Rapanos Guidance Workshop

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Rapanos Guidance Workshop Charleston District
Clean Water Act Jurisdiction and the Rapanos
Guidance
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Electronic Materials www.sac.usace.army.mil/rgw
orkshop
Handouts Agenda Field Site Maps/Aerials Note
Sheets
Listen for Contradictions and Inconsistencies
Introductions
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CLEAN WATER ACT JURISDICTION AND THE RAPANOS
GUIDANCE
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TRADITIONAL NAVIGABLE WATERS (TNW)
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TRADITIONAL NAVIGABLE WATERS (TNW)
all waters which are currently used, or were used
in the past, or may be susceptible to use in
interstate or foreign commerce, including all
waters which are subject to the ebb and flow of
the tide.
A traditional navigable water includes all of
the navigable waters of the United States,
defined in 33 C.F.R. 329, and by numerous
decisions of the Federal courts, plus all other
waters that are navigable-in-fact.
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• Documentation requirements to support
  determination include
• A Corps district determination that the water
  body is a navigable water of the
• U.S. pursuant to 33 CFR part 329.14
• 2) one or more decisions of the Federal Courts
  determining that the water body is a navigable
  water of the U.S.
• 3) The water body qualifies as a navigable water
  of the U.S. under any of the tests set forth in
  33 CFR Part 329
• (a) subject to the ebb and flow of the tide
  and/or,
• (b) the water body is presently used, or has
  been used in the past, or may be susceptible for
  use (with or without reasonable improvements) to
  transport interstate or foreign commerce
• 4) the water body is navigable-in-fact A water
  body is navigable-in-fact if it is used or
  susceptible to use, in its ordinary condition, as
  a highway of commerce for travel or trade,
  regardless of mode of navigation.

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TRADITIONAL NAVIGABLE WATERS (TNW)
all waters which are currently used, or were used
in the past, or may be susceptible to use in
interstate or foreign commerce, including all
waters which are subject to the ebb and flow of
the tide.
TNWs are jurisdictional by definition
A traditional navigable water includes all of
the navigable waters of the United States,
defined in 33 C.F.R. 329, and by numerous
decisions of the Federal courts, plus all other
waters that are navigable-in-fact.
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TRIBUTARY
a tributary includes natural, man-altered, or
man-made waterbodies that carry flow directly or
indirectly into a TNW.(several categories of
tributary are recognized based on flow
characteristics) Furthermore, a tributary for
the purposes of this guidance is the entire reach
of the stream that is of the same order. The
entire reach of a stream is a reasonably
identifiable hydrographic feature.
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Stream Order a measure of the position of a
stream in the hierarchy of tributaries

• 1st Order most upstream, un-branched stream
  segment
• 2nd Order begins at confluence of two 1st order
  streams
• 3rd Order begins at confluence of two 2nd order
  streams

Can a ditch be a tributary??
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Stream Classification 101 ??
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RELATIVELY PERMANENT WATER (RPW)
- an RPW is defined as a tributary that is not a
TNW and that typically flows year-round or has
continuous flow at least seasonally (e.g.
typically 3 months)
PERENNIAL FLOW year-round flow SEASONAL FLOW
continuous flow for at least 3 months
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NON-RELATIVELY PERMANENT WATER (NON-RPW)
- a non-RPW is defined as a tributary that is not
a TNW or an RPW, and that typically flows for
periods less than 3 months
For clarification, it does NOT flow year-round or
even at least 3 continuous months.
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Headwater Non-RPW transitions to RPW
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CONTINUOUS SURFACE CONNECTION
-is a surface feature that is not a tributary
(not an RPW or non-RPW), but clearly acts as a
hydrologic connection between wetlands and
tributaries
- a continuous surface connection does not
require surface water to be continuously present
between the wetland and the tributary.
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NEW TERMS AND ACRONYMS
ADJACENT
Adjacent means bordering, contiguous, or
neighboring. Wetlands separated from other
waters of the U.S. by man-made dikes or barriers,
natural river berms, beach dunes, and the like
are also adjacent. (33 CFR 328.3(c))
Wetlands will meet all three parameters of
hydrology, hydrophytic vegetation, and hydric
soils, as required by agency regulations, and
described in the Corps of Engineers Wetlands
Delineation Manual (1987) or appropriate
Regional Supplement
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NEW TERMS AND ACRONYMS
ADJACENT
Adjacent means bordering, contiguous, or
neighboring. Wetlands separated from other
waters of the U.S. by man-made dikes or barriers,
natural river berms, beach dunes, and the like
are also adjacent. (33 CFR 328.3(c)) Wetlands
will meet all three parameters of hydrology,
hydrophytic vegetation, and hydric soils, as
required by agency regulations, and described in
the Corps of Engineers Wetlands Delineation
Manual (1987) or appropriate Regional
Supplement ABUTTING - A wetland abuts a
tributary if it is not separated from the
tributary by uplands, a berm, dike, or similar
feature. NON-ABUTTING - Wetlands separated from
other waters of the U.S. by man- made dikes or
barriers, natural river berms, beach dunes, and
the like are adjacent.
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NEW TERMS AND ACRONYMS
ADJACENT
ABUTTING - A wetland abuts a tributary if it is
not separated from the tributary by uplands, a
berm, dike, or similar feature. NON-ABUTTING -
Wetlands separated from other waters of the U.S.
by man- made dikes or barriers, natural river
berms, beach dunes, and the like are adjacent.
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Abutting and non-abutting wetlands adjacent to
the tributary
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NEW TERMS AND ACRONYMS
ISOLATED
Wetlands that are not contiguous, bordering or
neighboring with respect to other Waters of the
US are jurisdictionally isolated
same as it has been since SWANCC. If it was
isolated before, it is isolated now.
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NEW TERMS AND ACRONYMS
ISOLATED
Wetlands that are not contiguous, bordering or
neighboring with respect to other Waters of the
US are jurisdictionally isolated
same as it has been since SWANCC. If it was
isolated before, it is isolated now.
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CWA JURISDICTION
EPA and the Corps will assert jurisdiction over
? TNWs and their adjacent wetlands including
adjacent wetlands that are not contiguous n
ot directly abutting
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CWA JURISDICTION
EPA and the Corps will assert jurisdiction over
? TNWs and their adjacent wetlands including
adjacent wetlands that are not contiguous
? perennial and seasonal RPWs
? wetlands directly abutting perennial or
seasonal RPWs
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CWA JURISDICTION
EPA and the Corps will assert jurisdiction over
? TNWs and their adjacent wetlands including
adjacent wetlands that are not contiguous
? perennial and seasonal RPWs
? wetlands directly abutting perennial or
seasonal RPWs
? wetlands adjacent to (but not directly
abutting) RPWs where such tributaries have a
significant nexus to TNWs

? non-RPWs and their adjacent wetlands where
such tributaries have a significant nexus to
TNWs
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Any adjacency to non-RPW tributaries requires
Significant Nexus Determination
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NEW TERMS AND ACRONYMS
SIGNIFICANT NEXUS DETERMINATION (SND)
A significant nexus analysis will assess the flow
characteristics and functions of the relevant
reach of the tributary, in combination with
functions collectively performed by all wetlands
adjacent to the tributary, to determine if they
have more than an insubstantial or speculative
effect on the chemical, physical, or biological
integrity of TNWs.
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NEW TERMS AND ACRONYMS
SIGNIFICANT NEXUS DETERMINATION (SND)
A significant nexus analysis will assess the flow
characteristics and functions of the relevant
reach of the tributary, in combination with
functions collectively performed by all wetlands
adjacent to the tributary, to determine if they
have more than an insubstantial or speculative
effect on the chemical, physical, or biological
integrity of TNWs.
Production export Wildlife nesting
feeding Flood flow alteration Flow
maintenance Flood storage volume Pollutant
filtering Sediment trapping Groundwater
discharge/recharge
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NEW TERMS AND ACRONYMS
DITCHES
Ditches (including roadside ditches) excavated
wholly in and draining only uplands and that do
not carry a relatively permanent flow of water
generally are not jurisdictional under the CWA,
because they are not tributaries or they do not
have a significant nexus to TNWs. If a ditch has
relatively permanent flow into waters of the U.S.
or between two (or more) waters of the U.S., the
ditch is jurisdictional under the CWA. Even when
not themselves waters of the U.S., ditches may
still contribute to a surface hydrologic
connection between an adjacent wetland and a TNW.
For each specific request regarding ditches or
similar features, field staff will need to make a
case-by-case determination on jurisdictional
status of resource.
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NEW TERMS AND ACRONYMS
SWALES
Swales are generally shallow features in the
landscape that may convey water across upland
areas during and following storm events. Swales
usually occur on nearly flat slopes and typically
have grass or other low-lying vegetation
throughout the swale. Swales are generally not
waters of the U.S. because they are not
tributaries or they do not have a significant
nexus to TNWs. Even when not themselves waters
of the United States, swales may still contribute
to a surface hydrologic connection between an
adjacent wetland and a TNW.
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CWA SECTION 404 JURISDICTION
Waters of the U.S. include TNWs, including
territorial seas Wetlands adjacent to TNWs
RPWs that flow directly or indirectly into TNWs
Wetlands directly abutting RPWs that flow
directly or indirectly into TNWs Non-RPWs
that flow directly or indirectly into TNWs
Wetlands adjacent to but not directly abutting
RPWs that flow directly or indirectly into
TNWs Wetlands adjacent to non-RPWs that flow
directly or indirectly into TNWs
Jurisdictional by definition
Significant Nexus Determination required
Pg 50 Guidebook
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QUESTIONS / DISCUSSION
Feel free to contact me at [phone]
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CWA SECTION 404 JURISDICTION
Waters of the U.S. include TNWs, including
territorial seas Wetlands adjacent to TNWs
RPWs that flow directly or indirectly into TNWs
Wetlands directly abutting RPWs that flow
directly or indirectly into TNWs Non-RPWs that
flow directly or indirectly into TNWs Wetlands
adjacent to but not directly abutting RPWs that
flow directly or indirectly into TNWs
Wetlands adjacent to non-RPWs that flow directly
or indirectly into TNWs Impoundments of
jurisdictional waters Impoundment of waters of
the U.S. as a general matter does not affect
the waters jurisdictional status. Isolated
(interstate or intrastate) waters, including
isolated wetlands Prior to asserting or
declining CWA jurisdiction based solely on this
category, Corps Districts will elevate the
action to Corps HQ for review consistent with the
process described in the Corps/EPA Memorandum
Regarding CWA Act Jurisdiction Following Rapanos.
(Appendix F)
Jurisdictional by definition
Significant Nexus Determination required
Pg 50 Guidebook
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Non-abutting adjacency requires Significant Nexus
Determination to support jurisdiction
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