Cultivating Interagency Consistency NRCS/Corps Regulatory Workgroup Presenter: Ward Lenz, U.S. Army Corps of Engineers, Rock Island District Location: Association of State Wetland Managers, State/Tribal/Federal Coordination Meeting Date: March 14, 2012 US Army Corps of Engineers
Establishment of NRCS/USACE Regulatory Workgroup Workgroup established in spring, 2011, to examine the relationship and interactions between conservation activities administered by the NRCS and 404 permit process administered by the Corps Charter developed in May, 2011
NRCS/USACE Regulatory Work Group Five State Representation 1. Iowa 2. Missouri 3. Kansas 4. South Dakota 5. North Dakota
Issue Paper/White Paper Identify problem issues between Corps Regulatory and NRCS programs Identify constraints in solving issue Solutions must be viable, and within the bounds of either CWA, FSA or both Recommend solutions Some solutions at local level Some solutions at national level
9 Issues Identified (3 Primary, 6 Secondary) Three Primary Issues CWA Jurisdiction: No 1 issue by far Exemptions: When do they apply? Mitigation: two standards
CWA Jurisdiction waters of the U.S. Streams Wetlands
Stream Jurisdiction NRCS has no provisions in their regulations to identify these other waters NRCS is unsure of upstream limits of Corps jurisdiction. How far up the hill Uncertainty in jurisdiction results in delays while NRCS coordinates with Corps for JD
Stream Jurisdiction
Stream Jurisdiction Typical stream JD situations
Stream Jurisdiction Infamous blue line on topo map Grassed waterway is blue line on topographic map. Waterway determined to be non-jurisdictional
Wetland Jurisdiction 3 Parameter Approach: Hydrology, Soils, Plants Regulatory Branch BUILDING 11 STRONG
Wetland Jurisdiction Delineations Corps 1987 Corps of Engineers Wetland Delineation Manual and Regional supplements NRCS 1987 Corps of Engineers Wetland Delineation Manual and Regional supplements + National Food Security Act (NFSA) Manual, Circular 6.
CWA Jurisdiction/Wetlands Differences in delineation procedures can affect results on different types of wetlands
CWA Jurisdiction Isolated wetlands and other waters Non-jurisdictional under CWA but regulated by NFSAM Manipulation may bring them under CWA jurisdiction
Exemptions Normal farming activities Upland soil & water conservation practices Minor drainage Construction/maintenance of farm ponds Maintenance of drainage ditches Construction/maintenance of irrigation ditches Construction/maintenance of farm roads Maintenance of structures: dams, dikes, levees
Exemptions: Recapture Provision Any discharge of dredged or fill material ---- bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.
Clarification of Exemptions
Mitigation Inconsistency between Corps and NRCS mitigation requirements Corps requirements generally higher than NRCS, especially for stream impacts. NRCS considers many conservation practices to be self-mitigating, while Corps does not. Mitigation assessment methods are being developed Independently by each agency.
Streambank stabilization Eroding creek bank Stabilized creek bank
Watershed Planning/Projects
Secondary Issues 1. Prior Converted Cropland Abandonment, once PC, always PC Change in use, conversion to non-ag
Secondary Issues 2. No expiration date for NRCS certified wetland determinations. Corps expiration on JDs is 5 years.
Secondary Issues 3. Use of Nationwide Permits NRCS not aware of thresholds and limitations 4. Delays in obtaining Permits for NRCS projects Ensuring complete application JD determination Mitigation plan Corps NRCS
Secondary Issues 5. Difficult for Corps to obtain certified NRCS wetland determinations. Creates permit delays Privacy Act considerations
Secondary Issues 6. Communication Issues: Difficulty in obtaining NRCS aerial photography NRCS receiving copies of Corps permits for NRCS planned/funded projects Corps directing applicants to NRCS for technical assistance. Assistance may be prohibited. i.e. Corps required buffers adjacent to channelized stream.
Solutions Field Level Agreements Protocol for jurisdictional determinations Provide criteria for exemptions Agree on impact/mitigation assessments Agree on Mitigation methodology Development of Regional General Permits Reduce uncertainty over permit type & thresholds Reduce problems associated with jurisdiction Reporting versus non-reporting RGPs PC Protocol: Abandonment, JDs, non-ag uses
Solutions Joint Development of stream and wetland impact/mitigation assessments Training Nationwide permits/regional Conditions Program & Policy changes Mitigation Policies Stream/Wetland Assessments Jurisdictional Determinations Conservation practices NEPA documentation
What s Next Refine and implement solutions Training programs/schedules/modules Template Field Level Agreements, Regional General Permits Development of Draft Joint Agency Guidance
Any Questions or Comments? Regulatory Branch