done to better
  understand the suitability of CSAs as locations
  for wetland mitigation?
• What are the outstanding concerns regarding the
  use of CSAs as locations for wetland mitigation?
• What are the possible solutions?

4
Corps Wetland Definition

• Wetland - - Those areas that are inundated or
  saturated by surface or ground water at a
  frequency and duration sufficient to support, and
  under normal circumstances do support, a
  prevalence of vegetation typically adapted for
  life in saturated soil conditions. Wetlands
  generally include swamps, marshes, bogs, and
  similar areas.

5
Regulatory Program

• The Corps Regulatory Program is a major focus of
  the Corps involvement in wetlands protection
• The Regulatory Program protects all waters of the
  United States, but wetlands are a very visible
  issue.
• The Regulatory Program has specific requirements
  for wetlands, as special aquatic sites.
• Corps regulations also incorporate Executive
  Order 11990 Protection of Wetlands.

6
Evaluation Criteria

• 33 CFR 320.4(b) consideration of wetlands this
  incorporates the Executive Order 11990 elements
• 404(b)(1) Guidelines
• -- Wetlands are special aquatic sites
• -- Rebuttable presumption that there are
  alternatives
• -- Rebuttable presumption that alternatives
  are less
• damaging
• -- Must require mitigation to ensure no
  significant
• degradation of wetlands -- offset
  impacts

7
Types of Mitigation

• Corps offsets impacts with four types of
  mitigation
• -- Restoration -- restore wetland functions
  to an area that is not, but once was, a
  wetland
• -- Enhancement -- enhance certain wetland
  functions in an existing wetland
• -- Creation -- establish a wetland where one
  did not exist before
• -- Preservation -- preserve quality existing
  wetlands

8
Wetland Mitigation

• Corps determines types of wetland mitigation
• Based on what is best for the aquatic environment
• Resource agencies request in-kind, onsite
  mitigation
• Not necessarily most appropriate mitigation
• Preservation can be an important component
• Mitigation Banks are often offsite and out of
  kind
• In lieu fee arrangements are also important

9
Wetland Rapid Assessment Procedure (WRAP)

• WRAP is a functional assessment procedure
  developed by the South Florida Water Management
  District to assist in the evaluation of wetland
  sites that exist or that have been or will be
  created, enhanced, preserved or restored through
  a regulatory permit process.
• Mitigation may be determined based upon a
  comprehensive set of criteria that reflect
  ecological success.
• WRAP establishes a numerical ranking for
  individual variables which is then used to
  evaluate the current wetland condition as well as
  the proposed mitigation.

10
WRAP Variables

• Wildlife Utilization
• Wetland Overstory/Shrub Canopy
• Wetland Vegetative Ground Cover
• Adjacent Upland Support/Wetland Buffer
• Field Indicators of Wetland Hydrology
• Water Quality Input and Treatment Systems

11
S W A N C C

• Solid Waste Agency of Northern Cook County v.
  U.S. Army Corps of Engineers, No.99-1178 (Jan. 9,
  2001)
• Balefill (landfill) in Northern Cook County,
  Illinois
• Issue Whether Corps can regulate isolated
  waters.
• gt Constitution requires interstate
  commerce
• gt Corps relied on use by migratory birds
  (1986)
• Supreme Court ruled on Case January 9, 2001

12
R U L I N G

• We hold that 33 C.F.R. 328.3(a)(3)(1999), as
  clarified and applied to petitioners balefill
  site pursuant to the Migratory Bird Rule, 51
  Fed. Reg. 41217 (1986), exceeds the authority
  granted to respondents under 404(a) of the Clean
  Water Act.
• Said another way
• Corps exceeded its statutory authority by
  asserting Clean Water Act jurisdiction over an
  abandoned sand and gravel pit in northern
  Illinois which provides habitat for migratory
  birds.