Noah Greenberg, Wright Water

Engineers

Benjamin Guillon, WRA

Clean Water Act of 1972Amended Federal Water Pollution Control Act of 1948Passed by congress to protect waters of the U.S. Includes several sections:Section 301: requires permits for discharges Section 319: creates non-point source management

program Section 402: authorizes national pollution discharges

elimination system permit programSection 404: establishes program to regulate discharge

of material into waters of the U.S.

Section 404 Administered jointly by the Corps of Engineers and

Environmental Protection Agency Regulation based on two necessary criteria: A water of the U.S. is present There is a discharge of dredged or fill material into that

waters of the U.S. which does not qualify for an exemption

Many regulatory decisions and criteria are subject to district interpretation—high degree of variability throughout the U.S.

Presentation OutlineJurisdictional extent of Section 404

Permitting for projects regulated by Section 404

Opportunities for generating revenue through the Section 404 programWetland mitigation banking Habitat mitigation bankingWildlife mitigation banking

Jurisdictional Extent of Section 404Pre-2001: migratory bird rule

Waters of the U.S. are defined in U.S. Supreme Court cases (Rapanos v. U.S. and Solid Waste Agency of Northern Cook County v. U.S.)

Supreme Court decisions interpreted by USACE and EPA in 2008 Memorandum

Current Definition of Waters of the U.S.—Agency GuidanceThe agencies will assert jurisdiction over:Traditional Navigable Waters (TNW) And adjacent wetlands

Non-navigable tributaries to TNW that are relatively permanent waters (RPW) And adjacent wetlands

Wetlands and WatersWetlands are areas with: Hydric soils Hydrophytic vegetation community Wetland hydrology

**As identified using USACE Methodology**Waters include: Rivers, streams, creeks, canals, ditches,

washes Harbors, lakes, ponds, reservoirs

**Delineated based on presence of ordinary high water mark

Wetland

Current Definition of Waters of the U.S.—Agency Guidance

The agencies will decide jurisdiction over the following using “fact-specific analysis” of significant nexus:Non-navigable tributaries that are not RPWsAnd adjacent wetlandsWetlands that are adjacent to, but not abutting RPW tributaries to TNWs

Wetland

Wetland

Significant Nexus

Adjacent

Wetland

Significant Nexus

Current Definition of Waters of the U.S.—Agency Guidance

The agencies will generally not assert jurisdiction over:Swales or erosional features with low volume,

infrequent, or short duration flow

Ditches excavated wholly in and draining only uplands that do not carry relatively permanent flow

Irrigation Ditch

?

?

Current Definition of Waters of the U.S.—Problematic Areas

Irrigated farmland that meets regulatory definition for wetlandsWater rights conveyance ditchesConstructed reservoirs and ponds

Water features that would not exist without continued human intervention

Irrigated Farmland

Regulatory guidance identifies that wetlands dependent on continued irrigation for wetland hydrology should not be considered jurisdictionalCorps determination process typically includes multi-

year groundwater study in absence of irrigationCosts to land owner to obtain this determination: Groundwater monitoring wells Consulting fees Loss of crops during dry-up period

No guarantee that USACE will determine that all/portion of irrigated wetlands are irrigation dependent

Water Rights Conveyance Ditches

Considered jurisdictional if:Relatively permanent flow (typically 90 days of continuous flow)Downstream surface connection to water of the U.S.

Based on typical length of irrigation season in Colorado and common return of tailwater to rivers, many ditches are considered jurisdictional waters of the U.S.

Constructed Reservoirs and Ponds

Considered jurisdictional if:Downgradient surface water

connection to a water of the U.S.

Many reservoirs and ponds develop wetland areas along the fringe of the normal operating water level. These areas can be problematic for enlargement projects.

Permitting for Regulated Projects

Agricultural/maintenance exemptions

Nationwide Permit Program

Individual Permits

Exempt Activities—Section 404(f)Normal farming activitiesPart of established and ongoing activity

Irrigation ditch construction and maintenanceWork completed by agricultural owner (not M&I) If mutual ditch company, at least 50 percent of

water conveyed in ditch must be used for agricultural purposes

Drainage ditch maintenanceMinor reshaping/repair/replacement allowedDitch must be functioning or recently functioning

to qualify

Exempt Activities—Section 404(f)Exemptions are subject to the recapture

provision:Part I: Is there a conversion of water of the

U.S. for purpose of new use?Part II: Is there an impairment of

circulation of waters of the U.S. or reduction in the reach of water of the U.S.?

If Part I and II are answered with “yes”, the project does not qualify for an exemption

Nationwide General PermitsUSACE issues Nationwide Permits to

provide rapid authorization for variety of projects with no more than minimal impactsProjects may require pre-construction

notification, or may be authorized without coordination with the USACESome projects may require

restoration and/or mitigation if impacts to waters of the U.S. exceed 0.1 acre

Nationwide General Permits (cont.)NWP 3: Maintenance

NWP 12: Utility Line Activities

NWP 18: Minor Discharges

NWP 40: Agricultural Activities

NWP 41: Reshaping Existing Drainage Ditches

NWP 46: Discharges in Ditches

Individual Permits Projects which impact more than ½ acre

of wetland or other water of the U.S. typically require an Individual Permit Permit Application Process Includes: Establishment of need for project Alternatives assessment Conformance to NEPA Public/interagency comment period

Individual Permits can require more than a year of review by government agencies, with no guarantee that a permit will be issued.