What are Waters of the United States?

What are Waters of the U. S.

Permitting - Waters of the U.S.

August 6 & 7, 2014

Prepared by:

In Partnership with:

What we will discuss

What are waters of the U. S.?

What are jurisdiction waters?

Court rulings

What are limits of waters?

Wetland delineations and how determined?

Wetland types

What is regulated and how?

What are Regulated Waters?

Waters of the U. S.

Definition includes tidal

navigable water, nontidal

navigable water and adjacent

headwaters and wetlands

adjacent to such waters – but

how far up does it go?

Determines extent of Sec 401

(Water Quality Certification),

402 (NPDES) and 404 (Dredge

and Fill) “permitting”

components of the Clean Water

Act.

Definition of Waters of the U. S.

“All waters which 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 (navigable waters);

All interstate waters, including interstate

wetlands;

Definition of Waters of the U. S.

(continued)

All other waters, such as intrastate lakes, rivers, and streams (including intermittent streams), mudflats, sandflats, wetlands, slough, 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: Which are or could be used by interstate or foreign

travelers for recreational or other purposes; or

From which fish or shell fish are or could be taken and sold in interstate or foreign commerce; or

Which are used or could be used for industrial purposes by industries in interstate commerce

Definition of Waters of the U. S.

(continued)

All impoundments of waters otherwise defined as waters of the United States under the definition;

Tributaries of waters above;

The territorial seas;

Wetlands adjacent to waters above.

Definition of Wetlands

"Wetlands are 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.”

Definition of Wetlands (Continued)

Determined by 1987 USACE Manual and Regional Supplement

3 Parameter Approach of hydrology, hydricsoils, and predominance of hydrophytic vegetation

Wetlands are waters but not all waters arewetlands

Hydrology

Is there water for

14 consecutive

days or more in a

year?

From data or

secondary

visual indicators

Hydric Soils

Are there hydric soils

present?

Hydric soils are saturated

sufficiently to have

anaerobic conditions

Visual indicators (Munsell chart)

Hydric Soils Lists

Field Indicators of Hydric Soils in the United States

Hydrophytic Vegetation

Is there a

predominance

of wet tolerant plant

species present?

Species classified in

National Wetland Plant

lists, Supplements and

text books

Three Common Wetland Types

Forested Wetland - Includes all tidal and nontidal wetlands dominated by woody vegetation greater than or equal to 5 meters in height, and all such wetlands that occur in tidal areas in which salinity due to ocean-derived salts is below 0.5 percent. Total vegetation coverage is greater than 20 percent.

Emergent Wetland (Persistent) - Includes all tidal and nontidalwetlands dominated by persistent emergent vascular plants, emergent mosses or lichens, and all such wetlands that occur in tidal areas in which salinity due to ocean-derived salts is below 0.5 percent. Plants generally remain standing until the next growing season. Total vegetation cover is greater than 80 percent.

Scrub-Shrub Wetland - Includes all tidal and nontidal wetlands dominated by woody vegetation less than 5 meters in height, and all such wetlands that occur in tidal areas in which salinity due to ocean-derived salts is below 0.5 percent. Total vegetation coverage is greater than 20 percent. The species present could be true shrubs, young trees and shrubs, or trees that are small or stunted due to environmental conditions

Three Common Wetland Types

(continued)

Forested Wetland

Emergent Wetland

Scrub-Shrub Wetland

Stream definitions

Up-stream limits defined

by field conditions and

Supreme Court case

guidance

Rulemaking to clarify

“waters of the U.S.”

under way now

Primary federal stream

rule - field stream

indicator is defined by

Ordinary High Water

Mark (OHWM) on bank

Stream and Wetland Limits

Application of written criteria subjective in the field

Limits not always clear

Bottom line - limits of waters including wetlands often determined via concurrence and collaboration process with USACE - and your consultants

Jurisdictional

Determination

What does all this mean?

Important Court Rulings

SWANCC (Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 2001)

USACE does not have authority over wetlands that

are not surface water tributaries to other wetlands or

waters of the U.S., based solely on the “Migratory

Bird Rule” - unless a clear connection to Interstate

Commerce can be demonstrated

What it means - Isolated waters not usually

regulated

Important Court Rulings

Rapanos v. United States, 2006

Limits USACE jurisdiction to:

Traditional Navigable Waters (TNWs) and their associated wetlands

Relatively permanently flowing waters (RPWs) to TNWs and their adjacent wetlands

Non RPWs tributaries to TNWs and their associated wetlands which possess a significant nexus to the TNW into which it eventually flows

What it means – ephemeral ditches not usually regulated

What is not (or should not be)

regulated?

Floodplain, uplands, trees

Swales and upland ditches that drain upland (most ephemeral channels)

Isolated waters and wetlands (Rapanos did not change SWANCC)

Non-RPWs and adjacent wetlands, if no significant nexus to TNW exists

Are These Regulated?

Summary

Waters including wetlands limits can be subject to

interpretation

Supreme Court cases and EPA Rulemaking

Field confirmation and study must accompany

desktop studies

Criteria dynamic and not static

Water and vegetative conditions

Manuals, indicators, plant lists are evolving

Must agree on limits with agencies prior to application

References

Definition of “Waters of the U.S.” 33 CFR 328

http://www.gpo.gov/fdsys/pkg/CFR-2011-title33-vol3/pdf/CFR-2011-title33-vol3-part328.pdf

Definition of wetlands

http://water.epa.gov/lawsregs/guidance/wetlands/definitions.cfm

USACE. 1987. Delineation Manual

http://el.erdc.usace.army.mil/elpubs/pdf/wlman87.pdf

Regional Supplements

http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/reg_supp.aspx

Field Indicators of Hydric Soils

http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1046970.pdf

National Hydric Soils List

http://www.nrcs.usda.gov/wps/PA_NRCSConsumption/download?cid=stelprdb1248596&ext=xlsx

National Wetland Plant List

http://rsgisias.crrel.usace.army.mil/nwpl_static/data/docs/lists_2014/National/National_2014v1.pdf