The Clean Water Act (CWA) is the primary law that governs pollution to our country’s rivers, streams, and wetlands. The CWA establishes the basic structure for regulating impacts to rivers, streams, and wetlands are jurisdictional under the Clean Water Act (these waters are collectively known as “waters of the U.S”). Title IV of the CWA, the pertinent title to development and construction projects, spells out the permits and licenses that are required for projects that impact waters of the U.S. Some of these include:
The CWA is primarily administered by the Environmental Protection Agency (EPA) in coordination with the U.S. Army Corps of Engineers (USACE) and state governments..
Prior to the 1960’s, environmental awareness in the U.S. was virtually nonexistent. The Lacey Act of 1900 prohibited illegal plant and animal trade, the Antiquities Act of 1906 preserved national monuments, and the Migratory Bird Treaty Act of 1918 had been passed in response to over-hunting, but the US had no laws targeting the impacts of human-centered activities on the environment, nor did anyone really seem to care.
Then, in the 1960s, following the release of Rachel Carson’s Silent Spring (1962), the Cuyahoga River fire in Ohio (1969), and public backlash from the Interstate Highway System, public concern for the environment heightened. Decades of increased urbanization, industrial expansion, and resource exploitation was putting the continued health of the environment at risk. Following a congressional investigation into federal mismanagement of the country’s environmental resources, NEPA was signed into law by President Nixon on January 1, 1970.
In the Act, Congress stated that “it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures… to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”
Waters of the U.S. are the oceans, rivers, streams, lakes, creeks, marshes, and wetlands that are considered "jurisdictional" under the Clean Water Act - as in, they are within the regulatory jurisdiction of the USACE. However, determining exactly which waters are jurisdictional has been quite a debate for the last decade.
Since the passing of the Clean Water Act in 1972, the definition of "waters of the U.S" has been volleyed around through dozens of court cases, a handful of executive orders, and a couple of final rules. We won't bore you with the timeline or the details, but here is what you really need to know: the definition of waters of the U.S. changes on a fairly regular basis, so don't get too comfortable with any one definition.
The most recent change to the definition of waters of the U.S. was established in the 2020 Navigable Waters Protection Rule, a rule that was passed under the Trump administration that drastically narrows the definition of waters of the U.S. in comparison to previously accepted standards and court interpretations.
Under the current 2020 Navigable Waters Protection Rule, waters of the U.S. are generally defined as:
A notable categorical exclusion to the current definition of waters of the U.S. under the 2020 rule is ephemeral (dry) tributaries, which have historically been considered jurisdictional if they had some form of chemical, physical, or biological connection to a downstream waters of the U.S. Under the current rule, dry tributaries are never jurisdictional.
Learn more about the Navigable Waters Protection Rule here >>
The U.S. Army Corps of Engineers (USACE) is the regulatory agency that authorizes impacts to waterways and wetlands that are jurisdictional under Section 404 of the CWA. Permitting or pre-construction authorization for impacts to waters of the U.S. may be required for a proposed project, depending on the amount of impact to waters of the U.S. and on the federal, state, and local regulatory requirements.
Find Waters of the U.S. on Your Project with Your Complimentary Transect Report >>
For projects that have only minimal impacts to waters of the U.S., the project can often proceed with minimal USACE coordination under a streamlined 'general' or 'nationwide' permit. Projects with more than minimal impacts may require an individual permit.
All general conditions of the general and nationwide permits must be met in order to use these streamlined permits. Two of the most common general conditions consider the project’s effects to federally-protected species and cultural resources. As such, these resources are often considered as part of the USACE permitting process.
Check out the lists below to find out what federal wetlands permits and authorizations are commonly encountered by our various industry customers.
Nationwide Permit 51 is a streamlined blanket permit that is available for projects impacting up to 0.5 acre of waters of the U.S. Projects can often avoid USACE authorization all-together if impacts to waters of the U.S. are less than 0.1 acre and all NWP general conditions, like no impacts to protected species and cultural resources, can be met.
Nationwide Permit 12 is available for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the U.S. up to 0.5 acre. USACE authorization is usually not required where impacts at individual water crossings are less than 0.1 acre unless protected species or archaeological resources are nearby.
Under Nationwide Permit 39, preconstruction notification to and approval from the USACE is required for any impacts to waters of the U.S up to 0.5 acre. Impacts greater than 0.5 acre require a 404 individual permit.
Transect’s environmental due diligence software evaluates your site and, using our 37,000,000+ waters and wetlands locations, provides you with an interactive map and a detailed list of the location, water type, and acreage of waterways and wetlands intersected by your project.
And that’s not all. Your report will also include any active regulations, required permitting, and specific recommendations for federal (and state!) permits on your site.
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- Alyssa Duncan, Midstream Customer
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