What are Waters of the United States?
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Transcript of 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