1. What are Waters of the U. S.
Permitting - Waters of the U.S.
August 6 & 7, 2014
Prepared by:
In Partnership with:

2. 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?

3. 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.

4. 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;

5. 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

6. 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.

7. 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.”

8. Definition of Wetlands (Continued)
 Determined by 1987
USACE Manual and
Regional Supplement
 3 Parameter Approach
of hydrology, hydric
soils, and
predominance of
hydrophytic vegetation
Wetlands are waters but not all waters are
wetlands

9. Hydrology
Is there water for
14 consecutive
days or more in a
year?
From data or
secondary
visual indicators

10. 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

11. Hydrophytic Vegetation
Is there a
predominance
of wet tolerant plant
species present?
Species classified in
National Wetland Plant
lists, Supplements and
text books

12. 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 nontidal
wetlands 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

13. Three Common Wetland Types
(continued)
 Forested Wetland
 Emergent Wetland
 Scrub-Shrub
Wetland

14. 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

15. 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

16. What does all this mean?

17. 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

18. 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

19. 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

20. Are These Regulated?

21. 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

22. 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