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Report on State Definitions, Jurisdiction and Mitigation Requirements in State Programs for Ephemeral, Intermittent and Perennial Streams in the United States

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Report on State Definitions, Jurisdiction and Mitigation Requirements in State Programs for Ephemeral, Intermittent and Perennial Streams in the United States Report on State Definitions, Jurisdiction and Mitigation Requirements in State Programs for Ephemeral, Intermittent and Perennial Streams in the United States April 2014 This page has been purposefully left blank. Report on State Definitions, Jurisdiction and Mitigation Requirements in State Programs for Ephemeral, Intermittent and Perennial Streams in the United States April 2014 By Brenda Zollitsch, PhD Jeanne Christie Prepared by The Association of State Wetland Managers Funding Support Provided by U.S. Environmental Protection Agency The McKnight Foundation i Acknowledgements The Association of State Wetland Managers (ASWM) wishes to thank the U.S. Environmental Protection Agency, as well as the McKnight Foundation, for their financial and technical support of this project. In particular we would like to thank Myra Price, the project manager and Brian Topping from EPA. We are grateful for the project’s large working group, including representatives from states, tribes, regional and national EPA headquarters, the U.S. Army Corps of Engineers, other federal agencies, nonprofit organizations, and consulting firms that actively engaged in the development and review of this project and its findings. The workgroup members shared valuable expertise and review that allowed ASWM to document the status of state stream practices and share the templates and guidance documents provided in this report. A number of working group members, as well as additional presenters, gave presentations on related topics, which are available on ASWM’s website to supplement the information contained in this document (www.aswm.org). ii TABLE OF CONTENTS LIST OF TABLES ....................................................................................................................................... v LIST OF FIGURES .................................................................................................................................... vi LIST OF ABBREVIATIONS AND ACRONYMS .................................................................................. vii EXECUTIVE SUMMARY .......................................................................................................................... 1 INTRODUCTION AND STUDY BACKGROUND ................................................................................ 10 PROJECT METHODOLOGY ................................................................................................................. 13 PARTICIPATING STATES ..................................................................................................................... 16 Results and Findings - Section 1: Stream Jurisdiction ................................................................... 18 Results and Findings - Section 2: Stream Delineation and Identification .................................... 25 Results and Findings - Section 3: Stream Mitigation, Assessment and Measures of Success ........................................................... 34 Results and Findings - Section 4: Stream Mitigation Gaps and Needs ....................................... 70 STUDY CONCLUSIONS ......................................................................................................................... 76 STUDY RECOMMENDATIONS ............................................................................................................ 79 GLOSSARY OF TERMS ......................................................................................................................... 83 APPENDIX ................................................................................................................................................ 87 APPENDIX A: Base Interview Questions for ASWM Stream Project .......................................... 88 APPENDIX B: Regulatory Focus and Types of Streams Regulated by State .......................... 92 APPENDIX C: Regulation of Ditches by State ............................................................................. 101 APPENDIX D: Portion of Streams Subject to Dredge and Fill Permitting and Definitions of Waters of the State and by State ................................................ 105 APPENDIX E: Portion of Streams Subject to Dredge and Full Permitting under Water of the State and Responsible Party for Stream Delineation by State .. 111 APPENDIX F: Stream Identification Practices by State ............................................................... 114 APPENDIX G: Whether and How State Delineation Differs from the Federal JD by State .... 120 APPENDIX H: Stream Assessment Practices by State ............................................................... 123 APPENDIX I: Stream Mitigation Program/Practice Characteristics by State ........................ 130 APPENDIX J: Available Mitigation Options by State .................................................................. 137 APPENDIX K: Stream Mitigation Site Selection and Design Evaluation Practices by State 151 APPENDIX L: Procedures for Assigning Debits and Credits for Streams by State ............... 156 iii APPENDIX M: Mitigation for Impoundments/Dams by State ..................................................... 159 APPENDIX N: Stream Creation Allowable as Mitigation by State .............................................. 162 APPENDIX O: Contact List for Project Interviewees by State .................................................... 164 iv LIST OF TABLES Table 1 - Types of Streams Subject to Dredge and Fill Permitting Under the State’s Definition of ‘Waters of the State’ ......................................................... 24 Table 2 - Responsible Party for Stream Delineation........................................................................... 26 Table 3 - Stream Identification Practices .............................................................................................. 27 Table 4 - Measures of Stream Width .................................................................................................... 29 Table 5 - Available State/Corps Stream Identification Guidance Documents ................................ 30 Table 6 - How State Procedures Differ from the Corps Delineation ................................................. 33 Table 7 - Common Types of Dredge and Fill Permits ........................................................................ 34 Table 8 - Other Types of Common Dredge and Fill Permits Referenced by One or More States ..................................................................................... 36 Table 9 - General Amount of Stream Mitigation Occurring Within the State .................................. 38 Table 10 - The Status of Functional Assessment for Streams .......................................................... 41 Table 11 - Assessment Practices for Permitting ................................................................................. 42 Table 12 - Sample Assessment Guidance Documents ...................................................................... 44 Table 13 - Stream Mitigation Programs and Practices ....................................................................... 47 Table 14 - Requirements for Different Stream Type ........................................................................... 48 Table 15 - Types of Mitigation Requirement Differences ................................................................... 49 Table 16 - Activities that Qualify as Stream Mitigation ....................................................................... 53 Table 17 - Other Mitigation Practices Discussed in Interviews ......................................................... 54 Table 18 - Permittee Responsible Mitigation Option Available for Wetlands and Streams .......... 56 Table 19 - Mitigation Banking Credits Available for Wetlands and Streams ................................... 57 Table 20 - In Lieu Fee Program(s) Available for Wetlands and Streams ........................................ 58 Table 21 - Closeness of Mitigation to Kind of Damage from Stream Impact .................................. 60 Table 22 - Status of Procedures for Assigning Debits and Credits .................................................. 61 Table 23 - Sample Mitigation Guidance/Tools with Web Links ......................................................... 63 Table 24 - Mitigation for Impoundments ............................................................................................... 66 v LIST OF FIGURES Figure 1 - States Reporting One or More Formal Definitions of the Term “Streams” in State Regulations ............................................................................................ 19 Figure 2 - State Regulation of Ephemeral Streams ............................................................................ 20 Figure 3 - State Regulation of Ditches (Including Modified/Altered Streams) ................................ 21 Figure 4 - Portion of State Streams Subject to Dredge and Fill Permitting ..................................... 23 Figure 5 - Responsible Party for Stream Delineation in Each State for Dredge and Fill Activities ................................................................................................ 25 Figure 6 - Examples of Guidance Documents for Stream Identification .......................................... 30 Figure 7 - How States’ Identification/Delineation Procedures Differ from Those Used by the Corps to Delineate the Extent of Stream Systems ........................................................... 32 Figure
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