In the United States, natural waters and waterways are regulated and protected by numerous state and federal laws. When waters are regulated, they are known as “Jurisdictional Waters”, and are often referred to as Waters of the US or Waters of the State depending on the regulating agency. These jurisdictional waters include a variety of streams, wetlands, and other special aquatic sites (estuaries, mudflats, etc.).
The following Acts and agencies represent the most common regulations and authorities applicable to jurisdictional waters:
Rivers and Harbors Act
- Section 10 - Navigable Waters - USAC
Clean Water Act
- Section 401 - Water Quality - Delegated to States
- Section 404 - Fill and Dredged Material - USACE
Jurisdictional waters are identified and located, a process commonly called “delineated”, at a project site, and concurrence for this delineation is requested from the United States Army Corps of Engineers (USACE) and / or State agencies. The project can now be scoped and designed taking into account the presence of these jurisdictional waters.
Jurisdictional waters are regulated such that there is no “net loss”; thus, any “impacts”, or losses, must be permitted and often compensated for. It should be noted that the term impact commonly includes the following categories and involves direct “dominant” effect on the water resource: armoring (riprap, etc.), clearing, culverts, detention/weirs, draining, dredging, filling, impounding, morphology change, piping, and shading.
Once project impacts are determined, the project enters the permitting phase, typically requiring some level of notification, demonstration of need and impacts, and proposed compensatory mitigation. The USACE is the lead permitting agency for impacts to jurisdictional waters. Approximately every 5 years the USACE develops a series of Nationwide Permits (NWP) to cover the bulk of minimal impact activities affecting Waters of the US. These NWPs are issued with a set of nationwide General Conditions, then issued Regional Conditions, then reviewed and Certified by the states’ Section 401 authorities, possibly with additional Conditions. Currently there are 52 NWPs available. The most relevant NWPs for use in development are:
NWP 3: Maintenance
NWP 12: Utility Lines
NWP 14: Linear Transportation
NWP 29: Residential Developments
NWP 39: Commercial, Institutional Developments
If no NWP (w/ Conditions) applies or if the scale of the project exceeds the NWP limits, then an Individual Permit can be applied for under essentially the same notification process, but with expanded public notification and involvement, and an increased time-line.