I was wondering if there was any insight from other areas of the country on USACE required stream assessment methodologies and mitigation requirements related to stream impacts. Here where I work/live, it is something that is in the interim phases of implementation by the USACE.

What I'm looking for is some discussion on how well is it working in other portions of the country and how has it affected the overall permitting process in your respective USACE districts.

Thanks for your insight.

Dave,
What part of the country are you in?

The stream work I have done has been too short of a reach to require an analysis other than to reconstruct the original channel configuration with some armor both hard and soft (i.e., vegetation). It simply amounted to documenting what was there, then replacing it or bettering it with native vegetation. This kind of work was associated with bridge replacements in Colorado.

I have had some off-site mitigation/compensation work where cattle were excluded from a small channel, the water table was raised with check-dams and willows were planted to restore the shrubby veg.

I also had an off-channel project that would flood during spring high flows. As most of us should know, wetland mitigation requires very strict control of water. Depending on a consitent spring high flow was only so-so successful. We had stop-log weirs to control flow that was too high, but no way to "make" water when the flows were too low. Having water rights is also a key issue in pulling water from a stream.

These last two occured in Idaho.

I assume you are talking about something like a Rosgen analysis of the stream state, and then something like a WET2 or one of the many so-called hydrogeomorphic wanabe methods.

Dave,

In Virginia we use the Unified Stream Methodology (USM)to determine the compensation credits needed to mitigate for stream impacts or to determine how many potential credits are possible on a restoration project. It was a joint effort by the COE and our the Virginia DEQ to create a rapid assessment method.

Here is a link to the documents:

USM

My only problem with the method is that part of your score is assessed by the adjacent riparian conditions. A mature forest or wetland system will increase your credit requirements over pasture. Of course it makes sense that in most cases a high quality stream will also have a high quality buffer, but realistically a permittee is having to mitigate for uplands (their value as buffer related to the stream). Even if the buffer contained all wetlands it seems like the permittee is being hit twice. Once if the adjacent wetlands are being impacted and also by getting a higher credit requirement on the stream.

And if the stream is determined to be a regulated ephemeral channel, your whole score is based on the riparian buffer times the length of impact.

The few reps I've brought this up with just ignore the question.

As a whole it is better than what we had before the USM. Prior to that the COE and DEQ had there own seperate assessment methods (SAAM & SICAM). You had to run both on the stream assessment reach, and which ever one gave the most compensation requirements is what was used for mitigation. It was a pain.

Also just something I've been thinking about. Is there such a thing as accomplishing no net loss of stream length? Most, if not all, stream mitigation banks take existing streams and improve them. But no one is creating streams where there were none. You can successfully create wetlands where none existed so there is an increase in wetland acreage to replace what is lost, but not linear feet of stream.

Thanks for the link. Now that is a detailed stream quality assessment you have.

Regarding you question of "creating" stream length. I doubt if it is really possible to create a new stream, but the country is filled with channelized streams that could be brought back to a more natural meandering state. Where I find this especially common is in agricultural valleys where the stream has been channelized and pushed to the edge of the valley instead of running down the middle.

If you restored meanders, you would then have a net gain of channel length.

Restoring meanders would give you additional stream length, but I don't think this is the typical approach to stream restoration. I don't really mess with stream restoration so I could be wrong. Most of the work I've seen entails working with the stream in place (laying back banks, creating benches, slope stabilization, in stream features to increase habitat and maintain thalweg pattern).

Anyway, whatever meanders are made can never keep up with the linear feet of stream being impacted. For wetlands it's easier. If you impact 1 acres of PFO, you have to mitigate with 2 acres.

As most of us know and understand by now, the Supreme Court deregulated ephemeral and intermittent streams in Rapanos, so mitigation for these types of streams is voluntary and not strictly required as a matter of law.

I recently asked a Corps' regulatory staffer about tributary jurisdiction and he acknowledged that there is much legal controversy surrounding this issue and he could not give me a definitive answer. In my opinion, the root cause of this controversy is the continuing effort by the agencies to defy and circumvent the authority of the Supreme Court.

This message has been edited. Last edited by: Johnny Stevens,

No Johnny,
You are wrong yet again.

This may be what you wished for or imagined, but your wish did not come true. Once again you are the master of false or misleading statements. The COE does take jurisdiction of some ephemeral and intermittent streams.

I have a call in to the local COE just to double confirm what I already know. And here is a little blurb from the New York Journal 2006.

The Corps has also proposed another change that, although it expands the reach of the NWP program, should reduce the need to make what is often a difficult fact-specific distinction between "ephemeral" and "intermittent" streams. The proposal increases protection of ephemeral streams (streams for which the primary water source is rainfall and that typically flow only during and for a short time after precipitation events). Under the current NWPs, a number of NWPs (NWPs 29, 39 and 42) apply only when stream bed loss is less than 300 feet. Under the proposed new NWPs, loss of ephemeral streams would now be included in that figure, along with intermittent streams (streams that have groundwater as a source but flow only at certain times of year) and "perennial" streams. Nevertheless, under the proposed amendment, the 300-foot limit could be waived by the Corps on a case-by-case basis for losses of both ephemeral and intermittent streams. The Corps notes that it will also evaluate whether ephemeral and intermittent streams are within its jurisdiction on a case-by-case bases in accordance with the direction of Rapanos, evolving case law, and guidance from executive agencies such as the Department of Justice (which, in the case of the current administration, is unlikely to miss an opportunity to restrict the Corps' jurisdiction). Filling or excavating of these ephemeral stream beds will also be considered as a loss of waters of the United States.

This from the EPA
Ephemeral washes and intermittent streams? The jurisdictional status of
ephemeral or intermittent waters depends on whether such waters meet either the
Plurality or Kennedy standards, as described above. Waters that flow only following
precipitation events (ephemeral) will need to meet the Kennedy significant nexus test to
be jurisdictional. Intermittent streams will either need to flow at least seasonally to meet
the Scalia relatively permanent flow standard, or will have to meet the Kennedy
significant nexus standard to be jurisdictional.

http://www.epa.gov/owow/wetlan...df/13RapanosQ&As.pdf

This from COE 16 February 2011:
Q13. How do the proposed nationwide permits protect streams?
A13. Several of the proposed nationwide permits limit the length of stream that can be filled or excavated to 300 linear feet. The 300 linear foot limit currently applies to perennial, intermittent, and ephemeral streams. If the Corps determines that the impacts are minimal, the 300 linear foot limit can be waived for intermittent and ephemeral streams. We are proposing to require agency coordination if an applicant is seeking NWP authorization to fill or excavate more than 1,000 linear feet of intermittent and ephemeral stream.
Q14. What are the differences between perennial streams, intermittent streams and ephemeral features?
A14. Perennial streams flow 365 days a year in a normal year. Intermittent streams flow for a substantial portion of a normal year, but may not have flowing water during dry periods of the year. Ephemeral features flow only during, and a short time after, rainfall events and snowmelt. All three features can be important ecologically, even though they may provide different ecological functions.

http://www.usace.army.mil/CECW...NWP_qa_16feb2011.pdf

In Vermont, the state has their own stream assessment methodology. The Corps allows the state to take the lead on streams under state jurisdiction.
http://www.anr.state.vt.us/dec...htm/rv_geoassess.htm

The state also has their own stream crossing guidance for bridges and culverts.

I haven’t done any stream mitigation, so I don’t know the requirements, though it would be based on the assessment.

Just got a call back from the COE, and yes indeed, they do take jurisdiction on many ephemeral and intermittent stream channels that have a connection to a TNW - Traditional Navigable Water.

Speaking of Streams, does anyone else live in a state that refuses to define “Stream”? When my state’s wetland rules were changed and relied more on proximity to Streams, I asked what the definition of a stream is, because I can’t find it in state statute or rules. I was told “if you don’t know what a stream is, you shouldn’t be delineating wetlands.”

Some sections in my state un-officially say to use the Corps definition, but there is no official state definition.

Justice Scalia, writing for the Plurality in the U.S. Supreme Court Rapanos decision:

"...The phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans, rivers, [and] lakes,” Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall..."

But you forget that the other judges (like Kennedy)decisions also hold, and they include intermittent and ephemeral.

Kennedy,
The plurality’s first requirement—permanent standing water or continuous flow, at least for a period of “some months,” ante, at 13–14, and n. 5—makes little practical sense in a statute concerned with downstream water quality. The merest trickle, if continuous, would count as a “water” subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not. Though the plurality seems to presume that such irregular flows are too insignificant to be of concern in a statute focused on “waters,” that may not always be true. Areas in the western parts of the Nation provide some examples.

and...
Thus, although of course the Act’s use of the adjective “navigable” indicates a focus on waterways rather than floods, Congress’ use of “waters” instead of “water,” ante, at 13, does not necessarily carry the connotation of “relatively permanent, standing or flowing bodies of water,” ante, at 13–14. (And contrary to the plurality’s suggestion, ante, at 13, n. 4, there is no indication in the dictionary that the “flood or inundation” definition is limited to poetry.) In any event, even granting the plurality’s preferred definition—that “waters” means “water ‘[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,’ ” ante, at 13 (quoting Webster’s Second 2882)—the dissent is correct to observe that an intermittent flow can constitute a stream, in the sense of “ ‘a current or course of water or other fluid, flowing on the earth,’ ” ante, at 14, n. 6 (quoting Webster’s Second 2493), while it is flowing. See post, at 15–16 (Stevens, J., dissenting) (also noting Court’s use of the phrase “ ‘intermittent stream’ ” in Harrisonville v. W. S. Dickey Clay Mfg. Co.,289 U. S. 334, 335 (1933) ). It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams.

Touche.

You don't get to just follow the pieces you want, you have to eat the whole enchillada.

and from Kennedy;
First, ignoring the importance of preserving jurisdiction over water beds that are periodically dry, the plurality imposes a requirement that only tributaries with the “relatively permanent” presence of water fall within the Corps’ jurisdiction. Ante, at 13–14. Under the plurality’s view, then, the Corps can regulate polluters who dump dredge into a stream that flows year round but may not be able to regulate polluters who dump into a neighboring stream that flows for only 290 days of the year—even if the dredge in this second stream would have the same effect on downstream waters as the dredge in the year-round one. Ante, at 14, n. 5.10

To find this arbitrary distinction compelled by the statute, the plurality cites a dictionary for a proposition that it does not contain. The dictionary treats “streams” as “waters” but has nothing to say about whether streams must contain water year round to qualify as “streams.” Ante, at 13–14, and n. 6 (citing Webster’s New International Dictionary 2493 (2d ed. 1954) (hereinafter Webster’s Second), as defining stream as a “ ‘current or course of water or other fluid, flowing on the earth’ ”). From this, the plurality somehow deduces that streams can never be intermittent or ephemeral (i.e., flowing for only part of theyear). Ante, at 13–15, and nn. 5–6. But commonsense and common usage demonstrate that intermit-tent streams, like perennial streams, are stillstreams.11 See, e.g., U. S. Dept. of Interior, U. S. Geological Survey, Topographic Map Symbols 3 (2005), http://erg.usgs.gov/isb/pubs/booklets/symbols/ (identifying symbols for “[p]erennial stream” and “[i]ntermittent stream,” as well as for “[p]erennial river” and “[i]ntermittent river”). This was true well before the passage of the Act in 1972. E.g., Webster’s Third New International Dictionary 1180 (1961) (hereinafter Webster’s Third) (linking “intermittent” with “stream”). Indeed, we ourselves have used the term “intermittent stream” as far back as 1932. Harrisonville v. W. S. Dickey Clay Mfg. Co.,289 U. S. 334, 335 (1933) . Needless to say, Justice Brandeis’ use of the term in a unanimous opinion should not be dismissed as merely a “useful oxymor[on],” ante, at 15, n. 6 (plurality opinion).

The plurality attempts to bolster its arbitrary jurisdictional line by citing two tangential statutory provisions and two inapplicable canons of construction. None comes close to showing that Congress directly spoke to whether “waters” requires the relatively permanent presence of water.

Double touche.

Here is how the "opinions" broke down.
Scalia, J., announced the judgment of the Court, and delivered an opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Roberts, C. J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion.

There was a single result with respect to the actual Rapanos case, but the opinions are all valid and are used in combination to provide guidance on other issues such as intermittent and ephemaral streams.

Johnny - YOU NEED TO QUIT TRYING TO MISREPRESENT THIS CASE.

quote:

Originally posted by Patrick Murphy:
Just got a call back from the COE, and yes indeed, they do take jurisdiction on many ephemeral and intermittent stream channels that have a connection to a TNW - Traditional Navigable Water.

I'd be ecstatic to see anyone provide that information "based on what."

Some wetland practitioners enjoy Justice Kennedy, others prefer Scalia. In the case that I previously discussed, we applied the plain language of Justice Scalia to determine tributary jurisdiction on our property, and after receiving our report, the Corps decided not to assert jurisdiction. It is my understanding that the Corps has also declined jurisdiction in other cases where landowners rely on relevant court decisions.

Jurisdiction is currently determined on a case-by-case basis without official rules and procedures. Each case is different, the process is subjective and not consistent, and there is wide variation in the outcomes.

The EPA is planning to promulgate new regulations next year to codify CWA jurisdiction in light of Rapanos:
http://yosemite.epa.gov/opei/r...40-AF30?opendocument

This message has been edited. Last edited by: Johnny Stevens,

Kirk,

It is my understanding that Non-RPW jurisdiction would be "BASED" on a significant nexus determination with a TNW. My understanding is based from page 23 of the "U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook". Am I wrong in my interpretation?

Kirk,
The simple answer is, and you can quote me, Based on the Clean Water Act. Check some of the comments of the Supreme Court Justices for more details, both pro and con.

The Clean Water Act seems to keep getting lost in the jurisdiction question. When you put fill or mess with an intermittent or ephemeral drainage that results in crap getting into the more permanent Waters of the US, or in my opinion into the groundwater, then you are messing with water quality.

Johnny,
Without the details (remember the options of 1, 2, or 3 on another thread) your example could be pure BS. Normally I would give someone the benefit of the doubt, but your one-sided presentation of things like Rapanos removes that benefit from your statements.

Even though you should have learned the difference between "dicta" and law way back in 2003-2004, you keep presenting opinion (only one side of course) as law, or a basis of bypassing the COE in more complicated questions.

You are a source of really bad advice, and like I said on another thread, you are like the observer as someone is thinking about committing suicide by jumping from a building, and you are chanting "Jump, Jump, Jump".

Trying to get back on topic.

What methods are being used around the country to determine the flow regime of streams? Meaning how do you determine if a stream is ephemeral, intermittent, or perennial?

Virgina is subject to the Chesapeake Bay Preservation Act, so in our coastal localities we have to perform perennialty determinations on streams. There are several methods we can use depending on which county we are working in, but all methods are similar in approach. One of the main methods we use is the North Carolina Division of Water Quality's - Identification Methods for the Origins of Intermittent and Perennial Streams

Here is a link to the various accepted methods we use in Virginia if anyone is interested.

Perennial Stream Determinations

There is a new version (v4.11) of the NCDWQ method, and my state agency hasn't updated their website to reflect it. Here is the link.

NCDWQ v. 4.11

To my knowledge the COE/EPA do not have anything similar to this, but could be useful in significant nexus determinations.