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Denver International Airport

Waters of the U.S. Revisions

City and County of Denver

Sarah Reeves, Brown and Caldwell

January 12 | 2015

Clean Water Act . . . protects waters to keep them fishable, swimmable, and drinkable. But what waters?

Waters of the US (WOTUS)

Navigable Waters

“Waters of the United States, including the territorial seas.”

- termed jurisdictional waters

Brown and Caldwell

What’s the Issue?

Brown and Caldwell 3

Jurisdictional Waters


• 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.

The Definition has Changed

Tributary Waters


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.

Tributary Waters are WOTUS

6

Existing definition

All Adjacent Waters

Adjacent

Wetlands

All Waters Considered to have

significant nexus to

traditional navigable water,

interstate water, or the

territorial seas.

Proposed definition

Brown and Caldwell

7

Other Waters

List - intrastate lakes, mudflats, prairie potholes, playa lakes

Adjacent “other waters” and wetlands - categorical

Non-adjacent “other waters” and wetlands on a case-by-case basis

Can be evaluated individually or as a group of waters similarly situated in a region.

C

P

P

P

Brown and Caldwell

Exclusions


•Treatment ponds/lagoons designed to meet CWA requirements.

Wastewater Treatment Systems

Prior Converted Cropland

•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

Various Features

•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

Some Ditches

EPA’s Take


• Protect any new types of

waters

• Broaden coverage of the

CWA

• Regulate groundwater

• Expand jurisdiction over

ditches

EPA Says Rule Does: EPA Says Rule Does Not:

• 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

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.

Next Steps


More than 400k comments were

submitted.

Proposed rule put out in April

2014 and public comment

closed in November

2014.

EPA plans to issue the final

rule in April 2015.

Congress considering

blocking WOTUS.


Waters of the U.S. Revisions


Sarah Reeves, Brown and Caldwell

January 12 | 2015


Waters of the U.S. Mapping


with

Dan McCloy, Brown and Caldwell | Darrin Masters, Smith Environmental

January 12 | 2015

Wetland Mapping Goals


Project planning tool for DIA

Identify and map water bodies, stormwater features, and wetlands

Complete Waters of The United States Assessment (report)

Submit report to U.S. Army Corps of Engineers (USACE)

Receive Jurisdictional Determination from USACE

1

2

3

4

5

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).

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).



www.nww.usace.army.mil

PREAMBLE WATERS:

Aquatic resources that are

drainage/stormwater channels

or detention ponds. These

channels, ponds, and wetlands

are not jurisdictional features.



1. Hydrology

What Makes A Wetland?


2. Soils 3. Vegetation



Water or Evidence of• Surface water

• Soil saturation within

approximately 12 inches

of ground surface

• Water marks

• Algae

1. Hydrology



Hydric Soils• Anaerobic conditions

(lack of oxygen)• Fe and Mn reduction

• Sulfur reduction

• Organic matter accumulation

2. Soils



Plants adapted for

growing in standing

water or saturated soils

such as

sedges and

cattails

3. Vegetation

2009 Wetland Mapping


• Wetland Field Forms

• GPS – point collection and boundary mapping

• Photographs

• Field notes

Field Data Collection


• Jurisdictional Features

DIA Feature Examples


• Preamble Waters

Prohibits the discharge of any pollutant into waters of the U.S. from a point source unless authorized by a permit.

Clean Water Act


• Section 401 – Water Quality Certification

• Section 402 – Traditional Pollutants (NPDES)

• Section 404 – Dredged or Fill Materials

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:

Section 404


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.

• 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

Types of Permits


Individual Permit – Required for potentially significant impacts

Types of Permits


• 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

1. Avoid

2. Minimize

3. Compensate

• Restoration

• Establish (or create)

• Enhancement

• Preservation

The Mitigation Sequence


• Permittee-Responsible

• Mitigation Banking

• In-lieu Fee Mitigation

Avenues for Mitigation


• Endangered Species Act

• National Historic Preservation Act

• National Environmental Policy Act

Compliance with other Laws and Acts


Thank youQuestions and Answers

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