127.4 Wetlands and Streams
From Engineering Policy Guide
MoDOT project concerns relating to waters of the U.S. (streams, wetlands and special aquatic sites) include potential stream impacts at linear crossings, filling of jurisdictional wetlands, stream channelization, and filling of designated special aquatic sites. All regulated stream impacts are those that take place below the designated ordinary high water mark (OHWM).
|Regulated Stream Types||
|Wetlands||Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.|
|Ordinary high water mark||That line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.|
|Special aquatic sites||Special aquatic sites are geographic areas, large or small, possessing special ecological characteristics of productivity, habitat, wildlife protection, or other important and easily disrupted ecological values. Special aquatic sites include sanctuaries and refuges, wetlands, mud flats, vegetated shallows, and riffle and pool complexes. These areas are generally recognized as significantly influencing or positively contributing to the general overall environmental health or vitality of the entire ecosystem of a region.|
Federal laws require FHWA and MoDOT to thoroughly address any potential project impacts to waters of the U.S., including streams, wetlands and special aquatic sites, so as to avoid or minimize such impacts.
|Waters of the U.S.|
|All waters that are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;|
|All interstate waters including interstate wetlands;|
|All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
|All impoundments of waters otherwise defined as waters of the United States under the definition;|
|Tributaries of waters described above;|
|Wetlands adjacent to waters (other than waters that are themselves wetlands) described above.|
|Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.|
127.4.1.2 Laws and Regulations
- Section 404 of the Clean Water Act (CWA) of 1972 requires that all federal, state, and public entities obtain a permit from the U.S. Army Corps of Engineers (COE) before placing dredged or fill materials into waters of the U.S. as defined in 33 CFR Part 328 “Definition of Waters of the United States”. “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States” provides additional information on jurisdiction over waters of the United States.
- Section 401 of the CWA requires consultation and Water Quality Certification (WQC) with the state—Missouri Department of Natural Resources (MDNR). State legislation has removed MDNR's authority to condition nationwide permits (NWP's) for MoDOT highway and bridge projects. However, all activities that require individual permits and most requiring general permits will subsequently require WQCs.
- Executive Order 11990 Protection of Wetlands issued in 1977 requires that federal activities (including federally funded projects) as a whole result in no net loss of wetlands.
- The National Environmental Policy Act (NEPA) of 1969 (as amended) requires consideration of the physical environment for any project that uses federal funding or requires federal permits.
The CWA requires FHWA and MoDOT to evaluate every project and determine whether the project could have a negative impact on any waters of the U.S. including wetlands, streams, and special aquatic sites. FHWA and MoDOT must use the best available scientific information and the 1987 COE Wetland Delineation Manual to evaluate their projects and they must provide data to support their determination of impact. Under the Sections 401 and 404 of the CWA, no action can be taken that will fill waters of the U.S. without first obtaining authorization under a nationwide or individual permit, based on the amount of impacts.
The district must complete and submit a Request for Environmental Services (RES) to make the design division’s environmental section aware of a proposed project. Upon receiving an RES from the district, the environmental specialist will use publications, reports, maps, and databases to screen the project and determine whether there are any potential waters of the U.S. within the project limits or whether the project has the potential to impact adjacent waters of the U.S.
If the project screening and coordination with the resource agencies do not document the presence of any waters of the U.S., then no further Section 404 evaluation is required at that time. The environmental specialist will indicate in the RES response that the project is clear of any Section 404 constraints for that phase of the project’s development. However, the project will need to be reevaluated at each stage of development because project changes could affect waters of the U.S.
If it is determined that waters of the U.S. will be impacted (filled or channelized), then FHWA and MoDOT are required to apply for the necessary permit with the COE to obtain authorization to fill said waters of the U.S.
|Wetland Mitigation||Wetland mitigation is required for all impacts to jurisdictional wetlands. Wetland mitigation banks are the preferred method of mitigation by the Corps of Engineers. Where available, the district may have the option of using available credits in a Mitigation Bank for wetland mitigation. The Section 404 permit will determine mitigation ratios. MoDOT operates 5 wetland banks in Missouri.|
|Stream Mitigation||Stream mitigation is required when permanent impacts exceed 0.1 acre of fill in stream channels below OHWM or if other stream impacts (i.e., channelization) exceed NWP limits. Mitigation can involve on-site design and/or utilization of the Stream Stewardship Trust Fund (SSTF). The amount of stream mitigation is determined using the Missouri Stream Mitigation Method (MSMM). Stream mitigation may also be incorporated with threatened and endangered species habitat improvement such as the Indiana bat. MoDOT operates 2 stream mitigation banks in Missouri.|
127.4.1.4 District Responsibilities
The district is responsible for submitting an RES at each project milestone or annually if it has been a year since the last RES was submitted. Timely submittal of RESs is particularly important for Section 404 impacts because planning may be required to obtain right of way for possible wetland or stream mitigation. The district may be asked to provide additional detailed information about the project, if needed, and may need to work with the environmental specialist to investigate measures and design changes that could minimize or eliminate impacts to waters of the U.S. It is important that the district be involved in this process to assure that any suggested changes to the project (e.g., plan changes, writing job special provisions (JSPs), and coordinating with MoDOT Right of Way to secure a site suitable for mitigation) are feasible for MoDOT.
127.4.1.5 Environmental Section Responsibilities
Upon receiving a completed RES from the district, environmental staff will review the project and provide the district with information about any potential environmental issues, specifying what actions need to occur next in order to resolve these environmental issues and who needs to perform those actions (the district or the environmental section). The environmental specialist, with the district’s help on technical information related to transportation project techniques, will handle all coordination with the COE and MDNR and will obtain any necessary permits from these agencies. The environmental specialist will also conduct any necessary stream impact assessments and wetland delineations and assist in locating mitigation sites.
127.4.2 Project Development Milestones
127.4.2.1 Initial Screening Stage
At the initial project screening stage, the environmental specialist performs a preliminary identification of potential issues related to waters of the U.S. The environmental specialist reviews recent publications, reports, maps, and databases related to these resources to determine whether any waters of the U.S. are known to occur in the area and the likelihood that the project will have a negative impact on wetlands or streams.
The district initiates this process by submitting an RES to the design division. If the RES is completed in its entirety and includes a map of the project location, usually no additional information will be required from the district at this time. Any findings pertinent to the project will be relayed to the district in the RES response, which will also indicate what type of COE permit and MDNR WQC is believed necessary, if any.
127.4.2.2 Location/Conceptual Plan Stage
At the location/conceptual plan stage, the environmental specialist screens the project again but may also contact resource and regulatory agencies to determine whether they have any project-related concerns.
The district initiates this process by submitting an RES to the the design division or for projects that require an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), the design division and the district will determine when to begin this process. The district may be required to obtain and submit additional information about the project at this stage. The environmental specialist will relay to the district any findings pertinent to the project via the RES response and through core team participation.
127.4.2.2.1 Interagency Coordination (Scoping)
If the project requires an EA or an EIS, environmental staff will contact the resource and regulatory agencies via written requests to solicit their comments concerning potential impacts to waters of the U.S. or waters of the state.
127.4.2.2.2 Development of Alternatives
Interagency coordination must be initiated prior to the development of alternatives and is to be used to guide alternatives development. This activity fulfills the requirements of NEPA and FHWA as they relate to the selection of alternatives and the information obtained is used in the EA or EIS documentation. For an EIS, wetland delineations and stream impact assessments are conducted for the preferred alternative only, before the FEIS is completed. For an EA, NWI maps, soil surveys, topographic maps, and possibly a field check at the site are used for the alternative analysis in the EA and a delineation of wetlands and streams is performed when project design has progressed to the preliminary plans stage, generally after a Finding of No Significant Impact (FONSI) has been issued.
See Non-Hydraulic Considerations - Box Culverts for more information on environmental requirements for multi-cell box culverts.
127.4.2.3 Preliminary Plans Stage
At the preliminary plans stage, if no Section 401/404 issues have been identified to date, a process similar to that described for the initial project screening is repeated. The district initiates this process by submitting an RES to the Design Division. The environmental specialist screens the project and verifies that no new information has become available since the last screening. Any new findings pertinent to the project will be relayed to the district in the RES response and the environmental specialist will discuss appropriate actions with the project manager.
At this stage if it has been determined that the project could have an impact on waters of the U.S., the environmental specialist will begin gathering impact information for submittal to the COE, and MDNR if necessary, to determine the type of permit that will be necessary. Depending on the project’s schedule, the extent of the potential impact, the type of permit necessary, the extent of waters of the U.S. impacted, etc., the environmental specialist may begin consultation with the COE at this stage; this can include wetland delineation and stream assessment. The district will need to provide additional information, project plans, and landowner access during the permit process.
127.4.2.4 Right of Way Plan Stage
At the right-of-way plan stage, if no Section 401/404 issues have been identified to date, the process described for earlier stages is repeated. The district initiates this process by submitting an RES to the design division, whereupon the environmental specialist will screen the project and make sure no new information has become available since the last screening. Any new findings pertinent to the project will be relayed to the district in the RES response and the environmental specialist will discuss appropriate actions with the project manager.
At this stage, the Section 404 permit process should be underway or possibly complete if it has been determined that the project could have an impact on waters of the U.S. The district will be asked to provide additional information about the project during the permit process. District staff may also be asked to respond to COE correspondence, attend meetings/site visits, and help develop or comment on suggested impact minimization through design changes. To fulfill their obligation under the CWA, the COE requires that cultural resources and threatened and endangered resources are also considered in the individual permit process. U.S. Fish and Wildlife Service and State Historic Preservation Office clearances are therefore needed to finalize the Section 404 permit. The environmental specialist will keep the district involved throughout the permit process to assure that no commitments are made that cannot be met.
127.4.2.5 Final Design Stage
At final design stage, if no Section 401/404 issues have been identified to date, the process described for earlier stages is repeated. The district submits an RES to the design division and the environmental specialist screens the project to verify that no new information has become available. Any new findings pertinent to the project are relayed to the district in the RES response and the environmental specialist will discuss appropriate actions with the project manager. If no Section 401/404 issues are identified, the district will be notified that Section 401/404 issues are clear for this project.
The Section 404 permit process, if needed, should be underway or possibly complete at this stage if it has been determined that the project could have an impact on waters of the U.S. The district will be asked to provide additional information about the project during the permit process. The environmental specialist will keep the district informed of the status of the permit application.
JSPs may be required to assure that the project adheres to the general conditions of nationwide permits and any special conditions associated with an individual permit. The district, the environmental section, and the resource agencies coordinate in developing JSPs, but the district usually writes the JSPs.
When special conditions are necessary to minimize or offset a project’s impacts, the district works with the environmental section to complete a plan that specifies how such measures will be accomplished and implemented. There may be other regulatory agencies that must approve this plan prior to letting if other resource impacts (e.g., archaeology, threatened and endangered species) are involved. It is a violation of Section 404 of the CWA for FHWA and MoDOT to place fill material in a water of the U.S. prior to completing the COE permit process. MoDOT should complete the Section 404 permit process before the plans, specifications, and estimates (PS&E) submission date.
If any CWA Section 401/404 issues were identified during any of the previous phases of project development, MoDOT must obtain a letter from COE, and possibly a WQC from MDNR, giving authorization to fill waters of the U.S. This letter must be obtained prior to letting the project. If no CWA Section 401/404 issues have been identified, the environmental specialist will notify the district that CWA Section 401/404 issues are clear for this project. It is strongly recommended that the wetland specialist be invited and included in the pre-construction meeting if there are extensive wetland or stream issues or the permit is an Individual Permit (IP).
127.4.2.7 Post-Letting Activities
At this stage, the primary concern is assuring that all JSPs and special conditions are being implemented. Prior to construction, MoDOT resident engineers and inspectors should be informed of all issues and any special conditions or JSPs. Contractors should also be informed of these issues prior to construction. If MoDOT fails to implement the measures agreed upon during the Section 404 process, the project can be stopped by federal and state agencies. This can create lengthy project delays, construction change orders and result in significant fines.
The variability of on-site parameters can necessitate changes for a variety of project components that do not typically require a change order to enable the contractor to complete the project to design specifications. These changes are usually made at the discretion of the resident engineer (RE). Once the RE has determined that potential deviation from the project plans may be required, communication with the environmental and historic preservation staff is necessary to ensure that no adverse impacts result to these resources. The environmental and historic preservation staff must review the potential consequences of the proposed action to determine whether it poses risks to environmental and/or cultural resources.
Deviation from the final design plans can result in negative impacts to environmental and cultural resources. Many MoDOT projects require construction of wetland and/or stream mitigation sites as well as protection of sensitive biological and cultural resources within MoDOT right of way during construction activities. The influence of construction changes relating to ditch modification/construction, grading, fill placement, changes in field entrance location, borrow activities, batch plant location, unplanned tree clearing, staging areas, and erosion control earthwork can have drastic effects on the functionality/protection of these resources. Some examples of wetland mitigation construction activities that would require screening prior to approval include, but are not limited to:
- changes in borrow volume and specified location (relating to wetland mitigation site construction),
- unplanned impacts to existing wetland components,
- and substituting tree or plant species for the planned type(s) and
- changes to any hydraulic structure or associated rock blanket.
Communication is the key element to ensuring that the aforementioned changes do not impact the resources as defined above. Because the RE is the party primarily responsible for making the necessary changes to adapt to site conditions, the RE shall contact the appropriate environmental and historic preservation specialists for assessment of the potential activity prior to initiating the change.
127.4.4 Maintenance Activities
In certain areas, maintenance activities such as sediment removal, ditch cleanout, bank stabilization, low-water bridge maintenance and cleanout, tree cutting, chip seals, gabion placement, etc. could impact waters of the U.S. These issues will occur in specific areas and will be handled on a case-by-case situation. Roadside maintenance personnel have information regarding waters of the U.S. and will assist the district in dealing with these issues. In other cases, the environmental specialist will notify the district of the issue and will coordinate with maintenance personnel and others in the district to determine the appropriate course of action (e.g., signing areas restricting activities such as mowing, spraying, or excavating). If there is a question as to whether something is considered jurisdictional, consult your wetland specialist for that determination.
Activities in most streams are regulated by the U.S. Army Corps of Engineers (COE) and require a 404 Permit. Districts shall contact the local COE Office or their wetland specialist prior to beginning any work in streams. The necessary permits for removal or placement of materials in the stream shall be obtained from the COE prior to conducting the work, unless emergency authorization has been given by the COE to do the work.
Technical assistance can be obtained from the Design Division Environmental Section in applying for COE permits (use the Request for Environmental Services Form for STIP jobs or contact your wetland specialist for typical maintenance projects).
127.4.5 Bridge Demolition
Bridge demolition projects with bridge blasting or the possibility of the release of bridge material into the stream can have serious impacts to waters of the U.S. See Section 404 Clean Water Act for Bridge Demolitions for additional information.