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Maintenance Eligibility Notes
(expanded article)

by David Mallory, P.E., Senior Project Engineer, Floodplain Management Program 

Home mortgage rates hit a 40-year low in 2003 
Interest rates have continued to remain at historical lows throughout the year. The result was a continued boom in land development activities. Residential development has slowed somewhat in the southern tier of the Denver Metropolitan Area, but has strengthened in the northern tier. Commercial development has slowed in general, however, strong commercial growth is expected for the next several years along the north I-25 corridor. We processed 230 construction plan submittals this year, about the same as last year. Eighty of those reviews resulted in construction approval letters. Terri Fead, P.E. continued to help out with plan reviews through the first half of this year. She also helped out with FEMA LOMR and CLOMR reviews. Terri's involvement has been a tremendous benefit to the maintenance eligibility program.

The District's maintenance eligibility database, updated bi-monthly, and the Guidelines for Maintenance Eligibility Of Flood Control Facilities Constructed By Others (Maintenance Eligibility Guidelines) have been available online throughout the year. This has proved helpful to local governments and consulting engineers alike. Another effective tool has been the practice of holding project meetings involving District staff, design consultants and local government representatives as a way to reach consensus and move construction plans quickly through the final review process. We are also available by e-mail, fax or telephone to answer questions on design criteria or the maintenance eligibility program.

Projects being considered for the District's maintenance eligibility program may also trigger requirements under Section 404 of the Clean Water Act. Sometimes problems arise when a developer (permit applicant) satisfies Section 404 permit requirements, which may be in conflict with District requirements. In some instances, Section 404 permits have already been issued when we first review construction documents. The Corps of Engineers Denver Regulatory Office staff and District staff believe that meeting the goals of the Section 404 permit program and the District's maintenance eligibility program are both integral to the success of development projects located adjacent to major drainageways. It is important to remember that the Denver Regulatory Office and the District have never failed to find consensus on development projects when early coordination and planning resulted in early agreement on concepts. The Compark project located along Happy Canyon Creek in Douglas County is an example of successful collaboration. The design and environmental consultants worked closely with the Denver Regulatory Office and District staff to craft a project that met all program requirements. The final design of Happy Canyon Creek through Compark represented cooperation and compromise between the Corps of Engineers and the District without conceding any basic design or environmental principals held by either agency.

An equally important consideration is remaining within permit requirements during construction. Developers, engineering consultants and contractors are all responsible for compliance with permit requirements. If in doubt, do not proceed with field changes without first verifying they are legal.

In an effort to provide better coordination between the two programs, the Denver Regulatory Office provided the following question and answer format to briefly describe the Section 404 permit program:

What is a Section 404 Permit?  Congress passed the Clean Water Act in the late 1970s to insure that the physical, biological, and chemical qualities of national waters are protected. Section 404 of the Clean Water Act gives the US Army Corps of Engineers the responsibility to evaluate projects and decide whether a permit (called Section 404 permits) should be issued for the placement of certain fill material into the nations waters, including wetlands. Because of the inherent similarities of District and Section 404 regulated activities, all development projects that are reviewed by the District should also be considered for a Section 404 Permit and vice versa. The Denver Regulatory Office of the US Army Corps of Engineers, near Chatfield Reservoir, has the regulatory responsibility for all water related projects within the District.

What Work Requires a 404 Permit?  Typical drainageway activities requiring Section 404 permits are:

• Construction of drainage and flood control structures for residential, commercial, or recreational developments.
• Construction of drops structures, bank protection, channel structures, levees, dams, dikes, and other channel and lake work.
• Construction of road and walkways connected to drainage and flood control.
• Environmental rehab of drainage structures and areas.
• Maintenance of existing drainage and flood control structures.

What waters require Section 404 Permits?  Waters of the US in the District are the South Platte River and all its surface tributaries, all wetlands adjacent to these waters and many impoundments (dams, lakes or ponds) of these waters.

What are wetlands?  Wetlands are areas characterized by wetland vegetation (bulrush, cattails, rushes, sedges, willows, etc.) where the soil is saturated or flooded during some of the growing season during most years. Wetlands generally include swamps, marshes, and wet meadows.

What parts of a drainage or wetland or impoundment are subject to Section 404 jurisdiction?  Waters of the US are subject to Section 404 based on the ordinary high water mark or the line on the shores 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 the soil, destruction of terrestrial vegetation or the presence of litter and debris. Wetlands that are contiguous, bordering or neighboring are also considered part of these waters.

Different Section 404 Permits.  Section 404 permits are issued based on the type and extent of the activity. A nationwide permit is generally the simplest form of the Section 404 permits, authorizes a category of activities throughout the nation and are valid only if the conditions applicable to the permits are met. Larger or more complicated activities may require a regional general or individual permit.

When constructing drainageway projects, Section 404 requires a proponent to consider how to avoid impacts to waters of the US, minimize impacts to waters and mitigate for impacts, in that order.  By regulation, all effort should be made to avoid impacts to waters of the US altogether. Since construction of drainage structures is obviously inherent with many District activities, impacts to waters as a result of District activities should be actively minimized, both during construction and for the final permanent structure.

If construction of drainageway activities impact waters of the US, including wetlands, compensatory mitigation of the impacts may be required under a Section 404 Permit. The Corps will determine what level of mitigation is "appropriate" based upon the functions lost or adversely affected as a result of impacts to aquatic resources. When determining "practicability," proponents will consider the availability of suitable locations, constructability, overall costs, technical requirements, and logistics. There may be instances where permit decisions do not meet the "no overall net loss of wetlands" goal because compensatory mitigation would be impracticable, or would only achieve inconsequential reductions in impacts. Consequently, the "no overall net loss of wetlands goal" may not be achieved for each and every permit action, although all Corps Districts will strive to achieve this goal on a cumulative basis, and the Corps will achieve the goal programmatically. Mitigation is intended to replace stream or wetland functions affected by the activity. Functions of streams or wetlands include:

• food chain production
• fish, bird and wildlife habitat
• drainage issues including, sedimentation, wave action, erosion, or storm damage protection, attenuation 
• groundwater movement, discharge and recharge
• water quality enhancement

What are the typical setback or buffer requirements?  Plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection (e.g., easements, deed restrictions) of vegetated buffers to open waters. In some cases, vegetated buffers will be the only compensatory mitigation required. Vegetated buffers should consist of native species. The width of the vegetated buffers required will address documented water quality or aquatic habitat loss concerns. Normally, the vegetated buffer will be 25 to 50 feet wide on each side of the stream, but the Corps may require slightly wider vegetated buffers to address documented water quality or habitat loss concerns. Where both wetlands and open waters exist on the project site, the Corps will determine the appropriate compensatory mitigation (e.g., stream buffers or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where vegetated buffers are determined to be the most appropriate form of compensatory mitigation, the Corps may waive or reduce the requirement to provide wetland compensatory mitigation for wetland impacts.

When should a permit applicant contact the Corps for a Section 404 Permit?  You are encouraged to contact the Denver Regulatory Office for all proposed work in all waters in your area. Exemptions, nationwide, regional general and individual permit requirements will be reviewed. By discussing all information prior to construction, activities that may not require a Section 404 Permit will be identified, and those that require a Section 404 Permit will be processed more effectively.

Denver Regulatory Office Contact Information: 
US Army Corps of Engineers 
Denver Regulatory Office
9307 S. Wadsworth Blvd 
Littleton, CO 80128-6901

Phone: 303-979-4120 
Fax: 303-979-0602 
Web: http://www.nwo.usace.army.mil/html/od-tl/tri-lakes.html

In the field 
An integral part of the maintenance eligibility process is construction oversight. Construction activity has increased this year over past years. At any given time, we typically have 120 to 150 active construction projects spread out over 1600 square miles in many different local jurisdictions. We heavily depend on networking and partnerships developed with local governments and various engineering consultants over the years to adequately cover construction oversight. In some cases, local government inspection staffs have conducted construction observations on the District's behalf. Field reports and/or digital photos are typically provided to us through e-mail. We also rely upon local inspection staff, engineering consultants and in some instances, contractors to keep us apprised of construction progress and the need for District construction site visits. During 2003, District staff completed nearly 100 construction site visits. Over 35 current projects were completed and recommended for construction acceptance during the preceding 12 months. Another 20 previously approved projects were re-inspected for adequate vegetative cover and received final approval.

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