Do people have experience with a project that impacted a stream to a degree that required mitigation and were able to satisfy that requirement by doing something unrelated to actual in-stream restoration or creation? Haven’t been involved with a situation like this yet, but wish to educate myself before it inevitably happens. Thanks.

Sure. Buffer plantings and preservation are acceptable mitigation. It does not give you the same credit as in stream work, but it is easier to ensure success. You'll have to plant and preserve a lot more linear footage of stream than you are impacting though, so it is usually done inconjunction with bank purchases.

Brandon,
can you be a little more specific on ratios? Thanks for the response.

Eugene,

I could, but I don't know how any of it will relate to you in your area. In Virginia we use what is called the Unified Stream Methodolgy (USM)to score streams for mitigation requirment and mitigation credit potential. To my knowledge the USM was made up as a collaboration between our state DEQ and Norfolk District Corps office. I'm not sure if it is used anywhere else in the country.

http://www.nao.usace.army.mil/...ory%20branch/USM.asp


But an example I just went through was:

1347 linear feet of stream impacts = 1678 stream credits required for mitigation

We proposed 2045 linear feet of stream preservation with a 200' buffer on both sides of the stream. This gave us 429 stream credits. So rought 0.2:1 (credit/linear foot)

So as you can see you don't get alot of credits for stream and buffer preservation only. Now if we could do Priority 1,2, or 3 restoration in that reach we preserved then we could get a 1:1 ratio, but that is usually never possible along an entire reach.

Here is the link for the COE Mobile Districts 2009 Stream Mitigaiton SOP. I doubt this is relevant to your area, but it may be useful to see what other districts require for stream mitigation.

Direct Download Link
http://www.sam.usace.army.mil/...m_SOP_March_2009.pdf

Eugene,

I just thought about something I should have included. In the example I gave we are only able to do preservation of stream and buffer becuase the buffer is already well established with mature hardwoods. If however we were able to due buffer planting within the 200' buffers we could get 1227 compensation credits for that stream.

If by chance the stream is in a pasture and cattle/livestock have access to it then you can receive 0.3 credits/lf for however much you can justify has been affected by the livestock. Streams in pasture are the best to find for mitigation in general.

In my experience you get the most bang for your buck with buffer re-establishment. The costs associated with doing work in stream are ridiculous.

Again this is all based on the USM we use in VA. Not sure if it is applicable to your area.

Thanks for the info. Stream mitigation seems to be a tough way to go monetarily. Have you been a part of buffer plantings before? If so, were Salix cuttings considered relative to saving money?

Mitigation of any kind is tough monetarily. Streams even more so because you are dealing with a dynamic system.

I have not used live stakes for riparian buffer planting, but I don't see why they couldn't be used. I think as far as survivablity they are pretty safe. Most live stakes (salix, cornus) would be considered shrub or understory low growing trees.

Typically we just use bare root seedlings planted at 400 stems per acre. They are relatively cheap (compared to containers) and alot easier to handle and plant. Species selection is dependent on area to be planted and what we determine as naturally occuring in the area.

Wetland practitioners should always evaluate the jurisdictional status of a stream before addressing issues such as permitting and mitigation.

Small streams that only flow in response to precipitation and are normally dry are "ephemeral." Streams which may flow during the wet season but are dry for extended periods during the dry season are "intermittent."
Intermittent and ephemeral streams are not subject to federal CWA jurisdiction based on the US Supreme Court's Rapanos decision.

Some states regulate streams, but most states do not regulate intermittent and ephemeral streams.

In some cases, the agencies may assert jurisdiction over a stream without thoroughly considering relevant court decisions. This is why consultants and wetlands practitioners should carefully and properly evaluate CWA jurisdiction before subjecting their clients to the permit and mitigation process.

Johnny,
Where do you see that the Rapanos decision says that intermittent and ephemeral streams are not subjuct to CWA juristiction?

Dear Andrew;

The Rapanos decision stipulated that intermittent and ephemeral streams are non-jurisdictional with the following language:

"...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..."

Qualified wetland practitioners should be knowledgable of the Rapanos decision and know how to apply this decision to determine the jurisdictional status of wetlands, tributaries and other waters.

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

Unless it has a significant nexus

A link to the COE Rapanos Guidance

http://www.usace.army.mil/CECW...book_051207final.pdf

"In addition, the following waters will also be found jurisdictional based on a fact-specific
analysis that they have a significant nexus with a TNW:
• Non-navigable tributaries that are not relatively permanent
• Wetlands adjacent to non-navigable tributaries that are not relatively permanent
• Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable
tributary"

Significant nexus is an abstract concept that generally refers to a large, obvious, and substantial pollution or flood related impact(s) between intermittent and ephemeral streams, and downstream Traditional Navigable Waters. When intermittent and ephemeral streams are located inland and are far removed from Traditional Navigable Waters, then usually there is no obvious and quantifiable evidence of a valid significant nexus.

There is much talk about significant nexus, and there are unofficial and preliminary proposals for defining this term, but currently there is no official legal definition of significant nexus, so this criteria can be easily challenged by astute wetlands practitioners who know wetlands law.

Likewise, astute practitioners should also be able to challenge incorrect and improper designations of shallow ditches and dry stream beds as Traditional Navigable Waters.

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

I believe the Ropanos guidance allows the Corps to conclude a "significant nexus" if they can show "anything more than speculative".

Brother Ed said;
"...I believe the Rapanos guidance allows the Corps to conclude a "significant nexus" if they can show "anything more than speculative..."

The agencies may arbitrarily assert jurisdiction over isolated wetlands by using a "significant nexus" determination which is based on the assumption that the presence of wetlands vegetation is "more than speculative" and thus indicates "habitat" and "ecological values" such as food, shelter, roosting and resting areas that could be used by aquatic species, including microscopic species.

Competent wetland practitioners should be able to successfully challenge a jurisdictional call that is based on "more than speculative" when the so-called "significant nexus" does not have a substantial, obvious, highly visible and easily verifiable major environmental impact on downstream Traditional Navigable Waters (waters that are actually navigable-in-fact for trade and travel in interstate commerce).

Mere speculation is not sufficient to establish CWA jurisdiction. Any determination of significant nexus should be backed-up and firmly supported by detailed analysis, field investigations, physical measurements, water quality data, site-specific ecological analyis, statistical data, photographs, literature citations, historical data, third-party expert opinions, and a comprehensive report that compiles and documents the findings.

A thorough, professional and high level of analysis is absolutely necessary to protect the rights of land owners and assure accuracy in "significant nexus" determinations.