Jurisdiction, Wetland Delineations and Datasheets

US Army Corps of EngineersBUILDING STRONG®

Jurisdiction, Wetland Delineations and DatasheetsPresented by Regulatory Project Managers from the USACE Detroit District Regulatory Office and MDEQ Water Resources Division

October 26, 2016

Agenda Establishing Corps & DEQ regulatory

jurisdiction in Michigan Michigan and the Section 404 Assumption

►Corps & DEQ Ordinary High Water Mark►Jurisdiction Determinations

Wetland Delineations and Datasheets►Atypical situations►Differences in wetland boundaries

Corps Regulatory Authorities

Section 10 Rivers and Harbors

Act of 1899

Navigable waters of the U.S.

Structures and work

Section 404 Clean Water Act

Waters of the U.S., including wetlands

Discharge of dredged or fill material

Navigable Waters of the U.S.

Navigable Waters of the United States are those waters that are subject to the ebb and flow of the tide and/or

are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign

commerce (33 CFR Part 329).

Soo Locks

Navigable Waters

Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

Section 1050 years, Industry, & Landfill

1949 1999

Section 10 Limits of Navigability

Section 404Corps Waters of the U.S.

Navigable waters of the U.S.

Tributaries to Navigable Waters of the U.S.

Wetlands adjacent to waters listed above

All interstate waters including interstate wetlands.

Navigable Water of the U.S.

Tributaries(all the way upstream)

Adjacent Wetlands

Lake(as part of a

tributary)

CFR 328.3(a) a. The term "waters of the United States" means 1. All waters which are currently used, or were used in the past, or may be

susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including

intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

iii. Which are used or could be used for industrial purpose by industries in interstate commerce

BUILDING STRONG®

Base Outline Regulatory authorities Getting a jurisdiction determination

► Corps wetland delineation and when to get a consultant

► OHWM► WAP

What a consultant should provide the landowner and send to the Corps/State for review

Common errors in data sheets

Michigan and the Section 404 Assumption

In 1984 a portion of the Corps’ regulatory responsibilities was assumed by the Michigan Department of Environmental Quality (MDEQ) Unless otherwise notified, a separate

authorization from the Corps is not required

Navigable Waters and Adjacent Wetlands

When to get a Corps JD

You should request a Jurisdiction Determination any time a proposed project is in one of the Great Lakes, a tributary to a Great Lake, or in adjacent wetlands

When in doubt – give us a call

Corps Preliminary vs. Approved JDs

Preliminary JD

Advisory in nature May shorten the

processing time Not appealable

Approved JD

Official Corps determination

May take longer Appealable (33 CFR

Part 331) Valid for 5 years

The Corps Ordinary High Water Mark

The U.S. Army Corps of Engineers Ordinary High Water Mark (OHWM) is a jurisdictional benchmark for administering its regulatory program in navigable waterways under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. The OHWM is the line on the shore coincident with the elevation contour that represents the approximate location of the line on the shore established by fluctuations of water and indicated by physical characteristics such as shelving, destruction of terrestrial vegetation, presence of litter or debris, or changes in the character of soil. The OHWM varies from lake to lake and within each of the connecting channels (e.g., St. Marys River, St. Clair River). A table of OHWMs for several locations throughout the Great Lakes region can be found below. The elevation reference system used to define Great Lakes water levels is the 1985 International Great Lakes Datum, which is commonly known by the acronym IGLD 1985.

Ordinary High Water Mark (OHWM)

Jurisdictional limit for waterways Physical characteristics of the shoreline Typically determined by a site visit

OHWM by elevation on the Great Lakes Used when OHWM can not be clearly

determined by physical characteristics

Corps & DEQ OHWMs IGLD 1985

Corps

Lake Superior 603.1’

Lake Michigan/Huron 581.5’

Lake St. Clair 576.3’

Lake Erie 573.4’

DEQ

602.6’

580.5’

575.3’

572.2’

OHWMCorps OHWM (581.5’ IGLD 1985)

Corps Jurisdictional Area

Approx 1’

DEQ OHWM 580.5’

Corps & DEQ OHWM

CorpsDEQ

Corps OHWM

Corps Ordinary High Water Mark

OHWM

Current Water Elevation

Corps’ Jurisdictional Area

Corps Ordinary High Water Mark One year later…

OHWM

Last Year’s Water Elevation

Current Water Elevation

Corps’ Jurisdictional Area

ExampleCorps Ordinary High Water Mark

ExampleCorps Ordinary High Water Mark

Corps Section 10 Jurisdiction

Navigable Waterway

(Sections 10 and 404)

Corps Jurisdiction in Tributaries

Navigable Waterway

Portions of drain where bottom elevation is below OHWM of Navigable Water

(Sections 10 and 404)

(Sections 10 and 404)

Corps Jurisdiction in Tributaries

Navigable Waterway

Adjacent Wetlands

Portions of tributary where bottom elevation is below OHWM of Navigable Water

(Sections 10 and 404)

(Sections 10 and 404)

(Section 404)

ExampleCorps Ordinary High Water Mark

ExampleCorps Jurisdiction – Drain Cleanout

Water level

Top of bank

Ordinary High Water Mark Elevation of Navigable Waterway

Existing bottom alongcenterline of drain

Proposed bottom after dredging

Jurisdictional Area for Dredging

Navigable Waterway

AB

D

C

OHWM

Proposed bottom elevation for dredging

Existing bottom elevation

Waterlevel

Example Corps Jurisdiction Drain Cleanout Cross-section A

OHWM

Proposed bottom elevation for dredging

Existing bottom elevation

Waterlevel

Example Corps Jurisdiction Drain Cleanout Cross-section B

OHWM

Existing bottom elevation

Proposed bottom elevation for dredging

Waterlevel

Example Corps JurisdictionDrain Cleanout Cross-section C

OHWM

Proposed bottom elevation for dredging

Existing bottom elevation

Waterlevel

Example Corps Jurisdiction Drain Cleanout Cross-section D

OHWM Elevation

Jurisdictional Area

Corps Jurisdiction - Example

OHWM Elevation

Jurisdictional Structure

Corps Jurisdiction - Example

Structures Overhead

OHWM Elevation

Jurisdictional Structure

OHWM Elevation

Corps Jurisdiction - Example

OHWM Elevation

Jurisdictional Fill

Non-Jurisdictional Fill

Corps Jurisdiction - Example

OHWM Elevation

Corps Jurisdiction - Example

Excavation area

OHWM Elevation

Corps Jurisdiction - Example

Excavation area

OHWM Elevation

Non-Jurisdictional WorkJurisdictional

Work

Corps Jurisdiction - Example

Excavation area

OHWM Elevation

Applying Jurisdiction

Proposed Project Site

DEQ Jurisdiction Part 301

► Ordinary High Water Mark Part 303

► Vicinity to inland lake or stream or > 5 acres in size Part 325

► Elevation of 580.5 IGLD85 Part 31

► Drainage area of > 2sq miles Part 315

► Dam greater than 6ft high Part 323 and 353

► Areas designated on map

DEQ Wetlands

OHWM

DEQ OHWM Part 325 IGLD 1985

Corps

Lake Superior 603.1’

Lake Michigan/Huron 581.5’

Lake St. Clair 576.3’

Lake Erie 573.4’

DEQ

602.6’

580.5’

575.3’

572.2’

DEQ Part 323 and 353

• High Risk Erosion area

• Critical Dune area

• Interactive map at http://www.mcgi.state.mi.us/wetlands/or

• PDF maps available at www.michigan.gov/criticaldunes

DEQ Part 325: Example on Lake Michigan

Corps regulates to 581.5 IGLD85

DEQ regulates to 580.5 IGLD85

Critical Dunes

DEQ Part 323 jurisdiction

GreatLake

Water Level

Erosion Hazard Line

30-Year SB

Property Line

Property Line

60-Year SB

Readily-Moveable Structures

Only

Readily Moveable or Non-Readily-

Moveable StructureAllowed

Erosion rates are parcel specific and can change over time.

DEQ Part 31 Streams and drains with a drainage area of >

2 sq. miles► Occupation► Filling► Grade changes within the floodplain

All streams and drains have a floodplain

Non-mapped floodplains may be regulated!

DEQ Part 31 We do not have a publically available map of all

regulated floodplain areas. Please call your local floodplain engineer to

determine if the drainage area for your project is > or < 2 sq. miles.

www.Michigan.gov/floodplainmanagement

DEQ Wetlands Regulated

wetlands do not stop at property lines.

Paired sampling points are required to show that wetlands are not connected.

Paired sampling points Orange dots =

wetland characteristics

Purple area = upland characteristics

Both sets of data need to be turned in with an application or delineation.

Inland Lake and Stream jurisdiction example

Many statues overlap. Depending on where your project area is, three or more statutes may apply.

DEQ Part 315 Dam height is > than

6ft or impoundment area is greater than 5 acres

Many regulated activities will involve more than one state law and gov’t agency

Inland Lakes and Streams and Wetlands (Part 301 and Part 303)

Corps permit if on Section 10

Critical Dune Areas

High Risk Erosion Areas

Great Lakes Submerged lands

• Critical Dunes Part 353

• High Risk Erosion Area Part 323

• Great Lakes Part 325

• Corps authorization

• Authorization under Part 301, Part 31 and Part 315 approval.

• Part 303 if wetland in the impoundment area.

• Corps permit if changing navigability and Section 10.

Floodplain regulations

Dam Safety

DEQ jurisdiction example• DEQ has the same

jurisdiction• Property lines

• DEQ has a different jurisdiction for:

• OHWM• Floodplains• Additional

Wetlands• Additional Stream

• Riparian interest area

Michigan’s Wetland Identification Program (WIP)

The DEQ offers wetland delineations to determine the regulated wetlands on the property.

Keto Gyekis, 517-243-5002, gyekisk@Michigan.gov

Benefits:► Jurisdictional determination► Wetlands are clearly identified for an application► Due diligence for propertybuy/sell agreements

WIP fee structure Level 1: DEQ Wetland inventory maps Level 2: On-site review of an identified area, up to five

acres, by DEQ staff► $500 for 1st acre, $250 per additional acre

Level 3: On-site verification of a delineation done by a wetland professional and/or consultant► $500 for 1st acre, $50 per additional wetland acre, $20 per additional upland acre

The Dirt on Wetland Delineations and Datasheets

Wetlands

Hydrology Soils Vegetation

Technical Resourceswww.lre.usace.army.mil

Wetland Delineation Resourceswww.lre.usace.army.mil/Missions/RegulatoryProgramAndPermits.aspx

Wetland Verification Delineation may be required for

application completeness Considering wetlands during development

of plan helps with avoidance/minimization You may be able to avoid wetland impacts

(possibly avoiding need for permit – we can help you identify areas to avoid) Correctly quantify impacts – minimize

delays later in evaluation

Important Distinctions

The Corps and DEQ are separate regulatory authorities and cannot speak for each other’s programs, verify wetland boundaries, or determine jurisdiction. ONLY the Corps can make a jurisdictional

determination for the Corps of Engineers. A consultant can provide a wetland

delineation but cannot make a final jurisdiction determination.

Data Sheets: Common Issues Correct Data Sheets Missing Information – don’t leave blanks Data point location

► Give accurate coordinates► Provide a map

Inadequate review – if you used the fillable form double check and review Use the comments section – you should

always share your observations

Focus on probable boundaries Which tells you more about the wetland

boundary location?

Use Correct Datasheet Midwest or Northcentral/Northeast

►Most recent: Version 2.0►Hydric soil and wetland hydrology indicators

may vary►Plant indicator status may vary

• Refer to USACE National Wetland Plant List for current taxonomy and indicator status

►Datasheets that predate the regional supplements may not reflect current methodology.

Hydrology indicators Make sure these

two sections are consistent.

If a water table is present, then saturation is also present, usually a few inches above the water table.

If surface water is present, a water table is usually present (0 inches depth).

Hydric Soil Indicators

How do these sections relate?• Refer to the regional supplement

for step-by-step definitions.• Go through each indicator that may

apply for the relevant soil texture (all soils, sandy, or loamy/clayey).

• More than one indicator may apply.

Atypical Situations: Disturbed Sites

Atypical Situations:Disturbed Areas

Industrial past Covered with fill Excavated Altered by mowing, plowing, planting,

drainage, flooding, etc.

Delineation of Disturbed Areas

Delineate early in the season Use procedures in the manual – and seek

additional resources Describe the problem in the “remarks”

section of the data sheets Provide all documentation used to inform

your decisions

Regional Supplements

Automated Data Form

Microsoft Excel spreadsheet Automatically generates wetland

hydrology, hydrophytic vegetation, and hydric soil indicators

Contains the current indicator information Printed form looks like the form in the

Regional Supplement

Automated Data Form

Currently only Northcentral/Northeast Region and Midwest Region available

Other Regions under Corps HQ review

http://www.lre.usace.army.mil/Missions/Regulatory-Program-and-Permits/Automated-Wetland-Determination-Data-Form

Questions?