Corps Regulatory Program

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Corps Regulatory Program

• Current Issues
• NAFSMA
• November 2001

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Nationwide Permits

• Corps proposed final NWPs issued 9 Aug 2001
• 1/2 acre limit new modified NWPs -- maintained
• 1/10 acre PCN on NWPs -- maintained
• Made condition on mitigation flexible
• 100 year floodplain condition -- maintained
• below headwaters, no fill new/modified NWPs
• above headwaters, no fill floodway, fringe FEMA
• 300 foot limit -- modified to allow flexibility

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Nationwide Permits

• NWP 31 Maintenance Flood Control Facilities
• This is a critical NWP for NAFSMA members
• Maintained the NWP
• Modified to make clear, mitigation for wetland
  loss only once not mitigation with every cycle

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Nationwide Permits cont

• New paradigm for General Permits
• Old
• NWPs with generous acreage limit
• Districts reduce acreage in high value areas
• New
• NWPs with restricted acreage limits
• Districts need to issue RGPs for larger projects
  in lower value areas

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Tulloch Rule

• Corps issued Rule regulating excavation, 1993
• Sued immediately, DC District Court 1997
• Ruled the Corps exceeded authority, all
  excavation
• Ruled incidental fallback only not regulated
• Enjoined Corps from requiring permits
• Government appealed to DC Circuit Court
• Circuit Court upheld District Court July 1998

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Tulloch Rule cont

• What is not regulated
• Activities that involve digging only
• Activities that involve no more than incidental
  fallback of dredged material
• Excavation activities still regulated
• Mechanized landclearing
• Other substantial redeposits of dredged material

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Tulloch Rule cont

• Final Rule issued 17 January 2001
• Became effective 17 April 2001
• Test remains incidental fallback
• Corps must determine more than incidental
  fallback to regulate

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SWANNC Case

• Balefill (landfill) in Northern Cook County, IL
• Issue - whether Corps can regulate isolated
  waters
• Constitution requires interstate commerce
• Corps used use by migratory birds (1986)
• Jurisdiction based on blue heron use of ponds
• Supreme Court Ruled on Case 9 January 2001

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SWANCC Case

• Court invalidates the migratory bird rule
• migratory birds, water use for agriculture,
  endangered species no longer nexus for isolated
  waters
• Court also found navigable must mean something
  -- in definition of waters
• Reviewing to provide guidance now

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SWANCC Case cont

• Corps must make decisions
• Districts limited information, isolated
  intrastate waters (10 and 24 January 2001
  Teleconferences)
• migratory bird rule is out
• must be some type of navigation
• if navigation, then also interstate commerce,
  other than migratory bird rule (recreation,
  industrial use)
• Back to looking closely at tributary and adjacent

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Isolated Lake
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Isolated Wetland
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Isolated Lake
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Isolated Wetland
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NRC/NAS Report

• Report faulted Corps on adequacy of compliance
• Corps agrees need to improve compliance
• Focus resources, improve methods
• Report stated on-site mitigation often fails
• Corps agrees
• Onsite for vegetated buffers (Corps NWPs), water
  quality
• Offsite for habitat mitigation (most wetlands,
  except buffers)
• Report -- success in eye of beholder --
  standards

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RGL 01-1

• In response to the NRC/NAS Report, Corps issued
  RGL 01-1 on October 31, 2001
• Requires a mitigation plan and success criteria
• Encourages a watershed approach to mitigation
• Discourages onsite mitigation, except WQ
• Encourages mitigation that includes open waters,
  wetlands, and uplands as a habitat matrix

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Mitigation and Buffers

• Corps has effectively mitigated wetland impacts
• More focus needed on open waters protection
• One critical approach is vegetative buffers
• Can require either wetland or upland buffers
• Buffers for open waters
• Key is function of buffer

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Mitigation Buffers cont

• Functions
• Maintain/enhance water quality -- non point
  source
• Aquatic habitat support, shading, snags
• Stabilize bank of open water area
• Moderate storm flows to open waters
• Normally vegetated with trees or shrubs, native
• Establish, enhance, or preserve buffers

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Mitigation Buffers cont

• Size requirements may vary, typically 25-50 feet
• We recognize that some studies suggest several
  hundred feet in width -- normally unreasonable
• Modest buffer is far better than no buffer at all
• Buffer part of overall compensatory mitigation
• Should be placed in conservation easements, and
  made part of open space -- often wider

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New Administration

• New Bush Administration focus
• continue to protect the aquatic environment
• increase efficiency -- use and issue RGPs
• focus on what matters -- higher value aquatic
  areas
• Corps must be decisive, reduce interagency
  duplication
• deference to states where we can