Wetland Regulations

History of Wetland Regulations u 1849 - Swamp Land Act (Amended in 1850,1860) u 1890 - Rivers and Harbors Act (Amended in 1899) u 1960 - Supreme Court broadly construes RHA to include industrial waste u 1967 - Fish and Wildlife Coordination Act u 1968 - MOU between DOI and ACOE u 1970 – Supreme Court upheld denial of RHA permit for ecological reasons u 1970 - Executive Order 11574 u 1972 - Federal Water Pollution Control Act u 1975 - Court Cases expand CWA into wetlands u 1975 - ACOE Regulations in Phase – I } 1975 - Tidal and Waters used for commercial navigation – II} 1976 - Tributaries to Phase I and lakes > 5 acres – III} 1977 - All waters of U.S.

History of Wetland Regulations (cont.) u 1977 - CWA Amended u 1977 - Executive Order 11990 u 1977 - ACOE Amends Regulations u 1979 - U.S. Attorney General - EPA Authority of Jurisdictional Issues u 1980 - EPA - 404 - (b)(1) Guidelines u 1981 - Executive Order 12291 u 1983 - ACOE Proposed Reforms u 1983 - EPA Resists u 1984 - Court Case - ACOE Concedes u 1985 – Food Security Act (“Swampbuster” Bill) u 1986 - ACOE Amends Regulations. u 1989 - MOU Between ACOE and EPA - jurisdiction u 1990 - MOU Between ACOE and EPA - mitigation u 1992 - Court Cases - Isolated Wetlands u 1993 - Court Case - CWA regulates excavation u 1995 - Amendment to Nationwide Permits u 2001 - Supreme Court rules on “Isolated Wetlands”

1 Clean Water Act (1972) u Purpose – Restore and maintain chemical, physical and biological integrity to US waters – Safe for fishing and swimming – Eliminate all uncontrolled pollutant discharges u Definition of Pollutant includes dredge spoil materials

Agencies' Responsibilities u Army Corps of Engineers – administers the day-to-day program, including individual permit decisions and jurisdictional determinations – develops policy and guidance – enforces Section 404 provisions u Environmental Protection Agency – develops and interprets environmental criteria used in evaluating permit applications – determines scope of geographic jurisdiction – approves and oversees State assumption – identifies activities that are exempt – reviews/comments on individual permit applications – has authority to veto the Corps' permit decisions (Section 404[c]) – can elevate specific cases (Section 404[q]) – enforces Section 404 provisions

Section 404 of CWA u Permit Required to Place Fill/Dredge Material into Waters of United States u Regulated Activities – Discharge of Dredged or Fill Materials – All Landscaping Using Mechanical Equipment – Draining that Alters/Destroys Wetland – Dredging of Wetlands Which Includes Redeposit of Materials – Pilings – change character of wetland u Exempted Activities – Normal Farming, Silviculture, Ranching – Emergency Repairs – Construction of Farm Ponds, Irrigation Ditches, Farm/Forest Roads – Maintenance of Draining Ditches – Prior Converted Cropland

2 Section 404 Permits u GENERAL PERMITS GRANTED FOR ACTIVITIES THAT HAVE ONLY MINIMAL INDIVIDUAL OR CUMULATIVE IMPACTS – Eliminates individual review – Little delay or paperwork – No permit needed - pre-authorized activities

Section 404 Permits (cont.)

u INDIVIDUAL PERMITS FOR ACTIVITIES WHICH MAY HAVE MORE THAN MINIMAL IMPACTS – Permit Decision Based On: u Probable effects of proposed action u Compliance with 404(b)(1) Guidelines u Consideration of view of USFWS/State Resource Agencies – Applicant Provides to ACOE: u Alternative Analysis u Data for Factual Determination u water quality u contaminants u T&E species u water supply u aquatic ecosystem u cultural resources – Mitigation u avoidance u minimization u compensation

404(b)(1) Guidelines

u Alternatives u Significant Degradation of Water Quality u Violation of Other Laws u Minimize Potential Impacts

3 Oregon Fill / Removal Law u Regulated Activies – All removal and fill activities over 50 cubic yards – Salmonid habitat – no minimum u Exempted Activities – Normal Farming, Forestry and Ranching Practices – Converted Wetlands – Maintenance

Wetland Protection Under Oregon State Planning Goals u GOAL 5 – Preserve wetlands in original character unless there is a conflict – Environmental, Social, Economic & Energy (ESEE) Analysis – Local Wetland Inventory u location u quality u quantity u GOAL 16 – Classify estuary into management units u Natural Units u Conservation Units u Development Units u GOAL 17 – Protect major marshes and significant habitats

Coordination of State Goals and Fill / Removal Law u Local Wetland Conservation Plan – Detailed Inventory – Assess Wetland Functions/Values – Designate - Protection/Conservation/Development – Mitigation Analysis – Policies & Implementing Measures u DSL Approval – Public Need for Proposed Use – Practical Alternatives Not Available – Mitigation Provided

4 Washington State Wetland Regulations u Shoreline Management Act - establishes mandatory local government programs – Clark County uRate Wetlands uSpecify Activities Allowed Without Permit uBuffer Width uMitigation Requirements

Regulated Activities u Removal, excavation, grading, dredging, dumping , discharging or filling > 50 cubic yards or impacting > 1 acre or buffer u Construction of a structure u Construction of stormwater management facilities u Destruction/alternation of wetland vegetation

Rating of Wetlands in Washington

u Category 1 - Highest Quality – verified habitat for E&T species – Bog/Fen and Forested Wetlands - mature trees – >7.5 acres with > 3 wetland subclasses including open water – connected to another habitat area u Category 2 - High Quality – E&T habitat – Forested Wetland outside urban area > 1 acre – Heron rookery – Spawning habitat for anadromous fish – >10 acres with >2 wetland classes including open water – >5 acres with > 3 wetland subclasses including open water – connected to another habitat area

5 Rating of Wetlands in Washington (continued) u Category 3 - More common than 1 and 2 – Headwater with >5 cfs – Streams utilized by salmonids (intermittent or perennial) – Perennial streams not used by salmonids – Forested wetland within urban area u Category 4 - Small, isolated, less diverse vegetation – Altered by prior legal activities and if left alone would revert – Regulated man-made drainage facilities in natural wetland – Intermittent streams without salmonids u Category 5 - Marginal wetlands – Isolated, with only 1 wetland class with >90% exotic species – Altered by prior legal activities and if left alone would not revert

Exempted Wetlands u Small – Category 2 & 3 wetlands < 2,500 square feet – Category 4 wetland <10,000 square feet u Artificial – Wetland created in non-wetland areas – irrigation/drainage ditches – swales – canals – detention facilities – treatment facilities – farm ponds – Not mitigation wetlands u Prior Converted Cropland u Category 5 wetlands

Buffer Widths u Category 1 Wetland - 300 feet u Category 2 Wetland - 200 feet u Category 3 Wetland - 100 feet u Category 4 Wetland - 50 feet

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