Wetlands/Waters of the U.S. Corporate Headquarters 18001 W. 106 th - - PowerPoint PPT Presentation

Wetlands/Waters of the U.S.

Corporate Headquarters 18001 W. 106th 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

• f the U.S.?

“(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

• f 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.”

Corps Definition (33 CFR 328) (The pre- 2015 text)

• A perennial, intermittent, or ephemeral body of water that exhibits an
• rdinary 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)

Simpler Terms for WOUS

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
• r 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?

• Ordinary High Water Mark (OHWM)
• Perennial Stream Examples

Photo: Bexar County Photo: Williamson County

Jurisdictional Waters (Intermittent/Ephemeral)

What do they look like?

• Ordinary High Water Mark (OHWM)
• Intermittent/Ephemeral Stream Examples

Photo: Bexar County Photo: Bexar County

Jurisdictional Waters

What do they look like?

• Special Aquatic Feature Examples
• Wetlands (left)
• Springs (right)

Photo: Bexar County Photo: Williamson County

Jurisdictional Waters

What about concrete lined?

• Just because the bottom is concrete…
• If it has an OHWM, then it is a WOUS
• Even if no water is present

Photo: Bexar County Photo: Bexar County

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

“(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

• f 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.”

Let’s check the Code (33 CFR 328) (The pre-2015 text)

Re‐defined Waters of the U.S.

• Impact variable depending on geographic conditions
• Most effects were in “wet” areas and coastal geographies
• Issued 2015 and immediately met by multiple court challenges; effectively not

implemented

• Challenged by congress in 2016
• Stayed by the Supreme Court
• Formally rescinded and replaced with text existing prior to the “change” issued in 2015
• Implemented in 22 states, the District of Columbia and U.S. Territories

EPA’s 2015 Rule

• 1. Traditional navigable water (including the territorial seas);
• 2. Tributaries that contribute perennial or intermittent flow to such waters;
• 3. Certain ditches;
• 4. Certain lakes and ponds;
• 5. Impoundments of otherwise jurisdictional waters; and
• 6. Wetlands adjacent to other jurisdictional waters.

Proposed 2020 Rule Waters that are “Waters of the United States”

• 1. Groundwater;
• 2. Ephemeral features;
• 3. Prior converted cropland;
• 4. Certain artificially irrigated areas;
• 5. Certain artificial lakes and ponds;
• 6. Certain water filled depressions;
• 7. Certain stormwater control features
• 8. Certain wastewater recycling structures; and
• 9. Waste treatment features.

Proposed 2020 Rule Waters that are NOT “Waters of the United States”

Currently the extent of jurisdictional waters is the portion of a stream that has a streambed, defined banks and an ordinary high‐water mark. The proposed rule will limit jurisdiction to streams that have "extended periods of predictable, continuous, seasonal surface flow occurring in the same geographic feature year after year"

Comparison of current and proposed rules for the jurisdiction in streams

Currently wetlands that have a connection with a jurisdictional water are themselves

• jurisdictional. This connection may be a surface or subsurface connection.

The proposed rule will limit jurisdiction of wetlands to wetland areas that are directly adjacent to jurisdictional waters.

Comparison of current and proposed rules for the jurisdiction of wetlands

Ditches that are channelized portions of streams that would be jurisdictional in their natural state. Currently lakes and ponds that have a connection or influence over other jurisdictional waters. The proposed rule would only include lakes/ponds that are "traditionally navigable waters," lakes/ponds that contribute intermittent or perennial flow to downstream waters, and lakes/ponds that typically become flooded a rolling 30-year average (i.e. oxbow lakes). Impounded streams and the surface water upstream from the impoundment are both jurisdictional.

Comparison of current and proposed rules for the jurisdiction of “other waters”

Bottom Line

Questions?

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