ENGINEER’S TOOLBOX
WATERS, WATERS EVERYWHERE BY ANDREW T. DER, ANDREW T. DER & ASSOCIATES, LLC
While walking in the woods near a stream, I notice I am not standing in water – but this field evaluation reveals that the U.S. Environmental Protection Agency (EPA) may have another opinion. Many are familiar with the need to establish limits of open water, streams, and wetlands for potential construction impact compliance. But what is not clear, is whatever that limit may be, it has a greater ripple effect beyond wetland permits. Defined federal waters limits can also affect the outcome of other local, state, and federal water regulatory processes.
own additional 100-foot buffer. Local county natural resources inventory and forest conservation ordinances frequently add their own water and stream setback buffers of usually 100 feet or more. These are further expanded by steep slopes and erodible soils. Everyone following along? And now you know why existing site plan sheets look so cluttered. But wait, there’s more. Regardless of how waters are federally defined, they can also cross over to other CWA provisions including the state-issued Section 401 Water Quality Certification (WQC), which accompanies any Section 404
...any further regulation of waters of the U. S. under the CWA could be an additional and unwarranted burden… How? Current impacts to “waters of the United States” are regulated by the local U. S. Army Corps of Engineers (Corps) District under, primarily, Clean Water Act (CWA) Section 404. In Maryland this is administered concurrently with the state program in a joint federal/state permitting process. The Corps’ definitions include navigable waters, headwaters, and wetlands – and their determinations can also be a basis for the Maryland Department of the Environment (MDE) Nontidal Wetland and Waterway Permit, as well as its Tidal Wetlands Permits and License. Maryland additionally adds the 100year nontidal floodplain, 25-foot nontidal wetland buffer, isolated wetlands, and tidally mapped waters to its state regulation. For tidal waters in the Chesapeake Bay Critical Area (CBCA), the CBCA Commission also emplaces their
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permit, and includes the EPA’s Antidegradation Policy along with MDE’s higher quality Tier II water setback buffers. Certainly not least, is also the Section 402 Natural Pollutant Discharge Elimination System (NPDES) program. As the basis of the state’s and local jurisdiction’s MS4 permits, as well as the NPDES Construction General Permit Notice of Intent (NOI) process, it can also drive acceptable Erosion and Sediment (E/S) control compliance. Such plans require Best Management Practice (BMP) E/S designs – and for subsequent stormwater management (SWM) plans, Environmental Site Design (ESD) to the Maximum Extent Practicable (MEP) per the MDE SWM law. Lest we forget, in the end BMPs need to control flows prior to release into waters – wherever they are defined to be.
While physical limits of waters of the U. S. may be subjective, uniform rule making in concept is not a bad thing. A standardized and consistent approach to defining regulated, or jurisdictional, waters including wetlands is a good thing. But not achieving consensus on what those are on the ground is the critical issue. Both the Corps and EPA regulate “discharges”, or impacts, to waters of the U. S. – but what are they? Long debated, this definition is coming to a head after EPA proposed draft federal rules last year intending to achieve consistency and clarity. But does it? Despite the comment period being over, the jury is out on that, while the rule’s merits continue to be deliberated among legislators and stakeholders alike. In the end, any final rules will still need to be interpreted by people in the field based on physical character and the industry needs to continue to proactively work with the legislative process to assure equitable and technically defensible regulations. In the absence of comprehensive rules, the federal agencies historically have struggled to make practicable determinations of waters of the U.S. limits based on policy, the ordinary high water (OHW) mark, and a 1987 wetland delineation manual, leaving some arguments settled by the U. S. Supreme Court - somewhat reducing the Corp’s jurisdiction. Notable rulings include that jurisdiction cannot be based on a connection alone (“Rapanos”), nor can it extend to isolated waters (“SWANCC”). Opponents assert that, despite the proponents’ view, the draft rules may themselves create new confusion and expand federal jurisdiction beyond what
July/August 15
6/23/15 7:58 AM