Environmental Engineering Reference
In-Depth Information
TABLE 19.2
Proposed 2011 Guidance on What Constitutes “Waters of the United States”
Type 1: Those that are absolutely protected include:
Traditional navigable waters
Interstate waters
Wetlands adjacent to either traditional navigable waters or interstate waters
Nonnavigable tributaries to traditional navigable waters that are relatively permanent, meaning that they contain water at
least seasonally
Wetlands that directly abut relatively permanent waters
Type 2: Those that may be, or where a “fact-speciic” analysis determines that they have a “signiicant nexus” to a
traditional navigable water or interstate water:
Tributaries to traditional navigable waters or interstate waters
Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
Waters that fall under the “other waters” category of the regulations. The guidance divides these waters into two
categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how
each category should be evaluated
Type 3: And inally, those that deinitely (generally?) do not:
Wet areas that are not tributaries or open waters and do not meet the agencies' regulatory deinition of “wetlands”
Waters excluded from coverage under the CWA by existing regulations
Waters that lack a “signiicant nexus” where one is required for a water to be protected by the CWA
Artiicially irrigated areas that would revert to upland should irrigation cease
Artiicial lakes or ponds that are created by excavating and/or diking dry land and are used exclusively for such purposes
as stock watering, irrigation, settling basins, or rice growing
Artiicial relecting pools or swimming pools created by excavating and/or diking dry land
Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons
Water-illed depressions created incidental to construction activity
Groundwater drained through subsurface drainage systems
19.5.2
S ectIon 404 p erMIttInG and w etLand M ItIGatIon
19.5.2.1 Jurisdictional?
Section 404 of the CWA regulates the discharge of dredged material, the placement of ill material,
or the excavation within “waters of the United States” and it authorizes the secretary of the army,
through the chief of engineers, to issue permits for such actions. One of the questions addressed in
the preceding section was what are “waters of the United States”? While it is not clear what they are,
if you plan on doing one of the aforementioned actions regulated by Section 404 in a “water of the
United States,” a permit is required, which is usually obtained from the Corps division and district
in which the water occurs (Figure 19.10).
Back to “waters of the United States,” the determination of which is usually made by the Corps
district ofices. For those waters that are “absolutely protected” (see Table 19.2), such as TNWs or
interstate waters, that determination is relatively easy. The Corps district ofices typically make
a “jurisdictional determination” for waters, such as under the River and Harbors Act of 1899
(Section 10) deinition that navigable waterways are those that “are presently used, or have been
used in the past, or may be susceptible for use to transport interstate or foreign commerce,” and
post a list of the TNWs where permits are required on their website. For other waters, the Corps
may make a delineation veriication and/or a jurisdictional determination. The veriication identi-
ies or approves the boundaries of a wetland or waterbody, based on a preliminary identiication
by the Corps or some other agency or organization, while the jurisdictional determination deines
the regulatory status of wetlands and waterbodies. Based on Rapanos and other decisions, the
 
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