Wetlands/Waters of the U.S. Corporate Headquarters 18001 W. 106 th St. Suite 300 Olathe, Kansas 66061 Terracon.com
Presented by: Jeremy Hanzlik, P.E. National Manager, Environmental Planning Jeremy.Hanzlik@Terracon.com 210-714-2146 John Rathgeber Senior Staff Scientist John.Rathgeber@Terracon.com 316-448-3985
Learning Objectives Following this presentation, you should: • Understand what a water of the U.S. looks like • Understand the U.S. Army Corps of Engineers authority to regulate • Be aware of recent and proposed changes to federal rules Note: This presentation does not address state and local regulations.
What is a wetland/water of the U.S.?
Corps Definition (33 CFR 328) (The pre- 2015 text) “(a) The term waters of the United States means: 1. 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; 2. All interstate waters including interstate wetlands; 3. 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: 1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or 2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or 3. Which are used or could be used for industrial purpose by industries in interstate commerce; 4. All impoundments of waters otherwise defined as waters of the United States under the definition; 5. Tributaries of waters identified in paragraphs (a) (1) through (4) of this section; 6. The territorial seas; 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section. 8. 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 EPA. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.”
Simpler Terms for WOUS • A perennial, intermittent, or ephemeral body of water that exhibits an ordinary high water mark (OHWM) with a hydrologic connection for flow towards the Gulf of Mexico • 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, & similar areas.” (1987 Manual)
Terms • Perennial—has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff form rainfall is a supplemental source of water for steam flow. (Federal Register Feb 21, 2012 pp.10289) • Think “Mississippi River” the paradigm of perennial! • It never stops
Terms • Intermittent—has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water Runoff from rainfall is a supplemental source of water for stream flow. (Federal Register Feb 21, 2012 pp.10289) • Think “temporary”; like an extended stay hotel, water may check in for a for few weeks and return several times per year.
Terms • Ephemeral—has flowing water only during and for a short duration after precipitation events in a typical year. Ephemeral stream beds are located above the water table year‐round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow. (Federal Register Feb 21, 2012 pp.10288) • Think “fleeting” Photo: Williamson County
Terms • Wetland—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. (33 CFR 328) Photo: Bexar County
Jurisdictional Waters (Perineal) What do they look like? Photo: Williamson County Photo: Bexar County Ordinary High Water Mark (OHWM) Perennial Stream Examples
Jurisdictional Waters (Intermittent/Ephemeral) What do they look like? Photo: Bexar County Photo: Bexar County Ordinary High Water Mark (OHWM) Intermittent/Ephemeral Stream Examples
Jurisdictional Waters What do they look like? Photo: Williamson County Photo: Bexar County Special Aquatic Feature Examples Wetlands (left) Springs (right)
Jurisdictional Waters What about concrete lined? Photo: Bexar County Photo: Bexar County Just because the bottom is concrete… If it has an OHWM, then it is a WOUS Even if no water is present
How do I get a Permit? Four ways for coverage: 1. Nationwide Permit (NWP)/Regional General Permit (RGP) with automatic coverage 2. NWP/RGP with a pre-construction notification (PCN) followed by a concurrence from the USACE 3. Certain actions are eligible for a Letter of Permission (LOP) from the USACE 4. An Individual Permit (IP)—last resort
Where does the USACE get authority to regulate?
Creative Commons 1.0 Universal (CC0 1.0) Public Domain Dedication
History of water regulations: Rivers and Harbors Appropriation Act of 1899 Considered the oldest Environmental Law in the U.S. U.S. Army Corps of Engineers appointed as the jurisdictional agency Often referred to as Section 10 Waters Federal Water Pollution Control Act of 1948 First significant regulations regarding water pollution Limited authority to enforce resulted in limited effect on water pollution Clean Water Act of 1972 Basically a federal overhaul of the Federal Water Pollution Control Act of 1948 Regulates many aspects of water pollution (e.g., NPDES by EPA) USACE authority under Section 404 (EPA authority for other aspects) Generally concern for development is 404 Waters—these are the predominantly regulated waters in most cases
Many faces of current regulation? Pre-2015 Regulations Alabama, Arkansas, Alaska, Arizona, North Carolina, South Carolina, Colorado, North Dakota, South Dakota, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Mexico, Nevada, Texas, Utah, West Virginia, Wisconsin, and Wyoming. 2015 Rule California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oklahoma, Ohio, Oregon, Pennsylvania, Road Island, Tennessee, Vermont, Virginia, Washington, the District of Columbia, and U.S Territories. Proposed Rule Due to go into effect in February 2020??? As of April 1, 2019
Photo Credit: US Environmental Protection Agency
Let’s check the Code (33 CFR 328) (The pre-2015 text) “(a) The term waters of the United States means: 1. 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; 2. All interstate waters including interstate wetlands; 3. 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: 1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or 2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or 3. Which are used or could be used for industrial purpose by industries in interstate commerce; 4. All impoundments of waters otherwise defined as waters of the United States under the definition; 5. Tributaries of waters identified in paragraphs (a) (1) through (4) of this section; 6. The territorial seas; 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section. 8. 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 EPA. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.”
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