Waters of the U.S. Revisions

Size: px
Start display at page:

Download "Waters of the U.S. Revisions"

Transcription

1 City and County of Denver January Denver International Airport Waters of the U.S. Revisions Sarah Reeves, Brown and Caldwell

2 Waters of the US (WOTUS) Clean Water Act... protects waters to keep them fishable, swimmable, and drinkable. But what waters? Navigable Waters Waters of the United States, including the territorial seas. - termed jurisdictional waters Brown and Caldwell

3 What s the Issue? Brown and Caldwell 3

4 Jurisdictional Waters The Definition has Changed Waters susceptible to interstate commerce (traditional navigable waters) All interstate waters, including interstate wetlands Territorial seas Tributaries to the above waters Impoundments of the above waters or a tributary All waters, including wetlands, that are adjacent to a water identified in the above categories. Brown and Caldwell 4

5 Tributary Waters Tributary Waters are WOTUS A water characterized by a bed and bank and an ordinary high water mark that either directly or indirectly contributes flow to a jurisdictional water. Brown and Caldwell 5

6 All Adjacent Waters Existing definition Adjacent Wetlands Proposed definition All Waters Considered to have significant nexus to traditional navigable water, interstate water, or the territorial seas. Brown and Caldwell 6

7 Other Waters C List - intrastate lakes, mudflats, prairie potholes, playa lakes P Adjacent other waters and wetlands - categorical P Non-adjacent other waters and wetlands on a caseby-case basis P Can be evaluated individually or as a group of waters similarly situated in a region. Brown and Caldwell 7

8 Exclusions Wastewater Treatment Systems Treatment ponds/lagoons designed to meet CWA requirements. Prior Converted Cropland Various Features Artificially irrigated areas that would revert to upland Artificial lakes/ponds created on dry land Artificial reflecting pools or swimming pools created on dry land Small ornamental waters create on dry land for aesthetic reasons Water-filled depressions created incidental to construction Groundwater Gullies and rills and non-wetland swales Some Ditches Excavated in uplands, drain only uplands or non-jurisdictional waters, <perennial flow Do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, impoundment, or territorial seas Brown and Caldwell 8

9 EPA s Take EPA Says Rule Does: Reduce confusion about CWA protection Clarify types of waters covered under CWA Save businesses time and money Provide more benefits to public than costs Help states protect their waters EPA Says Rule Does Not: Protect any new types of waters Broaden coverage of the CWA Regulate groundwater Expand jurisdiction over ditches Brown and Caldwell 9

10 What s the Big Deal? Stormwater Stormwater ponds in riparian areas are WOTUS and will be WOTUS. Stormwater ponds in upland areas are not WOTUS and would not be WOTUS under the new rule. Not clear about other stormwater BMPs or stormwater conveyances. Definitions and clarity around agricultural practices not stormwater. Brown and Caldwell 10

11 Next Steps More than 400k comments were submitted. Proposed rule put out in April 2014 and public comment closed in November EPA plans to issue the final rule in April Congress considering blocking WOTUS. Brown and Caldwell 11

12 City and County of Denver January Denver International Airport Waters of the U.S. Revisions Sarah Reeves, Brown and Caldwell

13 with City and County of Denver Denver International Airport Waters of the U.S. Mapping January Dan McCloy, Brown and Caldwell Darrin Masters, Smith Environmental

14 Wetland Mapping Goals 1 Project planning tool for DIA 2 Identify and map water bodies, stormwater features, and wetlands 3 Complete Waters of The United States Assessment (report) 4 Submit report to U.S. Army Corps of Engineers (USACE) 5 Receive Jurisdictional Determination from USACE Brown and Caldwell 2

15 Definition of Key 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 (USACE, 1987). Brown and Caldwell 3

16 Definition of Key Terms APPROVED JURISDICTIONAL DETERMINATION: USACE determination that jurisdictional waters of the United States or navigable waters of the United States, or both, are present or absent on a particular site. (USACE, 2008). Brown and Caldwell 4

17 Definition of Key Terms PREAMBLE WATERS: Aquatic resources that are drainage/stormwater channels or detention ponds. These channels, ponds, and wetlands are not jurisdictional features. Brown and Caldwell 5

18 What Makes A Wetland? 1. Hydrology 2. Soils 3. Vegetation Brown and Caldwell 6

19 What Makes A Wetland? 1. Hydrology Water or Evidence of Surface water Soil saturation within approximately 12 inches of ground surface Water marks Algae Brown and Caldwell 7

20 What Makes A Wetland? 2. Soils Hydric Soils Anaerobic conditions (lack of oxygen) Fe and Mn reduction Sulfur reduction Organic matter accumulation Brown and Caldwell 8

21 What Makes A Wetland? 3. Vegetation Plants adapted for growing in standing water or saturated soils such as sedges and cattails Brown and Caldwell 9

22 2009 Wetland Mapping Brown and Caldwell 10

23 Field Data Collection Wetland Field Forms GPS point collection and boundary mapping Photographs Field notes Brown and Caldwell 11

24 DIA Feature Examples Jurisdictional Features Preamble Waters Brown and Caldwell 12

25 Clean Water Act Prohibits the discharge of any pollutant into waters of the U.S. from a point source unless authorized by a permit. Section 401 Water Quality Certification Section 402 Traditional Pollutants (NPDES) Section 404 Dredged or Fill Materials Brown and Caldwell 14

26 Section 404 Establishes a program to regulate the discharge of dredged or fill material into waters of the U.S. Dredged material - Any addition of dredged material into, including any redeposit of dredged material other than incidental fallback within, the waters of the U.S. Fill - Material placed in waters of the U.S. where the material has the effect of: 1. Replacing any portion of a water of the U.S. with dry land 2. Changing the bottom elevation of any portion of a water of the U.S. Brown and Caldwell 15

27 Types of Permits Regional General Permits Issued by USACE with certain conditions that pertain to a limited (regional) geographic area EXAMPLE: Urban Drainage Flood Control District has a regional permit for channel maintenance and construction on tributaries to the South Platte River Nationwide - A nationwide permit is a general permit that authorizes activities across the country. There are currently 52 nationwide permits NWP 3: Maintenance NWP 7: Outfall and Intake Structures NWP 13: Bank stabilization NWP 29: Residential Developments Brown and Caldwell 16

28 Types of Permits Individual Permit Required for potentially significant impacts Application form Project Description and Drawings Project Purpose and Need Jurisdictional Determination T&E Species Assessment Cultural Resource Evaluation Alternatives Analysis or Environmental Assessment Mitigation Plan State Water Quality Certification Brown and Caldwell 17

29 The Mitigation Sequence 1. Avoid 2. Minimize 3. Compensate Restoration Establish (or create) Enhancement Preservation Brown and Caldwell 18

30 Avenues for Mitigation Permittee-Responsible Mitigation Banking In-lieu Fee Mitigation Brown and Caldwell 19

31 Compliance with other Laws and Acts Endangered Species Act National Historic Preservation Act National Environmental Policy Act Brown and Caldwell 20

32 Thank you Questions and Answers with