Appendices to the
Resource and Programmatic
Assessment for the Proposed Revised
Definition of "Waters of
the United States"
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and
Department of the Army
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Appendices
Appendix A, Methodology for Aquatic Resources and Programmatic Data Analyses 8
1. Overview 8
2. Data Sources 8
3. Methodology 23
4. Uncertainties and Limitations to the Data and Analyses 36
5. Results 42
6. Summary Graphics 53
7. Glossary of Acronyms and Terms 58
Appendix B. State-by-State Program Descriptions 66
1. OVERVIEW 66
2. ALABAMA 67
3. ALASKA 69
4. AMERICAN SAMOA 71
5. ARIZONA 72
6. ARKANSAS 73
7. CALIFORNIA 76
8. COLORADO 79
9. THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS 81
10. CONNECTICUT 82
11. DELAWARE 84
12. DISTRICT 01 COLUMBIA 87
13. FLORIDA 89
14. GEORGIA 92
15. GUAM 93
16. HAWAII 95
17. IDAHO 97
18. ILLINOIS 99
19. INDIANA 101
20. IOWA 103
21. KANSAS 105
22. KENTUCKY 107
23. LOUISIANA 108
24. MAINE 110
25. MARYLAND 113
26. MASSACHUSETTS 115
27. MICHIGAN 117
28. MINNESOTA 119
29. MISSISSIPPI 121
30. MISSOURI 123
31. MONTANA 124
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32. NEBRASKA 126
33. NEVADA 128
34. NEW HAMPSHIRE 130
35. NEW JERSEY 131
36. NEW MEXICO 134
37. NEW YORK 136
3 8. NORTH CAROLINA 138
39. NORTH DAKOTA 140
40. OHIO 142
41. OKLAHOMA 144
42. OREGON 146
43. PENNSYLVANIA 148
44. PUERTO RICO 150
45. RHODE ISLAND 151
46. SOUTH CAROLINA 153
47. SOI I II DAKOTA 155
48. TENNESSEE 157
49. TEXAS 159
50. U.S. VIRGIN ISLANDS 162
51. UTAH 163
52. VERMONT 165
53. VIRGINIA 167
54. WASHINGTON 169
55. WEST VIRGINIA 171
56. WISCONSIN 174
57. WYOMING 176
Appendix C. Tribe-by-Tribe CWA Authorization 179
Appendix D. References 183
1. Legal References 183
2. Other References 206
List of Tables
Table 1: NHD feature types (Ftype) included to determine physical connectivity 27
Table 2. Crosswalk between NHD Fcode and assigned stream type 29
Table 3. Summary of the Corps Fiscal Year 2013-2017 ORM2 Approved Jurisdictional
Determination Data under Pre-2015 Practice. During this period, the Corps conducted AJDs
under pre-2015 practice for 82,738 aquatic resources in the 10 categories that are described in the
"Baseline" section of this chapter. Of these AJDs, 60,116 aquatic resources were determined to
be jurisdictional. In addition, the Corps conducted 14,357 upland determinations in that same
period 53
Table 4. Summary of the Corps Fiscal Year 2013-2017 ORM2 Data Analyzed for Approved
Jurisdictional Determinations for Wetlands Adjacent to Traditional Navigable Waters (TNWs)
Made under Pre-2015 Practice 53
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Table 5. Estimated Number of Facilities Subject to SPCC in 2016 54
Table 6. Summary of the number of active FRP facilities by EPA region 55
Table 7. Authorized impact area of Corps 404 permits issued in 2011-2015, by project type 56
Table 8. Authorized impact area of section 404 permits issued in 2011-20151, excluding permits
affecting resources categorized as "ocean" or "tidal." 57
Table 9. Alabama Wetland Program Summary 68
Table 10. Alaska Wetland Program Summary 70
Table 11. Arizona Wetland Program Summary 73
Table 12. Arkansas Wetland Program Summary 75
Table 13. California Wetland Program Summary 78
Table 14. Colorado Wetland Program Summary 81
Table 15. Connecticut Wetland Program Summary 84
Table 16. Delaware Wetland Program Summary 87
Table 17. D.C. Wetland Program Summary 89
Table 18. Florida Wetland Program Summary 91
Table 19. Georgia Wetland Program Summary 93
Table 20. Hawaii Wetland Program Summary 97
Table 21. Idaho Wetland Program Summary 99
Table 22. Illinois Wetland Program Summary 100
Table 23. Indiana Wetland Program Summary 103
Table 24. Iowa Wetland Program Summary 105
Table 25. Kansas Wetland Program Summary 106
Table 26. Kentucky Wetland Program Summary 108
Table 27. Louisiana Wetland Program Summary 110
Table 28. Maine Wetland Program Summary 112
Table 29. Maryland Wetland Program Summary 115
Table 30. Massachusetts Wetland Program Summary 117
Table 31. Michigan Wetland Program Summary 118
Table 32. Minnesota Wetland Program Summary 120
Table 33. Mississippi Wetland Program Summary 122
Table 34. Missouri Wetland Program Summary 124
Table 35. Montana Wetland Program Summary 126
Table 36. Nebraska Wetland Program Summary 127
Table 37. Nevada Wetland Program Summary 129
Table 38. New Hampshire Wetland Program Summary 131
Table 39. New Jersey Wetland Program Summary 134
Table 40. New Mexico Wetland Program Summary 135
Table 41. New York Wetland Program Summary 138
Table 42. North Carolina Wetland Program Summary 140
Table 43. North Dakota Wetland Program Summary 142
Table 44. Ohio Wetland Program Summary 144
Table 45. Oklahoma Wetland Program Summary 146
Table 46. Oregon Wetland Program Summary 148
Table 47. Pennsylvania Wetland Program Summary 149
Table 48. Puerto Rico Wetland Program Summary 151
Table 49. Rhode Island Wetland Program Summary 153
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Table 50. South Carolina Wetland Program Summary 155
Table 51. South Dakota Wetland Program Summary 157
Table 52. Tennessee Wetland Program Summary 159
Table 53. Texas Wetland Program Summary 162
Table 54. Virgin Islands Wetland Program Summary 163
Table 55. Utah Wetland Program Summary 165
Table 56. Vermont Wetland Program Summary 167
Table 57. Virginia Wetland Program Summary 169
Table 58. Washington Wetland Program Summary 171
Table 59. West Virginia Wetland Program Summary 174
Table 60. Wisconsin Wetland Program Summary 176
Table 61. Wyoming Wetland Program Summary 177
Table 62. EPA Approvals of Tribal Water Quality Standards 179
List of Figures
Figure 1. Classification hierarchy of wetlands and deepwater habitats in the Cowardin System,
showing Systems, Subsystems, and Classes 17
Figure 2. Illustration of population served calculations 21
Figure 3. Illustration of population served calculations for purchasers from a wholesaler 21
Figure 4. Illustration of a SPA 22
Figure 5. Process for classifying NWI wetlands as either abutting or not abutting 28
Figure 6. Comparison between NHD High Resolution and NHD Medium Resolution Flowlines .30
Figure 7. Illustration of Multiple Intersections between High and Medium Resolution NHD .... 31
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Acronyms
Agencies Environmental Protection Agency and U.S. Army Corps of Engineers
Army Department of Army
AJD Approved Jurisdictional Determinations
ATTAINS Assessment and Total Maximum Daily Load Tracking and Implementation
System
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
CFR Code of Federal Regulations
Corps U.S. Army Corps of Engineers
CWA Clean Water Act
DA District Attorney
DEM Department of Environmental Management
DEP Department of Environmental Protection
DNR Department of Natural Resources
EPA Environmental Protection Agency
FEMA Federal Emergency Management Agency
FRP Facility Response Plan
FWPA Freshwater Wetlands Protection Act
FY Fiscal Year
GIS Geographic Information Systems
ICIS-NPDES Integrated Compliance Information System National Pollutant Discharge
Elimination System
ICR Information Collection Request
IR Interpretive Rule
JDs Jurisdictional Determinations
NED National Elevation Dataset
NFPA National Fire Prevention Association
NJPDES New Jersey Pollutant Discharge Elimination System
NHD National Hydrography Dataset
NHDPlus National Hydrography Dataset Plus
NPDES National Pollutant Discharge Elimination System
NRC National Response Center
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NRCS Natural Resources and Conservation Service
NRPA Natural Resources Protection Act
NWI National Wetlands Inventory
MassDEP Massachusetts Department of Environmental Protection
ORM2 Operation and Maintenance Business Information Link, Regulatory Module
PJD Preliminary Jurisdictional Determinations
PPT Parts per Thousand
PSTR Petroleum Storage Tank Remediation
Rapanos Rapanos v. United States, 547 U.S. 715 (2006)
RPW Relatively Permanent Waters
RPA Resource and Programmatic Assessment
SDWIS/FED Safe Drinking Water Information System/Federal Version
SPAs Source Protection Areas
SPCC Spill Prevention, Control, and Countermeasure
SWANCC Solid Waste Agency of Northern Cook County v. United States Army Corps
of Engineers, 531 U.S. 159 (2001)
TMDLs Total Maximum Daily Load determinations
TNW Traditional Navigable Water
UAA Use Attainability Analysis
USGS U.S. Geological Survey
WBD Watershed Boundary Dataset
WQS Water Quality Standards
WRRDA Water Resources Reform and Development Act
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Appendix A. Methodology for Aquatic Resources and Programmatic
Data Analyses
1. Overview
This appendix describes the data and methodology the agencies used or attempted to use in the
various aquatic resource analyses referenced in the preceding chapters of the Resource and
Programmatic Assessment. This includes analyses or attempted analyses to estimate the
distribution of the type of streams across the country that are: 1) perennial, intermittent, or
ephemeral; 2) listed as impaired under Section 303(d) of the Clean Water Act ("CWA"); 3) have
completed Total Maximum Daily Load determinations ("TMDLs") applied to them; 4) lie within
surface water source protection areas ("SPAs") for drinking water intakes; and 5) occur on tribal
reservations. Graphics containing key findings, limitations, and caveats to the analyses are
included. Though some chapters of the Resource and Programmatic Assessment discuss general
limitations and caveats, they are discussed in further detail in this appendix.
2. Data Sources
A. Operation and Maintenan siness Information Link, Regulatory Module
(ORM2)
ORM2 (Operation and Maintenance Business Information Link, Regulatory Module) is the
Corps' internal database system that documents CWA section 404 application and permit data,
including information on jurisdictional determinations (JDs). A JD1 is a written Corps
determination that a water is subject to regulatory jurisdiction under section 404 of the CWA2 or
a written determination that a water is subject to regulatory jurisdiction under section 9 or 10 of
the Rivers and Harbors Act of 1899.3 JDs are identified as either preliminary or approved,4 and
both types are recorded in ORM2. An approved JD (AJD) is an official Corps document stating
the presence or absence of "waters of the United States" on a parcel or a written statement and
map identifying the limits of "waters of the United States" on a parcel. A preliminary JD (PJD) is
a non-binding written indication that there may be "waters of the United States" on a parcel;5 an
applicant can elect to use a PJD to voluntarily waive or set aside questions regarding CWA
jurisdiction over a particular site, usually in the interest of allowing the applicant to move ahead
expeditiously to obtain a Corps permit authorization.
1 33 CFR 331.2.
2 33 U.S.C. 1344.
3 33 U.S.C. 401 etseq.
4 33 CFR 331.2.
5 Id.
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Jational Hydrography Dataset (NI ID)
The U.S. Geological Survey's (USGS) National Hydrography Dataset (NHD) High Resolution
(1:24,000 scale6 or better) was used to provide the location and length of streams by stream flow
type. The USGS created the NHD to assist scientists in modeling hydrologic features and for
cartographic mapping purposes.7 The NHD is designed to be used in general mapping and in the
analysis of surface water systems.8 In Alaska, the NHD is available only at the l:63,360-scale.
The NHD depicts aquatic resources such as lakes, ponds, streams, rivers, wetlands, and oceans
throughout the United States (including many canals and ditches). The agencies used NHD data
from March 2017 for all states except California, which were September 2017 data.9
The NHD contains both linear and polygonal data. For the data analyses, the agencies used the
hydrography feature class of "NHDFlowline." NHDFlowlines consist of routes that make up a
linear surface water drainage network, including streams/rivers and canal s/ditches.
NHDFlowlines are classified by feature type or "Ftype," a unique identifier of a feature type, and
is further attributed with descriptive information by a feature code or "Fcode." NHDFlowline
feature types include Stream/River, Artificial Path, Canal/Ditch, Coastline, Connector, Pipeline,
and Underground Conduit. For purposes of this analysis, the agencies focused on the
Stream/River feature type, which is defined as a body of flowing water. Stream/River features
are further classified by hydrographic category of "intermittent," "perennial," and "ephemeral,"
as further described below. Some Stream/River flowlines are unclassified for hydrographic
category, meaning that the NHD does not further classify them by intermittent, perennial, or
ephemeral.
Stream and river "flowlines" in NHD are characterized as ephemeral, intermittent, or perennial
based on the original pre-digital mapping effort of USGS topographic maps. In NHD, perennial
reaches are presumed to carry water throughout the year except during drought, whereas
intermittent reaches are assumed to lack flow for some duration. The NHD defines ephemeral as
having water only during or after a local rainstorm or heavy snowmelt. In the arid West, some
ephemeral streams are captured in the dataset as "washes." A wash in the NHD is defined as the
usually dry portion of a stream bed that contains water only during or after a local rainstorm or
heavy snowmelt.
Many, but not all, canals and ditches are also mapped in the NHD. The NHD definition for a
"canal/ditch" feature specifies that it is an artificial open waterway constructed to transport
water, to drain or irrigate land, to connect two or more water bodies, or to serve as a waterway
6 Scale is the relationship between distance on the map and distance on the ground. If the scale were
1:24,000, for instance, then one inch on the map would represent 24,000 inches or 2,000 feet on the ground. If the
scale were 1:63,360, then one inch on the map would represent 63,360 inches or one mile on the ground. See "Map
Scales," available at https://pubs.usgs.gov/unnumbered/70039582/report.pdf.
7 U.S. Geological Survey. 2014. "Frequently Asked Questions about the NHD & WBD Datasets." See also, Simley,
Jeff. 2018. GISfor Surface Water: Using the National Hydrography Dataset. Redlands, CA: ESRI Press.
s Id.
9 U.S. Geological Survey. 2007-2018. National Hydrography Dataset available at https://www.usgs.gov/core-
science-svstems/ngp/national-hvdrographv/national-hvdrographv-dataset. accessed March 2017 and September
2017.
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for watercraft. The "lake/pond" feature is defined in a NHD as a standing body of water with a
predominantly natural shoreline surrounded by land. The "reservoir" feature in the NHD is
defined as a constructed basin formed to contain water or other liquids.
The USGS did not consistently identify ephemeral streams on the l:24,000-scale topographic
maps from which the NHD high resolution dataset is based. Many ephemeral streams that were
included in the topographic maps were mapped there as intermittent streams, and many
ephemeral streams were not mapped at all. In the arid West in particular, many ephemeral
streams were represented as intermittent on the topographic maps and in NHD when it was
initially digitized. In the 2000s, however, NHD began classifying some streams in the digital
dataset as ephemeral.10 Such mapping is most complete in the arid West, where an effort in
2015-2016 led to USGS attempting to correct many of the misclassified ephemeral streams. This
effort reclassified unnamed streams classified as intermittent to ephemeral, assuming that in the
arid West, any intermittent source of water would be named, and therefore unnamed streams
classified as intermittent were most likely ephemeral. This correction was applied only in
portions of Arizona, California, Colorado, Idaho, New Mexico, Nevada, Texas, and Utah, while
other areas remain uncorrected.11 The USGS validated this effort using stream flow modeling
and original field notes, and also found the reclassified streams to be comparable with updates
provided by federal data stewards that were based on field work and local knowledge.12 In other
limited areas, state and federal data stewards have specifically mapped ephemeral streams when
providing updated NHD data to the USGS.13 Many ephemeral streams remain included in the
"intermittent" category, particularly those outside of the arid West. The NHD is the most
comprehensive national dataset of the location of streams in the United States. Despite being a
high-quality dataset, the high resolution NHD data has been demonstrated to under-represent the
10 Simley, Jeff. 2006. "USGS National Hydrography Dataset Newsletter." Vol. 5, No. 4, February 2006. Available
at: https://www.usgs.gov/core-science-svstems/ngp/national-hvdrographv/newsletters. See also, Simley, Jeff. 2015.
"USGS National Hydrography Dataset Newsletter." Vol. 14, No. 6, April 2015. Available at:
https://www.usgs.gov/core-science-svstems/ngp/national-hvdrographv/newsletters.
11 Corrections were made for Watershed Boundary Dataset Hydrologic Regions 13, 15, 16, and parts of 18, which
are the Rio Grande Region (encompassing portions of Colorado, New Mexico, and Texas), the Lower Colorado
Region (encompassing portions of Arizona, New Mexico, and Nevada), the Great Basin Region (encompassing
portions of California, Idaho, Nevada, and Utah), and the California Region (encompassing portions of California),
respectively. For a map of the hydrologic regions, visit https://www.usgs.gov/core-science-svstems/ngp/national-
hvdrographv/nhdplus-high-resolution.
12Before proceeding with the reclassification effort, the USGS' validated the plan by comparing the NHDPlus
Enhanced Runoff Method (EROM) flow volume estimates to the NHD high resolution reclassification and by
researching USGS' original field notes from when the topographic maps were created. In addition, the USGS found
the results of the reclassification were comparable with NHD high resolution stewardship updates to the dataset for
specific areas provided by the Bureau of Land Management (BLM) in Idaho and the U.S. Forest Service (USFS) in
New Mexico. BLM and the USFS had based their revisions on field work and local knowledge. See Simley, Jeff.
2015."USGS National Hydrography Dataset Newsletter." Vol. 14, No. 10, August 2015. Available at:
https://www.usgs.gov/core-science-svstems/ngp/national-hvdrographv/newsletters. See also, Simley, Jeff. 2015.
"USGS National Hydrography Dataset Newsletter." Vol. 14, No. 6, April 2015. Available at:
https://www.usgs.gov/core-science-svstems/ngp/national-hvdrographv/newsletters.
13 The NHD datasets are regularly updated and maintained through stewardship partnerships with states and other
collaborative bodies, such as Federal agencies. An agency in each state manages the maintenance activities within
the state, and updates are made available in the national dataset. For example, the U.S. Forest Service and the
Bureau of Land Management were some of the first data stewards to add ephemeral streams within certain federal
lands to the NHD.
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upstream-downstream extent of channel networks.14 It does not map all surface waters and
sometimes maps streams that do not exist or no longer exist on the ground {i.e., it has errors of
omission and commission). Smaller features would generally not be included in the NHD. In
general, streams longer than one mile were included and lakes/ponds greater than six acres were
included in the dataset. The dataset also has positional inaccuracies. At high-resolution, 90
percent of well-defined features are within 40 feet of their true geographic position. In addition, a
designation of perennial, intermittent, or ephemeral in the NHD does not guarantee an accurate
depiction of on-the-ground flow conditions. For example, a study comparing the field-verified
flow regime {i.e., perennial, intermittent, or ephemeral) of 105 headwater stream reaches in nine
mesic forests across the contiguous United States and 178 headwater stream reaches in Oregon to
the flow regime documented in various mapping resources found that high resolution NHD
misclassified the flow regime 44.8 percent of the time across the mesic forest headwater reaches
and 57.9 percent of the time across the Oregon headwater reaches.15 Misclassifications of NHD
stream permanence are known to occur among flow regime types, including field-verified
perennial streams identified as ephemeral and field-verified ephemeral streams identified as
perennial.16 While the USGS conducted some on-the-ground field inspection 30 to 60 years ago
when creating the topographic maps from which the NHD was created, the resulting
hydrographic classifications do not necessarily represent current hydrographic conditions.
Misclassifications can occur for a variety of reasons, from changes in land use and/or climate,
observational errors, errors in data transcription (from the paper files to digital files), changes in
data standards and definitions, inconsistent mapping techniques, differences in source material
for creating the original topographic maps, or for cartographic reasons.
Finally, the NHD is not a regulatory dataset and does not indicate whether streams and other
features are jurisdictional for CWA purposes.17 For example, some river and stream features
mapped in the NHD would not meet the proposed definition of tributary because they do not
contribute perennial or intermittent flow to a traditional navigable water (TNW) in a typical year.
The NHD is also available at medium resolution (1:100,000-scale). Both datasets are publicly
available on the USGS website. The agencies decided to utilize the high-resolution dataset to
represent streams and rivers for several reasons. The high-resolution dataset is the most up-to-
date and detailed hydrography dataset for the nation, mapping more streams than the medium
resolution dataset. And although many ephemeral streams are not mapped, the high-resolution
dataset includes the stream flow type of "ephemeral," which is not included in the medium
resolution dataset. The agencies are aware that states may have their own geospatial datasets of
streams and other aquatic resources. The agencies chose to analyze the NHD over such datasets
in order to utilize a national, publicly-available dataset with nationally-consistent data standards,
14 Fritz, Ken M., el al. 2013. "Comparing the Extent and Permanence of Headwater Streams from Two Field
Surveys to Values from Hydrographic Databases and Maps. Journal of the American Water Resources Association
49(4) 867-882.
15 Id.
16 See, e.g., id.
17 It is the agencies' longstanding position that the NHD and the NWI do not represent waters subject to CWA
jurisdiction. See, e.g., letter dated July 28, 2014 from EPA Office of Water Acting Assistant Administrator Nancy
Stoner to Congressman Lamar Smith. Available at:
https://science.house.gov/sites/republicans.science.house.gov/files/documents/epa releases maps letter.pdf.
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instead of using a collection of potentially inconsistent data. In addition, the NHD data are
regularly updated and maintained through stewardship partnerships with states and other
collaborative bodies. An agency in each state manages the maintenance activities within the
state, and updates are made available in the national dataset.
1. National Hydrography Dataset Plus
The National Hydrography Dataset Plus ("NHDPlus") is a suite of geospatial products that that
build upon and extend the capabilities of the NHD, the National Elevation Dataset and the
Watershed Boundary Dataset. The NHDPlus includes a stream network, catchments, and
streamflow estimates, as well as other attributes that enable stream "navigation" (e.g., allow
users to "navigate" up- and downstream from a given point in the stream network).18 An
NHDPlus catchment is the geographic area which drains to a single stream segment (reach) in
the NHD stream network.19 The NHDPlus is currently available for the NHD at medium
resolution for the conterminous United States, Hawaii, and the U.S. territories. The NHDPlus
High Resolution is currently being developed in "Beta" version in an iterative fashion throughout
the country. Data are available at https://epa.gov/waterdata/nhdplus-national-hvdrography-
dataset-plus and https://vvvvvv.usgs.gov/core-science-svstems/ngp/national-hvdrographv/access-
national-hydrography-products. For portions of these analyses, the agencies used NHDPlus at
medium resolution, as discussed in the "Methodology" section of this document.
C. National Wetlands Inventory
The National Wetlands Inventory ("NWI") is also discussed in Chapter I: "Aquatic Resource
Analyses" of the Resource and Programmatic Assessment (RPA). The U.S. Fish and Wildlife
Service (FWS) established the NWI to conduct a nationwide inventory of wetlands to provide
biologists and others with information on the distribution and type of wetlands to aid in
conservation efforts. Today, NWI is used for general mapping of wetlands and deepwater
habitats and for purposes of data analyses and modeling. The NWI is a mapping dataset that
provides detailed information on the extent, characteristics, functions, and distribution of
wetlands and deepwater habitats across the United States. These data are primarily derived from
manual aerial image interpretation. The NWI is available as digital data at the l:24,000-scale or
higher throughout the country, except for large portions of Alaska (data in Alaska are at the
l:63,360-scale). Approximately 65 percent of Alaska is not currently available as digital data. In
2016, the FWS updated the dataset to Version 2, which added any linear wetland or surface
water features that were on the original NWI hard copy maps but missed in the first digital
transformation to the geospatial dataset. In addition, FWS supplemented the hydrography data by
adding any single-line stream features that were not mapped by the NWI and completing
previously segmented connections.
18 "Navigate" and "navigation" in this context refer to the ability to trace a stream network upstream and
downstream using GIS. The terms do not refer to actual navigability of a water and do not imply that a feature is or
is not navigable.
19 See ftp://ftp.hori/on-svstems.com/NHDplus/NHDPlusV2l/Documentation/NHDPlusV2 User Guide.pdf.
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The structure of the Cowardin classification20 that NWI utilizes is hierarchical, progressing from
Systems and Subsystems at the most general levels to Classes, Subclasses, and Dominance
Types. See Figure 1 for the classification hierarchy. The five major system types are Marine,
Estuarine, Riverine, Lacustrine, and Palustrine. The first four of these include both wetlands and
deepwater habitats, but the Palustrine includes only wetland habitats.21 Wetlands and deepwater
habitats are defined separately in the classification system because traditionally the term wetland
has not included deep, permanent water. The NWI considers deepwater habitats to be
permanently flooded lands lying below the deepwater boundary of wetlands.22 The boundary
between wetlands and deepwater habitat in the Riverine and Lacustrine Systems in NWI
typically occurs at a depth of 2.5 meters (8.2 feet) below low water, and this boundary was
selected because it approximates the maximum depth to which emergent vegetation normally
grows and the depth beyond which soil does not occur.23
The Marine System consists of the open ocean overlying the continental shelf and its associated
high-energy coastline.24 The Estuarine System consists of deepwater tidal habitats and nearby
tidal wetlands that are usually semi-enclosed by land but have open, partly obstructed, or
sporadic access to the open ocean, and in which ocean water is at least occasionally diluted by
freshwater runoff from the land.25 The Riverine System includes all wetlands and deepwater
habitats contained within a channel, with two exceptions: (1) wetlands dominated by trees,
shrubs, persistent emergent vegetation, emergent mosses, or lichens, and (2) habitats with water
containing ocean-derived salts of 0.5 parts per thousand (ppt) or greater.26 Water is usually, but
not always, flowing in the Riverine System, and upland islands or Palustrine wetlands may occur
in the channel, but they are not included in the Riverine System.27 The Lacustrine System
includes wetlands and deepwater habitats with all of the following characteristics: (1) situated in
a topographic depression or a dammed river channel; (2) lacking trees, shrubs, persistent
emergent vegetation, emergent mosses or lichens with 30 percent or greater areal coverage; and
(3) total area of at least eight hectares (20 acres).28 The Lacustrine System includes permanently
flooded lakes and reservoirs (e.g., Lake Superior), intermittent lakes (e.g., playa lakes), and tidal
lakes with ocean-derived salinities below 0.5 ppt (e.g., Grand Lake, Louisiana).29 Typically,
there are extensive areas of deep water and there is considerable wave action. Islands of
Palustrine wetlands may lie within the boundaries of the Lacustrine System. The Palustrine
System includes all nontidal wetlands dominated by trees, shrubs, persistent emergent
vegetation, emergent mosses or lichens, and all such wetlands that occur in tidal areas where
20 See Classification of Wetlands and Deepwater Habitats of the United States (1st Edition), available at:
https://www.fws.gov/wetlands/documents/Classification-of-Wetlands-and-Deepwater-Habitats-of-the-United-
States.pdf.
21 See Classification of Wetlands and Deepwater Habitats of the United States (2nd Edition), available at
https://www.fws.gov/wetlands/documents/Classification-of-Wetlands-and-Deepwater-Habitats-of-the-United-
States-2013.pdf.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
21 Id.
2S Id.
29 Id.
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salinity due to ocean-derived salts is below 0.5 ppt.30 It also includes wetlands lacking such
vegetation, but with all of the following four characteristics: (1) area less than eight hectares (20
acres); (2) active wave-formed or bedrock shoreline features lacking; (3) water depth in the
deepest part of basin less than 2.5 meters (8.2 feet) at low water; and (4) salinity due to ocean-
derived salts less than 0.5 ppt. The Palustrine System was developed to group the vegetated
wetlands traditionally called by such names as marsh, swamp, bog, fen, and prairie, which are
found throughout the United States.31 It also includes the small, shallow, permanent or
intermittent water bodies often called ponds.32 Palustrine wetlands may be situated shoreward of
lakes, river channels, or estuaries; on river floodplains; in isolated catchments; or on slopes.33
They may also occur as islands in lakes or rivers.34
Thus, streams and rivers are generally mapped as Riverine features, lakes are generally mapped
as Lacustrine features, and ponds are generally mapped as Palustrine features in the NWI. The
Riverine System is divided into four Subsystems: the Tidal, the Lower Perennial, the Upper
Perennial, and the Intermittent. Each is defined in terms of water permanence, gradient,
substrate, and the extent of floodplain development.35 The Tidal Subsystem extends from the
upstream limit of tidal fluctuations down to the upper boundary of the Estuarine System, where
the concentration of ocean-derived salts reaches 0.5 ppt during the period of average annual low
flow.36 The Lower Perennial Subsystem is characterized by a low gradient, with no tidal
influence and a well-developed floodplain; some water flows all year, except during years of
extreme drought.37 The Upper Perennial Subsystem is characterized by a high gradient, with no
tidal influence and very little floodplain development; some water flows all year, except during
years of extreme drought.38 The Intermittent Subsystem includes channels that contain flowing
water only part of the year; when the water is not flowing, it may remain in isolated pools or
surface water may be absent.39 The Lacustrine System is divided into two Subsystems: Limnetic
and Littoral. The Limnetic Subsystem includes all deepwater habitats in the Lacustrine System
(many small Lacustrine Systems have no Limnetic Subsystem).40 The Littoral Subsystem
includes all wetland habitats in the Lacustrine System and extends from the shoreward boundary
of the System to a depth of 2.5 meters (8.2 feet) below low water, or to the maximum extent of
nonpersistent emergent vegetation if these grow at depths greater than 2.5 meters.41 The
Palustrine System has no Subsystems.
The NWI Class describes the general appearance of the habitat in terms of either the dominant
life form of the vegetation or the physiography and composition of the substrate—features that
can be recognized without the aid of detailed environmental measurements.42 Classes in the
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
3SId.
39 Id.
40 Id.
41 Id.
42 Id.
Resource and Programmatic Assessment for the Proposed Rule
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December 18, 2018
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Riverine System include Rock Bottom, Unconsolidated Bottom, Aquatic Bed, Streambed, Rocky
Shore, Unconsolidated Shore, and Emergent Wetland (nonpersistent). Classes in the Lacustrine
System include Rock Bottom, Unconsolidated Bottom, Aquatic Bed, Rocky Shore,
Unconsolidated Shore, and Emergent Wetland (nonpersistent). Classes in the Palustrine System
include Rock Bottom, Unconsolidated Bottom, Aquatic Bed, Unconsolidated Shore, Moss-
Lichen Wetland, Emergent Wetland, Scrub-Shrub Wetland, and Forested Wetland. The Classes
are defined in the Glossary to this Appendix.
The NWI contains a Water Regime modifier in the classification of wetlands and deepwater
habitats, which provides a description in general terms of hydrologic characteristics. For
example, "Temporarily Flooded" is defined as when surface water is present for brief periods
(from a few days to a few weeks) during the growing season, but the water table usually lies well
below the ground surface for most of the season.43 "Intermittently Flooded" in NWI indicates
that surface water is present for variable periods without detectable seasonal periodicity, and that
weeks, months, or even years may intervene between periods of inundation.44 "Seasonally
Flooded" means that surface water is present for extended periods (generally for more than a
month) during the growing season, but is absent by the end of the growing season in most years;
when surface water is absent, the depth to substrate saturation may vary considerably among
sites and among years.45 Ephemeral streams, lakes, and ponds typically have the Water Regime
modifier of Temporarily Flooded or Intermittently Flooded in the NWI, while intermittent
streams are typically coded as Seasonally Flooded.46 Note that not all features are assigned a
Water Regime modifier.
The NWI has both errors of omission (where wetlands that exist on the ground are not mapped in
the dataset) and errors of commission (where wetlands that do not exist on the ground are
mapped in the dataset). For example, many wetlands less than half-an-acre in size are not
included in the dataset. The minimum size threshold for a wetland to be included is l/20th of an
acre. NWI wetlands are identified from the imagery based on vegetation, visible hydrology, and
geography. A margin of error is inherent in the use of imagery interpretation; thus, detailed on-
the-ground inspection of a particular site may result in revision of the wetland boundaries or
wetland classification. The accuracy of the data depends on the original image quality, analyst
experience, amount and quality of collateral data, and any ground truth verification. Some of the
imagery used for NWI dates back to the 1990s. As with stream reaches in NHD, wetlands or
other mapped aquatic resources can and do change over time, such that a previously valid
interpretation no longer reflects ground conditions due to either man-made or natural changes to
the landscape. Some wetland habitats are excluded from the dataset due to the difficulty of
identification or correct delineation of these habitats from aerial imagery. For example, drier
wetlands and forested wetlands (especially evergreen forested wetlands) are often difficult to
map from photointerpretation. Farmed wetlands are usually not mapped in the NWI, except for
pothole wetlands, cranberry bogs, and diked former tidelands. The NWI contains a Special
Modifier for "Farmed" for wetlands that occur where the soil surface has been mechanically or
43 Id.
44 Id.
45 Id.
46 Ephemeral streams are typically coded as either R4SB A (Riverine Intermittent Streambed Temporarily Flooded)
or R4SBJ (Riverine Intermittent Streambed Intermittently Flooded) in the NWI, while intermittent streams found in
the NWI are typically coded as R4SBC (Riverine Intermittent Streambed Seasonally Flooded).
Resource and Programmatic Assessment for the Proposed Rule
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December 18, 2018
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physically altered for production of crops, but where hydrophytes (plants typically found in wet
habitats) would become reestablished if the farming were discontinued.
The agencies decided to utilize the NWI to represent wetlands for several reasons. The NWI is
the most comprehensive and most detailed national dataset of the potential location of wetlands
in the United States and is publicly available on the U.S. FWS website. That said, like the NHD,
the NWI is not a dataset of CW A jurisdiction, and the agencies are not aware of maps prepared
by any agency of waters that are currently jurisdictional under the CWA or that would be
jurisdictional under the proposed rule.47 The agencies are aware that states may have their own
geospatial datasets of wetlands and deepwater habitats, and that such datasets may be more
accurate or up-to-date than the NWI. The agencies chose the NWI over such datasets in order to
utilize a national, publicly-available dataset with nationally-consistent data standards, instead of
using a collection of potentially inconsistent data. In addition, the NWI data are regularly
updated and maintained.
47 See supra at footnote 17.
Resource and Programmatic Assessment for the Proposed Rule
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to share information on TMDLs, alternative restoration, and protection approaches.49 As
described in the "Programmatic Analyses" section, states are required under section 303(d) of the
CWA to identify all waters that do not meet state water quality standards (WQS). This list is
often referred to as the 303(d) list or the list of impaired waters. For waters identified on a 303(d)
list, states must establish TMDLs for all pollutants preventing or expected to prevent attainment
of WQS.
The agencies used ATTAINS to obtain information for the impaired waters and TMDL portion
of the analysis. The data used are the "303(d) Listed Impaired Waters NHDPlus Indexed
Dataset" and the "Impaired Waters with TMDLs NHDPlus Indexed Dataset." The national
geospatial datasets are produced and periodically updated by EPA using state-submitted data.
The "303(d) Listed Impaired Waters NHDPlus Indexed Dataset" is a national geographic
information system ("GIS") dataset of EPA-approved 303(d) listed waters. To be included in the
datasets, states and other jurisdictions must have submitted information to the program database.
The EPA compiles the state datasets, reconciles differences in format, and indexes the data to
NHDPlus Medium Resolution to provide a nationally consistent dataset. The "303(d) Impaired
Waters with TMDLs NHDPlus Indexed Dataset" identifies all impaired waters for which at least
one TMDL has been developed. This dataset was developed by relating all mapped, impaired
waters to all information on existing TMDLs. To appear in this dataset, impaired waters must
have been mapped and at least one of their impairment causes must have been addressed by a
TMDL. These national datasets are publicly available on the EPA's website.50 Location and
pollutant information for 303(d) waters and waters with TMDLs are from the May 1, 2015,
update of the ATTAINS Database.51
r " '.-ility Response Plan Facilities (Sectior !l 1'
Under the Facility Response Plan (FRP) rule,52 the EPA requires a subset of Spill Prevention,
Control, and Countermeasure (SPCC) facilities to prepare and submit an FRP to the EPA
Regional Administrator for the state where the facility is located. These FRP facilities are
identified as those that could, because of their location, reasonably be expected to cause
substantial harm to the environment should they discharge oil into or on the navigable waters or
adjoining shorelines. Facility owners or operators must submit their FRP to the EPA. The EPA
maintains an internal database on FRP facilities, including their locations and characteristics.
This internal database was used to identify the location of FRP facilities in this analysis.
48 The Palustrine System does not include deepwater habitats. From FGDC 2013.
49 See https://www.epa.gov/waterdata/assessment-and-total-maximum-dailv-load-tracking-and-implementation-
svstcm-attains.
50 Data are available at https://www.epa.gov/waterdata/waters-geospatial-data-downloads.
51 Data for 303(d) Listed Impaired Waters are available at https://www.epa.gov/waterdata/waters-geospatial-data-
downloads#3 03 dListedlmpairedWaters. Data for Impaired Waters with TMDLs are available at
https://www.epa.gOv/waterdata/waters-geospatial-data-downloads#ImpairedWatersWithTMDLs.
52 40 CFR 112.20 and 112.21.
Resource and Programmatic Assessment for the Proposed Rule
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F. National Pollutant Discharge Elimination Syste 3
1. ICIS-NPDES
Data on regulated facilities or activities subject to individual permits or general permits under the
Section 402 program is primarily from the EPA's Integrated Compliance Information System
National Pollutant Discharge Elimination System (ICIS-NPDES) database. ICIS-NPDES is an
information management system maintained by the EPA's Office of Compliance to track permit
compliance and enforcement status of facilities regulated by the National Pollutant Discharge
Elimination System (NPDES) under the CWA.53 ICIS-NPDES is designed to support the
NPDES program at the state, regional, and national levels.
Active facilities are those currently in operation. Major/federally-reportable are facilities for
which states must submit compliance and enforcement data to the EPA. Under the CWA, a
major facility is any NPDES facility or activity classified as such by the Regional Administrator,
or in the case of approved state programs, by the Regional Administrator in conjunction with the
state director. Major municipal dischargers include all facilities with design flows of greater than
one million gallons per day and facilities with EPA/state approved industrial pretreatment
programs. Major industrial facilities are determined based on specific ratings criteria developed
by the EPA/state.
Minor/not federally-reportable facilities are facilities for which states are not required to submit
data to the EPA. The EPA is therefore not able to verify the accuracy or comparability of data for
these permits, although the Agency tracks permittee names and locations and may have some
data about their inspections and enforcement activity.
ICIS-NPDES records included in the download files are those with any permit status code value
for the current permit record. ICIS-NPDES includes the following data types:
• Permit facility data
• Inspection information
• Permit schedule violations
• Effluent violations
• Compliance schedule violations
• Single Event violations
• Enforcement actions
ICIS-NPDES data are available for download from EPA's Enforcement and Compliance History
Online website at https://echo.epa.uov/tools/data-dovvnloads.
53 See ICIS-NPDES Download Summary and Data Element Dictionary, available at httos://echo.epa.gov/tools/data-
downloads/icis-npdes-download-summarv.
Resource and Programmatic Assessment for the Proposed Rule
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2. New Jersey Department of Environmental Protection DataMiner
Due to known quality issues in ICIS-NPDES for data from New Jersey, the agencies extracted
data for that state from the New Jersey Department of Environmental Protection DataMiner.54
The agencies used the "NJPDES Active Permit List." This report displays a list of all active
NJPDES permits and contains both facility information {i.e., name, address, and coordinates) and
permit information {i.e., NJPDES permit number, expiration dates, major/minor status, and
discharge category).
G. Safe Drinl
Safe Drinking Water Information System/Federal Version ("SDWIS/FED") is EPA's national
database that manages and collects public water system information from states, territories, EPA
Regions, and tribes, including reports of drinking water standard violations, reporting and
monitoring violations, and other basic information, such as water system location, type, and
population served. Intake locations are considered sensitive data and not available to the public.
Publicly available SDWIS data can be found at: https://ofmpub.epa.uov/ape\/sfdw/f?p= 108:200.
Data from SDWIS/FED were used for the drinking water analysis that is described in more detail
later in this Appendix.
The SDWIS Federal Data Warehouse stores population information at the system level, not the
facility level {e.g., intakes). Some double counting can occur when individuals are served by
multiple systems. For example, an individual can be served at their home and also at their
workplace. Systems may be drawing or receiving water from multiple sources (facilities). These
sources get combined and therefore the populations for each of the individual sources are
combined to ensure protection across all potential populations served. The population for those
systems corresponding to a given SPA is an aggregation of both the population each system is
serving plus the population served by the systems it may be selling water to (see Figure 2). Note
that many systems do not buy or sell any water, and in these cases only the population served by
the individual system is used. If the system is a wholesaler, they only sell water to other systems.
These wholesalers have been included in the SPA analysis, and in order to get the total
population the agencies applied the populations from the systems they sold water to (see Figure
3).
54 See State of New Jersey Department of Environmental Protection DataMiner, available at:
littps ://www 13. state, ni .us/DataMiner.
Resource and Programmatic Assessment for the Proposed Rule
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GA1210001
(650,000)
GA1350004
(795,657)
GA089U001
(743,000)
GA0890001
(2,188,657)
Figure 2. Illustration of population served calculations. In this example, system GA0890001 is serving
water to a population of 743,000 and also selling water to GA1210001 and GA1350004. All three
populations were added together and applied for a total population served of2,188,65 7for GA0890001.
CA4010025 Total
(5,157)
CA4010025 (0)
CA4010006 (2,185)
CA4010015 (2,115)
CA4010901(857)
Figure 3. Illustration ofpopulation served calculations for purchasers from a wholesaler. In this
example. System CA4010025 has a population served entry in SDWIS of zero, meaning it sells its water to
other systems. Here it is selling water to CA4010901, CA4010015, and CA4010006. The populations of
purchasers were added together for the total population.
H. Surface Water Source Protection Areas
SPAs delineations are composed of NHDPlus version 2.1 catchments located 24-hour time of
travel upstream of all georeferenced active surface water source facilities (i.e., intakes,
reservoirs, infiltration galleries, and springs with valid locations). Hence, a SPA is the area
upstream from a drinking water source that provides water to a public drinking water system
during a 24-hour period. The NHDPlus catchments are dissolved together to form the SPA for
Resource and Programmatic Assessment for the Proposed Rule December 18, 2018
21
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the surface water facility. SPAs used for this analysis were derived from 2017 3rd Quarter
SDWIS/FED data. Figure 4 illustrates how SPAs are delineated.
(1) Navigate 24 hours time of travel (TOT) (2) Identify NHDPIus
upstream from georeferenced drinking water catchments related to the 24
facility points along NHDPIus flowlines | hour TOT flowlines
Figure 4. Illustration of a SPA. The black dot represents the intake. In (1). the blue lines represent
streams whose flow will reach the intake in a 24-hour period. In (2), the NHDPIus catchments for those
streams are identified. In (3), the yellow shaded area is a SPA, made by dissolving the applicable
catchments.
I. EPA Tribal Areas
EPA has developed a dataset called "EPA Tribal Areas" that is comprised of four different
components of national federal data to approximate tribal lands. This dataset is a collection of
certain readily available information related to Indian country locations. These locations are
suitable only for general spatial reference and do not necessarily reflect EPA's position on any
tribal area locations or boundaries or the land status of any specific location. The first data
component represents locations of American Indian tribal lands in the lower 48 states.5? The
areas include all lands associated with federally-recognized tribal entities—federally-recognized
reservations, off-reservation trust lands, and Census Oklahoma Tribal Statistical Areas. The EPA
uses Census Oklahoma Tribal Statistical Areas for tribal boundaries in Oklahoma because EPA
did not have accurate publicly-available boundaries of tribal reservations in Oklahoma at the
time of the analysis. The second data component represents locations of American Indian
reservations in Alaska.56 The third data component is Alaska native allotments, which uses data
from the Public Land Survey System in Alaska, generated from land survey records.57 The data
in this component represent a seamless spatial portrayal of native allotment land parcels, their
legal descriptions, corner positioning and markings, and survey measurements. The allotment
data are intended for mapping purposes only and are not a substitute or replacement for legal
land survey records or other legal documents. Measurement and attribute data are collected from
survey records using data entry screens into a relational database. The database design is based
upon the Federal Geographic Data Committee Cadastral Content Data Standard. Corner positions
are derived by geodetic calculations using measurement records. Closure and edge-matching are
applied to produce a seamless dataset. The resultant features do not preserve the original
" See https://edg.epa.gov/metadata/catalog/search/resource/details.page7uuicN%7B8077CD55-74FB-4107-8Q47-
3DEC0D55966A%7D.
56 See https://edg.epa.gov/metadata/catalog/search/resource/details.page?uuid=%7BE37B0B2C-EB0B-436C-B993-
C18D8895E522%7D.
57 See https://edg.epa.gov/metadata/catalog/search/resource/details.page?uuid=%7B15FEB09B-752E-4B48-B01B-
D9F2D360623A%7D.
(3) Dissolve catchment
boundaries to create 24
hour TOT SPA
Resource and Programmatic Assessment for the Proposed Rule
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December 18, 2018
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geometry of survey measurements, but the record measurements are reported as attributes.
Additional boundary data are derived by spatial capture, protraction and GIS (i.e. geospatial)
processing. The spatial features are stored and managed within the relational database, with
active links to the represented measurement and attribute data.
These three data components were used in the agencies' tribal analyses. The analyses did not
include the fourth data component of Alaska Native Villages.58 This component represents
center points of Alaska Native Villages. The Alaska Native Villages are associated with
federally-recognized tribal entities. This component was not used because the data are point files
and thus could not be easily incorporated into an overlay analysis. All four components of the
EPA Tribal Areas dataset are available for download at
https://edg.epa.gov/data/Public/QEI/OIAA/Tribes/EPAtribes.zip. The latest revisions to the EPA
Tribal Areas dataset took place on February 27, 2017.
3. Methodology
The methodology for the 0RM2 and aquatic resources analyses are also discussed in the
"Aquatic Resource Analyses" section of the RPA. The methodology for CWA programmatic
analyses are discussed in the "CWA Programmatic Analyses" section of the RPA. The
methodologies are discussed in this section for completeness.
A. Baseline Analyses
1. 0RM2 Data Analyses
To examine how assertion of jurisdiction could change under the proposed rule as compared to
pre-2015 practice, the agencies reviewed CWA AJDs from ORM259 in fiscal years60 (FY) 2013
through 2017. As the agency that manages day-to-day implementation of the CWA section 404
program, the Corps conducts tens of thousands of preliminary and approved JDs each year.61 For
other federal CWA programs, the EPA typically does not conduct JDs, except for enforcement
purposes. Thus, most of the nation's JDs for CWA purposes originate from the Corps. Corps
AJDs are generally valid for five years unless new information warrants a revision or a District
Engineer identifies specific geographic areas with rapidly changing environmental conditions
that merit re-issuance on a more frequent basis.62 The agencies chose to analyze AJD data from
the last five fiscal years for this analysis. During this period, under pre-2015 practice the Corps
conducted AJDs for 82,738 aquatic resources in the ten categories that are described below in the
"Baseline" section of this chapter. Of these AJDs, 60,116 aquatic resources were determined to
58 See https://edg.epa.gov/metadata/catalog/search/resource/details.page?uuid=%7BE4341DlB-656F-4E76-86DB-
9216E8 A968E A%7D.
59 This includes only those JDs completed under current implementation, not any completed under the 2015 Rule.
60 The fiscal year is the accounting period for the federal government which begins on October 1 and ends on
September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2013
begins on October 1, 2012, and ends on September 30, 2013.
61 Only New Jersey and Michigan have assumed administration of the CWA 404 program, although the Corps
retains permitting authority over certain waters.
62 See Regulatory Guidance Letter 05-02 for more information, available at
http://www.usace.armY.mi1/Portals/2/docs/civilworks/regulatorv/cwa guide/app f rgl05-02.pdf.
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be jurisdictional. In addition, the Corps conducted 14,357 upland determinations in that same
period. A single AJD may include multiple aquatic resources.
For the ORM2 analysis, the agencies generally did not review hardcopy AJD forms to analyze
which aquatic resources might change jurisdictional status under the proposed rule. Instead, the
agencies reviewed the FY2013-2017 ORM2 data to collect summary statistics regarding whether
the Corps had made positive or negative AJDs under pre-2015 practice for the various categories
of aquatic resources in ORM2, which are described in Chapter I of the RPA. After the 2015 Rule
was finalized, the ORM2 database was updated so that the Corps could enter AJDs using the
2015 Rule's "waters of the United States" definition. The agencies are not using data from
ORM2 for AJDs that were made under the 2015 Rule for this analysis. Because the 2015 Rule
has been effective for a brief time for only certain portions of the country,63 the 2015 Rule AJDs
are not a representative sample compared to the large numbers of AJDs conducted under pre-
2015 practice. The agencies were also concerned about using AJD information reflecting the
categories of waters that the agencies would have found jurisdictional or non-jurisdictional under
the 2015 Rule, because a disproportionate number of the AJDs that were finalized under the
2015 Rule were for exclusions and for non-significant nexus determination categories.
63 The day before the 2015 Rule's August 28, 2015 effective date, the U.S. District Court for the District of North
Dakota preliminarily enjoined the 2015 Rule in the 13 States that challenged the rule in that court (Alaska, Arizona,
Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and
Wyoming). North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015). The 2015 Rule was then stayed nationwide
on October 9, 2015, by the U.S. Court of Appeals for the Sixth Circuit. In re EPA & Dep't ofDef. Final Rule, 803
F.3d 804 (6th Cir. 2015). On January 22, 2018, the Supreme Court, in a unanimous opinion, held that the 2015 Rule
is subject to direct review in the district courts. Nat'I Ass'n ofMfrs. v. Dep'tofDef, 138 S. Ct. 617, 624 (2018).
In response to the Supreme Court's decision, on February 28, 2018, the Sixth Circuit lifted the stay and dismissed
the corresponding petitions for review. In re Dep't ofDef. & EPA Final Rule, 713 Fed. App'x 489 (6th Cir.
2018). Shortly after the Supreme Court decided that the courts of appeals do not have original jurisdiction to review
challenges to the 2015 Rule and directed the Sixth Circuit to dismiss the consolidated challenges to the 2015Rule for
lack of jurisdiction, the agencies issued a final rule (83 FR 5200, Feb. 6, 2018), after providing notice and
an opportunity for public comment, that added an applicability date to the 2015 Rule (hereafter, the Applicability
Date Rule). The applicability date was established as February 6, 2020. When adding the applicability date to the
2015 Rule, the agencies clarified that they will continue to implement nationwide the previous regulatory definition
of "waters of the United States," consistent with the practice and procedures the agencies implemented before and
immediately following the issuance of the 2015 Rule (pre-2015 practice) pursuant to the preliminary injunction
issued by the District of North Dakota and the nationwide stay issued by the Sixth Circuit. On August 16, 2018, the
U.S. District Court for the District of South Carolina enjoined the Applicability Date Rule nationwide. South
Carolina Coastal Conservation League, et al, v. Pruitt, No. 2-18-cv-330-DCN, 2018 U.S. Dist. LEXIS 138595
(D.S.C. Aug. 16, 2018). In addition, on November 26, 2018, the U.S. District Court for the Western District of
Washington vacated the Applicability Date Rule nationwide. See Puget Soundkeeper Alliance, et al. v. Andrew
Wheeler, et al., No. C15-1342-JCC (W.D. Wash. November 26, 2018). The 2015 Rule continues to be subject to a
preliminary injunction issued by the U.S. District Court for the District of North Dakota for the original 13 states,
plus Iowa. (On September 18, 2018 the District Court issued an order finding that the preliminary injunction should
be extending to the State of Iowa in addition to the original 13 state plaintiffs. North Dakota v. EPA, No. 3:15-cv-59
(D.N.D. 2018).) The 2015 Rule also is subject to a preliminary injunction issued by the U.S. District Court for the
Southern District of Georgia as to 11 more states: Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North
Carolina, South Carolina, Utah, West Virginia, and Wisconsin. Georgia v. Pruitt, No. 15-cv-79 (S.D. Ga.). The
2015 Rule is also subject to a preliminary injunction issued by the U.S. District Court for the Southern District of
Texas as to an additional three states: Louisiana, Mississippi, and Texas. Texas v. United States EPA, No. 3:15-CV-
00162 (S.D. Tex. Sep. 12, 2018). Additional information is in the "Baseline" section of Chapter I of the RPA.
Resource and Programmatic Assessment for the Proposed Rule
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Furthermore, the 2015 Rule was not implemented in 13 states prior to the nationwide stay64 and
currently is not being implemented in 28 states,65 so the available data are not national in scope
for AJDs under that rule since AJDs in those states were completed consistent with the Rapanos
Guidance and pre-2015 practice.66
2. Aquatic Resource Analyses
The agencies used the NHD High Resolution in a GIS analysis to provide estimates of the extent
of selected waterbody types within the dataset, with a specific focus on NHD mapped
Stream/River features based on their Hydrographic Categories - those Streams/Rivers that are
ephemeral (FCode 46007), intermittent (46003), and perennial (46003). The agencies also looked
at the extent of unclassified streams/rivers (46000) - those streams and rivers that have not been
assigned a flow permanence in the dataset - as well as canal/ditch features mapped in the dataset.
The agencies do not believe that estimates of the extent of these waters in NHD correspond to
the CW A jurisdiction under either baseline, but instead conducted this analysis in an attempt to
better understand the mapped extent and distribution of different stream types throughout the
country. Because ephemeral streams are explicitly not included in the proposed rule's definition
of tributary, the agencies wanted to evaluate the potential extent of these streams across the
country. As mentioned above, since the NHD maps some ephemeral streams as intermittent in
the dataset, the agencies also wanted to estimate the potential extent of these stream systems
across the country. The agencies are unable to estimate what percentage of intermittent streams
in NHD are in fact ephemeral, nor are the agencies able to estimate the extent of ephemeral
streams that are not mapped in the dataset. Furthermore, as discussed previously, designation of
perennial, intermittent, or ephemeral in the NHD does not guarantee an accurate depiction of on-
the-ground flow conditions.67
The agencies also used the NWI in a GIS analysis in an attempt to provide estimates of the extent
of wetlands across the country. Prior to finalizing the exploratory analysis, the agencies
determined that there were too many confounders introduced at each step of the analysis
described below such that the analytical results were inconclusive for purposes of indicating
potential changes in federal jurisdiction. However, the attempted methodology of the attempted
analysis is described for completeness.
64 The 13 states party to the District Court for the District of North Dakota Southeastern Division's August 27, 2015
preliminary injunction included Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska,
Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
65 See supra at footnote 63. As of October 12, 2018, the 2015 Rule is preliminary enjoined in Alabama, Alaska,
Arizona, Arkansas, Colorado, Georgia, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, South Carolina, South Dakota,
Texas, Utah, West Virginia, Wisconsin, and Wyoming.
66 See "Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States &
Carabell v. United States," (hereafter "Rapanos Guidance"), first issued on June 6, 2007 and revised on December
2, 2008, available at https://www.epa.gov/sites/production/files/2016-
02/documents/cwa jurisdiction following rapanosl20208.pdf.
67 See. e.g., supra at footnote 14.
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To better approximate the NWI wetlands that might be more likely to meet the federal regulatory
definition of wetland,68 the agencies identified vegetated NWI wetlands as a reasonable
surrogate. These wetland types are more likely to meet the regulatory definition of "wetland"
than non-vegetated NWI wetlands, as the regulatory definition requires all three wetland
delineation factors to be present under normal circumstances, including hydrophytic
vegetation.69 In an attempt to estimate the NWI wetlands that are likely to be abutting streams
mapped in NHD, the agencies performed an intersection analysis of the two datasets. Because
the NWI is one of the largest polygonal datasets in the nation and national analyses of the data
are challenging and time-consuming, the agencies determined they would need to rasterize {i.e.,
convert into pixels) the NWI data so that the agencies could aggregate NWI wetlands that are
touching each other into one feature. The agencies converted NWI polygon features to raster
cells {i.e., grids of pixels) at a 30-meter resolution and then attributed features of the polygon
with the maximum combined area of overlap with the raster cell to the entire cell. The wetlands
were then examined to see if they were physically-connected to the NHD stream network, to
approximate those wetlands that are abutting. For this portion of the analysis, the agencies
associated the vegetated NWI wetlands with the nearest stream category (ephemeral,
intermittent, or perennial) derived from the high resolution NHD flowlines. NHD flowlines were
also converted into 30-meter raster cells. All "ArtificialPath" features in NHD were attributed as
"Other" for this analysis.
To generate the physically-connected layer, the agencies used a combination of NHD data and
NWI data. For the NHD data, the agencies first selected certain reaches from the NHD High-
Resolution stream network. As the NHD network includes many artificial constructs such as
aqueducts, pipelines, and canals, the agencies included only those network features that they
deemed appropriate to assess physical connectivity (through a visual inspection process). While
most of the feature types included were non-artificial {i.e., Stream/River features), the agencies
did include some artificial features that allowed physical connectivity between natural features.
Some of the artificial features are straight-forward, such as artificial pathways linking the stream
network across waterbodies such as Lake/Pond features. However, in other cases, the agencies
needed to include a limited set of canals, underground conduits, and pipeline features that were
part of the drainage network. For example, in cases where a Stream/River feature flows under a
roadway, the portion of the reach directly under the road is defined as an "underground conduit."
If that reach was not included in our analysis, the connectivity of the stream upstream and
downstream of that reach would not have been established. Table 1 shows the features the
agencies included based on the "Ftype" attribute associated with the reach and any exceptions to
their inclusion. The selected set of NHD features were also converted into raster format at a 30-
meter resolution with cell boundaries snapped to be consistent to the NWI raster data. The NHD
raster layer was then combined with the NWI raster dataset to generate a final raster layer of all
NHD and NWI features.
68 The agencies are proposing no changes to the longstanding regulatory of "wetland" at 33 CFR 328.3 and 40 CFR
230.3, meaning "those areas that are inundated or saturated by surface or groundwater 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. Wetlands generally include swamps, marshes, bogs, and similar areas."
69 U.S. Army Corps of Engineers. 1987. Corps of Engineers Wetlands Delineation Manual. Wetlands Research
Program Technical Report Y-87-1. Department of the Army, Vicksburg, VA. Available at
httos ://el. erdc.dren. mil/elpubs/pd I7\vlman87.pdf.
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Table 1: NHD feature types (Ftype) included to determine physical connectivity
Ftype
Description
Exceptions
334
Connector
None
420
Underground conduit
None
428
Pipeline
Not inclusive where "name" field explicitly
contained: "Aqueduct" or "Canal" or was
empty (null).
460
Stream/River
None
558
Artificial Pathway
None
Figure 5 describes the process by which the combined NHD and NWI raster dataset was used to
classify wetlands as either "physically connected" (abutting) or "not physically connected" (not
abutting). The wetlands then were attributed with the stream category (ephemeral, intermittent,
or perennial) of the nearest NHD raster cell, as derived from the NHD High Resolution
flowlines. All "ArtificialPath" features, unclassified streams (Fcode 46000), and Connector
features in NHD were attributed as "Other" for this exercise, as shown in
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Table 2.
• Identify groups of cells that were connected either by sharing a cell edge (4 cardinal directions) or corner
(diagonal) with surrounding cells
• Output: Unique identifier for each group and count of cells within the group
• Raster groups containing 5,000 cells or more - minimum area to include in the wetlands classification
Final physical
connectivity layer
NT
Wetlands
Classification
NT
Vegetated
Wetlands
• Masked the original NWI raster wetlands by the physical connectivity layer
• Overlapping wetlands were classified as "adjacent wetlands" and non-overlapping wetlands were classified
as "isolated wetlands"
• Final wetland raster layers contained the full Cowardin and/or riparian wetland codes to identify the type of
wetland.
• An additional field was added to the attribute table to differentiate vegetated and non-vegetated wetlands
using a lookup table developed by the agencies with the U.S. Fish and Wildlife Service
Figure 5. Process for classifying NWI wetlands as either abutting or not abutting.
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Table 2. Crosswalk between NHD Fcode and assigned stream type.
Fcode
Description
Stream Type
46007
Ephemeral Stream
Ephemeral
46003
Intermittent Stream
Intermittent
46006
Perennial Stream
Perennial
46000, 55800, 33400
Stream/River, Artificial Path,
Connector
Other
'' estimating v -» ' . - red and TMDL Streams
For this programmatic analysis, the agencies used the NHD High Resolution in a GIS analysis in
an attempt to provide estimates of the stream types (Hydrographic Categories) of streams that are
on a state's section 303(d) list and of streams that have a TMDL. However, due to data
limitations of the NHD, the agencies have concluded that such an analysis does not appropriately
or accurately assess the potential effects of the proposed rule on the 303(d) and TMDL programs.
Information about the attempted analysis are included here for completeness. Stream type
information used in this analysis (ephemeral, intermittent, perennial, and unclassified) is
contained in the NHD High Resolution, but the NHD High Resolution does not convey the
impairment or TMDL attributes, as discussed further in the "Uncertainties and Limitations to the
Data and Analyses" section of this Appendix. Impairment and TMDL attributes are contained in
ATTAINS' NHD Medium Resolution-based data. Further, no crosswalk indexing currently
exists to facilitate straightforward identification of specific NHD Medium Resolution stream
segments of interest (e.g., impaired waters) to their corresponding NHD High Resolution stream
segments and the stream type designations therein (e.g. ephemeral, intermittent, perennial, or
unclassified). Figure 6 illustrates a comparison of the relative detail and density between NHD
Medium Resolution and NHD High Resolution features.
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M ed i u m (red) an d hi res (b lue) N H D f low lines shown together i llustrates d ifference in
detailfnumber of features
^ - a sik a . :: * Z ,
e - « ••
* 4. i. it a »• *<* *
Figure 6. Comparison between NHD High Resolution and NHD Medium Resolution Flow lines. Medium
Resolution lines are in red and High Resolution lines are in blue to illustrate the difference between the
two datasets in detail and the number of features.
GIS tools were employed to identify which NHD High Resolution stream segments
corresponded to NHD Medium Resolution segments of interest. As the more detailed NHD High
Resolution flowlines capture in more detail the meandering nature of streams than their NHD
Medium Resolution counterparts, a given stream segment in NHD High Resolution will typically
intersect that same segment depicted in NHD Medium Resolution multiple times. Figure 7
illustrates the multiple intersections between the NHD at both resolutions.
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Blue - High Resolution NHDflowlines
Red- Medium Resolution NHD flowline
Note the multiple locations where the two
Flowlines cross each other
Figure 7. Illustration of Multiple Intersections between High and Medium Resolution NHD.
This GIS exercise to crosswalk NHD High Resolution with Medium Resolution was repeated for
each Impaired and TMDL stream, yielding estimates of the breakout of Impaired and TMDL
streams by stream type. In order to minimize false-positives {i.e., NHD High Resolution stream
segments not associated with specific NHD Medium Resolution segments), a 100-meter buffer
was used surrounding the NHD Medium Resolution flowlines, corresponding to the general
positional accuracy of the NHD Medi um Resolution dataset. The length and percentages of NHD
High Resolution segments were summarized by stream type within the buffers associated with
NHD Medium Resolution flowlines.
The agencies utilized ArcGIS 10.4.170 as the GIS platform to perform this set of geographic
analyses.
C. Analysis of Section 311 Programs
There are no universal reporting requirements for the SPCC program (oil spill prevention), as
discussed further in the Economic Analysis. The agencies therefore relied on imputed estimates
and data for a small subset of inspected facilities to characterize SPCC-regulated facilities, as
described in further detail in this section.
In an exploratory effort to estimate potential effects to EPA-regulated facilities under section
311, the agencies first estimated the potenti ally affected universe of regulated facilities. EPA
SPCC-regulated facilities are not required to notify the EPA nor are they required to submit
plans to the EPA. Conversely, as discussed in the "CWA Programmatic Analyses" section, FRP-
70 Environmental Systems Research Institute (ESRI). 2016. ArcGIS Desktop: Release 10.4.1. Redlands, CA:
Environmental Systems Research Institute. See http://www.esri.com/arcgis/about-arcgis.
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subject facilities are required to submit FRPs to their respective EPA regional offices. Thus, the
SPCC universe has been estimated from various data sources as explained in the latest SPCC
Information Collection Request (ICR) renewal.71 EPA's internal database to track FRP-subject
facilities was used to estimate the number of active FRP facilities (data from January 2018).
The agencies used the EPA's FRP universe in an attempt to estimate the number of facilities
potentially affected by the proposed change in jurisdictional waters. The agencies anticipate that
an FRP-subject facility could initially file a reconsideration request per 40 CFR 112.20(i) that the
potentially impacted waterbody is no longer jurisdictional under the CWA. In an attempt to
assess the magnitude of the potential changes, the agencies overlaid the location of FRP
facilities, based on geographical coordinates from the EPA's internal database, with
Stream/River features mapped in the high resolution NHD and with NWI wetlands. Before
finalizing the results of this exploratory analysis, however, the agencies determined that this
estimate cannot be used to extrapolate the number of SPCC-subject facilities nationally that
could potentially be affected by the proposed change in the definition of "waters of the United
States" because the NHD even at high resolution does not sufficiently map ephemeral streams
nationwide so as to support an estimate of potential jurisdictional change, and the NWI similarly
does not sufficiently map wetlands nationwide so as to support an estimate of potential change in
jurisdiction.
i 402 Program
In an exploratory analysis, the agencies conducted a geospatial analysis of facility outfall
coordinates from the EPA's ICIS-NPDES database and high resolution NHD water feature
location in an attempt to estimate the potential effects of the proposed rule on the section 402
program. Intermittent streams that meet the proposed definition of "tributary" would remain
"waters of the United States" under the proposal. However, discharges to ephemeral features
would be potentially affected (mainly because of the change in applicable water quality
standards) by changes to the definition of "waters of the United States. Given the NHD used to
map streams for this analysis does not differentiate between intermittent and ephemeral streams
for most of the country and the fact that neither intermittent nor ephemeral streams are
categorically jurisdictional under pre-2015 practice according to the Rapanos Guidance, the
numbers and percentages of NPDES permits with a discharge point near ephemeral and
intermittent streams do not equate to a quantification of waters that will or will not be
jurisdictional under the proposed rule nor do they equate to a quantification of waters that are or
are not jurisdictional under pre-2015 practice. For these reasons, the agencies determined that
such an analysis was not appropriate for estimating the potential effects of the proposed rule on
the section 402 program at a national level but describe the attempted analysis for completeness.
Data were pulled from ICIS-NPDES on August 17, 2017. New Jersey data were pulled from the
state's DataMiner tool on August 14, 2017, due to known data quality issues in ICIS-NPDES for
the state at the time of the data pull. Additional data were pulled from ICIS-NPDES on
December 20, 2017, to incorporate data on existing facilities that were missing from the initial
pull as they had not yet been entered into the database or were otherwise absent from the initial
71 See EPA ICR No. 0328.17, OMB No. 2050-0021
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pull. Also, data were pulled from ICIS-NPDES between August 2017 and January 2018 to obtain
address data for facilities missing coordinates in the database.
The data pulled from ICIS-NPDES include the current version (at the time of the data extraction)
of all NPDES individual permits and general permit covered facilities with a status of
"effective," "administratively continued," "expired," or "pending." Expired permits were
included because in many cases, these permits are administratively continued but this
information has not yet been entered into the database. The data were then evaluated by the EPA
staff to remove permits that had likely been entered incorrectly and are likely not NPDES
permits. For example, for general permit covered facilities, the associated master general permit
ID was compared to a list of State Issued Master General Permits (Non-NPDES), and any
general permit covered facilities with a master general permit ID on the non-NPDES list was
removed from the data. For the individual permits, several Connecticut permits with IDs
indicating they were pretreatment facilities were removed (CTCIUXXXX). In addition, any
individual permits or general permit covered facilities with "test" in the NPDES ID or as the
permit name were removed. As a general caveat, there still may be data included that have been
mislabeled, as well as permit data that may be missing if it has not been entered into ICIS by a
state or EPA Region.
For the New Jersey data, coordinates for the facilities were provided in the New Jersey State
Plane projection and were converted to decimal degree coordinates using the ArcGIS "Calculate
Geometry" tool.72 The dataset contained no information on the permitted features, so the facility
information only was used for New Jersey.
Additional quality control and quality assurance steps were taken with the NPDES data. The
agencies first checked to see if the permit records had valid locational information. Permit
records were screened for valid permitted feature coordinates and valid facility coordinates.
Invalid coordinates included those that were listed as either null or zero. For individual permits
only, if the agencies could not locate a valid address for facilities that lacked valid coordinates,
the record was removed from the analysis. For general permits, records that lacked valid
coordinate information for both the permitted feature and the facility were removed from the
analysis. The agencies also checked to ensure that the listed coordinates were mapping in the
correct hemisphere and made coordinate modifications where needed. To accomplish this task,
the agencies plotted both the permitted feature and facility coordinates to find and correct any
permitted features or facilities located in the wrong hemisphere. Coordinate fields were sorted to
find anomalies and potential fixes. Latitude and longitude values were corrected if obvious errors
were found. In addition, any whole number values were invalidated, as they were assumed to
have lacked the necessary level of detail (e.g., decimal places) needed to pinpoint the location of
the permitted feature or facility. Types of errors the agencies corrected included where the
coordinates appeared to be flipped (e.g., the latitude was reported as the longitude and vice
versa), incorrect latitude or longitude value signs, and decimals positioned in wrong place. The
agencies then used the coordinates (including those corrected) to plot both permitted feature
72 See "Calculating area, length, and other geometric properties," available at:
http://desktop.arc gis.com/en/arcmap/10.3/manage-data/tables/calculating-area-length-and-other-geometric-
properties.htm.
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coordinates and facility coordinates. These coordinates were spatially joined to state boundaries
derived from the 2009 TIGER/Line® Shapefiles from the U.S. Census Bureau73 to obtain a
geographic state value. Any facilities with reported states values that did not match the state
name of the intersecting geographic state were analyzed to find the distance to their reported
state. Permit records were eliminated if the permitted feature or facility was located more than
three miles from the reported state. Permitted features and facilities that were located more than
three nautical miles off the coast of the state GIS file described above were considered invalid
for this analysis.74
The agencies set up a preferential order of locational information to use in the analysis. First, the
agencies used the coordinates for the permitted feature (e.g., outfall), where valid. If the permit
record did not have valid coordinates for the permitted feature, the agencies used the coordinates
for the facility, where valid. If the permit record also lacked valid coordinates for the facility, the
agencies used the address of the facility, where valid.
E, Analysis of Section 404 Programmatic Data
There are two approaches to looking at potential effects of a proposed definition of "waters of
the United States" on the CWA section program. One potential approach is to look at existing
data for section 404 permits issued by the Corps. The other potential approach is to look at
existing determinations of whether a water is considered to be a jurisdictional "water of the
United States," which may be a first step in the section 404 permitting process. Both approaches
could be used in geospatial analyses utilizing the high resolution NHD and the NWI, as
described for other programmatic analyses. For example, 404 permitting data can be overlaid
with the high resolution NHD and NWI in an attempt to approximate if the permit is located on
an ephemeral stream or a non-abutting wetland (using the rasterization approach described in the
"Aquatic Resources Analyses" section of this appendix).
Both analytical approaches have limitations. The ORM2 permit data often does not contain the
actual geospatial footprint of an action but instead often includes a center point of the project.
Even where geospatial information about the project area is available, aquatic resource impacts
may not occur throughout the entirety of the project boundary. Additionally, all aquatic resources
on a project site may not be "waters of the United States." Using the AJD data may also not give
an accurate sense of potential impacts to the 404 program because, as discussed in the
"Uncertainties and Limitations to the Data and Analyses" section of this appendix, Corps
Districts vary in their use of PJDs and AJDs. Some Districts primarily utilize PJDs and thus
potential impacts in thus districts could potentially be misrepresented in an analysis of AJDs.
The agencies at this time have not conducted the same type of overlay analysis of Corps 404
73 2009 TIGER/LINE® Shapefiles, prepared by the U.S. Censure Bureau, 2009. Available at:
https://www.census, gov/geo/maps-data/data/tiger-line.html. This represents a seamless national coverage shapefile
with no overlaps or gaps between parts, providing a way to ascertain the correct state for each NPDES permit
record, even when a point falls on inland water such as the Chesapeake Bay, where the reported facilities would
typically be tagged with a state value such as "Maryland" or "Virginia." Additional documentation on the dataset is
available at: https://www2.census.gov/geo/pdfs/maps-data/data/tiger/tgrshp2009/TGRSHP09.pdf.
74 CWA jurisdiction extends seaward approximately three miles (i.e., the territorial seas). See Clean Water Act
section 502(8) (33 U.S.C. 1362(8)).
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permit data and the approved jurisdictional determination data with the NHD and NWI as they
have with other programs in an attempt to estimate the potential effects of the proposed rule. An
overlay analysis of the section 404 program data with the NHD and NWI poses a variety of
challenges. As previously described, neither the NHD or the NWI are representative of the
waters that are jurisdictional under either baseline or the proposed rule.
The agencies instead summarized section 404 permit data from the Corps' ORM2 database from
fiscal years 2011-2015.75 In addition, for purposes of the Economic Analysis, the agencies
attempted to evaluate the potential avoided costs and foregone benefits for the section 404
program associated with the proposed rule (see the Economic Analysis for more details). The
agencies acknowledge that this analysis required a number of assumptions. Therefore, the
agencies are uncertain of the actual number of permits that would no longer be required
following a change in the definition of "waters of the United States.
!l • : !i ~ I i .and n Source Water
Protection Ar .s)
In an exploratory effort, the agencies attempted to evaluate the spatial distribution of drinking
water sources in relation to NHD streamflow classification (e.g., perennial, intermittent,
ephemeral) type by overlaying the source protection areas (SPAs) for surface water intakes on
the National Hydrography Dataset at high resolution. Due to data limitations of the NHD - in
particular the fact that the NHD does not map ephemeral streams in many parts of the country -
coupled with uncertainty regarding the jurisdictional status of many intermittent streams and all
ephemeral streams subject to a case-specific significant nexus analysis under pre-2015 practice,
the agencies have concluded that the exploratory analysis cannot appropriately or accurately
assess the potential effects of the proposed rule on public water systems. The attempted analysis
is discussed here for completeness.
In this attempted analysis, GIS tools were used to overlay over 8,000 surface water SPAs across
the country with the high resolution NHD stream network. The data from SDWIS/Fed was
accessed on October 2, 2017. The agencies attempted to estimate the percentage of stream length
within SPAs designated as ephemeral, intermittent, perennial, and unclassified. The agencies
also attempted this analysis for the subset of SPAs that contained streams impaired {i.e., not
meeting WQS) due to one or more of the following key pollutants: pathogens, pesticides,
sediment, metals other than mercury, and nutrient-related pollutants. These are pollutant
categories of special concern to drinking water. The methodology outlined in the "Baseline
Analyses" section of this Appendix was followed. See Section 2.G. for a description of how
population served statistics could be estimated for SPA areas.
75 Calendar year 2015 was the most recent complete year available at the time the agencies accessed data for use in
this analysis. Note that the dates of the Corps' section 404 permit data from ORM2 examined for the programmatic
analysis are different from the dates of the Corps' approved jurisdictional determination data from ORM2 examined
for the aquatic resource assessment discussed in this document.
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The agencies utilized ArcGIS 10.4.176 as the GIS platform to perform this set of geographic
analyses.
G. Examining EPA Tribal Areas
Methodologies outlined in sections B and F of this Methodology were followed to estimate the
extent of stream types in EPA Tribal Areas and within SPAs on EPA Tribal Areas. For the
reasons previous discussed, the agencies determined that their attempted analysis was not
appropriate for estimating the potential effects of the proposed rule on tribal lands.
4. Uncertainties and Limitations to tie Data and Analyses
The analyses described above are necessarily based on available information and the accuracy of
that information. All data carry unavoidable uncertainties and associated limitations. In addition,
each of the analyses that the agencies conducted have drawbacks. Thus, the results of the
analyses should be viewed with these constraints in mind. This section expands on
"Uncertainties and Limitations" section in Chapter I of the RPA: Aquatic Resource Analyses and
further discusses the limitations, uncertainties, and caveats to the data, the analyses, and the
results of the analyses.
The agencies note that the NHD and NWI datasets are not intended to identify jurisdictional
waters but instead represent the most comprehensive data available at a national level that show
the potential extent of streams, rivers, lakes, and wetlands across the country. The NHD and
NWI datasets do not use terms equivalent to the categories in the 2015 Rule, pre-2015 practice,
or the proposed rule, so the agencies describe potential changes qualitatively and not
quantitatively. While the ORM2 database does identify aquatic resources that the Corps has
determined are "waters of the United States" on a site-specific basis, there are no national
datasets of all jurisdictional waters. Finally, these analyses do not address the specific
jurisdictional status of individual waters and do not address how states and tribes may currently
address them through state/tribal authorities and programs.
No available datasets depict the full jurisdictional extent of waters under the 2015 Rule or pre-
2015 practice. While ORM2 contains data on individual aquatic resources that the Corps has
determined are or are not jurisdictional on a site-specific basis, AJDs are typically conducted at
the request of the landowner. On a national level, ORM2 data are analyzed for reasonableness;
when a correction is warranted, it is accomplished by Corps field project managers. Not all
individual records, however, are verified and data entry errors may exist. The ORM2 database
used in this analysis does not track all the categories of "waters of the United States" under the
Corps' 1986 regulations. The categories in ORM2 for AJDs made under pre-2015 practice are
drawn primarily from the 2007 Rapanos AJD form.77 The Rapanos AJD form was developed in
coordination with the agencies' Rapanos Guidance following the consolidated Supreme Court
76 Environmental Systems Research Institute (ESRI). 2016. ArcGIS Desktop: Release 10.4.1. Redlands, CA:
Environmental Systems Research Institute. See http://www.esri.com/arcgis/about-arcgis.
77 A copy of the Corps' Approved Jurisdictional Determination Form used under current implementation is available
at http://www.usace.armv.mi1/Portals/2/docs/civilworks/regulatorv/cwa euide/app b approved id form.pdf.
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cases Rapanos v. United States and Carabell v. United States 78 (Rapanos). The Rapanos
Guidance was intended to address only those waters at issue in Rapanos,79 and thus does not
discuss other categories of "water of the United States" covered by the 1986 Corps and 1988
EPA regulations.80 The 2007 AJD form also includes the category of waters at issue in
SWANCC—nonnavigable, isolated, intrastate waters. Thus, the ORM2 database lacks a separate
category for interstate waters or the territorial seas for AJDs made under pre-2015 practice.
For the ORM2 analysis, it is important to note the limitations of using CWA AJDs to assess
potential changes in jurisdiction that would result from the proposed rule. First, CWA JDs are
typically made at the request of the landowner or project proponent and do not represent a
random sample. In other words, they usually represent where landowners or project proponents
want to know if jurisdictional waters are located within their properties or project sites, including
but not limited to for purposes of conducting dredged or fill activities. Thus, some aquatic
resource types may be over or under represented in the population of CWA AJDs. Second, there
may be selection bias in terms of where the Corps has available information on AJDs. A
landowner or applicant can decide whether they would like an AJD - meaning the Corps makes
an official determination of whether an aquatic resource is jurisdictional - or whether they would
prefer to voluntarily waive or set aside questions regarding jurisdiction with the use of a
preliminary JD (PJD). In addition, Corps Districts across the country vary in their use of AJDs or
PJDs. However, PJDs cannot determine that something is not a "water of the United States"
and/or whether there are no "waters of the United States" on the site.81 Thus, the agencies have
determined that only AJDs are appropriate to use in this analysis, while recognizing that these
records may not be uniformly distributed across the country.
The States of New Jersey and Michigan have assumed administration of the CWA section 404
permit program for certain waters within their states. The Corps, however, retains administration
of the section 404 permitting program for specific waters. Thus, the Corps conducts AJDs for
only a subset of waters within New Jersey and Michigan, which have been included in the
analysis of ORM2 data where available. The agencies did not supplement the ORM2 data with
information from the state programs.82
78 1 26 S. Ct. 2208 (2006).
79 "Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States &
Carabell v. United States," (hereafter "Rapanos Guidance"), first issued on June 6, 2007 and revised on December
2, 2008, available at https://www.epa.gov/sites/production/files/2016-
02/documents/cwa jurisdiction following rapanos 120208.pdf. Footnote 19 states, "This guidance focuses only on
those provisions of the agencies' regulations at issue in Rapanos - 33 C.F.R. §§ 328.3(a)(1), (a)(5), and (a)(7); 40
C.F.R . §§ 230.3(s)(l), (s)(5), and (s)(7). This guidance does not address or affect other subparts of the agencies'
regulations, or response authorities, relevant to the scope of jurisdiction under the CWA."
80 51 FR 41206 (Nov. 13, 1986), amending 33 CFR 328.3; 53 FR 20764 (June 6, 1988), amending 40 CFR 232.2.
81 When the Corps provides a PJD, or authorizes an activity through a general or individual permit relying on a PJD,
the Corps is not making a legally binding determination of any type regarding whether jurisdiction exists over the
particular aquatic resource in question even though the applicant or project proponent proceeds as though the
resource were jurisdictional. A PJD is "preliminary" in the sense that a recipient of a PJD can later request and
obtain an AJD if that becomes necessary or appropriate during the permit process or during the administrative
appeal process. See 33 CFR 331.2.
82 Dredged or fill permits issued by New Jersey and Michigan under their assumed programs are not federal section
404 permits; they are state-issued permits subject to the requirements of the CWA for "waters of the State." "Waters
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The agencies do not have comprehensive data from ORM2 to analyze AJDs made under the
2015 Rule, in light of the reasons discussed above.
The NHD and NWI both have data limitations. As discussed above, the NHD does not map all
streams, and sometimes maps features that do not exist or no longer exit on the ground (e.g. due
to fill activities, drainage, or stream burial). Similarly, the NWI does not map all wetlands, and
sometimes maps features that do not exist or no longer exist on the ground. The NHD and NWI
both tend to undermap small features due to the scale of the data.
The terms used in the NHD and NWI datasets are different from terms used in the 2015 Rule and
the previous longstanding regulations, and they do not directly match the terms in the proposed
rule. Not all streams mapped in the NHD would be considered tributaries under either baseline or
under the proposed rule because they are "isolated" streams that do not flow into a traditional
navigable water, interstate water, territorial sea, or jurisdictional impoundment (e.g., streams in a
certain closed basins). As further discussed below, under current implementation, terms like
"relatively permanent waters" ("RPW") in ORM2 do not directly equate to the NHD's
intermittent and perennial streams. Under the proposed rule, the term "intermittent" does not
directly correspond to definition of intermittent used by the NHD. The proposed rule includes
streams that receive prolonged, continuous flow from melting snowpack, whereas such streams
would likely fall under the NHD's definition of ephemeral. Even if the terms did match, as
described above, the dataset includes some ephemeral streams in the intermittent classification.
Additionally, misclassifications of NHD stream permanence are known to occur among flow
regime types, including field-verified perennial streams identified as ephemeral and field-
verified ephemeral streams identified as perennial.83 As such, the estimated extents of perennial,
intermittent, and ephemeral streams are likely not precise on a national level. In addition, the
NHD does not include a flow permanence characterization for features that are classified as
canals or ditches in the dataset as it does for stream and river features. The NHD does include a
separate category for a storm water canal/ditch, and aqueduct, as well as the general canal/ditch
category.
As previously discussed, the NWI definition of wetlands does not match the regulatory
definition. Though the agencies used vegetated wetlands types in NWI to better estimate
wetlands that likely meet the regulatory definition, some wetlands in NWI might not match their
classification on the ground. In addition, a vegetated NWI wetland still might not have all of the
three factors (hydric soils, hydrophytic vegetation, and hydrology) required to meet the
regulatory definition of wetland. NWI data in Alaska are not complete (approximately 65 percent
of Alaska is not currently available as digital data). The Corps' ORM2 data is more
comprehensive as it includes data for the entire state, where an AJD was requested. The agencies
also did not include the U.S. Territories in the analysis. The NHDPlus is not available in Alaska,
so the agencies did not include Alaska in the analyses utilizing NHDPlus catchments.
The raster analysis used to analyze the NWI data introduces another source of uncertainty. The
grid cell size of the raster data is 30 by 30 meters - resulting in pixels representing 900 square
of the State" at a minimum encompass "waters of the United States" but may or may not be broader than "waters of
the United States," as discussed further in Chapter II.
83 See, e.g., supra at footnote 14.
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meters or approximately 0.22 acres on the ground. The minimum size threshold for a wetland to
be included in NWI is l/20th of an acre, or 0.05 acres. That means that the grid size should be
large enough to capture all wetlands that are mapped in NWI; however, with raster, the NWI
polygons are converted to coarse grids, so mapped boundaries will most likely be larger than the
polygon itself. In addition, the NHD flowlines were also rasterized into 30-meter grid cells, and
the raster layer may not accurately depict the actual size of the stream or river on the ground.
Thus, when conducting an overlay analysis, the gridded, generalized NWI data may capture
wetlands as "intersecting" the gridded, generalized NHD flowlines which in fact may not
actually intersect. The agencies are not able to estimate the magnitude of this error.
While the agencies utilized the NHD High Resolution to represent streams in their analyses, data
in ATTAINS for impaired waters and waters with TMDLs are mapped in NHD Medium
Resolution. There is no cross-walk linking specific NHD High Resolution features to their
Medium Resolution counterparts. Thus, as discussed, the agencies devised a GIS methodology to
facilitate assigning of Medium Resolution attributes such as impaired or TMDL stream
designation to their counterpart High Resolution streams, as described in the "Methodology"
section above. Though visual quality assurance and quality control of the results confirmed the
appropriateness of this methodology, it is not precise and minor false negative and false positive
assessments of specific streams segments could occur. For the purposes of this analysis, broad
data summaries such as those in the "Results" section and as shown in the "Summary Graphics"
section should be used.
The ATTAINS data used to extract Impaired and TMDL stream designations was based on the
most current state data available in ATTAINS as of 2015. Although more recent ATTAINS
submittals by states could indicate changes to designations for some stream segments, the
statewide and nationwide data summaries such as those shown in the "Summary Graphics"
section are more appropriate. As mentioned above, the ATTAINS information used for the
analysis is at NHD Medium Resolution. If a state does not provide their geospatial information to
the EPA using the NHD Medium Resolution (e.g., if it is provided in High Resolution or using a
state stream geospatial dataset), then the EPA manually conflates the state data to NHD Medium
Resolution in order to provide a nationally consistent scale, state-to-state, within ATTAINS. To
obtain the original state geospatial files provided to the EPA, a user would need to visit the
respective state's water quality agency website.
The EPA's national 303(d) impaired waters dataset does not contain all of the state's impaired
waters. The dataset only includes the 303(d) EPA-approved impaired waters (Integrated
Reporting [IR] Category 5) and do not represent all impaired waters reported in a state's
Integrated Report to the EPA. Therefore, the state-level geospatial data do not include waters that
are impaired but have an EPA-approved TMDL established (IR Category 4a), impaired waters
for which other pollution control mechanisms are in place and expected to attain WQS (IR
Category 4b), or waters with impairments such as flow alteration that are not caused by a
pollutant (IR Category 4c). The EPA does have both Category 4 and 5 (303(d)) impaired waters
in the 2002 Impaired Waters Baseline National Geospatial Dataset. However, the agencies chose
not to utilize that dataset because it is not the most recently nationally-available dataset on
impaired waters. State data in the national 303(d) dataset are not all from the same reporting year
nationally. This can be due to circumstances that prevent states from submitting a 303(d) list to
the EPA by the biennial deadline. Generally, what is available for each state represents their
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most recent GIS submittal. In addition, the Impaired Waters with TMDLs dataset does not
encompass all waters with all TMDLs, because numerous TMDLs are completed before their
state GIS data are finalized and new TMDLs are continually being developed. Nevertheless, the
Impaired Waters with TMDLs dataset provides a valuable spatial record of the availability of
thousands of TMDLs.
There are no universal reporting requirements for the section 311 SPCC program, and the EPA
therefore relies on imputed estimates and data for a small subset of inspected facilities to
characterize SPCC-regulated facilities. The EPA does have detailed information on FRP-subject
facilities, as these facilities are required to submit plans to the agency. For the section 311
programmatic analysis, the agencies utilized a half-mile screen radius for FRP-facilities. The
half-mile distance used in this screening analysis does not necessarily indicate whether a facility
would no longer be subject to 40 CFR 112. Instead, the agencies evaluated waters within a half-
mile radius based on the EPA's planning guidance for FRP preparers which suggests using this
distance to identify resources that could be immediately affected in the event of a release.84
Facility owners or operators would still need to evaluate that there is a reasonable expectation of
an oil discharge as defined in section 112.1(b) reaching jurisdictional waters in the immediate
proximity to the facility, after accounting for potential conveyance of spilled oil via non-
jurisdictional features, stormwater conveyance systems, or other pathways to jurisdictional
waters. In this case, a facility may still be subject to SPCC requirements. Owners of facilities
with no jurisdictional waters, including wetlands, within the half-mile radius may still conclude,
after a site-specific evaluation, that the facility has the potential to cause substantial harm to
jurisdictional waters located farther than a half-mile or to other resources in the event of a
discharge and may prepare an FRP.
Data on the universe of regulated facilities and activities for section 402 varies in the level of
detail and coverage. For example, data on facilities or permitted features subject to minor
84 As per Appendix C to 40 CFR part 112:
5.5 A facility owner or operator whose nearest opportunity for discharge is located within 0.5 mile of a navigable
water must complete the planning distance calculation (D3) for the type of navigable water near the facility or
use a comparable formula.
5.6 A facility that is located at a distance greater than 0.5 mile from a navigable water must also calculate a
planning distance (D3) if it is in close proximity (i.e., D1 is less than 0.5 mile and other factors are conducive to
oil travel over land) to storm drains that flow to navigable waters. Factors to be considered in assessing oil
transport over land to storm drains shall include the topography of the surrounding area, drainage patterns, man-
made barriers (excluding secondary containment structures), and soil distribution and porosity. Storm drains or
concrete drainage channels that are located in close proximity to the facility can provide a direct pathway to
navigable waters, regardless of the length of the drainage pipe. If D1 is less than or equal to 0.5 mile, a
discharge from the facility could pose substantial harm because the time to travel the distance from the storm
drain to the navigable water (D2) is virtually instantaneous.
5.7 A facility's proximity to fish and wildlife and sensitive environments not bordering a navigable water, as
depicted as D4 in Figure C-I of this attachment, must also be considered, regardless of the distance from the
facility to navigable waters. Factors to be considered in assessing oil transport over land to fish and wildlife and
sensitive environments should include the topography of the surrounding area, drainage patterns, man-made
barriers (excluding secondary containment structures), and soil distribution and porosity.
5.8 If a facility is not found to pose substantial harm to fish and wildlife and sensitive environments not bordering
navigable waters via oil transport on land, then supporting documentation should be maintained at the facility.
However, such documentation should be submitted with the response plan if a facility is found to pose
substantial harm.
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individual permits or general permits under the Section 402 program is limited to the permit
information included in the EPA's ICIS-NPDES database, as described in the section "National
Pollutant Discharge Elimination System Databases" of this Appendix. Some industrial facilities
or activities subject to section 402 requirements may be underrepresented in the database if states
did not provide relevant permit information in ICIS. As a general caveat, even though the
agencies did take measures to review the NPDES data used in the section 402 data analysis, there
still may be data included that have been mislabeled, as well as permit data that may be missing
if it has not been entered into ICIS by a state or EPA Region. Though the agencies took
additional steps to clean up the locational data, data entry errors could have occurred. In addition,
the facility address, which the agencies used when valid coordinates were not available, may not
be located near the discharge location(s). The permit records included in the spatial analysis are
limited to those for which the ICIS-NPDES database includes locational information and an
industry code.
Permit data maintained by the Corps under the section 404 program provide high-level
characteristics of the projects such as the type of project and affected acres or linear feet.
However, the affected waters are not described in sufficient details to determine how proposed
changes in the scope of "waters of the United States" could potentially change the permitting
requirements for these projects. In addition, some general permits under section 404 are non-
reporting general permits, meaning that no application or notification to the Corps is required, so
long as the project proponent complies with all applicable terms and conditions of the general
permit. Because these permits are not reported to the agency, they are not tracked and cannot be
included in analysis. In addition, because New Jersey and Michigan have assumed administration
of the section 404 permit program for certain waters within state boundaries, ORM2 only
contains a subset of federal permit actions for those two states (where the Corps has retained
administration of the permitting program for specific waters).
For the drinking water analysis, as previously noted, the SPAs were derived by identifying the
NHDPlus catchments intersected while traveling 24 hours upstream from surface drinking water
intakes and other surface water sources. Though each SPA identifies those waters that will reach
a drinking water intake within 24 hours, it does not necessarily represent an area that receives
special protection. The use of the 24-hour time of travel for SPAs does not imply that activities
in drainage areas greater than 24 hours upstream could not impact water quality to affected
drinking water supplies. Rather, the 24-hr transport polygons were chosen as a consistent
nationwide metric upon which to evaluate plausible potential consequences to drinking water
supplies. In addition, the underlying SDWIS/Fed data store population information at the system
level, not the facility level (e.g., intake level). Although some double counting was avoided by
not assigning population served attributes to individual SPAs when jurisdictions have multiple
intakes (as described in the "Methodology" section), some double counting can occur when
individuals are served by multiple systems. For example, an individual can be served at their
home and also at their workplace.
While the EPA Tribal Areas dataset is the EPA's most comprehensive dataset of likely tribal
areas, it does not depict all tribal areas or boundaries. For example, the dataset does not include
the boundaries of reservations in Oklahoma, as no publicly-available data exist for those
reservations. In addition, the Alaska Native Villages dataset is comprised of center points of
Alaska Native Villages and thus does typically not contain boundaries of the Alaska Native
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Villages. The agencies did not use this point dataset in their analysis to identify tribal areas, as
polygonal data were required to assess the stream types and any associated programmatic data
for the overlay analyses. The Alaska Native Allotments dataset is derived from the official
Bureau of Land Management U.S. Survey plats, and the accuracy of the dataset is dependent on
the accuracy, reliability, and completeness of its source as well as the accuracy of the conversion
of the data into a geospatial dataset. In addition, the agencies did not include an analysis of the
stream type breakout for SPAs located in EPA Tribal Areas in Alaska because catchments, the
central landscape features that are used to delineate SPA boundaries via NHDPlus, have not yet
been identified for Alaska.
The results of the aquatic resource analyses are not meant to represent waters that are or are not
jurisdictional under either baseline or the proposed rule. Data do not exist to calculate the extent
of such waters. Finally, these analyses do not address the specific jurisdictional status of
individual waters and do not address how states and tribes may currently address them through
state/tribal authorities and programs. State and tribal authorities and programs are discussed in
the Economic Analysis and elsewhere in the Resource and Programmatic Assessment.
5. Results
A. Baseline .Analyses
In this section, the agencies do not repeat the qualitative discussion of results that is presented in
RPA Chapter I: "Aquatic Resource Analyses." Instead, this section expands on the discussion in
that chapter, where such discussion is warranted, and also highlights any numerical results of the
agencies' analyses, where available.
1. Traditional Navigable Waters
According to ORM2 data for FY13-FY17, 17,630 waters were determined to be jurisdictional as
TNWs under pre-2015 practice (see Table 3). This number includes any tidal wetlands that the
Corps has determined are (a)(1) waters, but the agencies are unable to parse out how many of
these determinations were for such wetlands. As described in Chapter I, TNWs are generally
determined for purposes of a specific AJD, and some Corps Districts have chosen to document
an aquatic resource as a perennial RPW instead of a case-specific TNW for ease of
documentation and workload. Some AJDs for RPWs therefore in fact represent TNWs, so the
ORM2 data on TNWs likely underestimate the number of TNWs. However, those aquatic
resources would be captured in the RPW category described in the "Tributaries" section below.
TNWs are not mapped as a category in NHD, and the agencies do not have a national map of
TNWs. In the NHD, TNWs likely consist of some perennial streams, some intermittent streams,
some lakes/ponds, and some wide streams that are mapped as "NHDArea" features (e.g., mapped
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as two-dimensional streams). NHDWaterbody features mapped "Estuary"85 or "Sea/Ocean"86
also would be considered TNWs, though such NHD categories may also capture waters beyond
the jurisdiction of the CWA.87 In addition, the agencies have not mapped the location of all
TNWs across the country, in part because most TNW determinations are made at a site-specific
level and the up- and downstream limits of the TNW are generally not delineated. The extent of
tidal waters, including ditches and wetlands, regulated as (a)(1) waters under pre-2015 practice
and the 2015 Rule also cannot be ascertained from available data. Though streams/rivers and
canals/ditches are mapped in the NHD, the dataset does not include all streams or ditches and
contains no information about whether the stream or ditch is tidal. In NWI, systems of wetlands
and deepwater habitats that would contain tidal waters include all "Marine" and "Estuarine"
systems, while the "Riverine" system has a subsystem of "Tidal." Lacustrine and Palustrine
systems may also be tidal, and the "Water Regime" classifications of "Temporarily Flooded-
Tidal," "Seasonally Flooded-Tidal," "Semipermanently Flooded-Tidal," and "Permanently
Flooded-Tidal" are available to indicate if a system is tidally influenced. However, not all
wetlands that are tidally influenced have been classified to contain such a modifier. For these
reasons, baseline estimates using NHD or NWI are not possible for this category.
2. Interstate Waters
Interstate waters are not included as their own category of waters in ORM2 under pre-2015
practice, so the agencies have no existing data for that category of waters under this baseline.
Instead, these waters are being captured under other ORM2 categories of aquatic resources.
"Interstate waters" are also not mapped as a distinct category in either the NHD or the NWI. No
data currently exist that indicates the extent of these waters.
3. The Territorial Seas
As discussed in RPA Chapter I: "Aquatic Resource Analyses," the ORM2 database does not
track under pre-2015 practice whether a water is a "territorial sea." Territorial seas would all be
categorized as TNWs in AJDs conducted under pre-2015 practice. The NHD does not
specifically map "the territorial seas." NHDWaterbody features mapped as "Estuary" or
"Sea/Ocean" would encompass waters that are territorial seas as well as waters that are beyond
the scope of the territorial seas, as discussed in the TNW section above. Thus, the extent of these
waters cannot be quantified for purposes of this analysis.
4. Impoundments
According to ORM2 data from FY13-FY17, 751 waters were determined to be jurisdictional
impoundments under pre-2015 practice. Based on these ORM2 data, 7.5 percent of
impoundments were located on non-RPWs.
85 The NHD defines the "Estuary" feature as "[t]he lower end of a river, or a semi enclosed coastal body of water
with access to the open ocean, which is affected by the tides and where fresh and salt water mix." See
https://nhd.usgs.gov/userguide.html?url=NHD User Guide/Feature Cataloe/NHD Feature Catalog.htm.
86 The NHD defines the "Sea/Ocean" feature as "[t]he great body of salt water that covers much of the earth." See id.
87 CWA jurisdiction extends seaward approximately three miles (i.e., the territorial seas). See Clean Water Act
section 502(8) (33 U.S.C. 1362(8)).
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Though many lakes and ponds are mapped in both the NHD and the NWI, neither dataset
explicitly specifies if a waterbody is an impoundment of another waterbody. The NHD does have
the feature category of reservoir, but that feature class does not capture all impoundments or all
reservoirs. Some waters that are known as reservoirs are mapped as lake/ponds. In the NWI,
impoundments can be mapped as either Lacustrine or Palustrine features. The NWI does include
special modifiers to describe human alterations to wetlands and deepwater habitats, as well as a
"Beaver" modifier (for wetlands created or modified by beavers, including impoundments).
When used, Special Modifiers like "Managed," "Diked/Impounded," and "Beaver" could be
helpful in identifying likely impoundments, but not all features that would be considered
impoundments have been classified in the NWI with these Special Modifiers. The NWI also has
a "Water Regime" of "Artificially Flooded" which includes waters that are dammed, but this
modifier also includes waters that are not impoundments and is typically not used for
impoundments unless both water inputs and outputs are controlled to achieve a specific depth
and duration of flooding. Further, there is not a way to identify if these NWI features are
impoundments of jurisdictional waters. In addition, no national datasets exist that
comprehensively map all in-stream dams. For example, dams included in the Corps' National
Inventory of Dams must meet at least one of four criteria.88 Thus, the National Inventory of
Dams likely excludes many dams located on smaller streams. The NHD also includes dams in
the dataset, but likewise does not map all dams. In light of these data limitations, the agencies are
unable to use the NHD or the NWI to quantify the extent of impoundments across the country
that are jurisdictional under either baseline and whose jurisdictional status might change as a
result of the proposed rule.
J. Tributaries
As discussed in Chapter I of the RPA, under pre-2015 practice 15,980 waters in ORM2 from
FY13-FY17 were determined to be jurisdictional as RPWs. Data from ORM2 indicate that the
agencies have determined under pre-2015 practice that many but not all non-RPWs are
jurisdictional. From FY13-FY17, 3,776 waters in ORM2 were determined to be jurisdictional
non-RPWs after a case-specific significant nexus evaluation, while 2,012 non-RPWs were
determined to be non-jurisdictional after a case-specific significant nexus evaluation.
As discussed previously, the NHD at high resolution primarily maps ephemeral streams as such
in the arid West (approximately 99 percent of all streams mapped as ephemeral in the high
resolution NHD are in the arid West, demonstrating how underrepresented such streams are in
the dataset in the rest of the country). In the rest of the country, ephemeral streams are typically
either not mapped or are mapped as intermittent. In addition, Corps-categorized RPWs and non-
RPWs cannot be neatly split into the categories of flow regime that the NHD uses of perennial,
intermittent, and ephemeral. RPWs include perennial and seasonal intermittent tributaries. Non-
RPWs include non-seasonal intermittent and ephemeral tributaries under pre-2015 practice.
Thus, it would be impossible to use the NHD to describe the potential change in CWA
jurisdiction from both the 2015 Rule and pre-2015 practice. The agencies are not able to quantify
what percentage of ephemeral streams are mapped incorrectly in the NHD as intermittent or
88 These criteria relate to potential hazard, height, and storage capacity of the dam. See the National Inventory of
Dams website at:
http://nid.usace nrmv mil/cm apex/f?p=838:l:0::NQ::APP ORGANIZATION TYPE.P12 ORGANIZATION: 15.
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perennial (nor are the agencies able to quantify the percentage of perennial or intermittent
streams incorrectly mapped as ephemeral) or the extent of ephemeral streams that are unmapped.
In the NHD at high resolution, of identified streams, 30 percent are mapped as perennial, 52
percent are mapped as intermittent, and 18 percent are mapped as ephemeral.89 However, as
discussed previously, the actual percentage of ephemeral streams across the country is likely
higher than 18 percent since many are not mapped or are mapped as intermittent. In the arid
West (Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Texas, Utah,
Washington, and Wyoming), 13 percent of streams (by stream length) are mapped as perennial,
48 percent are mapped as intermittent, and 39 percent are mapped as ephemeral. As discussed
previously, NHD streams cannot be equated to waters that are or are not jurisdictional under
either baseline or under the proposed rule. Some streams mapped as ephemeral in NHD may
meet the proposed rule's definition of intermittent and thus might be considered jurisdictional
because their prolonged flow comes from a significant melting of snowpack. Some features
mapped in the NHD as streams may not exist on the ground or may be erosional features and not
streams. Some ephemeral streams in the arid West are mapped as washes. Like waters mapped as
streams, not all washes would have an indicator of ordinary high water mark, and others that are
mapped might not exist on the ground or may be erosional features and not streams. Some
streams and washes mapped in NHD may not be found to have a significant nexus under pre-
2015 practice. For these reasons, it is not possible to use NHD to accurately quantify a potential
change in CWA jurisdiction based on either baseline.
6. Notmovigoble, Intrastate Lakes and Ponds
As discussed in Chapter I, ORM2 does not specifically have a category for "Lakes and Ponds."
Instead, available data from ORM2 under pre-2015 practice on the jurisdictional status of lakes
and ponds that are tributaries are discussed in the "Tributaries" section above. The agencies are
not able to easily parse out from the available AJD data if the tributary at issue is a lake, a pond,
or a stream, as there is no field in ORM2 for the project manager to denote such. Thus, the
agencies are not able to estimate the percentage of non-relatively permanent lakes and ponds
which are being called jurisdictional as tributaries under pre-2015 practice. Furthermore, as
discussed above in the "Tributaries" section, the agencies do not further indicate if a non-RPW is
a non-seasonal intermittent water or an ephemeral water, further complicating any quantification
of potential change for this category of waters.
The NHD and the NWI map many but not all lakes and ponds. The hydrologic classifications of
these lakes and ponds in both the NWI and the NHD do not line up precisely with the definitions
used in the proposed rule as discussed above. Ephemeral lakes and ponds are not included as
their own features in the NHD. Some ephemeral lakes are captured as playas, but playas
typically are not part of the stream network. The NWI does include a Water Regime of
"Intermittently Flooded" for lakes and ponds, but this water regime would include those lakes
and ponds that are flooded ephemerally. "Intermittently Flooded" in the NWI indicates that
surface water is present for variable periods without detectable seasonal periodicity, and that
89 These percentages do not account for artificial paths, unclassified streams, ditches/canals, and other flowlines that
are mapped in the NHD.
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weeks, months, or even years may intervene between periods of inundation. Generally, this water
regime is limited to the arid West.
7. Wetlands
Data in ORM2 from FY13-FY17 indicate that 5,261 waters were determined to be jurisdictional
as wetlands adjacent to TNWs. The agencies, as described in Chapter I of the RPA, are unable to
further parse out directly from ORM2 whether a wetland is abutting or not abutting a TNW. To
better assess the potential effect of the proposed rule on the CWA jurisdiction of wetlands
adjacent to TNWs under pre-2015 practice, 25 of the 38 Corps Districts examined specific AJD
ORM2 data for wetlands adjacent to TNWs90 to assess whether the wetlands are abutting or not
abutting a TNW (see Table 4). Some Districts examined all AJDs under pre-2015 practice for
this wetland category from FY13-FY17, while other Districts analyzed a random sample of
AJDs. The Corps examined 3,581 of the 5,261 wetlands adjacent to TNWs in the analysis. The
Districts used AJD hard copies, information in the administrative file, remote tools, as well as
experience with regional resources and the specific review area in this analysis to assess whether
the wetlands were adjacent and likely abutting, or whether they were likely neighboring or were
likely behind a berm or similar feature. Finally, the assessments of whether wetlands were likely
abutting or not abutting were compiled in spreadsheets, and the agencies used this raw data to
calculate the following statistics. The Corps Districts found that 55 percent of wetlands adjacent
to TNWs in the AJDs that were evaluated were abutting {i.e., touching) and 45 percent of
wetlands adjacent to TNWs in the AJDs that were evaluated were not abutting.91
The agencies are proposing to include as "waters of the United States" wetlands that are
separated from the waters to which they are adjacent by berms, levees, and the like only when
such wetlands have a direct hydrologic surface connection in a typical year to the waters which
they are adjacent. A direct hydrologic surface connection occurs as a result of inundation from
the jurisdictional water to the wetland or via perennial or intermittent flow between a wetland
and the jurisdictional water. Such a direct hydrologic surface connection in a typical year can
occur, for example, due to regular flooding of the jurisdictional water to the wetland. A direct
hydrologic surface connection may also occur due to a wetland overtopping a berm during
periods of elevated surface water, or through features like culverts or tide/flood gates so long as
perennial or intermittent flow occurs between the wetland and the jurisdictional water.
According to the analysis of the of the wetlands adjacent to TNWs reviewed by the Corps
Districts, about 10 percent of wetlands adjacent to TNWs that do not abut the TNW have a
surface connection to the TNW via a culvert or tide gate. The agencies do not have additional
information to estimate how many of these wetlands adjacent to TNWs would be found
jurisdictional under the proposed rule due to overtopping where they otherwise do not abut.
From FY13-FY17, 11,203 waters were determined to be jurisdictional wetlands abutting an
RPW. Under pre-2015 practice, the agencies' data indicate that most wetlands that are adjacent
to but that do not abut RPWs are found to be jurisdictional following a significant nexus
90 All but 38 of the 5,261 wetlands adjacent to TNWs made under pre-2015 practice from FY13-17 were completed
in those 25 Corps Districts.
91 The agencies have placed in the docket as a "Supporting Document" a table of the Corps wetlands adjacent to
TNW determinations that were evaluated listed by their Department of Army (DA) Number. Docket materials are
available at https://www.regulations.gov/ (Docket ID: EPA-HQ-OW-2018-0149).
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analysis. In 0RM2 from FY13-FY17, there were 3,939 adjacent wetlands that do not abut an
RPW, and thus required additional jurisdictional analysis. Of these, 3,834 waters were
determined to be jurisdictional because they had a significant nexus, and 105 were found non-
jurisdictional because they lacked a significant nexus - meaning approximately 97 percent of
such wetlands were determined to be jurisdictional under pre-2015 practice. Available data from
AJDs indicate that under pre-2015 practice, most wetlands adjacent to non-RPWs have been
determined to be jurisdictional after a case-specific significant nexus analysis that considered
both the non-RPW and its adjacent wetlands. In ORM2 from FY13-FY17, 1,681 waters were
determined to be jurisdictional wetlands adjacent to a non-RPW92 and 152 wetlands adjacent to a
non-RPW were determined to be non-jurisdictional - 92 percent of wetlands adjacent to non-
RPWs were determined to be jurisdictional.
The agencies are unable to use the NHD or the NWI datasets to accurately estimate the extent of
wetlands that would be jurisdictional under either baseline or under the proposed rule and thus
are unable to quantify using these datasets what the potential effects of the proposed rule might
be on the jurisdictional status of wetlands. Wetlands that are adjacent under the 2015 Rule also
include wetlands that are bordering, contiguous, or neighboring, including wetlands behind a
berm, beach dune, or the like. Neighboring was further defined in the 2015 Rule to include some
distance limitations or location within a 100-year floodplain. While the Federal Emergency
Management Agency (FEMA) does map some 100-year floodplains for flood insurance
purposes, not all 100-year floodplains are mapped throughout the country, and FEMA maps may
not accurately delineate the 100-year floodplain.93 Thus, there is not a nationally consistent and
comprehensive dataset of 100-year floodplains that the agencies could use to determine which
NWI wetlands might meet that portion of the 2015 Rule's definition of adjacent.
In terms of pre-2015 practice, there is no ideal way to estimate which wetlands (as mapped in the
NWI) are adjacent to jurisdictional waters. Adjacent wetlands under pre-2015 practice include
those that are bordering, contiguous, and neighboring, including wetlands behind a berm, beach
dune, and the like, without a requirement for a direct hydrologic surface connection in a typical
year for wetlands behind a barrier. Neighboring wetlands are physically proximate to the water
they are adjacent to, but the agencies under pre-2015 practice do not have a distance limitation
for adjacency, so there would be no representative buffer distance that could be used to
approximate adjacent wetlands. Under pre-2015 practice, non-jurisdictional swales and ditches
can serve as a continuous surface hydrologic connection for adjacency, and there is no way to
capture in the NHD or NWI which wetlands would likely have such surface hydrologic
connections. Swales are not captured in the NHD, and not all ditches are mapped. In addition,
while the NHD does include a feature class of "Levee," not all levees are mapped, and datasets
are not available regarding the location of beach dunes, berms, and the like. The NWI does
contain the Special Modifiers of "Diked/Impounded" and "Managed," as well as the "Water
Regime" of "Artificially Flooded," that could be used to better ascertain if a wetland is behind a
berm or a dike. Not all wetlands behind a berm or a dike, however, contain such modifiers in
their NWI classification. Even if the agencies could identify potentially adjacent wetlands under
92 The non-RPWs were also determined to be jurisdictional in these cases, as under current implementation the
agencies evaluate the tributary along with any adjacent wetlands for a case-specific significant nexus.
93 See. e.g., Department of Homeland Security, Office of the Inspector General Report: "FEMA Needs to Improve
Management of Its Flood Mapping Programs." OIG-17-110. September 27, 2017.
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pre-2015 practice, they would be unable to approximate which of these wetlands would likely
have a significant nexus (if such an analysis is required), since the agencies require site-specific
information for a significant nexus evaluation. Further, the agencies are unable to estimate the
extent of wetlands that are adjacent to ephemeral streams, which would not be jurisdictional
under the proposed rule. Some of these wetlands are jurisdictional today (where they are found to
have a significant nexus to at TNW), but the agencies cannot use NHD or NWI to accurately
approximate the extent of these wetlands because not all ephemeral streams are mapped in the
NHD, the NHD may misclassify a stream's actual flow regime, and—unless a significant nexus
test is performed—the jurisdictional status of wetlands subject to a case-specific significant
nexus evaluation is unknown.
Only those wetlands that are abutting otherwise jurisdictional waters or that have a direct
hydrologic surface connection to jurisdictional waters in a typical year would be considered
"waters of the United States" under the proposed rule. Wetlands in NWI are not classified based
on whether they are physically abutting other waters. Though the agencies could perform an
intersection analysis of the NHD and the NWI to approximate when NWI wetlands are likely
abutting an NHD stream,94 this would not capture all wetlands that are physically abutting due to
positional inaccuracies in the two datasets (e.g., both wetlands and streams may be mapped a few
feet away from where they occur on the ground), and because most streams in NHD are mapped
as linear features, thus not accurately capturing the actual width of a stream or a river. The
agencies could help resolve these data issues by using a small buffer of the NHD, such that any
NWI wetlands that fall within the buffer of the NHD flowline would be considered to likely be
abutting and thus jurisdictional. Using a buffer, however, would mean that some wetlands that
are in fact separated from the jurisdictional water by a small strip of upland or a small berm
would also be captured in the buffer, when such wetlands would not always be jurisdictional
under the proposed rule. The proposed rule would include as adjacent any wetlands that are
separated from a "water of the United States" by a berm or the like but that maintain a direct
hydrologic surface connection with the "water of the United States" in a typical year. The
agencies are unable to estimate what the extent of such wetlands are using NHD or NWI, as there
is no national dataset on the location of culverts, flood gates, and the like, and no national
datasets that can be used to show that a wetland has a direct hydrologic surface connection to a
wetland in a typical year as defined in the proposed rule. Though the NWI does contain the
"Special Modifier" of "Managed" and "Diked/Impounded" as well as the "Water Regime" of
"Artificially Flooded" that might be used to narrow down which NWI wetlands could potentially
be connected hydrologically, for example, via a floodgate or culvert to the water from which it is
separated, these modifiers likely capture wetlands that do not have such a connection, and not all
wetlands that do have such a connection are identified by these modifiers. In addition, not all
wetlands that have such a modifier would have a direct hydrologic surface connection with a
jurisdictional water in a typical year as defined in the proposed rule.
94 The agencies did rasterize the NWI and NHD data in an attempt to approximate which NWI wetlands intersected
the NHD flowlines (and could be presumed to be physically connected or abutting), but as discussed in section
3.A.2. "Aquatic Resource Analyses" of this appendix, the agencies were unable to use this analysis to estimate the
extent of adjacent wetlands that are jurisdictional under either baseline or the proposed rule due to limitations of the
datasets and of the raster analysis.
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8. NonnavigaMe, Isolated. Intrastate Waters
In 0RM2 from FY13-FY17, 20,353 waters were determined to be non-jurisdictional non-
navigable, isolated, intrastate waters. As compared to pre-2015 practice, the agencies do not
anticipate that there will be a change in jurisdiction for nonnavigable, intrastate, intrastate waters.
These features are not mapped in NHD/NWI as their own category; therefore, identifying
baseline and mapping these waters in NHD/NWI would be impracticable.
9. Waters Excluded from, the Definition of "Waters of the United States "
Under pre-2015 practice, the agencies do not record in the ORM2 database if a water is excluded
from the definition of "waters of the United States" due to the regulatory exclusions. Such waters
may be entered into the database as "uplands." However, other aquatic resources or features that
the Corps determines to not meet the regulatory definition of "waters of the United States" are
also categorized as "uplands" in the database. The Corps conducted 14,357 upland
determinations in FY13-17.
The agencies are unable to use the NHD or the NWI to estimate the extent of excluded waters.
The NHD and the NWI cannot be parsed into waters that are excluded from the definition of
"waters of the United States" under pre-2015 practice, as they do not explicitly map or
characterize waters that are prior converted cropland and waters that are waste treatment
systems. As mentioned previously, the NWI does not map most farmed wetlands. This means
that some waters that may be prior converted cropland are not mapped in the NWI. Because U.S.
Department of Agriculture's Natural Resources Conservation Service (NRCS) is statutorily
prohibited from sharing data and information on program participants and their land, the
agencies are unable to obtain information from that agency about their prior converted cropland
designations. In order to estimate any potential effect of the proposed rule's clarification of prior
converted cropland, the agencies would need to have estimates of the acreage of prior converted
cropland areas that are or have been abandoned versus the acreage of prior converted cropland
that are or have been subjected to a change in use. In addition to being abandoned or having a
change in use, such areas must also meet the federal regulatory definition of wetland as well as
the definition of "waters of the United States." The NHD and NWI cannot be utilized for such
estimates, and the agencies are not aware any national datasets to assist with such estimates. In
terms of the new exclusions added to the 2015 Rule and the proposed rule, as previously
discussed, though the NHD does include a "ditch/canal" feature, the hydrologic permanence of
these features is not noted, making an accurate analysis of excluded ditches impossible. Further,
some canals are TNWs and some ditches are tidal - such waters would not be excluded from the
definition of "waters of the United States" under the 2015 Rule or the proposed rule, but they
cannot be easily identified. Neither the proposed rule's exclusion for stormwater control features,
nor the 2015 Rule's exclusion for certain stormwater control features are easily identifiable in
NWI or NHD. The agencies are also unable to clearly identify which features in NHD or NWI
would meet the other new exclusions in the 2015 Rule.
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; " mating Stream Types :* paired and TMDL Streams
The agencies estimate that approximately 33 percent (by stream length) of 303(d) listed impaired
streams and 32 percent of streams (by stream length) with approved TMDLs nationwide are
mapped in high resolution NHD as ephemeral or intermittent. The available data indicate that
most streams that are on the 303(d) list or that have TMDLs are mapped as perennial, with
approximately 67 percent of streams (by stream length) of 303(d) listed impaired streams and 67
percent of streams (by stream length) with approved TMDLs nationwide mapped in the high
resolution NHD as perennial, according the agencies' analysis. The distribution of 303(d) listed
impaired waters and streams with approved TMDLs varies nationwide. For instance, the
agencies' analysis found that states in the West (particularly the arid West) had the highest
percentage (by stream length) of ephemeral 303(d) listed impaired streams, including Arizona
(19 percent of listed streams), Nevada (15 percent of listed streams), New Mexico (13 percent of
listed streams), Idaho (nine percent of listed streams), Wyoming (five percent of listed of
streams), and California (three percent of listed streams). This makes sense, considering that
most ephemeral streams in the high resolution NHD are mapped in the arid West. The
geographic distribution of intermittent 303(d) listed streams was more varied than that for
ephemeral streams. Colorado (68 percent), North Dakota (63 percent), Ohio (54 percent), Kansas
(49 percent), Idaho (47 percent), California (39 percent), and Arizona (36 percent) had the
highest percentages of 303(d) listed stream length mapped as intermittent in the high resolution
NHD.
Similarly, the highest percentages of streams with approved TMDLs mapped in the high
resolution NHD as ephemeral are for states in the arid West. Nevada (51 percent), Utah (19
percent), Arizona (13 percent), New Mexico (five percent), California (two percent), and Idaho
(1 percent) were the states with the highest percentages of streams with approved TMDLs that
are mapped as ephemeral in the high resolution NHD. States with the highest percentage of
approved TMDL stream length that is intermittent include North Dakota (63 percent), Ohio (55
percent), Colorado (54 percent), Kansas (51 percent), and California (39 percent). Several states
have 30-37 percent of their streams with approved TMDLs mapped as intermittent, including
Hawaii, Texas, Utah, Louisiana, South Dakota, Arizona, and Idaho.
C. Analysis of Section 311 Programs
The agencies estimate that nearly 540,000 facilities may be regulated by the SPCC rule in the
2016 baseline year for the ICR renewal. Oil production facilities (43 percent), electric utilities
(12 percent), real estate rental and leasing (six percent), and farms (four percent) account for the
majority of SPCC-regulated facilities (see Table 5).95 The estimate does not explicitly account
for the location of the facilities and reasonable potential for a discharge to a "waters of the
United States." The current inventory of FRP-subject facilities that have submitted and are
currently maintaining an FRP as of January 2018 is approximately 3,800 facilities nationwide,
inclusive of federal facilities. The data are summarized by EPA Region in Table 6.
95 U.S. Environmental Protection Agency. 2016. Regulatory Impact Analysis for the Proposed Amendments to the
Oil Pollution Prevention Regulations (40 CFRPART 112). September 2017.
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In a 2013 Report to Congress,96 PHMSA estimated that hazardous liquid pipelines cross inland
waterbodies at 18,136 locations and that 5,110 of these crossings are 100 feet or greater, but this
count likely understates the number of water crossings since it was based on a relatively coarse
hydrographic dataset that would not account for most ephemeral and intermittent streams. In
addition, more than 11,000 oil spills97 were reported to the National Response Center ("NRC")
during calendar year 2017 from sources other than vessels or platforms. Of these incidents, more
than 7,000 reportedly impacted waters. The number of incidents that impacted or threatened
waters that would potentially no longer be subject to federal protection under the proposed
definition of "waters of the United States" is uncertain, since notifications to the NRC generally
do not provide sufficient detail on the resources at risk to determine their potential jurisdictional
status under the proposed rule. While impact or threat to waters is one of the criteria for notifying
the NRC of an incident, the NRC also receives notifications for a wide range of incidents of
public concern, and therefore, changes in the definition of "waters of the United States" could
potentially have a limited impact on the frequency of NRC notifications, even as responsibilities
for overseeing the response to some incidents shift from the federal on-scene coordinators to
state, local, or tribal governments. During the period of 2014-2016, EPA federal on-scene
coordinators oversaw emergency removal activities for 60 incidents involving the discharge of
oil from non-transportation-related sources.98 The average volume discharged in these incidents
was approximately 6,500 gallons.
402 Program
The agencies downloaded 522,536 permitted features and 223,114 facilities from ICIS-NPDES
and the New Jersey DataMiner.99 This included 378,591 NPDES general permit records and
215,869 NPDES individual permit records. Of these, 87 percent (329,823) of the general permits
and 97 percent (209,648) had valid locational information that the agencies could use in the
analysis. As discussed previously, the agencies determined that their attempted analysis was not
appropriate for estimating the potential effects of the proposed rule on the section 402 program at
a national level.
E, .Analysis of Section 404 Programmatic Data
Data from Corps permits issued under the 404 program in fiscal years 2011 to 2015100 indicate
the amount of wetlands, streambanks, and shorelines affected by dredged and fill activities and
the extent of mitigated impacts under the 404 permitting process. During this timeframe,
96 Pipeline and Hazardous Material Safety Agency (PHMSA). 2013. Report to Congress: Results of Hazardous
Liquid Incidents at Certain Inland Water Crossings Study. August 2013. Available at
https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/Report%20to%20Congress%20on%20Hazardous%20Lia
uid%20Pipelines%20Crossing%20Inland%20 Waterwavs%20-%20 August%202013 .pdf.
97 Count reflects NRC's Calendar Year 2017 incident data involving substances with names containing the terms
"oil" or "gasoline" or "diesel."
98 Based on the number of incidents overseen by EPA OSCs during this period, excluding removals that addressed
historical releases or abandoned facilities, or originated from a pipeline, truck or other transportation-related source.
99 These numbers represent the permit records after the agencies removed permits that had likely been entered
incorrectly and that are not truly NPDES permits.
100 Calendar year 2015 was the most recent complete year available at the time the agencies accessed data for use in
this analysis.
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available data indicate 248,688 permits were issued under the 404 program. Permits are divided
into 10 different general project types: agriculture, aquaculture, development, dredging, energy
generation, mining and drilling, mitigation, structure, transportation, and an "other" type for
purposes of this analysis. Table 7 provides authorized permanent impacts, temporary impacts,
and mitigation requirements for each project type.
Without knowing each state's and tribe's likely response to changes to the definition of "waters
of the United States," the agencies can only identify states that could have potentially large
impacts based on the authorized impact areas of 404 permits. The proposed rule, if finalized,
could have a significant effect in states with large impact areas and large mitigation areas in non-
coastal waters. Table 8 shows authorized impact areas and large mitigation requirements from
non-coastal 404 permits issued in 2011-2015 for each EPA region. The states of Florida,
Louisiana, Alaska, and Texas had the largest areas of authorized permanent impacts for
permitted activities on non-ocean and non-tidal water resources. States with large mitigation
requirements—including Florida, South Carolina, Texas, Louisiana, and Indiana—would likely
experience significant impacts from the proposed "waters of the United States" definitional
changes if the states do not require similar mitigation following the change. Permits utilizing
mitigation credits are presented instead of total credits because the number of acres or linear feet
per credit varies among and within U.S. Army Corps Districts. Summing mitigation credits thus
would not provide meaningful results.
F. Estimai i " e , " - \;aired Waters within Source Water
Protection Ar s)
As discussed previously, the agencies determined that their attempted analysis was not
appropriate for estimating the potential effects of the proposed rule on source water protection
areas.
G. Examir
As discussed previously, the agencies determined that their attempted analysis was not
appropriate for the potential effects of the proposed rule in EPA Tribal Areas.
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6. Summary Graphics
This section includes summary graphics of the data and analyses described in the sections above.
Many of these graphics were originally created for other purposes and retain their original
formatting.
A. ORM2
Table 3. Summary of the Corps Fiscal Year 2013-2017 ORM2 Approved Jurisdictional Determination
Data under Pre-2015 Practice. During this period, the Corps conducted AJDs under pre-2015 practice for
82,738 aquatic resources in the 10 categories that are described in the "Baseline" section of this chapter.
Of these AIDs, 60,116 aquatic resources were determined to be jurisdictional. In addition, the Corps
conducted 14,357 upland determinations in that same period.
Total Number of
Waters in ORM2
Total Number of Jurisdictional
Waters in ORM2
TNW
17,630
17,630
Wetlands Adjacent to TNWs
5,261
5,261
Interstate Waters
0
0
Isolated Waters
20,353
0
Impoundments
751
751
RPWs
15,980
15,980
Non-RPWs
5,788
3,776
Wetlands Directly Abutting
RPWs
11,203
11,203
Wetlands Not Directly Abutting
RPWs
3,939
3,834
Wetlands Adjacent to Non-
RPWs
1,833
1,681
Sum Totals
82,738
60,116
Uplands
14,357
0
Table 4. Summary of the Corps Fiscal Year 2013-2017 ORM2 Data Analyzed for Approved Jurisdictional
Determinations for Wetlands Adjacent to Traditional Navigable Waters (TNWs) Made under Pre-2015
Practice.
Total Number of Waters in
ORM2 Identified as
"Wetlands Adjacent to
TNWs"
Number "Wetlands
Adjacent to TNWs" that
were Examined in the
Adjacency Analysis
Number of Examined
"Wetlands Adjacent to
TNWs" Assessed to be
Wetlands Directly Abutting
TNWs
5,261
3,581
2,660
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'.ection 3' '
Table 5. Estimated Number of Facilities Subject to SPCC in 2016.
Sector
Number of Facilities
Farms1
21,864
Oil Production
230,405
Electric Utility2
64,919
Petroleum Refining and Related Industries
2,075
Chemical Manufacturing
2,654
Food Manufacturing
3,684
Manufacturing facilities using and storing AFVO
7,859
Metal Manufacturing
2,828
Other Manufacturing
15,781
Real Estate Rental and Leasing
30,395
Retail Trade
18,158
Contract Construction
17,327
Wholesale Trade
14,883
Other Commercial
18,764
Transportation
15,846
Arts Entertainment & Recreation
15,054
Other Services (Except Public Administration)
7,493
Education
9,317
Petroleum Bulk Stations and Terminals
4,405
Hospitals & Other Health Care
7,239
Accommodation and Food Services
5,330
Fuel Oil Dealers
4,225
Gasoline stations
3,715
Information Finance and Insurance
4,596
Mining
3,145
Religious Organizations
1,563
Warehousing and Storage
3,545
Military Installations
789
Pipelines
647
Government
613
Total
539,118
1 Reflects changes in SPCC applicability to farms due to the Water Resources Reform and
Development Act (WRRDA)
2 Electric utility includes generation plants, distribution substations, and other types of
facilities
Source: EPA (2016)
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Table 6. Summary of the number of active FRP facilities by EPA region.
EPA Region
Number of Facilities
1
133
2
203
3
283
4
531
5
527
6
956
7
259
8
225
9
278
10
407
Total
3,802
Source: EPA, Oil Program Database,
2018
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C. Analysis of Section 404 Programmatic Data
Table 7. Authorized impact area of Corps 404 permits issued in 2011-2015, by project type
Permanent Impacts
Temporary Impacts
(Per Year)
Mitigation Required
(Per Year)
Project Type
Acres
Length
Feet
Acres
Length
Feet
Acres
Length
Feet
Permits
Using
Credits1
Agriculture
583
966,813
99
73,963
311
47,383
8
Aquaculture
13,758
16,603
6,599
581
2
49
0
Development
19,099
2,563,048
275
108,992
9,859
278,370
990
Dredging
4,997
932,081
2,272
523,532
294
24,269
19
Energy
2,320
741,194
166
93,718
676
235,181
57
Generation
Mining and
6,187
2,992,779
508
1,731,983
2,648
679,215
146
Drilling
Mitigation
14,063
15,418,091
1,064
530,120
869
97,926
13
Structure
7,000
3,237,833
1,242
568,435
898
177,000
330
Transportation
13,224
5,932,043
1,994
796,314
4,592
231,032
1,546
Other
3,463
6,772,584
626
543,839
3,911
227,144
53
Total
84,694
39,573,069
14,844
4,971,478
24,060
1,997,569
3,163
1 Mitigation credits are the trading medium that is used to represent the ecological gains at mitigation bank sites.
The number of credits available from a mitigation bank depends on the quantity and quality of the resources that
are restored, created, enhanced, or preserved. The number of acres or linear feet per credit varies among and
within U.S. Army Corps of Engineers Districts. This variability makes summing credits across regions
inappropriate, so the number of permits utilizing mitigation credits is provided instead of total mitigation credits.
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Table 8. Authorized impact area of section 404 permits issued in 2011-20151, excluding permits affecting
resources categorized as "ocean " or "tidal. "
EPA
Permanent Impacts
Temporary
Impacts
(Per Year)
Mitigation Required
(Per Year)
Region
Acres
Length
Feet
Acres
Length
Feet
Acres
Length
Feet
Permits
Using
Credits2
1
687
392,280
175
65,712
1,656
5,038
30
2
401
546,025
79
55,851
364
13,202
18
3
5,111
2,406,621
819
509,094
459
305,507
140
4
18,229
3,842,185
682
319,864
12,317
335,565
1,066
5
5,738
5,289,594
510
409,753
1,373
488,018
419
6
11,208
2,183,522
1,909
610,310
3,149
368,462
684
7
1,662
2,963,411
114
1,629,274
313
88,826
130
8
1,478
1,507,359
235
146,724
274
94,709
74
9
3,349
986,347
284
189,385
925
105,071
323
10
5,154
1,687,844
371
163,967
644
79,697
134
Total
53,017
21,805,188
5,178
4,099,934
21,474
1,884,095
3,018
Source: Analysis of U.S. Army Corps of Engineers' ORM2 data.
1 The estimated impact area does not include projects from New Jersey and Michigan.
2 Mitigation credits are the trading medium that is used to represent the ecological gains at mitigation bank sites.
The number of credits available from a mitigation bank depends on the quantity and quality of the resources that
are restored, created, enhanced, or preserved. The number of acres or linear feet per credit varies among and
within U.S. Army Corps districts. This variability makes summing credits across regions inappropriate, so the
number of permits utilizing mitigation credits is provided instead of total mitigation credits.
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7. Glossary of Acronyms and Terms1
Some terms are denoted by CWA, NHD, or NWI to indicate if they are being defined in the
context of the CWA, National Hydrography Dataset, or National Wetlands Inventory,
respectively.
Approved Jurisdictional Determination (CWA): An approved JD (AJD) means a Corps
document stating the presence or absence of "waters of the United States" on a parcel or a
written statement and map identifying the limits of "waters of the United States" on a parcel.
Approved JDs are clearly designated appealable actions and will include a basis of JD with the
document.2
Aquatic Bed (NWI): The Class Aquatic Bed includes wetlands and deepwater habitats where
plants that grow principally on or below the surface of the water {i.e., surface plants or
submergents) are the uppermost life form layer with at least 30 percent areal coverage. Water
Regimes include Subtidal, Irregularly Exposed, Regularly Flooded, Permanently Flooded,
Intermittently Exposed, Semipermanently Flooded, Seasonally Flooded, Permanently Flooded-
Tidal Fresh, Semipermanently Flooded-Tidal Fresh, Regularly Flooded-Tidal Fresh, and
Seasonally Flooded-Tidal Fresh. Not all Water Regimes apply to all subclasses.
Artificially Flooded (NWI): The amount and duration of flooding are controlled by means of
pumps or siphons in combination with dikes, berms, or dams. The vegetation growing on these
areas cannot be considered a reliable indicator of Water Regime. Examples of Artificially
Flooded wetlands are some agricultural lands managed under a rice-soybean rotation, and
wildlife management areas where forests, crops, or pioneer plants may be flooded or dewatered
to attract wetland wildlife. Neither wetlands within or resulting from leakage from man-made
impoundments, nor irrigated pasture lands supplied by diversion ditches or artesian wells, are
included under this Modifier. The Artificially Flooded Water Regime Modifier should not be
used for impoundments or excavated wetlands unless both water inputs and outputs are
controlled to achieve a specific depth and duration of flooding.
ATTAINS: Assessment and Total Maximum Daily Load Tracking and Implementation System
(ATTAINS) is an EPA website and database that is used to share state water quality assessment
decisions made under CWA sections 303(d) and 305(b), as well as to share information on
TMDLs, alternative restoration, and protection approaches. See
https://www.epa.gov/waterdata/assessment-and-total-maximum-dailv-load-tracking-and-
i m pi em entati on-svstem -attai n s.
Catchment (NHD): The geographic area which drains into a single stream segment in the
Medium Resolution NHD stream network. See
1 Many of the NHD definitions are from the NHD Feature Catalog, available at:
https://nhd.usgs.gov/userguide.html?url=NHD User Guide/Feature Cataloe/NHD Feature Catalog.htm. Similarly,
many of the NWI definitions are from Classification of Wetlands and Deepwater Habitats, available at
https://www.fws.gov/wetlands/documents/Classification-of-Wetlands-and-Deepwater-Habitats-of-the-United-
States-2013.pdf.
2 33 CFR 331.2.
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ftp://ftp.horizon-
system s. com/N H Dpi us/N H DPI us V 21 /Documentati on/N H DPI us V 2 User Guide.pdf
Cowardin Code: The Cowardin Classification System classifies wetlands and deepwater habitats
in the United States. The classification codes are a series of letter and number codes that have
been developed to adapt the national wetland classification system to map form. These alpha-
numeric codes correspond to the classification nomenclature that best describes the habitat. The
scope of wetlands under the Cowardin system is broader than wetlands that meet the regulatory
definition of wetlands under the CWA. See https://www.fws.gov/wetlands/data/wetland-
codes.html.
CWA: Clean Water Act.
Emergent Wetland (NWI): In this wetland Class, emergent plants (i.e., erect, rooted, herbaceous
hydrophytes, excluding mosses and lichens) are the tallest life form with at least 30 percent areal
coverage. This vegetation is present for most of the growing season in most years. These
wetlands are usually dominated by perennial plants. All Water Regimes are included except
Subtidal and Irregularly Exposed. Not all Water Regimes apply to all subclasses.
Ephemeral Stream (NHD): Contains water only during or after a local rainstorm or heavy
snowmelt. These features are assigned an f-code of 46007 in the NHD.
Estuarine System (NWI): The Estuarine System consists of deepwater tidal habitats and nearby
tidal wetlands that are usually semi-enclosed by land but have open, partly obstructed, or
sporadic access to the open ocean, and in which ocean water is at least occasionally diluted by
freshwater runoff from the land. The salinity may be periodically increased above that of the
open ocean by evaporation. Along some low-energy coastlines there is appreciable dilution of
sea water. Offshore areas with typical estuarine plants and animals, such as red mangroves
(Rhizophora mangle) and eastern oysters (Crassostrea virginica), are also included in the
Estuarine System.3
Farmed (NWI): A special modifier in NWI. Farmed wetlands occur where the soil surface has
been mechanically or physically altered for production of crops, but where hydrophytes would
become reestablished if the farming were discontinued. Farmed wetlands should be classified as
Palustrine-Farmed. Cultivated cranberry bogs may be classified Palustrine-Farmed or Palustrine
Scrub-Shrub Wetland-Farmed.
FCode (NHD): A featured code in NHD that is a five-digit integer value. It is comprised of the
feature type and combinations of characteristics and values. In these analyses, the FCode
provides information on the Hydrographic Category (e.g., stream type) for Stream/River
features, as assigned by the U.S. Geological Survey.
3 The Coastal Zone Management Act of 1972 defines an estuary as "that part of a river or stream or other body
of water having unimpaired connection with the open sea, where the sea-water is measurably diluted with
freshwater derived from land drainage." The Act further states that "the term includes estuary-type areas of the
Great Lakes." However, the Cowardin Classification System does not consider areas of the Great Lakes as
Estuarine.
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Forested Wetland (NWI): In Forested Wetlands, trees are the dominant life form {i.e., the tallest
life form with at least 30 percent areal coverage. Trees are defined as woody plants at least 6
meters (20 feet) in height. All Water Regimes except Subtidal and Regularly Flooded-Tidal
Fresh are included. Not all Water Regimes apply to all subclasses.
FType (NHD): Each NHD Feature Class is broken down by feature type (FType) which have a
3-digit coded value and a name. In these analyses, the agencies focused on the FType of
"Stream/River" (460).
Hydrophyte: Any macrophyte that grows in water or on a substrate that is at least periodically
deficient in oxygen as a result of excessive water content; plants typically found in wet habitats.4
Impaired Stream: Streams listed as not meeting State or Tribal Water Quality Standards
according to Section 303(d) of the Clean Water Act. Location and pollutant information taken
from the ATTAINS Database for May 1, 2015. See https://www.epa.gov/waterdata/waters-
geospatial-data-downloads#303dListedImpairedWaters.
Intermittent (NWI): This Subsystem includes channels that contain flowing water only part of the
year. When the water is not flowing, it may remain in isolated pools or surface water may be
absent.
Intermittent Streams (NHD): Contains water for only part of the year, but more than just after
rainstorms and at snowmelt. These features are assigned an f-code of 46003 in the NHD.
Intermittently Flooded (NWI): The Water Regime of "Intermittently Flooded" indicates that the
substrate is exposed, but surface water is present for variable periods without detectable seasonal
periodicity. Weeks, months, or even years may intervene between periods of inundation.
Generally, this water regime is limited to the arid West.
Jurisdictional Determination (CWA): A jurisdictional determination (JD) means a written Corps
determination that a water is subject to regulatory jurisdiction under section 404 of the Clean
Water Act (33 U.S.C. 1344) or a written determination that a waterbody is subject to regulatory
jurisdiction under Section 9 or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq).
Additionally, the term includes a written reverification of expired JDs and a written
reverification of JDs where new information has become available that may affect the previously
written determination. For example, such geographic JDs may include, but are not limited to, one
or more of the following determinations: the presence or absence of wetlands; the location(s) of
the wetland boundary, ordinary high water mark, mean high water mark, and/or high tide line;
interstate commerce nexus for isolated waters; and adjacency of wetlands to other "waters of the
United States." All JDs will be in writing and will be identified as either preliminary or
approved. JDs do not include determinations that a particular activity requires a DA permit. 5
4 U.S. Army Corps of Engineers. 1987. Corps of Engineers Wetlands Delineation Manual. Wetlands Research
Program Technical Report Y-87-1. Department of the Army, Vicksburg, VA. Available at:
https ://el.erdc. dren. mil/clpub s/pdf/wlman87 .pdf.
5 33 CFR 331.2.
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Lacustrine System (NWI): The Lacustrine System includes wetlands and deepwater habitats with
all of the following characteristics: (1) situated in a topographic depression or a dammed river
channel; (2) lacking trees, shrubs, persistent emergent vegetation, emergent mosses or lichens
with 30 percent or greater areal coverage; and (3) total area of at least eight hectares (20 acres).
Similar wetlands and deepwater habitats totaling less than 8 hectares are also included in the
Lacustrine System if an active wave-formed or bedrock shoreline feature makes up all or part of
the boundary, or if the water depth in the deepest part of the basin equals or exceeds 2.5 meters
(8.2 feet) at low water. Lacustrine waters may be tidal or nontidal, but ocean-derived salinity is
always less than 0.5 parts per thousand.
Lower Perennial (NWI): This Subsystem is characterized by a low gradient. There is no tidal
influence, and some water flows all year, except during years of extreme drought. The substrate
consists mainly of sand and mud. Oxygen deficits may sometimes occur. The fauna is composed
mostly of species that reach their maximum abundance in still water, and true planktonic
organisms are common. The gradient is lower than that of the Upper Perennial Subsystem and
the floodplain is well developed.
Marine System (NWI): The Marine System consists of the open ocean overlying the continental
shelf and its associated high-energy coastline. Marine habitats are exposed to the waves and
currents of the open ocean and the Water Regimes are determined primarily by the ebb and flow
of oceanic tides. Salinities exceed 30 parts per thousand, with little or no dilution except outside
the mouths of estuaries. Shallow coastal indentations or bays without appreciable freshwater
inflow, and coasts with exposed rocky islands that provide the mainland with little or no shelter
from wind and waves, are also considered part of the Marine System because they generally
support typical marine biota.
Moss-Lichen Wetland (NWI): The Moss-Lichen Wetland Class includes areas where mosses or
lichens cover at least 30 percent of substrates other than rock and where emergents, shrubs, or
trees alone or in combination cover less than 30 percent. Water Regimes include Seasonally
Flooded, Seasonally Flooded-Saturated, Continuously Saturated, and Seasonally Saturated.
National Hydrography Dataset (NHD): The NHD is a digital geospatial dataset that maps
surface water features in the United States. The NHD represents the nation's drainage networks
and related features, including rivers, streams, canals, lakes, ponds, glaciers, coastlines, dams,
and streamgages. The dataset is available at high resolution (l:24,000-scale or higher) or
medium resolution (1:100,000-scale). See https://www.usgs.gov/core-science-
svstem s/n gp / nati onal -hydrography/ nati onal-hvdrographv-dataset.
National Hydrography Dataset Plus (NHDPlus): TheNHDPlus is a suite of geospatial products
that build upon and extend the capabilities of the National Hydrography Dataset (NHD), the
National Elevation Dataset (NED) and the Watershed Boundary Dataset (WBD). The NHDPlus
includes a stream network, catchments, and streamflow estimates, as well as other value-added
attributes that enable stream "navigation."6 See https://epa.gov/waterdata/nhdplus-national-
6 "Navigation" in this context refers to the ability to trace a stream network upstream and downstream using GIS.
The term does not refer to actual navigability of a water and does not imply that a feature is or is not navigable.
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hydrography-dataset-plus and https://www.usgs.gov/core-science-
svstems/ngp/hvdrography/nhdplus-high-resolution.
National Wetlands Inventory (NWI): The U.S. Fish and Wildlife Service's National Wetlands
Inventory (NWI) is a publicly available resource that provides detailed information on the
abundance, characteristics, and distribution of wetlands7 in the United States. See
https://www.fws.gov/wetlands/.
NHDFlowline (NHD): NHDFlowlines consist of routes that make up a linear surface water
drainage network. Flowlines have a reach code and a measure, allowing for the establishment of
upstream/downstream relationships. This network allows for powerful analysis and modeling
capabilities. Each Feature type is attributed with descriptive information by an I 'code.
0RM2 (Operation and Maintenance Business Information Link, Regulatory Module): The
Corps' internal database system that tracks CWA section 404 application and permit data,
including information on jurisdictional determinations.
Palustrine System (NWI): The Palustrine System includes all nontidal wetlands dominated by
trees, shrubs, persistent emergents, emergent mosses or lichens, and all such wetlands that occur
in tidal areas where salinity due to ocean-derived salts is below 0.5 parts per thousand. It also
includes wetlands lacking such vegetation, but with all of the following four characteristics: (1)
area less than eight hectares (20 acres); (2) active wave-formed or bedrock shoreline features
lacking; (3) water depth in the deepest part of basin less than two meters at low water; and (4)
salinity due to ocean-derived salts less than 0.5 parts per thousand.
Perennial Stream (NHD): Contains water throughout the year, except for infrequent periods of
severe drought. These features are assigned an f-code of 46006 in the NHD.
Preliminary Jurisdictional Determination (CWA): A preliminary jurisdictional determination
(PJD) is a written indication that there may be "waters of the United States" on a parcel or
indications of the approximate location(s) of "waters of the United States" on a parcel.
Preliminary JDs are advisory in nature and may not be appealed. Preliminary JDs include
compliance orders that have an implicit JD, but no approved JD.8
Riverine System (NWI): The Riverine System includes all wetlands and deepwater habitats
contained within a channel, with two exceptions: (1) wetlands dominated by trees, shrubs,
persistent emergent vegetation, emergent mosses, or lichens, and (2) habitats with water
containing ocean-derived salts of 0.5 parts per thousand (ppt) or greater.9 A channel is "an open
conduit either naturally or artificially created which periodically or continuously contains
moving water, or which forms a connecting link between two bodies of standing water"
(Langbein and Iseri 1960:5).
7 Note that when discussing wetlands in an NWI context, the agencies are using the NWI definition of wetland and
not the regulatory definition of wetland.
8 33 CFR 331.2.
9 Id.
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Rock Bottom (NWI): The Class Rock Bottom includes all wetlands and deepwater habitats with
substrates having an areal cover of stones, boulders, or bedrock 75 percent or greater and
vegetative cover of less than 30 percent. Water Regimes are restricted to Subtidal, Permanently
Flooded, Intermittently Exposed, Semipermanently Flooded, Permanently Flooded-Tidal Fresh,
and Semipermanently Flooded-Tidal Fresh.
Rocky Shore (NWI): The Class Rocky Shore includes wetland habitats characterized by bedrock,
stones, or boulders, which singly or in combination have an areal cover of 75 percent or more,
and an areal coverage by vegetation of less than 30 percent. Water Regimes are restricted to
Irregularly Exposed, Regularly Flooded, Irregularly Flooded, Seasonally Flooded, Temporarily
Flooded, Intermittently Flooded, and Regularly Flooded-Tidal Fresh.
Safe Drinking Water Information System/Federal Version (SDWIS/FED): Safe Drinking Water
Information System/Federal Version (SDWIS/FED) is EPA's national database that manages and
collects public water system information from states, including reports of drinking water
standard violations, reporting and monitoring violations, and other basic information, such as
water system location, type, and population served. Publicly available SDWIS data can be found
at: https://ofmpub.epa.gov/apex/sfdw/f?p=108:200.
Scale: Scale is the relationship between distance on the map and distance on the ground. If the
scale were 1:24,000, for instance, then one inch on the map would represent 24,000 inches or
2,000 feet on the ground. If the scale were 1:63,360, then one inch on the map would represent
63,360 inches or one mile on the ground. See "Map Scales," available at
https://pubs.usgs.gov/unnumbered/70039582/report.pdf.
Scrub-Shrub Wetland (NWI): In Scrub-Shrub Wetlands, woody plants less than 6 meters (20
feet) tall are the dominant life form (i.e., the tallest life form with at least 30 percent areal
coverage. The "shrub" life form actually includes true shrubs, young specimens of tree species
that have not yet reached 6 meters in height, and woody plants (including tree species) that are
stunted because of adverse environmental conditions. All Water Regimes except Subtidal and
Regularly Flooded-Tidal Fresh are included. Not all Water Regimes apply to all subclasses.
Seasonally Flooded (NWI): Surface water is present for extended periods (generally for more
than a month) during the growing season, but is absent by the end of the season in most years.
When surface water is absent, the depth to substrate saturation may vary considerably among
sites and among years.
Stream/River (NHD): A body of flowing water. Also exists as an NHDFlowline. May be a
named feature.
Streambed (NWI): The Class Streambed includes all wetlands contained within the Intermittent
Subsystem of the Riverine System and all channels of the Estuarine System or of the Tidal
Subsystem of the Riverine System that are completely dewatered at low tide. Water Regimes are
restricted to Irregularly Exposed, Regularly Flooded, Irregularly Flooded, Seasonally Flooded,
Temporarily Flooded, Intermittently Flooded, and Regularly Flooded-Tidal Fresh. Not all Water
Regimes apply to all subclasses.
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Surface Water Source Protection Areas (SPAs): Surface Water Source Protection Areas (SPAs)
delineations are composed of NHDPlus version 2.1 catchments located 24-hour time of travel
upstream of all georeferenced active surface water source facilities {i.e., intakes, reservoirs,
infiltration galleries, and springs with valid locations).
Temporarily Flooded (NWI): Surface water is present for brief periods (from a few days to a few
weeks) during the growing season, but the water table usually lies well below the ground surface
for most of the season.
TMDL (TotalMaximum Daily Load) (CWA): A calculation of the maximum amount of a
pollutant allowed to enter a waterbody so that the waterbody will meet water quality standards
for that pollutant.
TMDL Stream: Streams with Total Maximum Daily Loads (TMDLs) established in accordance
with section 303(d) of the Clean Water Act. Location and pollutant information taken from the
ATTAINS Database for May 1, 2015. See https://www.epa.gov/waterdata/waters-geospatial-
data-downloads#ImpairedWatersWithTMDLs.
Unclassified Stream (NHD): Does not have a "Hydrographic Category" (stream type) assigned to
it in the NHD. These features are assigned an FCode of 46000 in the NHD.
Unconsolidated Bottom (NWI): The Class Unconsolidated Bottom includes all wetlands and
deepwater habitats with at least 25 percent cover of particles smaller than stones and a vegetative
cover less than 30 percent. Water Regimes are restricted to Subtidal, Permanently Flooded,
Intermittently Exposed, Semipermanently Flooded, Permanently Flooded-Tidal Fresh, and
Semipermanently Flooded-Tidal Fresh.
Unconsolidated Shore (NWI): The Class Unconsolidated Shore includes all wetland habitats
having three characteristics: (1) unconsolidated substrates with less than 75 percent areal cover
of stones, boulders, or bedrock; (2) less than 30 percent areal cover of vegetation other than
pioneer plants; and (3) any of the following Water Regimes: Irregularly Exposed, Regularly
Flooded, Irregularly Flooded, Seasonally Flooded, Seasonally Flooded-Saturated, Temporarily
Flooded, Intermittently Flooded, Regularly Flooded-Tidal Fresh, Seasonally Flooded-Tidal
Fresh, and Temporarily Flooded-Tidal Fresh. Intermittent or intertidal channels of the Riverine
System and intertidal channels of the Estuarine System are classified as Streambed. Not all
Water Regimes apply to all subclasses.
Upper Perennial (NWI): This Subsystem is characterized by a high gradient. There is no tidal
influence, and some water flows all year, except during years of extreme drought. The substrate
consists of rock, cobbles, or gravel with occasional patches of sand. The natural dissolved
oxygen concentration is normally near saturation. The fauna is characteristic of running water,
and there are few or no planktonic forms. The gradient is high compared with that of the Lower
Perennial Subsystem, and there is very little floodplain development.
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Wetlands (CWA): "The term wetlands means those areas that are inundated or saturated by
surface or groundwater 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. Wetlands generally include swamps, marshes, bogs, and similar areas."10 The
definition of wetlands under the Cowardin system is broader than the regulatory definition under
the Clean Water Act (see below).
Wetlands (NWI): Wetlands are lands transitional between terrestrial and aquatic systems where
the water table is usually at or near the surface or the land is covered by shallow water. For
purposes of this classification wetlands must have one or more of the following three attributes:
(1) at least periodically, the land supports predominantly hydrophytes;11 (2) the substrate is
predominantly undrained hydric soil;12 and (3) the substrate is nonsoil and is saturated with
water or covered by shallow water at some time during the growing season of each year. The
definition of wetlands under the Cowardin system is broader than the regulatory definition under
the Clean Water Act (see above).
10 33 CFR 328.3(c) and 40 CFR 232.2.
11 Lichvar, R. W., and J. T. Kartesz. 2009. North American Digital Flora: National Wetland Plant List, version
2.4.0 U.S. Army Corps of Engineers, Engineer Research and Development Center, Cold Regions Research and
Engineering Laboratory, Hanover, New Hampshire, and BONAP, Chapel Hill, North Carolina. See http://wetland-
plants.usacc.armv.mil/nwpl stat ic/ho me/ho me. lit m 1.
12 U.S. Department of Agriculture, Natural Resources Conservation Service. 2010. Field Indicators of Hydric Soils
in the United States. Version 7. L.M. Vasilas, G.W. Hunt, and C.V. Noble, eds. USD A, NRCS, in cooperation
with the National Technical Committee for Hydric Soils. Version 8.1. (2017) is available at:
https://www.nrcs.usda.gov/Internet/FSE DOCUMENTS/nrcs 142p2 053171.pdf.
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Appendix B.
State-by-State Program Descriptions
1. OVERVIEW
States play an important role in managing aquatic resources across the country and implementing
Clean Water Act (CWA) programs. This appendix provides a snapshot of the current status of
states, including the District of Columbia and the U.S. Territories, regarding CWA programs,
definitions of state waters, and the scope of state jurisdiction, as well as additional information
on state-level regulations and/or policies that affect waters of the state. The U.S. Environmental
Protection Agency (EPA) and the Department of the Army (Army) ("the agencies") compiled
this information to describe the breadth of state authorities and to provide a current picture of
federal and state regulatory management of aquatic resources.
For the purpose of this snapshot, information has been drawn from multiple state and federal
sources, as well as from previous analyses undertaken by independent associations and
institutions. Definitions for state and territorial waters, including wetlands, were drawn from
online directories of regulatory titles and codes, therefore pulled directly from state laws.
Information on state and territorial water laws and programs was found through state and
territorial agency websites, and information on the various CWA programmatic areas (e.g., 303,
311, 401, 402, and 404) was drawn from the EPA websites, numerous publications, maps, and
from EPA regional staff. As many state definitions of wetlands, directly or indirectly, rely on the
federal regulatory definition of wetlands:
"Wetlands are 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.
Wetlands generally include swamps, marshes, bogs, and similar areas."13
The CWA programs outlined in this chapter, including the section 303 water quality standards
(WQS) program, the section 311 oil spill and response program, the section 401 water quality
certification program, the section 402 National Pollutant Discharge Elimination System
(NPDES) permit program, and the section 404 permit program for the discharge of dredged or
fill material rely on the definition of "waters of the United States" to establish CWA jurisdiction
for program implementation. A revised definition of "waters of the United States" could have
some effects on all of these CWA programs as implemented at the state level, as described
further. However, any future effects would vary from state to state based on a state's independent
legal authority to regulate aquatic resources beyond the jurisdictional scope of the CWA
following a revised definition.
These summaries were shared with state and territorial agencies for corrections, and the agencies
welcome further comments to ensure the accuracy of the information.14
13 33 CFR 328.3(c) and 40 CFR 232.2.
14 To date, the EPA has received responses to the assessments from twenty-four states and two territories from all regions of the
country. Of those responses, twenty-five were from that state or territory department for the environment or natural resources,
and one was from the department of public health.
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2. ALABAMA
Definition of Waters of the State:
• All waters of any river, stream, watercourse, pond, lake, coastal, ground or surface water,
wholly or partially within the state, natural or artificial. This does not include waters
which are entirely confined and retained completely upon the property of a single
individual, partnership or corporation unless such waters are used in interstate
commerce.15
Definition of Wetlands:
• Those areas delineated pursuant to the technical criteria described in the Federal Wetland
Delineation Manual that is currently being used by the Corps and/or any updated manual
that may be used in the future. Wetlands do not include those areas which exist solely
due to man-induced conditions such as roadside ditches or man-made impoundments
excepting those areas created as mitigation sites.16
• Those areas as defined by the Corps regulations.17
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Alabama Water Pollution Control Act18
o Under Alabama Water Pollution Control Act, waters within wetlands are by
definition waters of the state.
• Alabama Water Resources Act19
o Establishes the Office of Water Resources and the Alabama Water Resources
Commission; vests them with powers and responsibilities,
o The Commission advises on all matters related to waters of the state20;
establishes, adopts, promulgates, modifies, repeals, and suspends any rules or
regulations applicable to the state; advises on policy implementation, plans and
programs governing the waters of the state; additional commission member
duties.
• Alabama Environmental Management Commission21
• Alabama Coastal Area Management Plan22
o Joint effort between Alabama Department of Environmental Management and the
Alabama Department of Conservation & Natural Resources that ensures the
protection and preservation of Alabama's coastal resources.
303 Water Quality Standards:
15 Ala. Code section 22-22-1(2).
16 Ala. Admin. Coder. 335-8-l-.02(nnn).
17Ala. Admin. Coder. 335-13-l-.03(146).
18 Ala. Code sections 22-22 et eq.
19 Ala. Code sections 9-10B-1 etseq.
20 Exceptions for certain waters provided at Ala. Code section 9-10B-2(7).
21 Ala. Code section 22-22A-6.
22 Ala. Admin. Coder. 335-8-1.01 etseq.
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• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 4 in coordination with the state of
Alabama.
• Facilities with aboveground storage tanks must register with state, completing a form
with location, tanks capacity, substance store and use. State has a spill trust fund, and
facilities must comply with state of Alabama Department of Environmental Management
code and 40 CFR part 112 to be eligible to access trust fund.23
• State code authorizes cost recovery for spills and related damages.24
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Alabama. The state
issues its permits through the Alabama Department of Environmental Management.
Alabama has an authorized state NPDES permit program, state pretreatment program,
general permits program, and is authorized to regulate federal facilities. Alabama does
not have an authorized biosolids program.25
• EPA has issued one NPDES permit for aquaculture in offshore waters.26
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in coastal waters and wetlands.27
• Relies on federal permitting authority and CWA section 401.
Table 9. Alabama Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
Coastal only
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Program development in progress (as of 2015)
Source: Alabama State Wetland Program Summary (2015) Status and Trends Report
23 Ala. Admin. Code chapter 335-6-15.
24 Ala. Code section 22-22-9.
25 EPA, State Program Authority, available at https://www.eDa.gov/npdes/npdes-state-program-information.
26 EPA, Alabama NPDES Permits, available at https://www.epa.gov/npdes-permits/alabama-npdes-permits.
27 Ala. Admin. Code r. 335-8-2-.02. State regulations require mitigation through the creation or restoration of wetlands
when there are wetland impacts resulting from an approved project. Ala. Admin. Code r. 335-8-2-.03.
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3. ALASKA
Definition of Waters of the State:
• Lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams,
creeks, estuaries, marshes, inlets, straits, passages, canals, the Pacific Ocean, Gulf of
Alaska, Bering Sea, and Arctic Ocean, in the territorial limits of the state, and all other
bodies of surface or underground water, natural or artificial, public or private, inland or
coastal, fresh or salt, which are wholly or partially in or bordering the state or under the
jurisdiction of the state.28
Definitions of Wetlands:
• Freshwater wetlands: environments characterized by rooted vegetation that is partially
submerged either continuously or periodically by surface freshwater with less than 0.5
parts per thousand salt content and not exceeding three meters in depth. 29
• Saltwater wetlands: coastal areas along sheltered shorelines characterized by halophilic
hydrophytes and macro algae extending from extreme low tide to an area above extreme
high tide that is influenced by sea spray or tidally induced water table changes.30
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Alaska Coastal Zone Management Act31
• Alaska Land Act32
o Includes wetlands in regulated public lands.
• Habitat Protection Program33
o Permits required for projects that may impact anadromous fish habitat which can
be found in some types of wetlands.
303 Water Quality Standards:
• Has EP A-approved WQ S.34
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 10 in coordination with the state of
Alaska.
• Facilities with small aboveground storage tanks are regulated by State Fire Marshal.
State regulates facilities with larger storage capacities (>420,000 gallons for refined
28 Alaska Stat, section 46.03.900(37).
29 Alaska Admin. Code tit. 6, section 80.900(19).
wId.
31 Alaska Stat, section 46.40; Alaska Admin. Code tit. 6, sections 50, 80, 85.
32 Alaska Stat, section 38.05.
33 Alaska Stat, sections 16.05.871-874.
34 Antidegradation Policy: Alaska has not designated any Tier 3 waters for the state (or Outstanding National Resource Waters).
Outstanding National Resource Waters or Tier 3 waters are provided the highest level of protection under the antidegradation
policy of the State of Alaska. Alaska Department of Environmental Conservation, Outstanding National Resource Water (2015),
available at https://dec.alaska.gov/water/wasar/Antidegradation/docs/Workshop notebook/Tier-3-Fact-Sheet-4-20-15 Final.pdf.
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products; lower for crude oil); state relies on EPA's SPCC regulations for facilities
(>1,320 up to 420,000 gallons).35
• State code authorizes cost recovery for spills and related damages; state has a spill trust
fund.36
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Alaska. The state
issues its permits through the Alaska Department of Environmental Conservation. Alaska
has an authorized state NPDES permit program, state pretreatment program, general
permits program, and is authorized to regulate federal facilities. Alaska does not have an
authorized biosolids program.37
• EPA issues all NPDES permits for federally-owned facilities located in Denali National
Park; facilities operating outside State waters (three miles offshore); facilities that have
been issued Clean Water Act Section 301(h) waivers; and all permits on tribal lands.38
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.39
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 10. Alaska Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Not currently pursuing
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Source: Alaska State Wetland Program Summary (2015) Status and Trends Report
35 Alaska Admin. Code tit. 18, chapter 75.
36 Alaska Stat, sections 46.03.822,46.03.824,46.03.758-759,46.08.005 etseq.
37 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
38 EPA, Alaska NPDES Permits, available at https://www.epa.gov/npdes-permits/alaska-npdes-permits.
39 Local governments have adopted wetland management plans & some administer Corps-issued regional general permits; Alaska
supports delegating authority to local governments. Alabama State Wetland Program Summary, Alaska (2017), available at
https://www.aswm.org/aswm/58-wetland-programs/state-summaries/state-summaries/750-alaska.
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4. AMERICAN SAMOA
Definition of Waters of the Territory:
• Waters of the United States as defined in 40 CFR 122.2, as well as those that are located
within the jurisdiction of the territory.40
Definition of Wetlands:
• Those areas that are inundated or saturated by ground or surface water at a frequency and
duration sufficient to support, and under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions. Wetlands generally
include, but are not limited to, swamps, marshes, mangroves, streams, springs, cultivated
marshes, and similar areas.41
Additional Territory Conditions and Requirements:
• No limitations identified.
Territory Programs:
• Territorial Environmental Quality Act
o It is the public policy of this Territory and the purpose of this chapter to achieve
and maintain such levels of air and water quality as will protect human health and
safety and to provide for a coordinated Territory-wide program of air and water
pollution prevention, abatement, and control.42
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• Territory does not have an aboveground storage tank management or regulatory program
and relies on EPA to directly implement federal spill prevention and preparedness
regulations.
401 Certification:
• The territory has authority to certify, conditionally certify, waive review or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA issues all NPDES permits within American Samoa.43
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues territory permits for dredged and fill activities in coastal waters and wetlands.44
• Relies on federal permitting authority and CWA section 401.
40 American Samoa Admin. Code section 24.0201.
41 Id.
42 American Samoa Code Ann. section 24.0102.
43 EPA, American Samoa NPDES Permits, available at https://www.epa.gov/npdes-permits/american-samoa-npdes-permits.
44 American Samoa Admin. Code sections 26.0201 et seq.
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5. ARIZONA
Definition of Waters of the State:
• All waters within the jurisdiction of the state including all perennial or intermittent
streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells,
aquifers, springs, irrigation systems, drainage systems, and other bodies or accumulations
of surface, underground, natural, artificial, public or private water situated wholly or
partly in or bordering on the state.45
Definition of Wetlands:
• An area that is inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances does support, a
prevalence of vegetation typically adapted for life in saturated soil conditions. A wetland
includes a swamp, marsh, bog, cienega, tinaja, and similar areas.46
Additional State Conditions and Requirements:
• The Governor's Regulatory Review Council is prohibited from approving a state rule that
is more stringent than a corresponding federal law unless there is a statutory authority to
exceed the requirements of that federal law.47
• Arizona Department of Environmental Quality also must ensure that all state laws, rules,
standards, permits, variances, and orders are adopted and construed to be consistent with
and no more stringent than the corresponding federal law that addresses the same subject
matter.48
• Department of Environmental Quality is specifically prohibited from adopting any
requirement that is more stringent than the point source permitting requirements under
the federal CWA.49
State Programs:
• Arizona Water Initiative50
o Water planning initiative for the state to maintain a sustainable water supply;
involves AZ Department of Water Resources and works with stakeholders to
address planning areas, water conservation opportunities and infrastructure needs.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 9 in coordination with the state of
Arizona.
45 Ariz. Rev. Stat, section 49-201(41).
46 Ariz. Admin. Code section 18-11-101(49).
47 Ariz. Rev. Stat, section 41-1052.
48 Ariz. Rev. Stat, section 49-104.
49 Ariz. Rev. Stat, section 49-203.
50 ADWR, 2017. Arizona Water Initiative, available at https://new.azwater. gov/water-initiative.
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• Facilities with aboveground storage tanks must register with State Fire Marshal.51
• State code authorizes cost recovery for spills and related damages; state has a spill trust
fund.52
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Arizona. The state
issues its permits through the Arizona Department of Environmental Quality. Arizona has
an authorized state NPDES permit program, state pretreatment program, general permits
program, biosolids program, and is authorized to regulate federal facilities.53
• EPA issues all NPDES permits on tribal lands.54
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.55
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 11. Arizona Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment
Program
X
Possibly monitor through other non-wetland monitoring
programs
Source: ASWM (2015) Status and Trends Report
6. ARKANSAS
Definition of Waters of the State:
51 Ariz. Admin. Code sections 4-36-201 et seq.
51 Ariz. Rev. Stat, sections 49-285,49-262, 49-282.
53 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
54 EPA, Arizona NPDES Permits, available at https://www.epa.gov/npdes-permits/arizona-tribal-lands-npdes-permits-excluding-
navaio-nation.
55 Arizona Department of Environmental Quality is actively pursuing 404 assumption; plans to submit an assumption application
package in March 2019.
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• All streams, lakes, marshes, ponds, watercourses, waterways, wells, springs, irrigation
systems, drainage systems, and all other bodies or accumulations of water, surface and
underground, natural or artificial, public or private, which are contained within, flow
through, or border upon this state or any portion of the state.56
Definition of Wetlands:
• An area that has water at or near the surface of the ground at some time during the
growing season (wetland hydrology). It contains plants that are adapted to wet habitats
(hydrophytic vegetation) and is made up of soils that have developed under wet
conditions (hydric soils) or any other definition promulgated by the Commission.57
Additional State Conditions and Requirements:
• The Arkansas Pollution Control and Ecology Commission is subject to stringency
requirements; prior to promulgating certain rules and regulations that are more stringent
than federal requirements the Commission must consider its economic impact on and
environmental benefit for the people of Arkansas.58
State Programs:
• Regulation for the Prevention of Pollution by Salt Water and other Oil Field Wastes
Produced by Wells in All Fields or Pools59
o Water law that applies to all oil and gas wells in existing fields or pools and to
waters of the state.
• Regulation to Require a Disposal Permit for Real Estate Subdivisions in Proximity to
Lakes and Streams.60
• Arkansas Wetland Mitigation Bank Act61
o State acquires degraded wetlands, restores wetland functions, and sells credits to
section 404 permittees (for compensatory mitigation).
• Arkansas Private Wetland and Riparian Zone Creation and Restoration Incentive Act62
o Creates a tax credit program targeted to private land owners.
• The Multi-Agency Wetland Planning Team
o Consortium of Arkansas state agencies that work together on wetland restoration
and conservation; this is a non-regulatory initiative.
303 Water Quality Standards:
56 Ark. Code section 8-4-102(10).
57 Ark. Code R. 138.00.07-003, available at http://170.94.37.152/REGS/138.00.07-003F-9429.pdf.
58 ELI, 2013. State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of
the Federal CWA, available at https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf.
59 Arkansas Pollution Control and Ecology Commission, 1993. Regulation No. 1, available at
https://www.adeq.state.ar.us/regs/files/reg01 final 930316.pdf.
60 Arkansas Pollution Control and Ecology Commission, 1973. Regulation No. 4, available at
https://www.adeq.state.ar.us/regs/files/reg04 final 730707.pdf.
61 Ark. Code section 15-22-1001 etseq.
62 Ark. Code section 26-51-1501 etseq.
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• Has EP A-approved WQ S.63
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 6 in coordination with the state of
Arkansas.
• Facilities with aboveground storage tanks must register tanks with the state and are
subject to inspection by the state.64
• State code authorizes cost recovery for spills and related damages; state has a spill trust
fund.65
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Arkansas. The state
issues its permits through the Arkansas Department of Environmental Quality. Arkansas
has an authorized state NPDES permit program, state pretreatment program, general
permits program, and is authorized to regulate federal facilities. Arkansas does not have
an authorized biosolids program.66
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 12. Arkansas Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS for surface waters to wetlands
(not wetland-specific).
Wetland Monitoring & Assessment Program
X
Possibly monitor through other non-wetland
monitoring programs
63 Unless otherwise indicated in Chapter 4: General Standards, or in Appendix A, the general standards outlined in Arkansas's
WQS (Regulation No. 2) are applicable to all surface waters of the State at all times. They apply specifically with regard to
substances attributed to discharges, nonpoint sources or instream activities as opposed to natural phenomena. Waters may, on
occasion, have natural background levels of certain substances outside the limits established by these criteria, in which case these
criteria do not apply.
64 Arkansas Pollution Control and Ecology Commission, 2014. Regulation No. 12, available at
https://www.adea.state.ar.us/regs/files/regl2 final 20140714.pdf.
65 Ark. Code sections 8-4-103, 8-7-514, 8-7-509.
66 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
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Source: ASWM (2015) Status and Trends Report
7. CALIFORNIA
Definition of Waters of the State:
• Any surface water or groundwater, including saline waters, within boundaries of the
State.67
Definitions of Wetlands:
• There is no single accepted definition of wetlands agreed upon by the California Water
Boards;
o The proposed State Wetland Definition and Procedures for the Discharge of
Dredged or Fill Material to Waters of the State68 states:
¦ An area is wetland if, under normal circumstances, (1) the area has
continuous or recurrent saturation of the upper substrate caused by
groundwater, shallow surface water, or both; (2) the duration of such
saturation is sufficient to cause anaerobic conditions in the upper
substrate; and (3) the area's vegetation is dominated by hydrophytes or the
area lacks vegetation.
¦ The draft rule goes on to define which wetlands are waters of the state.
• Under the California Coastal Act, wetlands are: lands within the coastal zone which may
be covered periodically or permanently with shallow water and include saltwater
marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats,
and fens.69
• The California Coastal Commission provides a further definition of coastal wetlands:
land where the water table is at, near, or above the land surface long enough to promote
the formation of hydric soils or to support the growth of hydrophytes, and shall also
include types of wetland where vegetation is lacking and soil is poorly developed or
absent as a result of frequent drastic fluctuations of surface water levels, wave action,
water flow, turbidity or high concentration of salts or other substances in the substrate.
Such wetlands can be recognized by the presence of surface water or saturated substrate
at some during each year and their location within, or adjacent to vegetated wetland or
deepwater habitats.70
Additional State Conditions and Requirements:
• No limitations identified
State Programs:
• Porter-Cologne Water Quality Control Act:71
67 Cal. Wat. Code section 13050(e).
68 See Draft at https://www.waterboards.ca.gov/water issues/programs/cwa401/wrapp.shtml.
69 Cal. Pre. Code section 30121.
70 Cal. Code Regs. tit. 14 section 13577(b)(1).
71 Cal. Wat. Code sections 13000 et seq.
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o Primary legislation regarding water quality protection for the state; incorporates
NPDES requirements and section 401 certification, WQS, and applies to all
waters of the state.
o It established a program to protect water quality and water usage and applies to
surface water, wetlands, and ground water, and to both point source and nonpoint
source pollution.
o Established nine Regional Water Boards and the State Water Board which
implement the Act, protect water quality of the state, and also implement many of
the federal CWA programs.
• California Coastal Act:72
o Provides conservation and planned development for the coastal zone.
o Prohibits dredged and fill activities in coastal wetlands (with exception of low
impact allowable uses such as restoration or research); no "coastal-dependent
development" is permitted in wetlands; California Coastal Act authorizes local
governments to administer coastal development permits if they have a Local
Coastal Program.
• State Water Board Antidegradation Policy73
o This is formally known as the ' Statement of Policy with Respect to Maintaining
High Quality Waters in California' and it restricts degradation of surface and
ground waters.
• McAteer-Petris Act74
o Establishes regulations for San Francisco Bay resources, including wetlands.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 9 in coordination with the state of
California.
• Facilities with aboveground storage tanks are regulated by the State Fire Marshal by state
code are required to register tanks. State inspects facilities with total storage capacities
above 10,000 gallons. All subject facilities required to comply with EPA's regulation, 40
CFR part 112.75
• State code authorizes cost recovery for spills and related damages; state has a spill trust
fund.76
72 Cal. Pre. Code sections 30000 et seq.
73 California EPA, 2018. Federal, State and Local Laws, Policy and Regulations, available at
https://www.waterboards.ca.gov/water issues/programs/nps/encvclopedia/Oa laws policy.shtml.
74 Cal. Gov. Code sections 66650 et seq.
15 Cal. Health and Safety Code sections 25270 et seq.
76 Cal. Gov. Code sections 8670.56.5, 8670.66, 8670.67, 8670.46, 8670.48.
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401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of California. The state
issues its permits through the California Environmental Protection Agency. California
has an authorized state NPDES permit program, state pretreatment program, general
permits program, and is authorized to regulate federal facilities. California does not have
an authorized biosolids program.77
• EPA issues all NPDES permits on tribal lands and for any discharges into federal ocean
waters.
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.79
Table 13. California Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
In addition, has a formal "Net Gain/Increase" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X80
Proposed WOTS definition would regulate all "natural
wetlands," presumably including isolated wetlands.
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Interagency wetlands monitoring workgroup is aiming
to develop statewide monitoring and assessment
capabilities as part of 2017-22 WPP. Regional Board 2
(SF Bay) is currently working to develop a wetlands
monitoring program.
Source: ASWM (2015) Status and Trends Report
11 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
78 EPA, NPDES Permits in California, available at https://www.epa.gov/npdes-permits/npdes-permits-california-excluding-tribal-
permits.
79 Cal. Wat. Code sections 13000 et seq. (dredging and filling constitutes a discharge of waste to waters of the state); Cal. Pre.
Code sections 30000 et seq. (protection of coastal wetlands from dredged and fill activities); See also Memorandum from Celeste
Cantu, Executive Director, California Environmental Protection Agency to Regional Board Executive Officers (Jun. 2, 2004),
available at http://www.swrcb.ca.gov/water issues/programs/cwa401/docs/isol waters guid.pdf.
80 Memorandum from Celeste Cantu, Executive Director, California Environmental Protection Agency to Regional Board
Executive Officers (Jun. 2,2004), available at
http://www.swrcb.ca.gov/water issues/programs/cwa401/docs/isol waters guid.pdf ELI, 2013. State Constraints: State-Imposed
Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act, available at
https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf.
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8. COLORADO
Definition of Waters of the State:
• Any and all surface and subsurface waters which are contained in or flow in or through
this state, but does not include waters in sewage systems, waters in treatment works of
disposal systems, waters in potable water distribution systems, and all water withdrawn
for use until use and treatment have been completed.81
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater 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.82
Additional State Conditions and Requirements:
• The Colorado Department of Public Health and Environment is prohibited from requiring
permits for irrigation flows (or return flows), or permits for various kinds of agricultural
waste, except as required by the federal CWA. Where permits are required, their
provisions cannot be more stringent than what is required by the federal CWA.83
• State imposes limitations regarding water quality provisions with respect to the right to
divert and use water.84
• The Water Quality Control Commission may adopt rules more stringent than
corresponding enforceable federal requirements only if it is demonstrated at a public
hearing, and the commission finds, based on sound scientific or technical evidence in the
record, that state rules more stringent than the corresponding federal requirements are
necessary to protect the public health, beneficial use of water, or the environment of the
state. Those findings shall be accompanied by a statement of basis and purpose referring
to and evaluating the public health and environmental information and studies contained
in the record which form the basis for the commission's conclusion. The existing policies,
rules, and regulations of the commission and division shall be applied in conformance
with section 25-8-104 and this section.85
State Programs:
• Waters of the state are administered by the Colorado Division of Water Resources
(DWR).
• Water Quality Control Commission administers the Water Quality Control Act.86
• Protection of Fishing Streams Program87
81 Colo. Rev. Stat, section 25-8-103(19).
82 5 Code Colo. Regs. 1002-31.5(51).
83 Colo. Rev. Stat, section 25-8-504.
84 Colo. Rev. Stat, section 25-8-104.
85 Colo. Rev. Stat, section 25-8-202(8).
86 State of Colorado, 2018. Water Quality Control Commission Regulations, available at
https://www.colorado.gov/pacific/cdphe/water-qualitv-control-commission-regulations.
87 Colo. Rev. Stat, section 33-5-101-107.
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o Requires state agencies to obtain wildlife certification from Colorado Parks and
Wildlife prior to altering the bed or banks of a natural stream. Construction plans
are reviewed by Colorado Parks and Wildlife to minimize project design impacts
to the stream and ensure best management practices will be followed to minimize
erosion and control sediment runoff into the stream.
• Classifications and standards88
• Pollutant discharge89
• Colorado Oil and Gas Conservation Commission90
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 8 in coordination with the state of
Colorado.
• State aboveground storage tank regulations apply to tanks with capacities greater than
660 gallons and less than 40,000 gallons; tanks at crude oil production and mining
facilities are exempt. Regulations require permits, registration and facility inspection.91
• State code authorizes cost recovery for spills and related damages; state has a spill trust
fund.92
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Colorado. The state
issues its permits through the Colorado Department of Public Health & Environment.
Colorado has an authorized state NPDES permit program and general permits program.
Colorado does not have an authorized biosolids program, state pretreatment program, and
is not authorized to regulate federal facilities.93
• EPA issues all NPDES permits on tribal lands.94
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
88 Colo. Rev. Stat, section 25-8-207.
89 Colo. Rev. Stat, section 25-8-501.
90 Colo. Rev. Stat, section 34-60-130.
91 7 Code Colo. Regs. 1101-14.
92 Colo. Rev. Stat, sections 34-60-121, 34-60-124.
93 EPA, State Program Authority, available at https://www.eDa.gov/npdes/npdes-state-program-information.
94 EPA, Colorado NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/colorado-npdes-permits.
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Table 14. Colorado Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Informal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland-specific WQS
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only
Source: ASWM (2015) Status and Trends Report; Colorado DPHE, email, March 19, 2018
9. THE COMMONWEALTH OF THE NORTHERN MARIANA
ISLANDS
Definitions of Waters of the Territory:
• All marine, fresh water bodies, and ground water in the Commonwealth.95
• Commonwealth or state waters means all waters, fresh, brackish, or marine, including
wetlands, surrounding or within the Commonwealth.96
Definition of Wetlands:
• Areas that are inundated or saturated by surface or groundwater with a frequency
sufficient to support a prevalence of plant or aquatic life that requires seasonally saturated
soil conditions for growth and/or reproduction. Wetlands include swamps, marshes,
mangroves, lakes, natural ponds, surface springs, streams, estuaries and similar areas in
the Northern Mariana Islands archipelago. Wetlands include both wetlands connected to
other waters and isolated wetlands. Wetlands do not include those artificial wetlands
intentionally created to provide treatment of wastewater or stormwater runoff.97
Additional Territory Conditions and Requirements:
• No limitations identified.
Territory Programs:
• Commonwealth Environmental Protection Act98
o Protects the right of each person to a clean and healthful public environment.
• Commonwealth Environmental Amendments Act.99
• Commonwealth Groundwater Management and Protection Act.100
303 Water Quality Standards:
95 NMIAC section 65-130-001.
96 NMIAC section 65-130-015(1).
97 Commonwealth of the Northern Mariana Islands Admin. Code section 65-130-015(aa).
98 2 Commonwealth of the Northern Mariana Islands Code sections 3103 et seq.
99 Commonwealth of the Northern Mariana Islands Public Law 11-103.
100 2 Commonwealth of the Northern Mariana Islands Code sections 3311 et seq.
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• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• Territory has prescriptive aboveground storage tank regulations, incorporating the
Uniform Fire Code, industry standards, and spill prevention requirements.101
401 Certification:
• The territory has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA issues all NPDES permits within the Commonwealth of the Northern Mariana
Islands.102
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues territory permits for dredged and fill activities in coastal waters and wetlands.103
• Relies on federal permitting authority and CWA section 401.
10. CONNECTICUT
Definition of Waters of the State:
• All tidal waters, harbors, estuaries, rivers, brooks, watercourses, waterways, wells,
springs, lakes, ponds, marshes, drainage systems, and all other surface or underground
streams, bodies, or accumulations of water, natural or artificial, public or private, which
are contained within, flow through, or border upon this state or any portion thereof.104
Definitions of Wetlands:
• The term wetlands refers to freshwater wetlands under the Under the Inland Wetlands
and Watercourses Act and refers to tidal wetlands under the Tidal Wetlands Act.
• Tidal Wetlands Act: those areas which border on or lie beneath tidal waters, such as, but
not limited to banks, bogs, salt marsh, swamps, meadows, flats, or other low lands subject
to tidal action including those areas now or formerly connected to tidal waters, and whose
surface is at or below an elevation of one foot above local extreme high water; and upon
which may grow or be capable of growing some, but not necessarily all, of the following
species.105
101 Commonwealth of the Northern Mariana Islands Admin. Code sections 65-5-001 et seq.
102 EPA, Commonwealth of the Northern Mariana Islands NPDES Permits, available at https: //www.epa. go v/npdes-
permits/commonwealth-northern-mariana-islands-npdes-permits.
103 Commonwealth of the Northern Mariana Islands Admin. Code sections 15-10-001 et seq.
104 Conn. Gen. Stat, section 22a-423.
105 Conn. Gen. Stat, section 22a-29.
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• Inland Wetlands and Watercourses Act: land, including submerged land, not regulated
pursuant to sections 22a-28 to 22a-35, inclusive, which consists of any of the soil types
designated as poorly drained, very poorly drained, alluvial, and floodplain by the
National Cooperative Soils Survey, as may be amended from time to time, of the Natural
Resources Conservation Service of the United States Department of Agriculture.106
Additional State Conditions and Requirements:
• No limitations identified
State Programs:
• Inland Wetlands and Watercourses Act107
• Tidal Wetlands Act108
• Coastal Management Act109
• Structures, Dredging and Fill Statutes110
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 1 in coordination with the state of
Connecticut.
• Connecticut does not have any specific rules governing aboveground storage tanks.
Connecticut's Flammable and Combustible Liquids Code adopts by reference the
National Fire Protection Association standards that govern aboveground storage tank
design, installation, upgrade, repair, and closure. The requirements are administered
locally.111
• State code authorizes cost recovery for spills and related damages; state does not have a
spill trust fund covering aboveground storage tanks.112
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Connecticut. The
state issues its permits through the Connecticut Department of Energy and Environmental
Protection. Connecticut has an authorized state NPDES permit program, state
106 Conn. Gen. Stat, section 22a-3 8.
107 Conn. Gen. Stat, sections 22a-36 et seq.
108 Conn. Gen. Stat, sections 22a-28 et seq.
109 Conn. Gen. Stat, sections 22a-90 et seq.
110 Conn. Gen. Stat, sections 22a-359 et seq.
111 Conn. Gen. Stat, sections 29-291 et seq.
112 Conn. Gen. Stat, sections 22a-438, 22a-452.
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pretreatment program, general permits program, and is authorized to regulate federal
facilities. Connecticut does not have an authorized biosolids program.113
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.114
Table 15. Connecticut Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
All resources which meet the definition of a wetland are
regulated by the state
State Wetland Permitting Fees
X
For activities in tidal wetlands, fees are required for
Structures and Dredging permits; and, for activities in
inland (freshwater) wetlands, fees vary by municipality.
Fees are not required for CT state agency projects or
projects on CT state lands.
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetlands Monitoring & Assessment
Program
X
Source: ASWM (2015) Status and Trends Report
11. DELAWARE
Definition of Waters of the State:
• All water, on the surface and under the ground, wholly or partially within, or bordering the
State of Delaware, or within its jurisdiction including but not limited to: (a) Waters which
are subject to the ebb and flow of the tide including, but not limited to, estuaries, bays and
the Atlantic Ocean; (b) All interstate waters, including interstate wetlands; (c) All other
waters of the State, such as lakes, rivers, streams (including intermittent and ephemeral
streams), drainage ditches, tax ditches, creeks, mudflats, sandflats, wetlands, sloughs, or
natural or impounded ponds; (d) All impoundments of waters otherwise defined as waters
of the State under this definition; and (e) Wetlands adjacent to waters (other than waters
that are themselves wetlands) identified in (a) through (d). Waste and stormwater treatment
systems including, but not limited to, treatment ponds or lagoons designed to meet the
requirements of the Act (other than cooling ponds which otherwise meet the requirements
of subsection (1) of this definition) are not "State waters" or "Waters of the State." 115
113 EPA, Connecticut NPDES Permits, available at https://www.epa.gov/npdes-permits/connecticut-npdes-permits.
114 Conn. Gen. Stat, section 22a-42a. Inland wetlands are primarily regulated at the municipal level by Municipal Inland Wetland
Agencies under the Inland Wetlands and Watercourses Act; activities by state agencies or on state land are regulated by
Connecticut Department of Energy and Environmental Protection - Land and Water Resources Division. Conn. Gen. Stat,
sections 22a-36 et seq. Conn. Gen. Stat, section 22a-361 (regulates costal waters and wetlands).
115 7-7201 Del. Admin. Code 2.0.
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Definitions of Wetlands:
• 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. Wetlands
generally include swamps, marshes, bog and similar areas. 116
• Under the Subaqueous Lands Act, "submerged lands" and "tidelands": Submerged lands
means (1) lands lying below the line of mean low tide in the beds of all tidal waters
within the boundaries of the State; (2) Lands lying below the plane of the ordinary high
water mark of nontidal rivers, streams, lakes, ponds, bays and inlets within the
boundaries of the State as established by law; and (3) Specific manmade lakes or ponds
as designated by the Secretary. Tidelands include lands lying between the line of mean
high water and the line of mean low water.117
• Under the Delaware Wetlands Act118 and Wetlands Regulations119: Those lands above
the mean low water elevation including any bank, marsh, swamp, meadow, flat or other
low land subject to tidal action in the State of Delaware along the Delaware Bay and
Delaware River, Indian River Bay, Rehoboth Bay, Little and Big Assawoman Bays, the
coastal inland waterways, or along any inlet, estuary or tributary waterway or any portion
thereof, including those areas which are now or in this century have been connected to
tidal waters, whose surface is at or below an elevation of two feet above local mean high
water, and upon which may grow or is capable of growing any but not necessarily all of
the following plants...
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Subaqueous Lands Act120
o Permit required for depositing material upon, removing or extracting materials
from, or constructing, modifying, repairing or reconstructing or occupying any
structure or facility on submerged lands,
o Activities in ephemeral channels (wet for only a short period of time after a rain
event), roadside ditches, lateral or grid ditches in agricultural fields, and isolated
ponds that are not connected to other surface waters, are not regulated.121
o Delaware regulates all tidal waters as well as all non-tidal rivers, streams, lakes,
ponds, bays and inlets.122
116 id.
117 Del. Code tit. 7, section 7202(h), (i).
118 Del. Code tit. 7, section 6601 etseq.
119 7-7502 Del. Admin. Code 5.0.
120 Del. Code tit. 7, section 7201 et seq.
121 DNREC, 2018. Wetlands and Subaqueous Lands Section: What is Regulated and Where Is It Regulated? Available at
http://www.dnrec.delaware.gOv/w/Information/regulations/Pages/WLSL%20What%27s%20Regulated.aspx.
122 In practice, Delaware's jurisdiction in non-tidal streams typically includes perennial and intermittent watercourses. Many of
the "ditches" found in Delaware are really streams that have been relocated, straightened, enlarged or otherwise modified by
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• Tidal Wetlands Act123
o All tidal wetlands as well as those non-tidal wetlands that include 400 or more
contiguous acres are regulated by the State; the activities regulated in wetlands
(that require a permit) include dredging, draining, filling, construction, bulk
heading, mining, drilling and excavation.124
o By law, tidal wetlands regulated by the State of Delaware are depicted on State
Wetland Maps. This specified mapping to identify regulated tidal wetlands is
substantially different than the federal jurisdictional determination process.
Changing the existing Delaware process would require substantial political and
administrative resources which is not possible now or in the foreseeable future.
• Delaware Wetlands Act125
o Permit required for all activities in a wetland except for exempted activities.
(Exemptions include mosquito control activities, construction of directional aids
to navigation, duck blinds, foot bridges, boundary stakes, wildlife nesting
structures, grazing, haying, hunting, fishing and trapping),
o Provides clarity and specificity to regulated activities of the Tidal Wetlands Act.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 3 in coordination with the state of
Delaware.
• Facilities with aboveground storage tanks greater than 250 gallons must register with
state; additional technical requirements and fees apply based on tank size.126
• State code authorizes cost recovery for spills and related damages; state does not have a
spill trust fund covering aboveground storage tanks.127
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Delaware. The state
issues its permits through the Delaware Department of Natural Resources and
Environmental Control. Delaware has an authorized state NPDES permit program and
humans at some point over the past 200 years. Such "ditches" which were historically streams, are also typically regulated by
DNREC. Delaware DNREC, email, March 26, 2018.
123 Del. Code tit. 7, section 6601 et seq.
124 Although the Tidal Wetlands Act refers to "non-tidal wetlands that include 400 or more contiguous acres", this provision has
never been instituted or used to regulate any non-tidal wetlands in by the State of Delaware. Delaware DNREC, email, March 26,
2018.
125 Del. Code tit. 7, section 6601 et seq:, 1 Del. Admin. Code 7502.
126 7-1352 Del. Admin. Code 1.0 et seq.
127 Del. Code tit. 7, sections 6205, 6207.
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state general permits program. Delaware does not have an authorized biosolids program,
pretreatment program, and is not authorized to regulate federal facilities.128
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.129
• Issues state permits for dredged and fill activities in tidal waters and wetlands.130
• Relies on federal permitting authority and CWA section 401.
Table 16. Delaware Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
YES: In Chesapeake Bay drainage only (30% of state)
Delaware (along with, among others, Maryland,
Virginia, West Virginia and Pennsylvania) is one of the
signatories to the Chesapeake Bay 2014 Agreement,
which includes the following outcome for wetlands
within the Chesapeake Bay watershed (which includes
portions of Delaware):
"Continually increase the capacity of wetlands to
provide water quality habitat benefits throughout the
watershed. Create or re-establish 85,000 acres of tidal
and non-tidal wetlands and enhance the function of an
additional 150,000 acres of degraded wetlands by 2025.
However, due to fixed tidal wetland maps, permitted
losses, and natural wetland loss (coastal), Delaware is a
net-loss state.
State Issues Permits for Dredged and Fill
Activities
X
Tidal Only
404 Assumption
X
Not currently working toward assumption.
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
For tidal wetlands only
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific) and only when there is a federal permit action
(issued together)
Wetland Monitoring & Assessment Program
X
Assessment methodologies developed
Source: ASWM (2015) Status and Trends Report; Delaware DNREC, email, March 26, 2018
12. DISTRICT OF COLUMBIA
Definition of Waters of the District:
• Flowing and still bodies of water, whether artificial or natural, whether underground or
on land, so long as in the District of Columbia, but excludes water on private property
prevented from reaching underground or land watercourses, and also excludes water in
closed collection or distribution systems.131
Definition of Wetlands:
128 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
129 Two state programmatic general permits for impacts associated with piers, docks, mooring piles, boat lifts, breakwaters, etc.
130 Del. Code tit. 7, sections 7201 et seq., 6601 et seq.
131 D.C. Code section 8-103.01(26).
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• A marsh, swamp or other area periodically inundated by tides or having saturated soil
conditions for prolonged periods of time and capable of supporting aquatic vegetation.132
Additional District Conditions and Requirements:
• No limitations identified.
District Programs:
• Erosion & Sediment Control133
• Stormwater Management134
• Construction, Repair and Dredging Program135
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• Aboveground storage tanks are primarily regulated by the DC Fire Building Officials and
Code Administrators (BOCA) codes administered by the Fire Prevention Branch of DC
Fire and Emergency Medical Services. DC does not have authority to regulate
aboveground storage tank operations or the release of petroleum products from
aboveground storage tanks, and relies on EPA to directly implement federal spill
prevention and preparedness regulations.136
401 Certification:
• The District has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA issues all NPDES permits in the District of Columbia.137
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues district permits for dredged and fill activities shoreward of the bulkhead line.138
• Relies on federal permitting authority and CWA section 401.
132 Id.
133 D.C. Mun. Regs., tit. 21, sections 540 et seq.
134 D.C. Mun. Regs., tit. 21, sections 516 et seq.
135 D.C. Mun. Regs., tit. 21, section 600.
136 D.C. Department of Energy & Environment, Underground Storage Tanks, available at
https://doee.dc.gov/service/underground-storage-tanks-faas.
137 EPA, District of Columbia NPDES Permits, available at https://www.epa. gov/npdes-permits/district-columbia-npdes-permits.
138 D.C. Mun. Regs., tit. 21, section 600.
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Table 17. D. C. Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
D.C. (along with, among others, Maryland,
Pennsylvania, Delaware, Virginia and West Virginia)
is one of the signatories to the Chesapeake Bay 2014
Agreement, which includes the following outcome
for wetlands within the Chesapeake Bay watershed
(which includes D.C.)
State Issues Permits for Dredged and Fill
Activities
X
Not specific to wetlands
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
In a wetland, the numerical and the narrative criteria
shall be applied to the column of water above the
wetland in accordance with the designated use;
Wetlands with rooted vascular aquatic vegetation,
except those specifically constructed or created as
waste water treatment devices and except as provided
in D.C. Official Code sections 8-103.03(d) and 8-
103.06(a)(3), shall be protected from significant
adverse hydrologic modifications, excessive
sedimentation, deposition of toxic substances in toxic
amounts, nutrient imbalances, and other adverse
anthropogenic impacts139
Monitoring & Assessment Program
X
Source: EPA Region 3
13. FLORIDA
Definitions of Waters of the State:
• Waters include, but are not limited to, rivers, lakes, streams, springs, impoundments,
wetlands, and all other waters or bodies of water, including fresh, brackish, saline, tidal,
surface, or underground waters. Waters owned entirely by one person other than the state
are included only in regard to possible discharge on other property or water. Underground
waters include, but are not limited to, all underground waters passing through pores of
rock or soils or flowing through in channels, whether manmade or natural. Solely for
purposes of s. 403.0885, waters of the state also include navigable waters or waters of the
contiguous zone as used in s. 502 of the CWA, as amended, 33 U.S.C. ss. 1251 et seq., as
in existence on January 1, 1993, except for those navigable waters seaward of the
boundaries of the state set forth in s. 1, Art. II of the State Constitution.140
• Any and all water on or beneath the surface of the ground or in the atmosphere, including
natural or artificial watercourses, lakes, ponds, or diffused surface water and water
percolating, standing, or flowing beneath the surface of the ground, as well as all coastal
waters within the jurisdiction of the state.141
139 D.C. Mun. Regs., tit. 21, section 1103.
140 Fla. Stat, section 403.031(13).
141 Fla. Stat, section 373.019(22).
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Definition of Wetlands:
• Those areas that are inundated or saturated by surface water or groundwater at a
frequency and a duration sufficient to support, and under normal circumstances do
support, a prevalence of vegetation typically adapted for life in saturated soils. Soils
present in wetlands generally are classified as hydric or alluvial, or possess characteristics
that are associated with reducing soil conditions. The prevalent vegetation in wetlands
generally consists of facultative or obligate hydrophytic macrophytes that are typically
adapted to areas having soil conditions described above. These species, due to
morphological, physiological, or reproductive adaptations, have the ability to grow,
reproduce, or persist in aquatic environments or anaerobic soil conditions. Florida
wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands,
sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes,
mangrove swamps and other similar areas. Florida wetlands generally do not include
longleaf or slash pine flatwoods with an understory dominated by saw palmetto.142
Additional State Conditions and Requirements:
• Requires that the state Department of Environmental Protection study the economic and
environmental impact of any proposed standards that would be more stringent than
federal law.143
• For a Florida standard to be a stricter or more stringent standard than one which has been
set by federal agencies pursuant to federal law or regulation, the federal standard must be
in counterpoise to the state standard.144
State Programs:
• Florida Water Resources Act145
• Florida Environmental Reorganization Act146
• Beach and Shore Preservation Act147
• Florida Coastal Management Act148
• The Uniform Mitigation Assessment Method149
o Establishes a standardized procedure for assessing functions provided by wetlands
and other surface waters, the amount those functions are reduced by proposed
impact, and the amount of mitigation needed to offset that impact.
303 Water Quality Standards:
• Has EPA-approved WQS
311 Oil Spill Prevention, Preparedness and Response:
142 Fla. Stat, section 373.019(27).
143 Fla. Stat, section403.804.
144 Florida Elec. Power Coordinating Group, Inc. v. Askew, 366 So.2d 1186, 1188 (Fla. Dist. Ct. App., 1st Dist. 1978).
145 Fla. Stat, section 373.012 et seq.
146 Fla. Stat, section 373.4135.
147 Fla. Stat, sections 161.011 et seq.
148 Fla. Stat, sections 380.20 et seq.
149 Fla. Admin. Code chapter 62-345.
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• The 311 program is administered by EPA Region 4 in coordination with the state of
Florida.
• Facilities with aboveground storage tanks greater than 550 gallons of oil and hazardous
substances are required to register, pay fees, and comply with technical requirements,
including secondary containment and inspections.150
• State code authorizes cost recovery for spills and related damages; state has a spill trust
fund.151
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Florida. The state
issues its permits through the Florida Department of Environmental Protection. Florida
has an authorized state NPDES permit program, state pretreatment program, general
permits program, and is authorized to regulate federal facilities. Florida does not have an
authorized biosolids program.152
• EPA issues all NPDES permits to offshore oil and gas facilities operating in federal
waters off the coast of Florida.153
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.154
• Issues state permits for dredged and fill activities in waters and wetlands.155
Table 18. Florida Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Informal "No Net Loss" goal; "an activity cannot cause
a net adverse impact on wetland functions and other
surface water functions that is not offset by mitigation."
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Florida began the process of seeking authorization to
assume the 404 program in 2017.
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Possibly monitors through other non-wetland
monitoring programs
Source: ASWM (2015) Status and Trends Report; Florida DEP, email, March 26, 2018
150 Fla. Admin. Code chapter 62-762.
151 Fla. Stat, sections 376.11, 376.12, 376.16, 376.121.
152 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
153 EPA, Florida NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/florida-npdes-permits.
154 Began the process of seeking authorization to assume the program in 2017.
155 Fla. Stat, sections 373.413(1), 373.414(1 l)(a), 161.011 etseq.
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14. GEORGIA
Definition of Waters of the State:
• Any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems,
springs, wells, and other bodies of surface or subsurface water, natural or artificial, lying
within or forming a part of the boundaries of the state, which are not entirely confined
and retained completely upon the property of a single individual, partnership, or
corporation.156
Definition of Wetlands:
• Freshwater Wetlands mean those areas that are inundated or saturated by surface or
groundwater 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. Wetlands generally include swamps marshes, bogs, and similar
areas. (33 CFR 32.93). The ecological parameters for designating wetlands include hydric
soils, hydrophytic vegetation, and hydrological conditions that involve a temporary or
permanent source of water to cause soil saturation.157
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Georgia Water Quality Control Act158
• Georgia Erosion and Sedimentation Act159
• Coastal Marshlands Protection Act160
o Regulates all dredging, draining, or other alterations to marshlands; activities are
prohibited without obtaining a Marsh Permit.
• Comprehensive Planning Act
o Focuses on land use planning at the local level and recognizes wetlands.161
o DNR develops minimum standards for protecting natural resources including
wetlands. State must define, identify, and map open water, non-forested emergent
wetlands, scrub/shrub wetlands, forested wetlands, and altered wetlands,
o Only applies to freshwater wetlands (not coastal marshlands).
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
156 Ga. Code Ann. sections 12-7-3(16), 12-5-22(13).
157 Ga. Comp. R. & Regs. 391-3-16.03(3).
158 Ga. Code Ann. section 12-5-2 etseq.
159 Ga. Code Ann. section 12-7-1 etseq.
160 Ga. Code Ann. section 12-5-280 etseq.
161 Ga. Code Ann. section 12-2-8 (b).
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• The 311 program is administered by EPA Region 4 in coordination with the state of
Georgia.
• Facilities with aboveground storage tanks exceeding 60 gallons are covered and
administered by the State Fire Marshal. Plans for storage installations > 660 gallons must
be submitted for review by the State Fire Marshal.162
• State code authorizes cost recovery for spills and related damages; state does not have a
spill trust fund.163
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Georgia. The state
issues its permits through the Georgia Department of Natural Resources. Georgia has an
authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Georgia does not have an
authorized biosolids program.164
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in coastal waters and wetlands.165
Relies on federal permitting authority and CWA section 401.
Table 19. Georgia Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
Coastal Only
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Program development in progress (as of 2015)
Source: ASWM (2015) Status and Trends Report
15. GUAM
Definition of Waters of the Territory:
162 Ga. Code Ann. section 120-3-11.
163 Ga. Code Ann. 12-5-51,12-5-51, 12-144.
164 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
165 Ga. Code Ann. sections 12-5-280 et seq.
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• Water shall be construed to include ponds, springs, wells and streams and all other bodies
of surface or underground water, natural or artificial, inland or coastal, fresh or salt, public
or private.166
Definitions of Wetlands:
• Those areas that are inundated by surface or ground water with a frequency sufficient to
support and under normal circumstances does or would support a prevalence of vegetative
or aquatic life that requires saturated or seasonally saturated soil conditions for growth and
reproduction. Wetlands generally include swamps, marshes, mangroves, natural ponds,
surface springs, estuaries and similar such areas.167
• An area that is inundated or saturated by surface water or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances does support, a
prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands
typically include swamps, marshes, bogs and similar areas.168
Additional Territory Conditions and Requirements:
• No limitations identified.
Territory Programs:
• Guam Environmental Protection Agency Act169
o States the policy and purpose of the Act; creates Guam EPA and sections governing
the administration of the Agency, its powers, duties, rules and regulations and other
operating mandates.
• Water Pollution Control Act170
o Outlines procedures for protecting waters of the Territory from pollution and/or
contamination
• Toilet Facilities and Sewage Disposal Act - Pertinent to Guam EPA171
o No toilet or sewage facilities or single-family residences, subdivisions, apartments,
motels, hotels or other multihousing facilities may be constructed without the
approval of the Administrator, or put into operation without his inspection and
approval.
o No septic tank, leaching system, or privy shall be located within a horizontal
distance of three hundred (300) feet of any river, creek, pond, reservoir, stream,
well, spring, or body of fresh water.172
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• Territory is working on spill prevention legislation (Aboveground Storage of Regulated
Substances Act) that intends to cover petroleum oils and Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) hazardous substances. Currently,
166 10 Guam Code Ann. section 46102(b).
167 18 Guam Admin. Rules and Regs, section 3504(b).
168 Guam Water Quality Standards 2001 Revision Section 5105.
169 10 Guam Code Ann. chapter 45.
170 10 Guam Code Ann. chapter 47.
171 10 Guam Code Ann. chapter 48.
172 10 Guam Code Ann. section 48106.
Resource and Programmatic Assessment for the Proposed Rule
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R9 implements federal spill prevention and preparedness regulations in Guam, and will
continue to do so for non-petroleum oils after that Law is enacted.
401 Certification:
• The territory has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA issues all NPDES permits within Guam.173
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues territory permits for dredged and fill activities in coastal waters and for
wetlands.174
• Relies on federal permitting authority and CWA section 401.
16. HAWAII
Definition of Waters of the State:
• All waters, fresh, brackish, or salt around and within the State, including, but not limited
to, coastal waters, streams, rivers, drainage ditches, ponds, reservoirs, canals, ground
waters, and lakes; provided that drainage ditches, ponds, and reservoirs required as part
of a water pollution control system are excluded.175
Definitions of Wetlands:
• Land that is transitional between terrestrial and aquatic ecosystems where the water table
is usually at or near the surface or the land is covered by shallow water. A wetland shall
have one or more of the following attributes:
o At least periodically the land supports predominantly hydrophytic vegetation,
o The substratum is predominantly undrained hydric soil; or
o The substratum is non-soil (gravel or rocks) and is at least periodically saturated
with water or covered by shallow water.176
• Wetlands may be fresh, brackish, or saline and generally include swamps, marshes, bogs,
and associated ponds and pools, mud flats, isolated seasonal ponds, littoral zones of
standing water bodies, and alluvial floodplains.177
Additional State Conditions and Requirements:
173 EPA, Guam NPDES Permits, available at https://www.epa.gov/npdes-permits/guam-npdes-pennits.
174 21 Guam Code Ann. section 63101.
175 Haw. Rev. Stat, section 342D-1.
176 Haw. Code R. section 11-54-1.
111 Id.
Resource and Programmatic Assessment for the Proposed Rule
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• Hawaii has limitations to regulate low wetland and coastal wetlands as well as the
elevated wetlands under "basic water quality criteria applicable to all State waters."178
State Programs:
• Water pollution.179
• Hawaii's water quality parameters (for WQS).180
• Water pollution control that addresses NPDES permit issuance and conditions.181
303 Water Quality Standards:
• Has EP A-approved WQS.182
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 9 in coordination with the state of
Hawaii.
• State does not have specific aboveground storage tank requirements except spill reporting
requirements.
• State code authorizes cost recovery for spills and related damages; state does have a spill
trust fund.183
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.184
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Hawaii. The state
issues its permits through the Hawaii Department of Health. Hawaii has an authorized
state NPDES permit program, state pretreatment program, general permits program, and
is authorized to regulate federal facilities. Hawaii does not have an authorized biosolids
IOC
program.
• EPA issues all NPDES permits for any discharges into federal ocean waters in Hawaii.186
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in coastal waters and wetlands.187
178 Haw. Code R. section 11-54-4.
179 Haw. Rev. Stat. 342D.
180 Haw. CodeR. 11-54.
181 Haw. CodeR. 11-55.
182 In addition, has specific water quality criteria (pH) established for the elevated wetlands. Haw. Code R. section 11-54-5.2(c);
Elevated wetlands mean natural freshwater wetlands located above 100 m (330 ft) elevation. Haw. Code R. section 11-54-1.
Wetlands are classified (class 1 (include la and lb and class 2) by the Hawaii DOH as "Inland Waters" in Haw. Code R. section
11-54-2 and subject to the "designated uses" protection as specified in section 11-54-3.
183 Haw. Rev. Stat, sections 128D-2, 5, 6, 8.
184 Haw. Rev. Stat, section 342D-53.
185 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
186 EPA, Hawaii NPDES Permits, available at https://www.epa.gov/npdes-permits/hawaii-npdes-permits.
187Haw. Rev. Stat, sections205A-21 etse^Haw. CodeR. 15-150.
Resource and Programmatic Assessment for the Proposed Rule
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• Relies on federal permitting authority and CWA section 401.
Table 20. Hawaii Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Requirement in Section 401 WQC
State Issues Permits for Dredged and Fill
Activities
X
Coastal Only
404 Assumption
X
Isolated Wetland Permitting
X
NPDES permits for activities discharging to
wetlands.
State Wetland Permitting Fees
X
NPDES permits for activities discharging to
wetlands.
WQS for Wetlands
X
Specific WQS criteria for inland waters, including
low and coastal wetlands. Specific criteria for
elevated wetlands.
Wetland Monitoring & Assessment
Program
X
Conducts project-specific M&A only
Source: ASWM (2015) Status and Trends Report; Hawaii Department of Health, email, March 2, 2018
17. IDAHO
Definition of Waters of the State:
• All accumulations of water, surface and underground, natural and artificial, public and
private or parts thereof, which are wholly or partially within the state, and flow through
or border upon the state, except for private waters.188
Definition of Wetlands:
• Areas 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. Wetlands generally
include swamps, marshes, bogs, and similar areas.189
Additional State Conditions and Requirements:
• The Idaho Department of Environmental Quality is to ensure surface water quality in
Idaho and meet the goals of the CWA, but is prohibited from enacting rules that impose
requirements beyond those of the CWA.190
• When the Department of Environmental Quality recommends to the Board of
Environmental Quality issuance of a rule that is broader in scope or more stringent than
federal law or regulations, or proposes to regulate an activity not regulated by the federal
government, the rule is subject to an additional statutory requirement. The agency must
clearly specify that the proposed rule, or portions of it, are broader in scope or more
stringent than federal law or regulations, or regulate an activity not regulated by the
188 Idaho Code Ann. section 39-103(18).
189 Idaho Admin. Coder. 58.01,25.010(01)(110).
190 Idaho Code Ann. section 39-3601.
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federal government, and delineate which portions of the proposed rule trigger this
provision.191
State Programs:
• Parallel to section 303, for state standards192
• Parallel to section 311193
• Parallel to section 402194
• Stream channel alterations195
• Navigable lake encroachments, parallel to section 404196
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 10 in coordination with the state of
Idaho.
• State does not regulate aboveground storage tanks, but references EPA's Spill
Prevention, Control, and Countermeasure (SPCC) rule and National Fire Prevention
Association (NFPA) code. Local fire districts, cities and counties may have aboveground
storage tank ordinances.197
• State does not have a codified cost recovery program for spills or a spill trust fund.
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• Idaho assumed some program components of the NPDES program on July 1, 2018 and
will assume others in the following three years.198
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.199
191 Idaho Code Ann. section 39-107D.
192 Idaho Code Ann. section 39-3601 etseq:, Idaho Admin. Coder. 58.01.02.
193 Idaho Admin. Code r. 58.01.02.800 et seq.
194 Idaho Code Ann. section 3 9- 175A etseq/, Idaho Admin. Coder. 58.01.25.
195 Idaho Code Ann. section 42-3801 etseq:, Idaho Admin. Code r. 37.03.07.
196 Idaho Code Ann. section 58-1301 etseq:, Idaho Admin. Code r. 20.03.04.
197 See Idaho DEQ, Storage Tanks in Idaho, available at https://www.deq.idaho.gov/waste-mgmt-remediation/storage-tanks.aspx.
198 Idaho's schedule to assume NPDES program components is as follows: individual municipal permits and pretreatment on July
1, 2018; individual industrial permits on July 1, 2019; general permits (for aquaculture, pesticide, CAFO, suction dredged, and
remediation) on July 1, 2020; and federal facilities, general and individual stormwater permits and biosolids on July 1,2021.
EPA, Idaho NPDES Program Authorization, available at https://www.epa.gov/nDdes-permits/idaho-npdes-program-authorization.
199 Idaho Code Ann. sections 42-3801 et seq. (regarding stream channels), 58-1301 et seq. (regarding lakes). Both programs deal
primarily with waters, and can occasionally cover wetlands. ASWM, Idaho State Wetland Program, available at
https://www.aswm.org/pdf lib/state summaries/idaho state wetland program summary 111615.pdf.
Resource and Programmatic Assessment for the Proposed Rule
98
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Table 21. Idaho Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment
Program
X
Possibly monitor through other non-wetland monitoring
programs
Source: ASWM (2015) Status and Trends Report; Idaho DEQ, email, March 16, 2018
18. ILLINOIS
Definition of Waters of the State:
• All accumulations of water, surface and underground, natural, and artificial, public and
private, or parts thereof, which are wholly or partially within, flow through, or border
upon this State.200
Definition of Wetlands:
• Land that has a predominance of hydric soils (soils that are usually wet and where there is
little or no free oxygen) and that is inundated or saturated by surface or groundwater at a
frequency and duration sufficient to support, and that under normal circumstances does
support, a prevalence of hydrophytic vegetation (plants typically found in wet habitats)
typically adapted for life in saturated soil conditions. Areas which are restored or created
as the result of mitigation or planned construction projects and which function as a
wetland are included within this definition even all three wetland parameters are not
901
present.
Additional State Conditions and Requirements:
• No limitations identified
State Programs:
• Illinois Environmental Protection Act202
• Interagency Wetland Policy Act203
o Same as federal exempted activities; except that all wetlands are regulated in
Illinois, not just wetlands greater than 1/10 acre.
2°° 415 ni. Comp. Stat, section 5/3.550.
201 20 111. Comp. Stat, section 830/1-6(a).
202 4 1 5 111. Comp. Stat, section 5.
203 20 111. Comp. Stat, section 830.
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o Provides limited exemptions for agricultural and silvicultural practices and some
wetland management actions on State wildlife management areas.
• Rivers, Lakes, and Streams Act204
303 Water Quality Standards:
• Has EPA-approved WQS.
• Wetlands are subject to General Use WQS.
• Some anti-degradation policies include wetlands.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 5 in coordination with the state of
Illinois.
• State program regulates all new tanks over 110 gallons that store flammable substances,
requiring permits and registration, secondary containment and site plans. Administered
by the State Fire Marshal.205
• State code authorizes cost recovery for spills; state has a spill trust fund.206
401 Certification:
• The state has authority to certify, conditionally certify, waive review or deny certification
of federal permits and licenses. Without certification or waiver the federal agency cannot
issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Illinois. The state
issues its permits through the Illinois Environmental Protection Agency. Illinois has an
authorized state NPDES permit program, general permits program, and is authorized to
regulate federal facilities. Illinois does not have an authorized biosolids program or state
907
pretreatment program.
• EPA issues all NPDES permits on tribal lands.208
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.209
• Issues state permits for dredged and fill activities in waters and their floodplains210, as
well as state funded activities in wetlands.211
Table 22. Illinois Wetland Program Summary
YES
NO
UNCLEAR/
NOTES
UNKNOWN
204 6 1 5 111. Comp. Stat, section 5.
205 111. Admin. Code tit. 41, section 180.20.
206 415 111. Comp. Stat, sections 5/25c-l, 5/42.
207 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
208 EPA, Illinois NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/illinois-npdes-permits.
209 Explored in 1990s found to be too expensive. ASWM, Illinois State Wetland Program,
https://www.aswm.org/pdf lib/state summaries/illinois state wetland program summary 083115.pdf.
210 615 111. Comp. Stat, sections 5/4.9 to 5/35.
211 20 111. Comp. Stat, sections 830/1-1 to 830/4-1
Resource and Programmatic Assessment for the Proposed Rule
100
December 18, 2018
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"No Net Loss" Goal
X
Formal "No Net Loss" goal IL Interagency Wetland
Policy Act 1989
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Developing wetland WQS (as of 2015)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report; Illinois EPA, email, March 16, 2018
19. INDIANA
Definition of Waters of the State:
• (1) The accumulations of water, surface and underground, natural and artificial, public
and private; or (2) a part of the accumulations of water; that are wholly or partially
within, flow through, or border upon Indiana.
o The term "waters" does not include: (1) an exempt isolated wetland; (2) a private
pond; or (3) an off-stream pond, reservoir, wetland, or other facility built for
reduction or control of pollution or cooling of water before discharge.
o The term includes all waters of the United States, as defined in Section 502(7) of
the federal CWA (33 U.S.C. 1362(7)), that are located in Indiana.212
Definitions of Wetlands:
• 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. Wetlands
generally include: (1) swamps; (2) marshes; (3) bogs; and (4) similar areas.213
• A state regulated wetland is defined as an isolated wetland located in Indiana that is not
an exempt isolated wetland.214
Additional State Conditions and Requirements:
• Under Indiana's rulemaking process, the Department of Environmental Management
(DEM) and the Water Pollution Control Board must provide notice of a proposed rule in
the Indiana Register for each of two required public comment periods. 215
o The notice for the first public comment period must describe the subject matter
and basic purpose of the proposed rule, including a list all alternatives under
consideration.
o The notice for the second public comment period must identify each element of
the proposed rule that imposes a restriction or requirement that is more stringent
than a restriction or requirement imposed under federal law, or that applies in a
subject area in which federal law does not impose a restriction or requirement.
212 Ind. Code section 13-11-2-265.
213 Ind. Code section 13-11-2-265.7.
214 Ind. Code section 13-11-2-221.5. Exempt isolated wetland is defined at Ind. Code section 13-11-2-74.5.
215 Ind. Code sections 13-14-9-3, 13-14-9-4.
Resource and Programmatic Assessment for the Proposed Rule
101
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• State imposes a qualified stringency prohibition; House Bill 1082216 requires any new
state environmental rule that is either more stringent than federal requirements or applies
in a subject area where federal law does not impose restrictions or requirements, to be
notified to the Indiana legislative branch. Following this the rule cannot take effect until
adjournment of a regular session of the General Assembly, providing the opportunity to
reject the rule via legislation217.
State Programs:
• Lake Preservation Act218
• Flood Control Act219
• State Regulated Wetlands220
o All exemptions under Section 404(f) of the CWA apply (agriculture and
silviculture), as well as discharges of fill materials in a de minimis amount,
o Exempts all activities subject to the USDA Swampbuster provisions on
agricultural lands
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 5 in coordination with the state of
Indiana.
• Aboveground storage tanks are regulated by the Indiana Fire Prevention Code, which
follows the Uniform Fire Code (NFPA 30 and 3OA) and specifies design, installation and
permitting requirements. Administered by the State Fire Marshal.221
• State code authorizes cost recovery for spills; state has a spill trust fund.222
401 Certification:
• The state has authority to certify, conditionally certify, waive review or deny certification
of federal permits and licenses. Without certification or waiver the federal agency cannot
issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Indiana. The state
issues its permits through the Indiana Department of Environmental Management.
Indiana has an authorized state NPDES permit program, general permits program, and is
216 Indiana. HB1082, available at https://iga.in.gOv/legislative/2016/bills/house/1082#digest-heading.
217 Council of State Governments Midwest (2017). Policy and Research, available at
http: //www, c sgmidwest. org/policvresearch/q om-0 317. aspx
218 Ind. Code section 14-26-2.
219 Ind. Code section 14-28-1.
220 Ind. Code section 13-18-22.
221 675 Ind. Admin. Code 22-2.3.
222 Ind. Code sections 13-24-1-4, 13-30-4-1,13-25-4-2.
Resource and Programmatic Assessment for the Proposed Rule
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authorized to regulate federal facilities. Indiana does not have an authorized biosolids
99 'i
program or state pretreatment program.
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in isolated wetlands224 and lakes.225
• Relies on federal permitting authority and CWA section 401.
Table 23. Indiana Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal Department of
Environmental Management, also IC 13-18-22
State Issues Permits for Dredged and Fill
Activities
X
Isolated wetlands and lakes only
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-specific)
Wetland Monitoring & Assessment
Program
X
Possibly monitors through other non-wetland monitoring
programs
Source: ASWM (2015) Status and Trends Report; Indiana DEM, email, March 2, 2018
20. IOWA
Definition of Waters of the State:
• Any stream, lake, pond, marsh, watercourse, waterway, well, spring, reservoir, aquifer,
irrigation system, drainage system, and any other body or accumulation of water, surface
or underground, natural or artificial, public or private, which are contained within, flow
through or border upon the state or any portion thereof.226
Definition of Wetlands:
• An area of two or more acres in a natural condition that is mostly under water or
waterlogged during the spring growing season and is characterized by vegetation of
hydric soils.227
Additional State Conditions and Requirements:
• The Iowa Environmental Protection Commission may not establish an effluent standard
for a source that is more stringent than a federal effluent standard under the CWA for
such source. However, the Commission may establish a more restrictive effluent
limitation for a point source if doing so is necessary to meet WQS and the federal
government has not established an effluent standard for that source or class of sources.228
223 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
224 Ind. Code section 13-18-22-1 et seq.
225 Ind. Code sections 14-26-2-1 set seq.
226 Iowa code 455B. 171.
227 Iowa Code 456B.1.
228 Iowa Code 455B.173.
Resource and Programmatic Assessment for the Proposed Rule
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• Additionally, NPDES rules adopted by the Commission with respect to concentrated
animal feeding operations can be no more stringent than requirements under the federal
CWA.229
• When the Environmental Protection Commission proposes or adopts rules to implement a
"specific federal environmental program," and the rules are more restrictive than the
federal program requires, the Commission must: (1) identify in its notice of intended
action or adopted rule preamble each rule that is more restrictive than the federal program
requires; (2) state the reasons for proposing or adopting the more restrictive requirement;
and (3) include with its reasoning a "financial impact statement" detailing the general
impact of the rules on affected parties.230
State Programs:
• Iowa River Restoration Strategy231
• Iowa Lake Restoration Program232
o Provides additional funding to DNR and requires a science-based approach to
achieve lake water quality improvements.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 7 in coordination with the state of
Iowa.
• State requires facilities with aboveground storage tanks greater than 1,100 gallons to
register and to receive approval of their plan prior to being placed in service. State has
adopted the Uniform Fire Code (NFPA 30 and 30A). Administered by the State Fire
Marshal.233
• State code authorizes cost recovery for spills and related damages; state has a spill trust
fund.234
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Iowa. The state
issues its permits through the Iowa Department of Natural Resources. Iowa has an
229 Iowa Code 459.311.
230 Iowa Code 455B. 105(3).
231 Iowa DNR, 2018. River Restoration, available at http://www.iowadnr.gov/Environmental-Protection/Water-Oualitv/River-
Restoration.
232 Iowa DNR, 2018. Lake Restoration Program and Water Quality Improvement, available at
http://www.iowadnr.gov/Environmental-Protection/Water-Oualitv/Lake-Restoration.
233 Iowa Code sections 101.1 et seq.
234 Iowa Code sections 455B.191, 455B.392, 455B.423, 481A.151.
Resource and Programmatic Assessment for the Proposed Rule
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authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Iowa does not have an authorized
biosolids program.235
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in floodplains and sovereign waters.236.
• Relies on federal permitting authority and CWA section 401.
Table 24. Iowa Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
Floodplains and sovereign waters
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific): this is mostly narrative not quantitative.
Wetland Monitoring & Assessment
Program
X
No formal RAM developed.
Source: ASWM (2015) Status and Trends Report
21. KANSAS
Definition of Waters of the State:
• All streams and springs, and all bodies of surface and subsurface waters within the
boundaries of the state.237
Definition of Wetlands:
• Water bodies meeting the technical definition for jurisdictional wetlands given in the
corps of engineers wetlands delineation manual, as published in January 1987.238
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Parallel to section 303 for standards.239
• Parallel to section 311.240
• Parallel to section 402.241
235 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
236 Iowa Admin. Coder. 561-70.1 etseq., 571-13.1 etseq.
237 Kan. Stat. Ann. section 65-161(a)
238 Kan. Admin. Regs, section 28-16-28b(fff)(3).
239 Kan. Admin. Regs, section 28-16-28b etseq.
240 Kan. Admin. Regs, section 82-3-603.
241 Kan. Stat. Ann. section 65-162 etseq.\Kan. Admin. Regs, section28-16-1 etseq.
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-------
• Regulation of dams and obstructions for public safety and property.242
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 7 in coordination with the state of
Kansas.
• State requires facilities with aboveground storage tanks to register, pay fees, and obtain
operating permits. State has adopted the Uniform Fire Code (NFPA 30 and 30A).
Administered by the State Fire Marshal.243
• State code authorizes cost recovery for spills; state has a spill trust fund.244
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Kansas. The state
issues its permits through the Kansas Department of Health and Environment. Kansas has
an authorized state NPDES permit program, general permits program, and is authorized
to regulate federal facilities. Kansas does not have an authorized biosolids program or
state pretreatment program.
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in floodplains.246
• Relies on federal permitting authority and CWA section 401.
Table 25. Kansas Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
Floodplains Only
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific): this is mostly narrative not quantitative.
Wetland Monitoring & Assessment
Program
X
No RAM developed.
Source: ASWM (2015) Status and Trends Report
242 Kan. Stat. Ann. section 82a-301 et seq.
243 Kan. Admin. Regs, sections 28-44-12 et seq.
244 Kan. Stat. Ann. section 65-171.
245 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
246 Kan. Admin. Regs, section 5-44-1.
Resource and Programmatic Assessment for the Proposed Rule
106
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22. KENTUCKY
Definition of Waters of the State:
Means and includes any and all rivers, streams, creeks, lakes, ponds, impounding
reservoirs, springs, wells, marshes, and all other bodies of surface or underground water,
natural or artificial, situated wholly or partly within or bordering upon the
Commonwealth or within its jurisdiction.247
Definition of Wetlands:
• Defined by 40 C.F.R. 122.2, effective July 1, 2008.248
Additional State Conditions and Requirements:
• An administrative body may adopt administrative regulations to implement a statute only
when the legislature authorizes the adoption of such regulations or when regulations are
required by federal law, in which case such regulations may be no more stringent than
federal law or regulations.249
• Qualified prohibitions allow for a Kentucky administrative body to issue a regulation
more stringent than federal law, but this is arguably in conflict with the broader
stringency prohibition provision. 250
o If a Kentucky administrative body issuing a regulation is (1) not required by
federal law to do so, and (2) is required or authorized by state law to issue a
regulation governing the subject matter, the regulation must conform to a federal
law or regulation governing a subject matter,
o When enacting a regulation in response to a federal mandate, an administrative
body is required to compare its proposed compliance standards with any
minimum or uniform standards suggested or contained in the federal mandate.
The comparison must contain a written determination as to whether the proposed
state regulation will impose stricter requirements or other responsibilities on
regulated entities than required by the federal mandate. If so, the comparison
analysis must further include a written statement justifying the imposition of
stricter standards, requirements, or responsibilities.
State Programs:
• None identified.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 4 in coordination with the state of
Kentucky.
247 Ky. Rev. Stat. Ann. section 224.1-010(32).
248 401 Ky. Admin. Regs. 5:002(177).
249 Ky. Rev. Stat, section 13A.120.
250 Ky. Rev. Stat, section 13A.245.
Resource and Programmatic Assessment for the Proposed Rule
107
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• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. Administered by the State Fire Marshal, including permitting requirements.251
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.252
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
• For general state permits, Kentucky requires an individual water quality certification for
otherwise minor impacts to cold water streams.253
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Kentucky. The state
issues its permits through the Kentucky Department for Environmental Protection.
Kentucky has an authorized state NPDES permit program, state pretreatment program,
general permits program, and is authorized to regulate federal facilities. Kentucky does
not have an authorized biosolids program.254
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activity in streams and their floodplains.255
• Relies on federal permitting authority and CWA section 401.
Table 26. Kentucky Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Informal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
Streams and Floodplains
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report
23. LOUISIANA
Definition of Waters of the State:
251 815 Ky. Admin. Regs. 7:120(3)(7)(i).
252 Ky. Rev. Stat, sections 224.1-400(15), 224.1-070, 224.46-580,224.99-010.
253 ASWM (2014) Section 401 Certification Best Practices in Dredged and Fill Permit Programs, available at
https://www.aswm.org/pdf lib/401 best practices summarv.pdf.
254 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
255 Ky. Rev. Stat, section 151.250.
Resource and Programmatic Assessment for the Proposed Rule
108
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• Both surface and underground waters within the state including all rivers, streams, lakes,
estuaries, groundwater, and all other water courses and waters within the confines of the
state and all bordering waters and the Gulf of Mexico.256
Definition of Wetlands:
• An open water area or an area that is inundated or saturated by surface or ground water at
a frequency and duration sufficient to support, and that under normal circumstances does
support, a prevalence of vegetation typically adapted for life in saturated soil conditions,
but specifically excluding fastlands257 and lands more than five feet above mean sea level
which occur within the designated coastal area of the state. Wetlands generally include
swamps, marshes, bogs, and similar areas.258
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Louisiana State and Local Coastal Resources Management Act259
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 6 in coordination with the state of
Louisiana.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. Administered by the State Fire Marshal.260
• State has requirements for spill contingency planning and implementation of operating
procedures and best management practices similar to SPCC.261
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund with limits tied to Oil Spill Liability Trust Fund coverage.262
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
256 La. Stat. Ann. section 30:2073(7).
257 Fastlands are defined as lands surrounded by publicly owned, maintained or otherwise validly existing levees or natural
formations that normally prevent activities, not to include the pumping of water for drainage purposes, within the surrounded area
from having a direct and significant impact on coastal waters. La. Stat. Ann. section 49:214.23(6).
258 La. Stat. Ann. section 49:214.2(16).
259 La. Stat. Ann. section 49:214.21.
260 La. Admin. Code tit. 33, chapter 9.
261 Id.
262 La. Stat. Ann. sections 30:2479, 30:2483, 30:2488, 30:2491.
Resource and Programmatic Assessment for the Proposed Rule
109
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• EPA has delegated authority to issue NPDES permits to the state of Louisiana. The state
issues its permits through the Louisiana Department of Environmental Quality. Louisiana
has an authorized state NPDES permit program, state pretreatment program, general
permits program, and is authorized to regulate federal facilities. Louisiana does not have
an authorized biosolids program.263
• EPA issues all NPDES permits on all tribal lands.264
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in coastal waters and wetlands265, as
well as nontidal waters.266
• Relies on federal permitting authority and CWA section 401.
Table 27. Louisiana Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
Permitting and associated fees in LA Coastal Zone only.
Coastal Use Permits include application and permit
processing fees, and mitigation processing fees.
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment
Program
X
Source: ASWM (2015) Status and Trends Report
24. MAINE
Definition of Waters of the State:
• Any and all surface and subsurface waters that are contained within, flow through, or
under or border upon this State or any portion of the State, including the marginal and
high seas, except such waters as are confined and retained completely upon the property
of one person and do not drain into or connect with any other waters of the State, but not
excluding waters susceptible to use in interstate or foreign commerce, or whose use,
degradation or destruction would affect interstate or foreign commerce.267
Definitions of Wetlands:
• Freshwater wetlands: freshwater swamps, marshes, bogs and similar areas that are
inundated or saturated by surface or groundwater at a frequency and for a duration
263 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
264 EPA, Louisiana NPDES Permits, available at https://www.epa.gov/npdes-permits/louisiana-npdes-permits.
265 La. Rev. Stat. Ann. sections 49:214.21 etseq.
266 La. Rev. Stat. Ann. sections 41:1701 et seq.
267 Me. Stat. tit. 38, section 361-A(7).
Resource and Programmatic Assessment for the Proposed Rule
110
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sufficient to support, and which under normal circumstances do support, a prevalence of
wetland vegetation typically adapted for life in saturated soils; and not considered part of
a great pond, coastal wetland, river, stream or brook.268
• Coastal wetlands: all tidal and subtidal lands; all areas with vegetation present that is
tolerant of salt water and occurs primarily in a salt water or estuarine habitat; and any
swamp, marsh, bog, beach, flat or other contiguous lowland that is subject to tidal action
during the highest tide level for the year in which an activity is proposed as identified in
tide tables published by the National Ocean Service. Coastal wetlands may include
portions of coastal sand dunes.269
Additional State Conditions and Requirements:
• Maine's Department of Environmental Protection must, when feasible, identify any
proposed rule that is anticipated to be more stringent than the federal standard, if an
applicable federal standard exists. During consideration of a proposed rule, the
Department must, when feasible: (1) identify provisions of the proposed rule that it
believes would impose a regulatory burden more stringent than the burden imposed by
the federal standard, if such a federal standard exists; and (2) justify the difference
between the rule and the federal standard.270
State Programs:
• Natural Resources Protection Act (NRPA)271
o Wetlands are regulated by the Maine Department of Environmental Protection in
organized municipalities (i.e., towns and cities).
o In the unorganized and deorganized areas of Maine, wetlands are regulated by the
Land Use Planning Commission of the Maine Department of Agriculture,
Conservation, and Forestry.
• Mandatory Shoreland Zoning Act272
o Gives authority to local government to regulate non-forested wetlands greater
than ten acres in size.
• Permit-by-Rule regulations273
o Apply to certain activities covered under the NRPA. The regulations identify
activities taking place in or adjacent to wetlands and waterbodies that should not
significantly affect the environment if carried out according to the standards
contained in the regulations.
• In Lieu Fee Program274
o Provides permit applicants with another option to traditional permittee-
responsible compensation projects.
268 Me. Stat. tit. 38, section 480-B.
169 Id.
270 Me. Stat. tit. 38, section 341-H(3).
271 Me. Stat. tit. 38, sections 480-A et seq.
272 Me. Stat. tit. 8, sections 435-449.
273 06-096-305 Me. Code R. section 1.
274 Me. Stat. tit. 38, sections 480-Z.
Resource and Programmatic Assessment for the Proposed Rule
111
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o Voluntary program that allows entities impacting natural resources, primarily
wetlands, to make a payment directly to the DEP as an alternative to the
traditional mitigation process,
o Fees collected by DEP are deposited into funds allocated to specific biophysical
regions in which the impacts occurred.
303 Water Quality Standards:
• Has EPA-approved WQS; there are some EPA-issued WQS in place as well.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 1 in coordination with the state of
Maine.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. Administered by the State Fire Marshal.275
• State has also incorporated federal SPCC requirements by code; failure to follow federal
requirements is violation of state code.276
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.277
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Maine. The state
issues its permits through the Maine Department of Environmental Protection. Maine has
an authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Maine does not have an
authorized biosolids program.278
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.279
Table 28. Maine Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
275 Me. Stat. tit. 25, section 2482.
276 Id.
277 Me. Stat. tit. 38, sections 551, 552.
278 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
279 Me. Stat. tit. 38, sections 480-A etseq.
Resource and Programmatic Assessment for the Proposed Rule
112
December 18, 2018
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Isolated Wetland Permitting
X
All resources which meet the definition of a wetland
are regulated by the state
State Wetland Permitting Fees
X
WQS for Wetlands
X
Developing wetland WQS (as of 2015)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report; Maine DEP, email, March 15, 2018
25. MARYLAND
Definition of Waters of the State:
• Both surface and underground waters within the boundaries of the state subject to its
jurisdiction; the portion of the Atlantic Ocean within the boundaries of the state
(territorial seas); the Chesapeake Bay and its tributaries; all ponds, lakes, rivers, streams,
tidal and nontidal wetlands, public ditches, tax ditches, and public drainage systems
within the state (does not include public drainage systems designed and used to collect,
convey, or dispose of sanitary sewage); and the floodplain of free-flowing waters
determined by the department on the basis of the 100 year flood frequency. 280
Definitions of Wetlands:
• Nontidal wetland: (a) Means an area that is inundated or saturated by surface water or
ground water at a frequency and duration sufficient to support and that under normal
circumstances does support a prevalence of vegetation typically adapted for life in
saturated soil conditions, commonly known as hydrophytic vegetation; (b) Is determined
according to the Federal Manual; (c) Does not include tidal wetlands regulated under
Environmental Article, Title 16, Annotated Code of Maryland.281
• State wetlands: means any land under the navigable waters of the State below the mean
high tide, affected by the regular rise and fall of the tide.282
Additional State Conditions and Requirements:
• By executive order, each unit of Maryland state government is required to take certain
steps when it proposes to adopt a regulation that "provides a standard that is more
restrictive or stringent than an applicable standard established under a federal law or
regulation which governs the same program or conduct." The agency must: (1) identify
the manner in which the proposed regulation is more restrictive than the applicable
federal standard; (2) identify the benefit to public health, safety, welfare, or the
environment, expected from adopting the standard; (3) in consultation with the
Department of Business and Economic Development, identify whether having a more
restrictive standard places an additional burden or cost on regulated persons; and (4)
justify the need for the standard.283
State Programs:
280 Md. Code, Env. section 5-101(1).
281 Md. Code, Env. section 5-901(m).
282 Md. Code, Env. section 16-101(p).
283 Md. Exec. Order No. 01.01.1996.03 (1996).
Resource and Programmatic Assessment for the Proposed Rule
113
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• Maryland Nontidal Wetlands Protection Act284
• Appropriation or Use of Waters, Reservoirs, and Dams Statute285
• Wetlands and Riparian Rights Statute286
• Tidal Wetlands Protection Act287
• Chesapeake and Atlantic Coastal Bays Critical Area Protection Program288
• Water Pollution Control Act289
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 3 in coordination with the state of
Maryland.
• State requires facilities with aboveground oil storage capacities of 1,000 gallons of used
oil or 10,000 gallons or more of virgin oil to obtain oil operations permits and meet
specific technical requirements such as secondary containment.290
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. Administered by the State Fire Marshal.291
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.292
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Maryland. The state
issues its permits through the Maryland Department of the Environment. Maryland has an
authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Maryland does not have an
authorized biosolids program.293
404 Dredged and Fill Permitting:
284 Md. Code, Env. sections 5-901 etseq.
285 Md. Code, Env. sections 5-501 etseq.
286 Md. Code, Env. sections 16-101 et seq.
2S1Id.
288 Md. Code, Nat. Res. sections 8-1801 etseq.
289 Md. Code, Env. sections 4-401 etseq.
290 Md. Code Regs. 26.10.01.
291 Id.
292 Md. Code, Env. sections 4-408,4-409, 4-411, 4-417,4-418.
293 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
Resource and Programmatic Assessment for the Proposed Rule
114
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• Has not assumed the 404 program.294
• Issues state permits for dredged and fill activities in waters and wetlands.295
Table 29. Maryland Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Maryland (along with, among others, West Virginia,
Virginia, Delaware and Pennsylvania) is one of the
signatories to the Chesapeake Bay 2014 Agreement,
which includes the following outcome for wetlands
within the Chesapeake Bay watershed (which includes
almost all of Maryland):
"Continually increase the capacity of wetlands to
provide water quality habitat benefits throughout the
watershed. Create or re-establish 85,000 acres of tidal
and non-tidal wetlands and enhance the function of an
additional 150,000 acres of degraded wetlands by 2025
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Has explored in the recent past and determined not to
seek assumption
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report
26. MASSACHUSETTS
Definition of Waters of the State:
• All waters within the jurisdiction of the commonwealth, including, without limitation,
rivers, streams, lakes, ponds, springs, impoundments, estuaries, coastal waters, and
groundwaters.296
Definitions of Wetlands:
• Coastal wetlands: Any bank, marsh, swamp, meadow, flat or other lowland subject to
tidal action or coastal storm flowage.297
• Freshwater wetlands: Wet meadows, marshes, swamps, bogs, areas where the
groundwater, flowing or standing surface water or ice provide a significant part of the
supporting substrate for a plant community for at least five months of the year; emergent
and submergent plant communities in inland waters; that portion of any bank which
touches any inland waters.298
294 Implements a state programmatic general permit pursuant to CWA Section 404(e) for specified activities. The currently
operative SPGP is MDSPGP-5 issued September 26, 2016. See
http://www.nab.usace.armv.mil/Portals/63/docs/Regulatorv/MDSPGP-5.pdf.
295 Md. Code, Env. sections 5-501 etseq., 16-101 etseq.
296 Mass. Gen. Laws ch. 21 section 26A.
297 Mass. Gen. Laws ch. 131 section 40.
298 Id.
Resource and Programmatic Assessment for the Proposed Rule
115
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Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Massachusetts Wetlands Protection Act299
o Administered by the Department of Environmental Protection (MassDEP) in a
decentralized way. While the policies and regulations are promulgated by
MassDEP, permits are actually issued by the 351 local conservation commissions.
• Inland300 and Coastal301 Wetlands Restriction Acts
o The Commissioner of the Department of Environmental Protection may issue
orders to prohibit certain activities in specified wetlands prior to any work being
proposed.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 1 in coordination with the state of
Massachusetts.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. Administered by the State Fire Marshal. Permit, inspection and technical
requirements apply to tanks greater than 10,000 gallons in capacity.302
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.303
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• Massachusetts is not authorized to run a state NPDES program.304
• EPA issues all NPDES permits in Massachusetts.305
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.306
299 id.
300 Mass. Gen. Laws Ch. 131, section 40A.
301 Mass. Gen. Laws Ch. 130, section 105.
302 527 Mass. Code Regs. 5.00, 9.00
303 Mass. Gen. Laws ch. 21E sections 5,11; ch. 21M section 8.
304 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
305 EPA, Massachusetts NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/massachusetts-npdes-permits.
306 Mass. Gen. Lawsch. 131, section 40; ch. 130, section 105; ch. 91.
Resource and Programmatic Assessment for the Proposed Rule
116
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Table 30. Massachusetts Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
Some isolated wetlands are regulated if they meet the
definition of an Isolated Land Subject to Flooding.
Certified Vernal Pools are regulated if they are located
within a state resource area.
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report
27. MICHIGAN
Definition of Waters of the State:
• Groundwater, lakes, including the Great Lakes bordering the state, rivers, streams, and all
other water courses and bodies of water within the jurisdiction of the state, including
wetlands.307
Definition of Wetlands:
• Land characterized by the presence of water at a frequency and duration sufficient to
support, and that under normal circumstances does support, wetland vegetation or aquatic
life, and is commonly referred to as a bog, swamp, or marsh, and which is any of the
following: i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a
river or stream; (ii) Not contiguous to the Great Lakes, an inland lake or pond, or a river
or stream; and more than 5 acres in size; (iii) Not contiguous to the Great Lakes, an
inland lake or pond, or a river or stream; and 5 acres or less in size if the department
determines that protection of the area is essential to the preservation of the natural
resources of the state from pollution, impairment, or destruction and the department has
so notified the owner.308
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• The Natural Resources and Environmental Protection Act309
o Includes many provisions to protect waters within Michigan.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
307 Mich. Comp. Laws section 324.3101.
308 Mich. Comp. Laws section 324.30301 (m).
309 Mich. Comp. Laws sections 324.101 et seq.
Resource and Programmatic Assessment for the Proposed Rule
117
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• The 311 program is administered by EPA Region 5 in coordination with the state of
Michigan.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. Administered by the State Fire Marshal. Applications for plan review required for
tanks greater than 1,100 gallons in capacity.310
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.311
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Michigan. The state
issues its permits through the Michigan Department of Environmental Quality. Michigan
has an authorized state NPDES permit program, state pretreatment program, general
permits program, biosolids program, and is authorized to regulate federal facilities.312
• EPA issues all NPDES permits on tribal lands.313
404 Dredged and Fill Permitting:
• Michigan has assumed administration of the 404 program (has full state permitting
authority).314
Table 31. Michigan Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
If over 5 acres, within 500 feet of a stream or lake,
1000 feet of Great Lakes or Lake St. Clair, or essential
to preservation of natural resources.315
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report; Michigan DEQ, email, March 21, 2018
310 Mich. Comp. Laws sections 29.1 et seq.
311 Mich. Comp. Laws sections 324.2010, 324.20119, 324.20126a.
312 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
313 EPA, Michigan NPDES, Permits, available at https://www.epa.gov/npdes-permits/michigan-npdes-permits.
314 EPA, State or Tribal Assumption of the Section 404 Permit Program, available at https://www. epa. go v/cwa-404/state-or-
tribal-assumption-section-404-permit-program. For Michigan's assumed Section 404 Program, state statutes provide similar
protections and ensure compliance with the CWA by being at least as protective as the CWA (however, Michigan's laws do not
use the exact same definitions or exemption language as the CWA).
315MDEQ
-------
28. MINNESOTA
Definitions of Waters of the State:
• Definition that applies to CWA programs: All streams, lakes, ponds, marshes,
watercourses, waterways, wells, springs, reservoirs, aquifers, irrigation systems, drainage
systems and all other bodies or accumulations of water, surface or underground, natural
or artificial, public or private, which are contained within, flow through, or border upon
the state or any portion thereof.316
• Definition that applies to state Wetland Conservation Act: Surface or underground
waters, except surface waters that are not confined but are spread and diffused over the
land. Waters of the state includes boundary and inland waters.317
Definition of Wetlands:
• Lands transitional between terrestrial and aquatic systems where the water table is usually
at or near the surface or the land is covered by shallow water. For purposes of this
definition, wetlands must have the following three attributes:
(1) have a predominance of hydric soils;
(2) are inundated or saturated by surface or ground water at a frequency and
duration sufficient to support a prevalence of hydrophytic vegetation typically
adapted for life in saturated soil conditions; and
(3) under normal circumstances support a prevalence of such vegetation.318
Additional State Conditions and Requirements:
• 404 Assumption: In the event the state assumes responsibility for the federal 404
permitting program, the rules adopted to establish the program "may not be more
restrictive" than the federal 404 program—or more restrictive than state law, if state law
is more restrictive than the federal 404 program.319
o The state has not assumed the 404 program, however, the Minnesota Legislature
commissioned a study on the feasibility of 404 Assumption that was completed in
20 1 7.320
• Feedlots: State limits NPDES feedlot permitting requirements in that (a) The agency must
issue NPDES permits for feedlots only as required by federal law. However, the state also
issues state disposal system permits for feedlots which may have additional state-only
^91
requirements.
State Programs:
• Clean Water Legacy Act322
316 Minn. Stat, section 115.03-22.
317 Minn. Stat, section 103G.005-17.
318 Minn. Stat, section 103G.005-19.
319 Minn. Stat, section 103G.2375.
320 Minnesota Section 404 Assumption Feasibility Study Report, available at
http://www.bwsr.state.mn.us/wetlands/cwa 404/Minn Section 404 Assumption Feasibility Study Report Final.pdf
321 Minn. Stat, section 116.07.
322 Minn. Stat, section 114D.
Resource and Programmatic Assessment for the Proposed Rule
119
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• Water Pollution Control323
• Public Waters and Public Waters Wetland324
• Wetlands Conservation Act325
303 Water Quality Standards:
• Has EP A-approved WQ S.326
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 5 in coordination with the state of
Minnesota.
• State has adopted technical requirements for aboveground storage tanks with capacities
greater than 1,100 gallons, such as secondary containment, overfill prevention,
recordkeeping and release reporting. Facilities with tanks of 1 million gallons or greater
are required to obtain operating permits.327
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.328
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Minnesota. The state
issues its permits through the Minnesota Pollution Control Agency. Minnesota has an
authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Minnesota does not have an
authorized biosolids program.329
• EPA issues all NPDES permits on tribal lands.330
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.331
• Issues state permits for dredged and fill activities in waters and wetlands.332
Table 32. Minnesota Wetland Program Summary
YES
NO
UNCLEAR/
NOTES
UNKNOWN
323 Minn. Stat, section 115.
324 Minn. Stat, section 103G; Minn. R. 6115.
325 Minn. Stat, section 103G.221 et seq.
326 Small number of wetlands are listed, narrative criteria in 305(b) reporting.
327 Minn. R. 7151.1100.
328 Minn. Stat, sections 115B.17, 116.155.
329 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
330 EPA, Minnesota NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/minnesota-npdes-permits.
331 Completed a 404 Assumption Feasibility Study.
332 Minn. Stat. Ann. sections 103G.222 et seq., 103G.245.
Resource and Programmatic Assessment for the Proposed Rule
120
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"No Net Loss" Goal
X
In addition, has a formal "Net Gain/Increase" goal at
Minn. Statutes 103.201A
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland-specific WQS
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report; State of Minnesota, email, March 19, 2018
29. MISSISSIPPI
Definition of Waters of the State:
• All waters within the jurisdiction of this state, including all streams, lakes, ponds,
impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation
systems, drainage systems and all other bodies or accumulations of water, surface and
underground, natural or artificial, situated wholly or partly within or bordering upon the
state, and such coastal waters as are within the jurisdiction of the state, except lakes,
ponds, or other surface waters which are wholly landlocked and privately owned, and
which are not regulated under the Federal CWA (33 U.S.C. 1251 et seq.).333
Definition of Wetlands:
• Coastal wetlands: All publicly-owned lands subject to the ebb and flow of the tide; which
are below the watermark of ordinary high tide; all publicly-owned accretions above the
watermark of ordinary high tide and all publicly-owned submerged water-bottoms below
the watermark of ordinary high tide and includes the flora and fauna on the wetlands and
in the wetlands.334
Additional State Conditions and Requirements:
• The Mississippi Commission on Environmental Quality is prohibited from enacting a
rule, regulation, or standard relating to water quality or water discharge standards that
exceeds the requirements of federal statutes, regulations, standards, criteria, and guidance
relating to water quality or water discharge standards promulgated under the federal
Administrative Procedure Act.335
State Programs:
• Coastal Wetlands Protection Act336
• Public Trust Tidelands Act337
• Surface Water and Groundwater Use and Protection Regulations338
o The Mississippi Environmental Quality Permit Board will not authorize any
surface water use that will impair the navigability of any watercourse identified as
a navigable waterway under state or federal statute.
333 Miss. Code Ann. section 49-17-5(f).
334 Miss. Code Ann. section 49-27-5(a).
335 Miss. Code Ann. Section 49-17-34(2).
336 Miss. Code Ann. sections 49-27-1 et seq.
337 Miss. Code Ann. sections 29-15-1 et seq.
338 1 1 Miss. Admin. Code Pt 7, R. 1.3(b)(4).
Resource and Programmatic Assessment for the Proposed Rule
121
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303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 4 in coordination with the state of
Mississippi.
• State has no specific aboveground storage tank regulations; State relies on EPA Region 4
to implement SPCC requirements.
• State code authorizes cost recovery for spills; state does not have a spill trust fund.339
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Mississippi. The state
issues its permits through the Mississippi Department of Environmental Quality.
Mississippi has an authorized state NPDES permit program, state pretreatment program,
general permits program, and is authorized to regulate federal facilities. Mississippi does
not have an authorized biosolids program.340
• EPA issues all NPDES permits on tribal lands and to offshore oil and gas facilities
operating in federal waters off the coast of Mississippi.341
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in coastal wetlands.342
• Relies on federal permitting authority and CWA section 401.
Table 33. Mississippi Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
Coastal Only
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
MDEQ has worked with Southeast Wetlands Work
Group towards wetland monitoring and assessment but
that work has not yet been implemented to standards.
Source: ASWM (2015) Status and Trends Report; Mississippi DEQ, email, March 28, 2018
339 Miss. Code Ann. section 49-17-43.
340 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
341 EPA, Mississippi NPDES Permits, available at https://www.epa.gov/npdes-permits/mississippi-npdes-permits.
342 Miss. Code Ann. sections 49-27-1 etseq.
Resource and Programmatic Assessment for the Proposed Rule
122
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30. MISSOURI
Definition of Waters of the State:
• All water within the jurisdiction of this state, including all rivers, streams, lakes and other
bodies of surface and subsurface water lying within or forming a part of the boundaries of
the state which are not entirely confined and located completely upon lands owned,
leased or otherwise controlled by a single person or by two or more persons jointly or as
1.A1.
tenants in common.
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater 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. Wetlands
generally include swamps, marshes, bogs, and similar areas. This definition is consistent
with both the Corps wetlands definition at 33 CFR 328.3(b) and the U.S. EPA wetlands
definition at 40 CFR 232.2(r).344
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• None identified.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 7 in coordination with the state of
Missouri.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. State code includes financial responsibility requirements for facilities with
aboveground storage tanks, except for refineries, pipeline terminals, rail terminals or
marine terminals.345
• State code authorizes cost recovery for spills; state does have a spill trust fund.346
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
343 Mo. Rev. Stat, section 644.016(27).
344 Mo. Code Regs. tit. 10,20-7.031(l)(FF).
345 Mo. Code Regs. tit. 26, 414.012 et seq.
346 Mo. Rev. Stat, section 260.530,260.535.
Resource and Programmatic Assessment for the Proposed Rule
123
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• EPA has delegated authority to issue NPDES permits to the state of Missouri. The state
issues its permits through the Missouri Department of Natural Resources. Missouri has an
authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Missouri does not have an
authorized biosolids program.347
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 34. Missouri Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal. Executive Order 96-03
(https://www.sos.mo.gOv/library/reference/orders/l996/eol996 003)
State Issues Permits for Dredged
and Fill Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
$150 per non-EIS project, $1500 per project with EIS [10 CSR 20-
6.011(2 )(I)
WQS for Wetlands
X
Completed Wetland Program Development Grant CD97744201 at
the end of 2017, which helped establish a set of candidate reference
wetlands to be used in the development of wetland WQS. They plan
to develop narrative wetland criteria in the next triennial review, and
are collecting data in order to eventually establish numeric wetland
criteria.
Wetland Monitoring &
Assessment Program
X
They have developed a wetland monitoring and assessment program
and are currently monitoring candidate reference wetlands. They
have developed MORAM, but used for wetland condition only.
Source: ASWM (2015) Status and Trends Report; Missouri DNR, email, April 24, 2018
31. MONTANA
Definition of Waters of the State:
• (a) a body of water, irrigation system, or drainage system, either surface or underground,
(b) The term does not apply to: (i) ponds or lagoons used solely for treating, transporting,
or impounding pollutants; or (ii) irrigation waters or land application disposal waters
when the waters are used up within the irrigation or land application disposal system and
the waters are not returned to state waters.348
Definition of Wetlands:
• 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.349
Additional State Conditions and Requirements:
347 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
348 Mont. Code Ann. section 75-5-103.
349 Mont. Admin. R. 17.30.502(12).
Resource and Programmatic Assessment for the Proposed Rule
124
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• Montana has qualified stringency prohibitions that apply to rules implementing water
quality and public water supply programs. The statutory language, identical for both
programs, provides that the Board of Environmental Review may not adopt an
implementing rule that is more stringent than the federal regulations or guidelines that
address the same circumstances unless the Board makes a written finding— following a
public hearing and comment, and based on record evidence—that the more-stringent state
requirement: (1) protects public health or the environment of Montana; (2) can mitigate
the harm to public health or the environment; and (3) is achievable under current
technology.350
• The Board of Environmental Review may adopt rules implementing water quality law
that are more stringent than corresponding draft or final federal regulations, guidelines, or
criteria, only if it makes written findings, based on sound scientific or technical evidence
in the record, stating that the stricter state requirements are necessary to protect the public
health, beneficial use of water, or the environment of Montana.351
State Programs:
• Streamside Management Program352
o Regulate certain logging activities within a Streamside Management Zone.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 8 in coordination with the state of
Montana.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, which may be covered by the Petroleum Tank Release Cleanup Fund provided that
they meet minimum design, construction, and installation standards (double-walled and
have maximum storage capacities of less than 30,000 gallons).353
• State code authorizes cost recovery for spills; state does have a spill trust fund, accessible
to facilities with aboveground storage tanks less than 30,000 gallons.354
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Montana. The state
issues its permits through the Montana Department of Environmental Quality. Montana
has an authorized state NPDES permit program, general permits program, and is
350 Mont. Code Ann. section 75-5-203; 75-6-116.
351 Mont. Code Ann. section 75-5-309.
352 Mont. Code Ann. section 77-5-301 etseq:, Mont. Admin. R. 36.11.3.
353 Mont. Admin. R. 17.58.326.
354 Mont. Code Ann. sections 75-5-63, 75-5-635.
Resource and Programmatic Assessment for the Proposed Rule
125
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authorized to regulate federal facilities. Montana does not have an authorized biosolids or
TCC
state pretreatment program.
• EPA issues all NPDES permits on tribal lands.356
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
o Issues local permits for dredged and fill activities in lakes.357
• Relies on federal permitting authority and CWA section 401.
Table 35. Montana Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
In addition, has a formal "Net Gain/Increase" goal
State Issues Permits for Dredged and Fill
Activities
X
Local permits for lakes
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
401 certification fees
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment
Program
X
Currently performing comprehensive wetland
assessments within a few watersheds
Source: ASWM (2015) Status and Trends Report; Montana DEQ, email, March 15, 2018
32. NEBRASKA
Definition of Waters of the State:
• All waters within the jurisdiction of this state, including all streams, lakes, ponds,
impounding reservoirs, marshes, wetlands, watercourses, waterways, wells, springs,
irrigation systems, drainage systems, and all other bodies or accumulations of water,
surface or underground, natural or artificial, public or private, situated wholly or partly
within or bordering upon the state.358
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater 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. Wetlands
generally include swamps, marshes, bogs, and similar areas.359
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
355 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
356 EPA, Montana NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/montana-npdes-permits.
357 Mont. Code Ann. sections 75-7-201 et seq. This program is authorized by state law, but applied at the local government level.
358 Neb. Rev. Stat, section 81-1502(21).
359 117 Neb. Admin. Code, ch. 1, section 082.
Resource and Programmatic Assessment for the Proposed Rule
126
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• Nebraska Environmental Protection Act360
• Parallel to 303 standards361
• Parallel to section 311362
• Parallel to section 402363
• Parallel to section 401364
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 7 in coordination with the state of
Nebraska.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks. Installation and replacement of aboveground storage tanks require a permit from
the State Fire Marshal.365
• State code authorizes cost recovery for spills; state has a spill trust fund for releases from
aboveground storage tanks (Petroleum Release Remedial Action Reimbursement
Fund).366
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Nebraska. The state
issues its permits through the Nebraska Department of Environmental Quality. Nebraska
has an authorized state NPDES permit program, state pretreatment program, general
permits program, and is authorized to regulate federal facilities. Nebraska does not have
an authorized biosolids program.367
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 36. Nebraska Wetland Program Summary
YES
NO
UNCLEAR/
NOTES
UNKNOWN
360 Neb. Rev. Stat, sections 81-1501 etseq.
361 117 Neb. Admin. Code.
362 126 Neb. Admin. Code; 153 Neb. Admin. Code; 158 Neb. Admin. Code; 159 Neb. Admin. Code.
363 Neb. Rev. Stat, sections 81-1502, 81-1504, 81-1505, 81-1506; 119 Neb. Admin. Code.
364 Neb. Rev. Stat, section 81-1505(2)(e); 120 Neb. Admin. Code.
365 1 53 Neb. Admin. Code, ch. 17.
366 Neb. Rev. Stat, sections 81-1508; 126 Nebraska Admin. Code ch. 18.
367 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
Resource and Programmatic Assessment for the Proposed Rule
127
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"No Net Loss" Goal
X
Informal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Nebraska has had wetland WQS since 1993 and they
are contained in Title 117, Ch. 7, and codified in NE
Legislation at 81-1501(1) and 81-1505(1)(2).
Wetland Monitoring & Assessment Program
X
NDEQ developed and provides oversight of their
Wetland M&A program through the Nebraska Game
and Parks Commission.
Source: ASWM (2015) Status and Trends Report
33. NEVADA
Definition of Waters of the State:
• All waters situation wholly or partly within or bordering upon the state, including but not
limited to: all streams, lakes, ponds, impounding reservoirs, marshes, water courses,
waterways, wells, springs, irrigation systems, and drainage systems; and all bodies or
accumulations of water, surface and underground, natural or artificial.368
Definition of Wetlands:
• Land having a water table at, near or above the land surface, or land that has been
saturated with water for a period of time long enough to promote wetland or aquatic
processes indicated by hydric soil, hydrophytic vegetation and other biological activity
adapted to a wet environment.369
Additional State Conditions and Requirements:
• Nevada's Administrative Procedure Act provides that for purposes of a state agency's
notice of intent to adopt a regulation, as well as in a statement to accompany an adopted
regulation, the agency must summarize any state provisions that are more stringent than
their federal counterparts. Additionally, when a small business impact statement is
required, the agency must further explain why the more-stringent state provisions are
370
necessary.
State Programs:
• None identified.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 9 in coordination with the state of
Nevada.
368 Nev. Rev. Stat, section 445A.415.
369 Nev. Admin. Code section 321.448.
370 Nev. Rev. Stat, section 233B.0603(l)(a)(9); 233B.0609(6); 233B.066(l)(i).
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128
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• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal. Specific state requirements cover
aboveground storage tanks at marinas for tanks less than 12,000 gallons, including
registration, fees, and technical requirements for secondary containment and overfill
^71
prevention.
• State code authorizes cost recovery for spills and resource damages; state does not have a
spill trust fund.372
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Nevada. The state
issues its permits through the Nevada Division of Environmental Protection. Nevada has
an authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Nevada does not have an
authorized biosolids program.373
• EPA issues all NPDES permits on tribal lands.374
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters.375
• Relies on federal permitting authority and CWA section 401.
Table 37. Nevada Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
Not wetlands
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report
371 Nev. Admin. Code sections 459.9921, 477.323.
372 Nev. Rev. Stat, section 445A.700, 445C.310.
373 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
374 EPA, NPDES Wastewater & Stormwater Permits (2017), available at
https://www3.epa.gov/region9/water/npdes/permits.html.
375 Nev. Rev. Stat, sections 322.100 et seq., 503.425.
Resource and Programmatic Assessment for the Proposed Rule
129
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34. NEW HAMPSHIRE
Definition of Waters of the State:
• Surface waters of the state are perennial and seasonal streams, lakes, ponds, and tidal
waters within the jurisdiction of the state, including all streams, lakes, or ponds bordering
on the state, marshes, water courses, and other bodies of water, natural or artificial.376
• Groundwaters shall mean all areas below the top of the water table, including aquifers,
wells and other sources of groundwater.377
Definition of Wetlands:
• An area that is inundated or saturated by surface water or groundwater at a frequency and
duration sufficient to support, and that under normal conditions does support, a
prevalence of vegetation typically adapted for life in saturated soil conditions.378
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Water Pollution and Waste Disposal Act379
• Fill and Dredge in Wetlands Act380
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 1 in coordination with the state of New
Hampshire.
• Aboveground storage tanks are regulated by the state Department of Environmental
Services and the Fire Marshal's Office; state has adopted the Uniform Fire Code (NFPA
30 and 3OA) for aboveground storage tanks. Rules apply to facilities with a single tank
with a capacity greater than 660 gallons or facilities with two or more tanks capacity
greater than 1,320 gallons. Requirements include registration, construction standards,
release detection and prevention, secondary containment, and an SPCC Plan (certified by
PE licensed in NH).381
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.382
401 Certification:
376 N.H. Rev. Stat, section 485-A:2(XIV).
377 Id. at V. Although groundwaters are not included in the same definition as surface waters for the purposes of what is a water
of the state, New Hampshire treats both surface and groundwater as waters of the state in it's Water Pollution and Waste Disposal
Act. N.H. Rev. Stat, section 485-A: 1.
378 N.H. Rev. Stat, section 482-A:2.
379 N.H. Rev. Stat, chapter 485-A.
380 N.H. Rev. Stat, chapter 482-A.
381 N.H. Code Admin. R. Env-Or 300.
382 N.H. Rev. Stat, chapter 146-A.
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130
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• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• New Hampshire is not authorized to run a state NPDES program.383
• EPA issues all NPDES permits in New Hampshire.384
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.385
Table 38. New Hampshire Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
All resources which meet the definition of a wetland
are regulated by the state.
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report
35. NEW JERSEY
Definition of Waters of the State:
• All surface waters and ground waters in the State.386
Definitions of Wetlands:
• Coastal wetland: any bank, marsh, swamp, meadow, flat or other low land subject to
tidal action in the State of New Jersey along the Delaware bay and Delaware river,
Raritan bay, Barnegat bay, Sandy Hook bay, Shrewsbury river including Navesink river,
Shark river, and the coastal inland waterways extending southerly from Manasquan Inlet
to Cape May Harbor, or at any inlet, estuary or tributary waterway or any thereof,
including those areas now or formerly connected to tidal waters whose surface is at or
below an elevation of 1 foot above local extreme high water, and upon which may grow
or is capable of growing some, but not necessarily all, of the listed plants.387
• Freshwater wetland: an area that is inundated or saturated by surface water or
groundwater at a frequency and duration sufficient to support, and that under normal
circumstances does support, a prevalence of vegetation typically adapted for life in
383 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
384 EPA, New Hampshire NPDES Permits, available at https://www.epa.gov/npdes-permits/new-hampshire-npdes-permits.
385 N.H. Rev. Stat, chapter 482-A.
386 N.J. Rev. Stat, section 58:lA-3.
387 N.J. Rev. Stat, section 13:9A-2.
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saturated soil conditions, commonly known as hydrophytic vegetation; provided,
however, that the department, in designating a wetland, shall use the 3-parameter
approach (i.e. hydrology, soils and vegetation) enumerated in the April 1, 1987 interim-
final draft "Wetland Identification and Delineation Manual" developed by the United
States Environmental Protection Agency, and any subsequent amendments thereto.388
Additional State Conditions and Requirements:
• By executive order issued in 1994, New Jersey agencies adopting a rule or regulation to
implement or otherwise comply with federal programs must provide a statement as to
whether the rule or regulation contains any standards or requirements which exceed the
standards or requirements imposed by federal law. The agency must include a cost-
benefit analysis supporting its determination to impose the standards and showing that the
standards are achievable under current technology.389
• A related requirement in a 2010 executive order prohibits a state agency from proposing a
rule that exceeds the requirements of federal law, except when required to do so by state
law, or when doing so is necessary to achieve a New Jersey specific public policy goal.
Agencies are further required to detail and justify every instance where a proposed rule
exceeds the requirements of federal law or regulation.390
State Programs:
• Flood Hazard Area Control Act391
• Freshwater Wetlands Protection Act392
o Provides comprehensive permitting program that regulates all activities in
freshwater wetlands and "transition areas" like upland buffers adjacent to these
wetlands. FWPA regulates fills, driving of pilings, excavation, drainage and
disturbance of the water table, and destruction of wetland vegetation (exemptions
include activities associated with farming and forestry).
• Pinelands Protection Act393
o Provides protections and land use restrictions for areas within the Pinelands
National Reserve (includes wetlands and wetland buffer protection);
• Wetlands Act of 197 0 394
o Requires permits for activities proposed within tidal and estuarine wetlands. The
Act regulates draining, dredging, excavation, and placement of structures or other
obstructions (exemptions include production of salt hay and mosquito control
activities).
• Highlands Water Protection and Planning Act395
388 N.J. Rev. Stat, section 13:9B-3.
389 N.J. Exec. Order No. 27 (Gov. Whitman), Nov. 2,1994.
390 N.J. Exec. Order No. 2 (Gov. Christie), Jan. 20, 2010.
391 N.J. Rev. Stat, section 58:16A50 et seq.
392 N.J. Rev. Stat, section 13:9A-1 et seq.
393 N.J. Rev. Stat, section 13:18A-1 et seq.
394 N.J. Rev. Stat, section 13:9A-1 et seq.
395 N.J. Rev. Stat, section 13:20-1 et seq.
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o Requires approval for activities in a 400,000-acre region of the state designated
for preservation; the Act regulates "Highlands Open Waters" - Highlands Open
Waters includes springs, perennial and intermittent streams, wetlands and bodies
of surface water whether natural or artificial, and requires a 300-foot buffer
adjacent to all Highlands open waters.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 2 in coordination with the state of New
Jersey.
• State has established specific requirements for facilities with aboveground storage tanks,
including requirements for secondary containment, overfill prevention, and tank integrity,
similar to SPCC requirements.396
• State has also adopted the Uniform Fire Code (NFPA 30 and 30A) as well as the National
Building and Mechanical Code (under BOCA) for aboveground storage tanks.397
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund (New Jersey Spill Compensation and Control Act).398
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of New Jersey. The
state issues its permits through the New Jersey Department of Environmental Protection.
New Jersey has an authorized state NPDES permit program, state pretreatment program,
general permits program, and is authorized to regulate federal facilities. New Jersey does
not have an authorized biosolids program.399
404 Dredged and Fill Permitting:
• New Jersey has assumed the administration of the 404 program (has full state permitting
authority).400
• Issues state permits for dredged and fill activities in coastal waters and wetlands.401
396 N.J. Admin. Code section 7: IE.
397 Id.
398 N.J. Rev. Stat, section 58:10-23.11.
399 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
400 EPA, 2018. State or Tribal Assumption of the Section 404 Permit Program, available at https://www.epa.gov/cwa-404/state-
or-tribal-assumption-section-404-permit-program. Mitigation is required for all wetland and water impacts permitted under an
individual permit as well as for three general permits (hazardous waste cleanup and remediation, landfill closures, and
redevelopment of brownfields). See ASWM, New Jersey State Wetland Program Summary, available at
https://www.aswm.org/pdf lib/state summaries/new iersev state wetland program summary 090415.pdf.
401 N.J. Rev. Stat, sections 13:9A-1 etseq.
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Table 39. New Jersey Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Freshwater wetlands (only). New Jersey administers
state permitting authority for tidal wetlands. The COE
administers the 404 program in tidal wetlands.
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Developing wetland WQS (as of 2015)
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only
Source: ASWM (2015) Status and Trends Report; New Jersey DEP, email, March 9, 2018
36. NEW MEXICO
Definition of Waters of the State:
• All water, including water situated wholly or partly within or bordering upon the state,
whether surface or subsurface, public or private, except private waters that do not
combine with other surface or subsurface water.402
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or ground water at a frequency and
duration sufficient to support, and under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions in New Mexico.
Wetlands that are constructed outside of a surface water of the state for the purpose of
providing wastewater treatment and that do not impound a surface water of the state are
not included in this definition.403
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• The New Mexico Environment Department has a Surface Water Quality Bureau with a
mission to preserve, protect, and improve New Mexico's surface water quality for present
and future generations. In support of this mission, the Surface Water Quality Bureau is
comprised of three sections:
o The Monitoring, Assessment and Standards Section is responsible for (1)
collecting surface water quality data for all lakes, streams, and rivers in the State
of New Mexico; (2) reviewing and/or developing WQS for surface waters,
including the Triennial Review of WQS; (3) revising the state's listing
methodology for assessment and incorporating assessment results into the CWA
section303(d)/section305(b) Integrated Report; and, (4) developing TMDL or Use
Attainability Analysis (UAA) documents for waterbodies not meeting standards,
o The Point Source Regulation Section is responsible for the protection of surface
water quality through implementation of Ground and Surface Water Protection
Regulations dealing with point source discharges, NPDES permitting, and spill
402 N.M. Stat, section 74-6-2.
403 N.M. CodeR. section 20.6.4.7.W(4).
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reporting. This section also assists the USEPA with implementation of the
NPDES program by conducting inspections, and reviewing and certifying federal
permits through CWA section 401.
o The Watershed Protection Section administers three programs. The Nonpoint
Source Program supports surface and ground water quality protection and
restoration as well as education and outreach. The Wetlands Program maps,
monitors, and restores wetlands, and also collects data for future development of
wetland-specific WQS. The River Stewardship Program is a state-funded effort
focused on improving water quality and stream habitat statewide.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 6 in coordination with the state of New
Mexico.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal. State also has specific aboveground
storage tanks regulations that apply to tanks that are 1,320 gallons or more, and less than
55,000 gallons. Requirements include registration, design, construction and installation
standards, release detection, record-keeping and financial responsibility.404
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.405
401 Certification:
• The state has authority to certify, conditionally certify, waive review or deny certification
of federal permits and licenses. Without certification or waiver the federal agency cannot
issue the permit or license.
402 NPDES Program:
• New Mexico is not authorized to run a state NPDES program.406
• EPA issues all NPDES permits in New Mexico.407
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not have a state dredged and fill program for waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 40. New Mexico Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Informal no net loss goal stated in the NMED
Wetlands Program Plan
404 N.M. Code R. section 20.5.
405 N.M. Stat, sections 74-4-7, 74-4-8, 74-4-10.
406 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
407 EPA, New Mexico NPDES Permits, available at https://www.epa.gov/npdes-permits/new-mexico-npdes-permits.
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State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS for surface waters to wetlands
(not wetland-specific). Developing wetland-specific
WQS under CWA 104(b)(3) wetlands program.
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only; State is
working toward a rotating basin schedule for
wetlands, still conducting baseline mapping.
M&A included in NMED's 2016 10-year Monitoring
and Assessment Strategy
Source: ASWM (2015) Status and Trends Report; New Mexico Environment Department, email, March 21, 2018
37. NEW YORK
Definition of Waters of the State:
• Includes lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers,
streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial
limits of the state of New York and all other bodies of surface or underground water,
natural or artificial, inland or coastal, fresh or salt, public or private (except those private
waters which do not combine or effect a junction with natural surface or underground
waters), which are wholly or partially within or bordering the state or within its
jurisdiction.408
Definitions of Wetlands:
• Freshwater wetlands: lands and waters of the state as shown on the freshwater wetlands
map which contain any or all of the following: (a) lands and submerged lands commonly
called marshes, swamps, sloughs, bogs, and flats supporting aquatic or semi-aquatic
vegetation409; (b) lands and submerged lands containing remnants of any vegetation that
is not aquatic or semi-aquatic that has died because of wet conditions over a sufficiently
long period, provided that such wet conditions do not exceed a maximum seasonal water
depth of six feet and provided further that such conditions can be expected to persist
indefinitely, barring human intervention; (c) lands and waters substantially enclosed by
aquatic or semi-aquatic vegetation as set forth in paragraph (a) or by dead vegetation as
set forth in paragraph (b) the regulation of which is necessary to protect and preserve the
aquatic and semi-aquatic vegetation as set forth in paragraph (a) or by dead vegetation as
set forth in paragraph (b) the regulation of which is necessary to protect and preserve the
aquatic and semi-aquatic vegetation; and (d) the waters overlying the areas set forth in (a)
and (b) and the lands underlying (c).410
• Tidal wetlands: shall mean and include the following: (a) those areas which border on or
lie beneath tidal waters, such as, but not limited to, banks, bogs, salt marsh, swamps,
4°8 n y. Env. Law section 17-0105(2).
409 Definition includes descriptions of eight types of vegetation (wetland trees; wetland shrubs; emergent vegetation; rooted,
floating-leaved vegetation; free-floating vegetation; wet meadow vegetation; bog mat vegetation; and submergent vegetation)
410 N.Y. Env. Law section 24-0107(1).
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meadows, flats or other low lands subject to tidal action, including those areas now or
formerly connected to tidal waters; (b) all banks, bogs, meadows, flats and tidal marsh
subject to such tides, and upon which grow or may grow some or any specific
vegetation.411
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Protection of Waters Act412
• Freshwater Wetlands Act413
• Tidal Wetlands Act414
• New York Water Resource Law415
• New York has adopted a federally-approved Coastal Management Program pursuant to
the federal Coastal Zone Management Act (16 U.S.C. section 1451 et seq.).
o The Coastal Management Program contains 44 statewide coastal policies, a
Regional Coastal Management Plan (Long Island) with 13 regional coastal
policies, and 68 Local Waterfront Revitalization Programs containing locally-
refined versions of the state enforceable coastal policies,
o The state enforceable coastal policies fall into the following broad categories:
development, fish and wildlife, flooding and erosion hazards, general, public
access, recreation, historic and scenic resources, agricultural lands, energy and ice
management, water and air resources, and wetlands.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 2 in coordination with the state of New
York.
• State has established specific requirements for facilities with aboveground storage tanks,
with a combined storage capacity of more than 1,100 gallons. Technical requirements
include tank registration (every five years), secondary containment, comprehensive
inspections, and cathodic protection.416
• Additional requirements apply to oil storage facilities with capacities of 400,000 gallons
or more, including fees, operating licenses, and implementation of a spill prevention
plan.417
411 N.Y. Env. Law section 25-0103(1). Definition includes descriptions of ten types of vegetation (salt hay, black grass, saltworts,
sea lavender, tall cordgrass, hightide bush, cattails, groundsel, marsh mallow, and low marsh cordgrass).
412 N.Y. Env. Law article 15.
413 N.Y. Env. Law article 24.
414 N.Y. Env. Law article 25.
415 N.Y. Env. Law article 15.
416 N.Y. Env. Law sections 17-1001 etseq.
417 N.Y. Nav. Law article 12.
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• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.418
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of New York. The state
issues its permits through the New York Department of Environmental Conservation.
New York has an authorized state NPDES permit program, general permits program, and
is authorized to regulate federal facilities. New York does not have an authorized
biosolids or state pretreatment program.419
• EPA issues all NPDES permits on tribal lands and for some federal facilities.420
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
Issues state permits for dredged and fill activities in waters and wetlands.421
Table 41. New York Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
Does not include all wetlands
404 Assumption
X
Isolated Wetland Permitting
X
Some mapped/regulated DEC wetlands are isolated
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only
Source: ASWM (2015) Status and Trends Report; New York DEC, email, March 20, 2018
38. NORTH CAROLINA
Definition of Waters of the State:
• Any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir,
waterway, or other body or accumulation of water, whether surface or underground,
public or private, or natural or artificial, that is contained in, flows through, or borders
418 N.Y. Nav. Law sections 171, 189.
419 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
420 EPA, New York NPDES Permits, available at https://www.epa.gov/npdes-permits/new-vork-npdes-permits.
421 N.Y. Env. Law sections 24-0101 et seq., 25-0101 et seq., 15-0505. New York uses a size limitation for regulating activities in
freshwater wetlands (limitation of 12.4 acres) with two exceptions: wetlands having unusual local importance and wetlands in
Adirondack Park. N.Y. Env. Law section 24-0301.
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upon any portion of this State, including any portion of the Atlantic Ocean over which the
State has jurisdiction.422
Definition of Wetlands:
• Areas that are inundated or saturated by an accumulation of 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.
Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands classified
as waters of the state are restricted to waters of the United States as defined by 33 CFR
328.3 and 40 CFR 230.3.423
Additional State Conditions and Requirements:
• Subject to certain exceptions, North Carolina agencies that implement and enforce
environmental laws may not adopt a rule for protection of the environment or natural
resources that imposes a more restrictive standard, limitation, or requirement than those
imposed by federal law or rule, if a federal law or rule pertaining to the same subject
matter has been adopted. The exceptions, which are narrow, include where adoption of a
more restrictive rule would be required by a serious and unforeseen threat to the public
health, safety, or welfare.424
• Wetlands classified as waters of the state are restricted to waters of the United States as
defined by 33 CFR 328.3 and 40 CFR 230.3.425
State Programs:
• Coastal Area Management Act426
o Coastal wetlands are regulated within areas of environmental concern.
• Riparian Area Buffer Rules427
o Buffers provided for intermittent or perennial streams, lakes, ponds, and estuaries;
no buffers provided for ditches, ephemeral streams, or wetlands.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 4 in coordination with the state of
North Carolina.
• State regulates aboveground storage tanks at oil terminal facilities only, having a capacity
of 21,000 gallons or higher (excluding retail gasoline operations). Facilities are required
422 N.C. Gen. Stat. 143-212(6).
423 15AN.C. Admin. Code 02B.0202.
424 N.C. Gen. Stat, section 150B-19.3.
425 15AN.C. Admin. Code 02B .0202.
426 N.C. Gen. Stat, section 113A-100.
427 1 5 N.C. Admin. Code 02B.0233, 02B.0250, 02B.0259.
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to must register with the state and provide a site plan and description of procedures for
the prevention of oil spills.428
• Aboveground storage tanks are also covered by the NC Carolina Fire Code (following
NFPA Standard 30 and 3OA), administered by the State Fire Marshal.429
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.430
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of North Carolina. The
state issues its permits through the North Carolina Department of Environmental Quality.
North Carolina has an authorized state NPDES permit program, state pretreatment
program, general permits program, and is authorized to regulate federal facilities. North
Carolina does not have an authorized biosolids program.431
• EPA issues all NPDES permits on tribal lands.432
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and for wetlands.433
Table 42. North Carolina Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland-specific WQS
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only
Source, in part: ASWM (2015) Status and Trends Report
39. NORTH DAKOTA
Definition of Waters of the State:
428 N.C. Gen. Stat, sections 143-215.95 etseq.
429 NC DEQ, Underground Storage Tank Section, available at http://portal.ncdenr.org/web/wm/ust/otfmain.
430 N.C. Gen. Stat, sections 143-215.87, 143-215.88,143-215.88A, 143-215.90, 143-215.93.
431 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
432 EPA, North Carolina NPDES Permits, available at https://www.epa.gov/npdes-permits/north-carolina-npdes-permits.
433 N.C. Gen. Stat, sections 113-229, 113A-100 etseq:, 15AN.C. Admin. Code2H .1300.
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• All waters within the limits of the state from the following sources of water supply:
waters on the surface of the earth excluding diffused surface waters but including surface
waters whether flowing in well-defined channels or flowing through lakes, ponds, or
marshes which constitute integral parts of a stream system, or waters in lakes; waters
under the surface of the earth whether such waters flow in defined subterranean channels
or are diffused percolating underground water; all residual waters resulting from
beneficial use, and all waters artificially drained; and all waters, excluding privately
owned waters, in areas determined by the state engineer to be noncontributing drainage
areas. A noncontributing drainage area is any area that does not contribute natural
flowing surface water to a natural stream or watercourse at an average frequency more
often than once in three years over the latest 30-year period.434
Definition of Wetlands:
• A natural depressional area that is capable of holding shallow, temporary, intermittent, or
permanent water. It does not include sheetwater.435
Additional State Conditions and Requirements:
• The state department of health may only adopt rules more stringent than federal
regulations if, after a public hearing, a written finding is made that federal regulations are
not adequate to protect public health and the environment of the state; this law applies to
rules adopted pursuant to a number of federal laws including the CWA.436
State Programs:
• None identified.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 8 in coordination with the state of
North Dakota.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal. All owners or operators of aboveground
petroleum storage tanks are required to register tanks with the state and pay an annual
registration fee for each tank.437
• State code authorizes cost recovery for spills; state has a spill trust fund (Petroleum Tank
Release Compensation Fund; covers registered tanks).438
401 Certification:
434 N.D. Cent. Code section 61-01-01.
435 N.D. Cent. Code section 61-31-02 (7).
436 N.D. Cent. Code section 23-01-04.1.
437 See North Dakota Attorney General, Above Ground Storage of Liquid Fuels, available at
https://attornevgeneral.nd.gov/public-safetv/above-ground-storage-liauid-fuels.
438 N.D. Cent. Code, sections 23-20.3-05.1,23-20.3-09, 23-31-01,23-37-12.
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• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of North Dakota. The
state issues its permits through the North Dakota Department of Health. North Dakota has
an authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. North Dakota does not have an
authorized biosolids program.439
• EPA issues all NPDES permits on tribal lands.440
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 43. North Dakota Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only
Source: ASWM (2015) Status and Trends Report
40. OHIO
Definition of Waters of the State:
• All streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation
systems, drainage systems, and other bodies or accumulations of water, surface and
underground, natural or artificial, regardless of the depth of the strata in which
underground water is located, that are situated wholly or partly within or border upon this
state or are within its jurisdiction.441
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or ground water at a frequency and
duration that are sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands
439 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
440 EPA, North Dakota NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/north-dakota-npdes-permits.
441 Ohio Rev. Code section 1501.30(A)(6).
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includes swamps, marshes, bogs, and similar areas that are delineated in accordance with
the 1987 United States army corps of engineers wetland delineation manual and any other
procedures and requirements adopted by the United States army corps of engineers for
delineating wetlands.442
Additional State Conditions and Requirements:
• Prior to adopting any rule relating to environmental protection, state agencies must take
steps involving a cost-benefits analysis and technological feasibility of the rule; the
agency must submit information to the joint committee on agency rule review.443
State Programs:
• Isolated Wetlands Law444
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 5 in coordination with the state of
Ohio.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks (as Ohio Fire Code) administered by the State Fire Marshal. Permits are required to
install, remove, repair or modify tanks.445
• State code authorizes cost recovery for spills; state has a spill trust fund for use by the
state to investigate and respond to spills.446
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Ohio. The state
issues its permits through the Ohio Environmental Protection Agency. Ohio has an
authorized state NPDES permit program, state pretreatment program, general permits
program, biosolids program, and is authorized to regulate federal facilities.447
• EPA issues all NPDES permits on tribal lands.448
404 Dredged and Fill Permitting:
442 Ohio Rev. Code section 6111,02(P).
443 Ohio Rev. Code section 121.39.
444 Ohio Admin. Code 3745-1-50.
445 Ohio Admin. Code 1301:7-7-01 etseq.
446 Ohio Rev. Code sections 3745.12-.13.
447 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
448 EPA, Ohio NPDES Permits, available at https://www.epa.gov/npdes-permits/ohio-npdes-permits.
Resource and Programmatic Assessment for the Proposed Rule
143
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• Has not assumed the 404 program.449
• Issues state permits for dredged and fill activities in isolated wetlands.450
• Relies on federal permitting authority and CWA section 401.
Table 44. Ohio Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
Isolated Wetlands Only
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland-specific WQS
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report; Ohio EPA, email, March 5, 2018
41. OKLAHOMA
Definition of Waters of the State:
• All streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation
systems, drainage systems, storm sewers, and all other bodies or accumulations of water,
surface and underground, natural or artificial, public or private, which are contained
within, flow through, or border upon this state or any portion thereof, and includes under
all circumstances the waters of the United States which are contained within the
boundaries of, flow through or border upon the state.451
Definition of Wetlands:
• Those lands subject to periodic or seasonal flooding by water as defined under Section
404 of the Clean Water Act and so designated by the State or Federal agency charged
with making such determination.452
Additional State Conditions and Requirements:
• Each state environmental agency, prior to adopting rules that are more stringent than
federal requirements, must prepare a statement outlining economic impacts and
environmental benefits of the rules; the statement must be submitted to the governor and
legislature.453
State Programs:
• None identified.
303 Water Quality Standards:
449 Ohio has considered assumption in 2012-2013. A 2012 attempt to amend the state statute (Ohio Revised Code) as part of an
omnibus bill was never adopted by the legislature. Another attempt in 2013 to add it to the budget bill was removed by
amendment prior to passing of the bill.
450 Ohio Rev. Code sections 6111.021 et seq.
451 Oklahoma Stat. tit. 21 A, section 1-1-201 (20).
452 Okla. Admin. Code 460:30-1-3.
453 Oklahoma Stat. tit. 21 A, section 1-1-206.
Resource and Programmatic Assessment for the Proposed Rule
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• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 6 in coordination with the state of
Oklahoma.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal.454
• Facilities with aboveground petroleum storage tanks (110 gallons or greater at retail,
public airports, marinas, and emergency generators or 2100 gallons or greater at fleet and
commercial facilities) must register tanks with Oklahoma Corporation Commission, pay
fees, and meet technical requirements related to secondary containment, overfill
protection, design, security, inspection and release reporting.455
• State code authorizes cost recovery for spills; state has a spill trust fund.456
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Oklahoma. The state
issues its permits through the Oklahoma Dept. of Environmental Quality. Oklahoma has
an authorized state NPDES permit program, state pretreatment program, general permits
program, biosolids program, and is authorized to regulate federal facilities.457
• EPA issues permits on all tribal lands.458
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
454 Okla. Admin. Code 165:26-1 etseq.
455 Id.
456 Oklahoma Stat. tit. 27A, section 2-7-129; Okla. Admin. Code 252:205-13-1,252:205-23-2.
457 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-Drogram-information.
458 EPA, Oklahoma NPDES Permits, available at https://www.epa.gov/npdes-permits/oklahoma-npdes-permits.
Resource and Programmatic Assessment for the Proposed Rule
145
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Table 45. Oklahoma Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Developing wetland WQS (as of 2015); has been on
hold due to a lack of stakeholder support, not current
priority for the state and no clear objective on how to
move forward
Wetland Monitoring & Assessment Program
X
Monitoring & Assessment/ Mapping and
Classification has been partially completed for
the state through 104(b)(3) funded projects; may
be noted as "Project-specific" similar to NM, not
yet on a rotating basin schedule.
Source: ASWM (2015) Status and Trends Report
42. OREGON
Definition of Waters of the State:
• Lakes, bays, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks,
estuaries, marshes, inlets, canals, the Pacific Ocean within the territorial limits of the
state, and all other bodies of surface or underground waters, natural or artificial, inland or
coastal, fresh or salt, public or private (except those private waters which do not combine
or effect a junction with natural surface or underground waters), which are wholly or
partially within or bordering the state or within its jurisdiction.459
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater 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.460
Additional State Conditions and Requirements:
• The Oregon Environmental Quality Commission and the Department of Environmental
Quality are prohibited from promulgating or enforcing effluent limitations upon nonpoint
source discharges of pollutants resulting from forest operations on forestlands, unless
required to do so by the federal CWA.461
• Oregon's Administrative Procedure Act sets forth the state policy that agencies are to
adopt rules that correspond with equivalent federal laws and rules, unless: (1) there is
specific statutory direction to the agency that authorizes adoption of the rule; (2) a federal
waiver authorizes the adoption of the rule; (3) local or special conditions in the state
warrant a different rule; (4) the state rule clarifies federal rules, standards, procedures, or
459 Or. Rev. Stat, section 468B.005.
460 Or. Admin. R. 340-055-0010.
461 Or. Rev. Stat, section 468B. 110(2).
Resource and Programmatic Assessment for the Proposed Rule
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requirements; (5) the state rule achieves the goals of the federal and state law with the
least impact on public and private resources; or (6) there is no corresponding federal
regulation.462
State Programs:
• Removal-Fill Law463
o Operated under the Oregon Department of State Lands and requires a permit
before an applicant may remove or fill 50 cubic yards or more of material in any
waters of the state (except in designated essential salmonid habitat and state
designated scenic waterways, where the 50 cubic yard exemption doesn't apply).
• Wetlands Mitigation Bank464
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 10 in coordination with the state of
Oregon.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal and local fire departments (OR Fire Code).
OR Department of Environmental Quality enforces requirements for facilities with
aboveground storage tanks with capacities of 10,000 gal or greater where petroleum oil is
received from pipelines or vessels.465
• State also has worst case spill contingency plan requirements for oil storage facilities.
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund (Oil Spillage Control Fund) for use by the state for activities, such as reviewing
contingency plans and carrying out cleanup activities.466
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Oregon. The state
issues its permits through the Oregon Department of Environmental Quality. Oregon has
an authorized state NPDES permit program, state pretreatment program, general permits
program, and is authorized to regulate federal facilities. Oregon does not have an
authorized biosolids program.467
462 Or. Rev. Stat, section 183.332.
463 Or. Rev. Stat, sections 196.800 et seq.
464 Or. Rev. Stat, sections 196.600 et seq.
465 Or. Admin. R. 837-040-0010 et seq.
466 Or. Rev. Stat, sections 468B.45, 468B.310, 468B.320,468B.455.
467 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
Resource and Programmatic Assessment for the Proposed Rule
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• EPA issues permits on all tribal lands and in federal waters off the coast.468
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.469
Table 46. Oregon Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Currently working towards assumption (as of 2017)
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Wetland Monitoring and Assessment is a multi-
agency effort.
Source: ASWM (2015) Status and Trends Report
43. PENNSYLVANIA
Definition of Waters of the State:
• Includes any and all rivers, streams, creeks, rivulets, impoundments, ditches, water
courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or
channels of conveyance of surface or underground water, or parts thereof, whether
natural or artificial, within or on the boundaries of this Commonwealth.470
Definition of Wetlands:
• Areas that are inundated or saturated by surface water or groundwater 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, including
swamps, marshes, bogs and similar areas.471
Additional State Conditions and Requirements:
• State agencies may not exceed federal standards unless justified by a compelling and
articulable interest or required by state law.472
State Programs:
• The Clean Streams Law473
• Dam Safety and Encroachments Act474
468 Oregon NPDES Permits, available at https://www.epa.gov/npdes-permits/oregon-npdes-permits.
469 Or. Rev. Stat, sections 196.800 etseq:, Or. Admin. R. 660-015-0010.
470 35 Pa. Cons. Stat, section 691.1.
471 Id.
472 Pa. Exec. Order No. 1996-1 (Feb. 6, 1996); 4 Pa. Code section 1.371(5).
473 35 Pa. Cons. Stat, sections 691.1 etseq.
474 32 Pa. Cons. Stat, sections 693.1 etseq.; 25 Pa. Code Chapter 105.
Resource and Programmatic Assessment for the Proposed Rule
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• Flood Plain Management Act475
• Stormwater Management Act476
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 3 in coordination with the state of
Pennsylvania.
• State has specific requirements for aboveground storage tank with capacities greater than
250 gallons, including registration, permitting, inspections (for tanks >5,000 gallons) and
release reporting. Spill prevention response plans are required for facilities with
capacities greater than 21,000 gallons. Specific technical requirements for containment,
overfill prevention, corrosion protection, leak detection, and inspection/testing. Tanks
located at oil production facilities and a food-related facilities are exempted.477
• State code authorizes cost recovery for taking corrective action in response to spills; state
has a spill trust fund (Storage Tank Fund) for use by the state to operate the underground
and aboveground storage tank programs and carrying out spill cleanup activities.478
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Pennsylvania. The
state issues its permits through the Pennsylvania Department of Environmental
Protection. Pennsylvania has an authorized state NPDES permit program, general permits
program, and is authorized to regulate federal facilities. Pennsylvania does not have an
authorized biosolids or state pretreatment program.479
404 Dredged and Fill Permitting:
• Has not assumed the Section 404 program.480
Issues state permits for dredged and fill activities in waters and wetlands.481
Table 47. Pennsylvania Wetland Program Summary
YES
NO
UNCLEAR/
NOTES
UNKNOWN
475 32 Pa. Cons. Stat, sections 679.101 etseq:, 25 Pa. Code Chapter 106.
476 32 Pa. Cons. Stat, sections 680.1 etseq.
477 P.L. 169, No. 32.
478 35 Pa. Cons. Stat, sections 691.8, 691.602.
479 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
480 Implements a State Programmatic General Permit pursuant to CWA 404(e) for specifically identified activities under Section
404 of the CWA or section 10 of the Rivers and Harbors Act of 1899. The currently operative permit isPASPGP-5 (issued July
2016). 46 Pa. B. 3879; http://www.nap.usace.armv.mil/Portals/39/docs/regulatory/spgp/PASPGP-5.pdf7veF2018-01-12-111748-
487.
481 32 Pa. Cons. Stat, sections 693.1 etseq.
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"No Net Loss" Goal
X
25 Pa. Code Chapter 105 regulations include wetland
replacement criteria that requires wetlands to be
replaced at a minimum 1:1 ratio of area replacement
and a minimum 1:1 ratio of functions and values
replacement (25 Pa. Code sections 105.18a(a)(7);
105.18a(b)(7) and 105.20a).
Pennsylvania (along with, among others, Maryland,
Virginia, Delaware and West Virginia) is one of the
signatories to the Chesapeake Bay 2014 Agreement,
which includes the following outcome for wetlands
within the Chesapeake Bay watershed (which
includes portions of Pennsylvania):
"Continually increase the capacity of wetlands to
provide water quality habitat benefits throughout the
watershed. Create or re-establish 85,000 acres of
tidal and non-tidal wetlands and enhance the function
of an additional 150,000 acres of degraded wetlands
by 2025.
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
Pennsylvania defines wetlands in a such a way that
includes wetlands that might be considered isolated
under federal law, including exceptional value and
other wetlands; Pennsylvania has separate state
permitting requirements for exceptional value
wetlands (25 Pa. Code section 105.18a(a)) and other
wetlands (25 Pa. Code section 105.18a(b)), whether
isolated or not.
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific). Under the Wetland Program Plan, there is a
goal to develop numeric wetland-specific WQS
Monitoring & Assessment Program
X
Under PA's Wetland Program Plan (prepared in
connection with ESTP), there is a goal to develop a
long-term assessment plan
Source: ASWM (2015) Status and Trends Report; Pennsylvania DEP, email, March 22, 2018
44. PUERTO RICO
Definition of Waters of the Territory:
• All coastal waters, surface waters, estuarine waters, ground waters and wetlands as
defined in this Regulation.482
Definition of Wetlands:
• A natural area saturated by surface or ground water, at an interval or duration sufficient to
sustain, and under normal circumstances, does sustain or would sustain vegetation
typically adapted to saturated, flooded, or marshy soil conditions, which includes areas
such as swamps, marshes, coastal plains (salt flats and mud flats), open bodies of water,
salt marshes or similar areas.483
Additional Territory Conditions and Requirements:
482 Puerto Rico Rule 13 01.1.
483 12 L.P.R.A. section 5005.
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• No limitations identified.
Territory Programs:
• Protection of Puerto Rico's Drinking Water484
• Conservation, Development and Water Resources Use in PR485
• Navigation and Water Safety486
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• Territory does not have an aboveground storage tank regulatory program and relies on
EPA to directly implement federal spill prevention and preparedness regulations.
401 Certification:
• The territory has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA issues all NPDES permits within Puerto Rico.487
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Relies on federal permitting authority and CWA section 401.
Table 48. Puerto Rico Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Territory Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland Monitoring & Assessment Program
X
Source: EPA Region 2
45. RHODE ISLAND
Definition of Waters of the State:
484 12 L.P.R.A. sections 405 etseq.
485 12 L.P.R.A. sections 1115 etseq.
486 1 2 L.P.R.A. sections 1401 etseq.
487 EPA, Puerto Rico NPDES Permits, available at https://www.epa.gov/npdes-permits/puerto-rico-npdes-permits.
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• All surface waters including all waters of the territorial sea; tidewaters; all inland waters
of any river, stream, brook, pond, or lake; and wetlands, as well as all groundwaters.488
Definitions of Wetlands:
• Freshwater wetlands: Includes, but is not limited to, those areas that are inundated or
saturated by surface or groundwater at a frequency and duration to support, and that
under normal circumstances do support a prevalence of vegetation adapted for life in
saturated soil conditions. Freshwater wetlands includes, but is not limited to: marshes,
swamps, bogs, emergent, and submergent plant communities, and for the purposes of this
chapter, rivers, streams, ponds, and vernal pools.489
Coastal wetland: Any salt marsh bordering on the tidal waters of this state, whether or not
the tidal waters reach the littoral areas through natural or artificial watercourses, and
those uplands directly associated and contiguous thereto which are necessary to preserve
the integrity of that marsh. Marshes shall include those areas upon which grow one or
more of certain species.490
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Freshwater Wetlands Act491
• Coastal Resources Management Council492
o Coastal wetlands are regulated exclusively by the Coastal Resources Management
Council.
o Coastal Resources Management Council also has regulatory authority for
freshwater wetlands in the vicinity of the coast, which are designated via maps.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 1 in coordination with the state of
Rhode Island.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal.
• State also has specific requirements for aboveground storage tanks with a combined
storage capacity over 500 gallons, including overfill protection, secondary containment,
cathodic protection for tank bottoms, and inspections (routine and for tanks of 10,000
488 R.I. Gen. Laws section 46-12-1.
489 R.I. Gen. Laws section 2-1-20.
490 R.I. Gen. Laws section 46-23-6. Definition includes descriptions of seventeen types of vegetation (smooth cordgrass, salt
meadow grass, spike grass, black rush, saltworts, sea lavender, saltmarsh bulrushes, hightide bush, tall reed, tall cordgrass,
broadleaf cattail, narrowleaf cattail, spike rush, chairmaker's rush, creeping bentgrass, sweet grass, and wild rye).
491 R.I. Gen. Laws sections 2-1-18, et seq.
492 R.I. Gen. Laws sections 46-23-1, et seq.
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gallons or more, detailed inspections required within 10 years of the tank installation).
Spill Prevention and Emergency Plans are required; facilities can use federal SPCC plans
to comply.493
• State code authorizes cost recovery for spills and resource damages; state has a spill trust
fund.494
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Rhode Island. The
state issues its permits through the Rhode Island Department of Environmental
Protection. Rhode Island has an authorized state NPDES permit program, state
pretreatment program, general permits program, and is authorized to regulate federal
facilities. Rhode Island does not have an authorized biosolids program.495
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
Issues state permits for dredged and fill activities in waters and wetlands.496
Table 49. Rhode Island Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Informal "No Net Loss" goal for freshwater wetlands.
CRMC has a "no net loss" policy for coastal wetlands
as specified in CRMP Section 210.3
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
All resources which meet the definition of a wetland
are regulated by the state
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only
Source: ASWM (2015) Status and Trends Report
46. SOUTH CAROLINA
Definition of Waters of the State:
• Lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams,
creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of
493 250 R.I. Code R. 140-25-2.
494 R.I. Gen. Laws sections 46-12.5.1-6,46-12.5.1-7, 46-12.7-2.1.
495 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
496 R.I. Gen. Laws sections 2-1-18 et seq., 46-23-1 et seq.
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the State and all other bodies of surface or underground water, natural or artificial, public
or private, inland or coastal, fresh or salt, which are wholly or partially within or
bordering the State or within its jurisdiction.497
Definition of Wetlands:
• Coastal wetlands: include marshes, mudflats, and shallows and means those areas
periodically inundated by saline waters whether or not the saline waters reach the area
naturally or through artificial water courses and those areas that are normally
characterized by the prevalence of saline water vegetation capable of growth and
reproduction. Provided, however, nothing in this definition shall apply to wetland areas
that are not an integral part of an estuarine system. Further, until such time as the exact
geographic extent of this definition can be scientifically determined, the department shall
have the authority to designate its approximate geographic extent.498
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• South Carolina Pollution Control Act499
• Coastal Zone Management Act500
o Provides the state with regulatory authority for permitting in critical areas of the
coastal zone; critical areas include marshes, beaches, and coastal waters.
• Isolated Wetlands and Carolina Bays Task Force
o Made recommendations for isolated wetlands in 2013 and is non-regulatory.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 4 in coordination with the state of
South Carolina.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal. Owners must register tanks with the State
Fire Marshal's Office for review.501
• State code authorizes cost recovery for spills; state does not have a spill trust fund.502
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
497 S.C. Code Ann. section 48-1-10(2).
498 S.C. Code Ann. section 48-39-10(G).
499 S.C. Code Ann. section 48-1-10.
500 S.C. Code Ann. sections 8-39-10 et seq.
501 S.C. Code Ann. section 39^11-260.
502 S.C. Code Ann. sections 48-43-560, 48-43-610.
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402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of South Carolina. The
state issues its permits through the South Carolina Department of Health and
Environmental Control. South Carolina has an authorized state NPDES permit program,
state pretreatment program, general permits program, and is authorized to regulate federal
facilities. South Carolina does not have an authorized biosolids program.503
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in coastal waters and wetlands.504
• Relies on federal permitting authority and CWA section 401.
Table 50. South Carolina Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
In 1990, the Freshwater Wetlands Task Force report
recommended that state agencies adopt a no net loss goal
for wetland activities; however, this goal is not stated in
regulations and it is currently unclear whether or not
there are any policy directives
State Issues Permits for Dredged and Fill
Activities
X
Coastal Only
404 Assumption
X
Isolated Wetland Permitting
X
Non-federally jurisdictional wetland impacts in the eight
county coastal zone are reviewed by SC DHEC coastal
zone consistency staff, pursuant to requirements in the
S.C.C.A. 48-39-10 et. seq. and S.C. Code Regs 30-1 et.
seq., if any State permit is sought
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetlands-
specific)
Wetland Monitoring & Assessment Program
X
Conducts proiect-specific M&A only
Source: ASWM (2015) Status and Trends Report
47. SOUTH DAKOTA
Definitions of Waters of the State:
• All waters within the jurisdiction of this state, including all streams, lakes, ponds,
impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation
systems, drainage systems, and all other bodies or accumulations of water, surface and
underground, natural or artificial, public or private, situated wholly or partly within or
bordering upon the state.505
Definition of Wetlands:
• 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
503 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
504 S.C. Code Ann. sections 8-39-10 et seq.
505 S.D. Codified Laws section 34A-2-2(12).
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prevalence of vegetation typically adapted for life in saturated soil conditions including
swamps, marshes, bogs, and similar areas.506
Additional State Conditions and Requirements:
• No rule that has been promulgated pursuant to South Dakota's laws regarding
environmental protection, mining, oil, gas, and/or water may be more stringent than any
corresponding federal law, rule, or regulation.507
• Another South Dakota stringency provision governs the rules pertaining to applications
for a federal license or permit necessary to conduct an activity which may result in a
discharge into waters of the state. It prohibits the Water Management Board from
establishing rules for certification that exceed minimum federal requirements.508
State Programs:
• SD Game, Fish and Park's Shoreline Alteration Program509
• Concentrated animal feeding operations permit510
• Provides municipalities the authority to adopt ordinances to implement and enforce
wellhead protection programs.511
• Parallel to section 303 for standards.512
• Parallel to TMDLs in section 303513
• Oil spill reporting, response, and remediation514
• Parallel to section311515
• Parallel to section 402516
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 8 in coordination with the state of
South Dakota.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal.517
• State also has differentiated requirements for aboveground storage tanks for facilities
with total capacities of 250,000 gallons or less and facilities with more 250,000 gallons,
506 S.D. Admin. R. 74:51:01:01(53).
507 S.D. Codified Laws section 1-40-4.1.
508 S.D. Codified Laws 34A-2-34.
509 South Dakota Department of Game, Fish, and Parks, 2018. Application to Alter Lake shore or Bottom Lands, available at
https://apps.sd.gov/GF55AquaticsOnline/ShorelineAlteration.aspx.
510 South Dakota DENR, General Water Pollution Control Permit for Concentrated Animal Feeding Operations, available at
http://denr.sd.gov/des/fp/documents/2017GeneralPermit.pdf.
511 S.D. Codified Laws section 9-12-17.
512 S.D. Codified Laws section 34A-2-11.
513 S.D. Codified Laws section 34A-2-6.
514 S.D. Codified Laws section 34A-12.
515 S.D. Codified Laws sections 34A-2-96, 34A-18.
516 S.D. Codified Laws section 34A-2-36.
517 S.D. Codified Laws section 34A-2-100.
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including secondary containment, overfill protection, cathodic protection, and internal
C-IO
inspections.
• State code authorizes cost recovery for spills; state has a spill trust fund (Petroleum
Release Compensation Fund).519
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of South Dakota. The
state issues its permits through the South Dakota Department of Environment and Natural
Resources. South Dakota has an authorized state NPDES permit program, state
pretreatment program, general permits program, biosolids program, and is authorized to
regulate federal facilities.520
• EPA issues all NPDES permits on tribal lands.521
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 51. South Dakota Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Possibly monitors through other non-wetland
monitoring programs
Source: ASWM (2015) Status and Trends Report; South Dakota DENR, email, February 28, 2018
48. TENNESSEE
Definition of Waters of the State:
• Any and all water, public or private, on or beneath the surface of the ground, that are
contained within, flow through, or border upon Tennessee or any portion thereof, except
51sld.
519 S.D. Codified Laws sections 34A-12-3, 34A-12-12, 34A-2-53.
520 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
521 EPA, South Dakota NPDES Permits, available at https://www.epa.gov/npdes-permits/south-dakota-npdes-permits.
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those bodies of water confined to and retained within the limits of private property in
single ownership that do not combine or effect a junction with natural surface or
underground waters.522
Definition of Wetlands:
• 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. Wetlands
generally include swamps, marshes, bogs, and similar areas.523
Additional State Conditions and Requirements:
• The government operations committee reviewing an environmental protection or water
pollution control rule must recommend to the general assembly termination of any rule
that imposes on municipalities or counties environmental requirements or restrictions that
are more stringent than federal statutes or rules on the same subject and that result in
increased expenditure requirements on municipalities or counties beyond those required
to meet the federal requirements - provided that, during the public comment period, the
agency was made aware of the issue, and the increased expenditure level was specified.
The provision does not apply if the general assembly has appropriated funds to cover the
increased expenditures.524
State Programs:
• Water Quality Control Act525
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 4 in coordination with the state of
Tennessee.
• State has adopted the 2003 edition of the Uniform Fire Code (NFPA 30 and 3 OA) for
aboveground storage tanks, administered by the State Fire Marshal.526
• State code authorizes cost recovery for spills; state does not have a spill trust fund related
to aboveground storage tanks (one exists for underground storage tanks).527
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
522 Tenn. Code Ann. section 69-3-103.
523 Tenn. Comp. R. & Regs. 0400-40-07-.03.
524 Tenn. Code Ann. section 4-5-226(k).
525 Tenn. Code Ann. sections 69-3-101 etseq.
526 Tenn. Code Ann. sections 50-3-101 et seq.
527 Tenn. Code Ann. sections 68-212-114, 68-216-103.
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402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Tennessee. The state
issues its permits through the Tennessee Department of Environment and Conservation.
Tennessee has an authorized state NPDES permit program, state pretreatment program,
general permits program, and is authorized to regulate federal facilities. Tennessee does
not have an authorized biosolids program.528
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.529
Table 52. Tennessee Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
0400-40-07.04 (5)(a) & (6)(c)
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State ARAP program regulates isolated wetlands
unless they are entirely under ownership by a single
entity and are shown to have no connection with
ground water, (see def. of State waters above)
State Wetland Permitting Fees
X
WQS for Wetlands
X
Developing wetland WQS (as of 2015)
Wetland Monitoring & Assessment Program
X
Program development in progress (as of 2015)
Source: ASWM (2015) Status and Trends Report; Tennessee DEC, email, March 26, 2018
49. TEXAS
Definition of Waters of the State:
• Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs,
springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of
Mexico, inside the territorial limits of the state, and all other bodies of surface water,
natural or artificial, inland or coastal, fresh or salt, navigable or non-navigable, and
including the beds and banks of all watercourses and bodies of surface water, that are
wholly or partially inside or bordering the state or inside the jurisdiction of the state.530
Definition of Wetlands:
• An area (including a swamp, marsh, bog, prairie pothole, or similar area) having a
predominance of hydric soils that are inundated or saturated by surface or groundwater at
a frequency and duration sufficient to support and that under normal circumstances
supports the growth and regeneration of hydrophytic vegetation. The term "hydric soil"
means soil that, in its undrained condition, is saturated, flooded, or ponded long enough
during a growing season to develop an anaerobic condition that supports the growth and
regeneration of hydrophytic vegetation. The term "hydrophytic vegetation" means a plant
528 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
529 Tenn. Code Ann. section 69-3-108; Tenn. Comp. R. &Regs. 1200-4-7.
530 Tex. Water Code section 26.001(5).
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growing in: water or a substrate that is at least periodically deficient in oxygen during a
growing season as a result of excessive water content. The term "wetland" does not
include irrigated acreage used as farmland; a man-made wetland of less than one acre; or
a man-made wetland where construction or creation commenced on or after August 28,
1989, and that was not constructed with wetland creation as a stated objective, including
but not limited to an impoundment made for the purpose of soil and water conservation
that has been approved or requested by soil and water conservation districts. If this
definition of wetland conflicts with the federal definition in any manner, the federal
definition prevails.531
Additional State Conditions and Requirements:
• The Texas Commission on Environmental Quality is prohibited from entering into a
memorandum of agreement or any other form of contract with or among state or federal
agencies that would impose requirements on the state with respect to administering the
water pollution control permitting program under the CWA that are "other than" or more
stringent than those "specifically set forth" in CWA section 402(b). This narrow
provision does not, on its face, prohibit Texas Commission on Environmental Quality
from enacting regulatory requirements that are more stringent than federal law; rather, it
prohibits Texas Commission on Environmental Quality from imposing stricter
requirements by way of inter-agency agreements.532
State Programs:
• Wastewater facilities that dispose of treated effluent by land application (surface
irrigation, evaporation, drainfields or subsurface land application) are required to obtain a
Texas Land Application Permit.
• Permits Authorizing Reuse Water System Contributions and Discharges533
• Permits Authorizing Discharges from Certain Seawater Desalination Facilities534
• General Permits for Certain Sewage Treatment and Disposal Systems535
• Parallel to section 303 for standards536
• Parallel to section 311537
• Parallel to section 402538
• Parallel to section 404539
303 Water Quality Standards:
• Has EP A-approved WQ S.540
531 30 Tex. Admin. Code section 307.3(a)(84).
532 Tex. Water Code section 26.017(5).
533 Tex. Water Code section 26.0271.
534 Tex. Water Code section 26.0272.
535 Tex. Water Code section 26.0405.
536 Tex. Water Code section 26.023-.026; 30 Tex. Admin. Code chapter 307.
537 Tex. Nat. Res. Code chapter 40; Tex. Water Code section 26.261-.267.
538 Tex. Water Code section 26.027,26.121.
539 3 0 Tex. Admin. Code chapter 279.
540 30 Tex. Admin. Code chapter 307.
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311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 6 in coordination with the state of
Texas.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal.541
• State also has specific requirements for aboveground storage tanks, including registration,
fees, installation notification, reporting, recordkeeping, release reporting and corrective
action; tanks located at petrochemical plants, petroleum refineries, electric generating
facilities, or bulk facilities are exempted.542
• State code authorizes cost recovery for spills and related damages. State no longer has a
spill trust fund; the Petroleum Storage Tank Remediation (PSTR) fund ended in 2012.543
401 Certification:
• The state has authority to certify, conditionally certify, waive review or deny certification
of federal permits and licenses. Without certification or waiver the federal agency cannot
issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Texas. The state
issues its permits through the Texas Commission on Environmental Quality. Texas has an
authorized state NPDES permit program, state pretreatment program, general permits
program, biosolids program, and is authorized to regulate federal facilities.544
• Texas is not authorized to issue permits for activities associated with the exploration,
development, or production of oil or gas or geothermal resources, including
transportation of crude oil or natural gas by pipeline. EPA is the permitting authority for
those facilities.545
• EPA issues all NPDES permits on tribal lands.546
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not have a state dredged and fill program for waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
541 30 Tex. Admin. Code chapter 334.
542 Id.
543 Tex. Nat. Res. Code sections 40.202, 40.251.
544 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
545 Id.
546 EPA, Texas NPDES Permits, available at https://www.epa.gov/npdes-permits/texas-npdes-permits.
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Table 53. Texas Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetlands are presumed to have primary contact
recreation standards, (See the 2010 TSWQS, 30 TAC
section307.4(j)(2)(A), which is the most recent version
approved by EPA.)
"Primary contact recreation is presumed for lakes,
reservoirs, and tidal water bodies. Primary contact
recreation is presumed to apply to intermittent streams,
intermittent streams with perennial pools, nontidal
wetlands, and perennial freshwater streams and rivers,
except where site-specific information indicates that
recreational activities that involve a significant risk of
ingestion have little to no likelihood of occurring, in
accordance with subparagraph (B) of this paragraph. "
Wetland Monitoring & Assessment Program
X
Possibly monitors through other non-wetland monitoring
programs
Source: ASWM (2015) Status and Trends Report; Texas CEQ, email, March 19, 2018
50. U.S. VIRGIN ISLANDS
Definition of Waters of the Territory:
• All waters within the jurisdiction of the United States Virgin Islands including all
harbors, streams, lakes, ponds, impounding reservoirs, marshes, water-courses, water-
ways, wells, springs, irrigation systems, drainage systems and all other bodies or
accumulations of water, surface and underground, natural or artificial, public or private,
situated wholly or partly within or bordering upon the United States Virgin Islands,
including the territorial seas, contiguous zones, and oceans.547
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater 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. Wetlands
generally include salt ponds, marshes, swamps, and similar areas.548
Additional Territory Conditions and Requirements:
• No limitations identified.
Territory Programs:
547 12 V.I.C. section 182(f).
548 Virgin Islands Rules and Regulations Title 12, Chapter 7, Subchapter 186, available at
https://www.epa.gov/sites/production/files/2014-12/documents/viwas.pdf.
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• None identified.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• N/A
401 Certification:
• The territory has authority to certify, conditionally certify, waive review or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the territory of the Virgin
Islands. The territory issues its permits through the Virgin Islands Department of
Conservation and Cultural Affairs. The Virgin Islands have an authorized state NPDES
permit program, general permits program, and is authorized to regulate federal facilities.
The Virgin Islands do not have an authorized biosolids or state pretreatment program.549
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues territory permits for dredged and fill activities in coastal waters and wetlands.550
• Relies on federal permitting authority and CWA section 401.
Table 54. Virgin Islands Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Territory Issues Permits for Dredged and Fill
Activities
X
Coastal Only
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland Monitoring & Assessment Program
X
Source: EPA Region 2
51. UTAH
Definition of Waters of the State:
• All streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation
systems, drainage systems, and all other bodies or accumulations of water, surface and
underground, natural or artificial, public or private, which are contained within, flow
through, or border upon this state or any portion of the state; does not include bodies of
549 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
550 1 2 V.I.C. sections 901 et seq.
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water confined to and retained within the limits of private property, and which do not
develop into or constitute a nuisance, a public health hazard, or a menace to fish or
wildlife.551
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstance do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas.552
Additional State Conditions and Requirements:
• The Utah Water Quality Board is prohibited from enacting a rule to administer any
program under the federal CWA that is more stringent than the corresponding federal
rule, except where specific conditions are satisfied. To enact a more stringent state rule,
the Board must: (1) take public comment and hold a hearing; (2) make a written finding
based on record evidence that the federal regulations are inadequate to protect public
health and the environment in Utah; and (3) issue an accompanying opinion that cites and
evaluates the public health and environmental information and studies in the record that
form the basis for the Board's conclusion.553
State Programs:
• Stream Alteration Permit Program554
o Requires any person, governmental agency, or other organization wishing to alter
the bed or banks of a natural stream to obtain written authorization from the State
Engineer prior to beginning work.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 8 in coordination with the state of Utah.
• State has adopted the Uniform Fire Code (NFPA 30 and 30A) as Utah State Fire Code for
aboveground storage tanks, administered by the State Fire Marshal for state-owned tanks
and by local fire departments for all other tanks.555
• State does not have an authorized cost recovery mechanism for spills; state does not have
a spill trust fund for aboveground storage tanks (applies to underground storage tanks
only).556
401 Certification:
551 Utah Code section 19-5-102.
552 Utah Admin. Coder. 317-8-1.5(60)
553 Utah Code section 19-5-105.
554 Utah Code section 73-3-29.
555 Utah Code section 53-7-106.
556 Utah Code section 19-5-115
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• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Utah. The state issues
its permits through the Utah Department of Environmental Quality. Utah has an
authorized state NPDES permit program, state pretreatment program, general permits
program, biosolids program, and is authorized to regulate federal facilities.557
• EPA issues permits on tribal lands.558
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 55. Utah Wetland Program Summary
YE
S
NO
UNCLEAR
/
UNKNOW
N
NOTES
"No Net Loss" Goal
X
Informal "No Net Loss" goal
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Program development in progress (as of 2015)
Source: ASWM (2015) Status and Trends Report
52. VERMONT
Definitions of Waters of the State:
• Defined under the Wetlands Protection and Water Resources Management Act: Any and
all rivers, streams, brooks, creeks, lakes, ponds or stored water, and groundwaters,
excluding municipal and farm water supplies.559
• Defined under the Water Pollution Control Act: All rivers, streams, creeks, brooks,
reservoirs, ponds, lakes, springs and all bodies of surface waters, artificial or natural,
which are contained within, flow through or border upon the state or any portion of it.560
Definition of Wetlands:
557 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
558 EPA, Utah NPDES Permits (2017) available at https://www.epa.gov/npdes-permits/utah-npdes-permits.
559 Vt. Stat. Ann. tit. 10, section 902(3).
560 Vt. Stat. Ann. tit. 10, section 1251(13).
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• Those areas of the state that are inundated by surface or groundwater with a frequency
sufficient to support significant vegetation or aquatic life that depend on saturated or
seasonally saturated soil conditions for growth and reproduction. Such areas include but
are not limited to marshes, swamps, sloughs, potholes, fens, river and lake overflows,
mud flats, bogs and ponds, but excluding such areas as grow food or crops in connection
with farming activities.561
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Wetlands Protection and Water Resources Management Act562
• Land Use and Development Act (Act 25 0)563
o Requires a land use permit prior to certain kinds of development,
o District Environmental Commissions are responsible for administering Act 250.
• Water Pollution Control Act564
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 1 in coordination with the state of
Vermont.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by the State Fire Marshal.565
• State code authorizes cost recovery for spills and related damages. State has a spill trust
fund for aboveground storage tanks (Petroleum Cleanup Fund) covering farm and
residential tanks up to $10,000. For bulk storage facilities storing motor fuel or heating
oil, the reimbursement ceiling is $990,000.566
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Vermont. The state
issues its permits through Vermont Department of Environmental Conservation. Vermont
has an authorized state NPDES permit program, state pretreatment program, and general
561 Vt. Stat. Ann. tit. 10, section 902(5).
562 Vt. Stat. Ann. tit. 10, chapter 37.
563 Vt. Stat. Ann. tit. 10, chapter 151.
564 Vt. Stat. Ann. tit. 10, chapter 47.
565 Vt. Stat. Ann. tit. 10, section 1929a, chapter 159.
566 Vt. Stat. Ann. tit. 10, sections 6612, 6615, 6615d.
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permits program. Vermont does not have an authorized biosolids program and is not
authorized to regulate federal facilities.567
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Issues state permits for dredged and fill activities in waters and wetlands.568
Table 56. Vermont Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Formal "No Net Loss" goal569
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
Some — if they meet the criteria for Class I or II
wetlands or if they are designated "significant" by the
state (for Class III wetlands).
State Wetland Permitting Fees
X
WQS for Wetlands
X
Developing wetland WQS (as of 2015)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report
53. VIRGINIA
Definition of Waters of the State:
• All water, on the surface and under the ground, wholly or partially within or bordering
the Commonwealth or within its jurisdiction, including wetlands.570
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater 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. Wetlands
generally include swamps, marshes, bogs and similar areas. 571
Additional State Conditions and Requirements:
• Virginia imposes a state limitation on sewage systems that may be no more stringent than
the CWA. The State Water Control Board may not require the state or any of its political
subdivisions to upgrade the level of treatment in a sewage treatment works to a level
more stringent than that required by applicable provisions of the federal CWA.572
• When the Virginia State Water Control Board proposes a standard or policy to be adopted
by regulation under the Water Control Law that contains provisions that are "more
561 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
568 Vt. Code R. 12 004 056; Vt. Stat. Ann., tit. 10, section 6081.
569 Policy as stated in the Vermont Wetland Rules, Sec. 1.1 Purpose and Authority: "It is the policy of the State of Vermont to
identify and protect significant wetlands and the values and functions which they serve in such a manner that the goal of no net
loss of such wetlands and their functions is achieved." The no net loss policy is also in state statute.
570 Va. Code Ann. section 62.1-44.3.
571 Va. Code Ann. section 62.1-44.3.
572 Va. Code Ann. section 62.1-44.15:1.
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restrictive than applicable federal requirements," the Board must provide to the proper
standing committee of each house of the state legislature a description of those provisions
and the reason why they are needed.573
• When the Board adopts WQS, it is required to adopt them "according to applicable
federal criteria or standards," unless the Board determines that "an additional or more
stringent standard" is necessary to protect public health, aquatic life, or drinking water
supplies.574
State Programs:
• Virginia Tidal Wetlands Act575
• Chesapeake Bay Preservation Act576
• State Water Control Law577
o Virginia Water Protection Permit Program578
¦ Serves as the states 401 program authority for tidal and non-tidal wetland
impacts permitted under CWA 404
o Covers activities in isolated wetlands that are not covered by CWA 404
jurisdiction.
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 3 in coordination with the state of
Virginia.
• State has a comprehensive oil spill prevention and preparedness program administered by
the Virginia Department of Environmental Quality; the Virginia Aboveground Storage
Tank Program requires registration, notification, and closure of tanks for owners of
facilities with aggregate aboveground storage capacity of more than 1,320 gallons of oil
or an operator of an individual tank with a storage capacity of more than 660 gallons.
• Facilities with aggregate storage of 25,000 gallons or more of oil are required to develop
an Oil Discharge Contingency Plan and comply with pollution prevention standards and
procedures (e.g., inventory control, inspections, secondary containment, cathodic
protection, training, leak detection and financial responsibility requirements).
• Facilities with 1 million gallons or more must comply with additional prevention
standards and have a Groundwater Characterization Study to monitor the groundwater.
• State code authorizes cost recovery for spills and related damages. State has a spill trust
fund (Petroleum Storage Tank Reimbursement Fund) covering releases from
underground and aboveground storage tanks.
573 Va. Code Ann. section 62.1-44.15(3a), (10).
574 Va. Code Ann. section 62.1-44.19:7(B).
575 Va. Code Ann. section 28.2-13.
576 Va. Code Ann. section 62.1-44.15:67 et seq.
577 Va. Code Ann. section 62.1-3.1.
578 9 Va. Admin. Code section 25-210.
Resource and Programmatic Assessment for the Proposed Rule
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401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Virginia. The state
issues its permits through the Virginia Department of Environmental Quality. Virginia
has an authorized state NPDES permit program, state pretreatment program, general
permits program, and is authorized to regulate federal facilities. Virginia does not have an
authorized biosolids program.579
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.580
• Issues state permits for dredged and fill activities in waters and wetlands.581
Table 57. Virginia Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Virginia (along with, among others, Maryland,
Pennsylvania, Delaware and West Virginia) is one of
the signatories to the Chesapeake Bay 2014 Agreement,
which includes the following outcome for wetlands
within the Chesapeake Bay watershed (which includes
portions of Virginia):
"Continually increase the capacity of wetlands to
provide water quality habitat benefits throughout the
watershed. Create or re-establish 85,000 acres of tidal
and non-tidal wetlands and enhance the function of an
additional 150,000 acres of degraded wetlands by 2025
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Has explored in the past (most recently in 2006 and
2012) and decided not to seek assumption
Isolated Wetland Permitting
X
Applies existing Virginia Water Protection (VWP)
Permit requirements
Virginia also implements Wetland Excavation
Permitting, through existing VWP Permit requirements
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report; Virginia DEQ, email, March 19, 2018
54. WASHINGTON
Definition of Waters of the State:
579 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
580 Implements a State Programmatic General Permit pursuant to CWA 404(e) for specifically identified activities. The currently
operative permit is 17-SPGP-01 (effective June 29,2017).
581 Va. Code Ann. sections 28.2-1300 et seq., 62.1-44.5, 62.1-44.15; 9 Va. Admin. Code sections 25-210-10 et seq.
Resource and Programmatic Assessment for the Proposed Rule
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• Lakes, rivers, ponds, streams, inland waters, underground water, salt waters, and all other
surface waters and watercourses within the jurisdiction of the state of Washington.582
Definition of Wetlands:
• Areas that are inundated or saturated by surface water or groundwater 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. Wetlands
generally include swamps, marshes, bogs, and similar areas. Wetlands do not include
those artificial wetlands intentionally created from non-wetland sites, including, but not
limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities,
wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands
created after July 1, 1990 that were unintentionally created as a result of the construction
of a road, street, or highway. Wetlands may include those artificial wetlands intentionally
created from non-wetland areas created to mitigate conversion of wetlands.583
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Water Pollution Control Act584
o The Water Pollution Control Act, the Growth Management Act, and the Shoreline
Management Act give state and local jurisdictions authority to regulate wetlands.
o These state laws provide broader wetlands protections than the federal regulations
and consider impacts to wetlands outside federal regulations like isolated
wetlands, prior-converted cropland, and irrigation-influenced wetlands.
• Growth Management Act585
o Gives local jurisdictions the authority and responsibility to develop critical areas
ordinances for wetlands and other sensitive areas protection.
• Shoreline Management Act586
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 10 in coordination with the state of
Washington.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks, administered by local fire departments. If a facility transfers oil to or from a tank
vessel, such as a barge or oil tanker, or to or from a pipeline, then it is subject to
582 Wash. Rev. Code section 90.48.020.
583 Wash. Rev. Code section 36.70a.030(23).
584 Wash. Rev. Code section 90.48.
585 Wash. Rev. Code section 36.70A.
586 Wash. Rev. Code section 90.58.
Resource and Programmatic Assessment for the Proposed Rule
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Washington State's Contingency Planning and Facility Oil Handling Standards
regulations.587
• State code authorizes cost recovery for spills and related damages. State has a spill trust
fund; requires state to pursue funding from responsible party and federal sources (e.g.,
Oil Spill Liability Trust Fund) before using fund.588
401 Certification:
• The state has authority to certify, conditionally certify, waive review or deny certification
of federal permits and licenses. Without certification or waiver the federal agency cannot
issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Washington. The
state issues its permits through the Washington Department of Ecology. Washington has
an authorized state NPDES permit program, state pretreatment program, and general
permits program. Washington does not have an authorized biosolids program and is not
authorized to regulate federal facilities.589
• EPA issues permits for federally-owned facilities and for tribal lands.590
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
Issues state permits for dredged and fill activities in waters and wetlands.591
Table 58. Washington Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
In addition, has a formal "Net Gain/Increase" goal,
along with a Mitigation Banking rule
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State has authority to address permitting for isolated
waters through writing administrative orders
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific); there are narrative criteria and an
antidegradation clause specific to wetlands
Wetland Monitoring & Assessment Program
X
Program development in progress (as of 2015);
Have an active interagency M&A team that meets
monthly
Source: ASWM (2015) Status and Trends Report; State of Washington
55. WEST VIRGINIA
Definition of Waters of the State:
587 Wash. Admin. Code chapters 173-182,173-180.
588 Wash. Rev. Code sections 90.56.330, 90.56.360, 90.56.500.
589 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
590 EPA, Washington NPDES Permits, available at https://www.epa.gov/npdes-permits/washington-npdes-permits .
591 Wash. Rev. Code chapters 77.55, 90.58.
Resource and Programmatic Assessment for the Proposed Rule
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• Any and all water on or beneath the surface of the ground, whether percolating, standing,
diffused or flowing, wholly or partially within this state, or bordering this state and within
its jurisdiction, and includes, without limiting the generality of the foregoing, natural or
artificial lakes, rivers, streams, creeks, branches, brooks, ponds (except farm ponds,
industrial settling basins and ponds and water treatment facilities), impounding
reservoirs, springs, wells, watercourses and wetlands.592
Definition of Wetlands:
• Those areas that are inundated or saturated by surface or groundwater 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. Wetlands
generally include swamps, marshes, bogs, and similar areas.593
Additional State Conditions and Requirements:
• No legislative rule or program of the state department of environmental protection may
be more stringent than any federal rule or program except to the limited extent that the
agency first makes a written finding that there exists scientifically supportable evidence
for such a rule or program reflecting factors unique to the state.594
• With certain exceptions, rules promulgated by the state department of environmental
protection may include provisions which are more stringent than federal rules, provided
the agency supplies information that demonstrates that such provisions are reasonably
necessary to protect, preserve or enhance the quality of the environment, human health,
or safety.595
State Programs:
• West Virginia Water Pollution Control Act596
o West Virginia Department of Environmental Protection uses a case by case basis
to allow filling of isolated waters and wetlands based on WQS (even with non-
jurisdictional waters).597
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 3 in coordination with the state of West
Virginia.
592 W.Va. Code section 22-11-3(23).
593 W.Va. CodeR. section 47-10-2.58.
594 W. Va. Code section 22-5-4.
595 W. Va. Code section 22-1-3a.
596 W. Va. Code section 22-11.
597 ELI, 2013. State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope
of the Federal Clean Water Act, available at https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf (citation to personal
communication')
Resource and Programmatic Assessment for the Proposed Rule
172
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• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks.598
• State also has developed comprehensive aboveground storage tank requirements,
including registration, release reporting requirements, submission of a Spill Prevention
and Response Plan, inspection of secondary containment by a professional engineer or
certified tank inspector, and financial responsibility requirements.599
• State code authorizes cost recovery for spills and related damages. State has a spill trust
fund for releases from aboveground storage tanks (Protect Our Water Fund).600
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of West Virginia. The
state issues its permits through the West Virginia Department of Environmental
Protection. West Virginia has an authorized state NPDES permit program, state
pretreatment program, general permits program, and is authorized to regulate federal
facilities. West Virginia does not have an authorized biosolids program.601
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
598 W. Va. Code sections 22-30,22-31.
S99Id.
600 W. Va. Code § 22-11-22,22-11-25,22-11-29, 22-19-2.
601 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
Resource and Programmatic Assessment for the Proposed Rule December 18, 2018
173
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Table 59. West Virginia Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
Informal "No Net Loss" goal; in lieu fee program
premised on a goal of no net loss
West Virginia (along with, among others, Maryland,
Virginia, Delaware and Pennsylvania) is one of the
signatories to the Chesapeake Bay 2014 Agreement,
which includes the following outcome for wetlands
within the Chesapeake Bay watershed (which includes
portions of West Virginia):
"Continually increase the capacity of wetlands to
provide water quality habitat benefits throughout the
watershed. Create or re-establish 85,000 acres of tidal
and non-tidal wetlands and enhance the function of an
additional 150,000 acres of degraded wetlands by 2025
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
On a case-by-case basis
State Wetland Permitting Fees
X
No State Dredged and Fill Program - Fees would be the
fees applicable under State Water Control Law
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Program development in progress (as of 2015);
assessment methodology (West Virginia Stream and
Wetland Valuation Metric) developed
Source: ASWM (2015) Status and Trends Report
56. WISCONSIN
Definition of Waters of the State:
• Those portions of Lake Michigan and Lake Superior within the boundaries of this state,
and all lakes, bays, rivers, streams, springs, ponds, well, impounding reservoirs, marshes,
watercourses, drainage systems, and other surface water or groundwater, natural or
artificial, public or private, within this state or its jurisdiction.602
Definition of Wetlands:
• An area where water is at, near or above the land surface long enough to be capable of
supporting aquatic or hydrophytic vegetation and which has soils indicative of wet
conditions.603
Additional State Conditions and Requirements:
• The Wisconsin Department of Natural Resources is required to comply with and not
exceed the requirements of the federal CWA and federal regulations in promulgating
pollution discharge elimination rules, as those rules relate to: point source discharges,
effluent limitations, municipal monitoring requirements, standards of performance for
new sources, toxic effluent standards or prohibitions, and pretreatment standards.604
602 Wis. Stat. Ann. section 281.01(18).
603 Wis. Stat. Ann. section 23.32(1).
604 Wis. Stat. Ann. section 283.11(2).
Resource and Programmatic Assessment for the Proposed Rule
174
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• If the Department of Natural Resources seeks to adopt an environmental quality standard
more restrictive than a standard provided under corresponding federal law or regulation,
the department must advise the board why the more restrictive standard is needed to
protect public health, safety or the environment.605
State Programs:
• W etl and Regul atory Program 606
• Water Quality Certification607
• Physical Alterations of Waterways608
• Shoreland Zoning, Shoreland Wetland Zoning and Floodplain Zoning609
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 5 in coordination with the state of
Wisconsin.
• State has adopted the Uniform Fire Code (NFPA 30 and 3OA) for aboveground storage
tanks.610
• State (Department of Agriculture, Trade and Consumer Protection) regulates all
aboveground storage tanks with a capacity of 110 gallons or greater and requires
approval of construction plan, registration, permitting, inspections and fees.611
• State code authorizes cost recovery for spills and related damages. State has a spill trust
fund for releases from aboveground storage tanks (Petroleum Environmental Cleanup
Fund Act) that expires on June 30, 2020.612
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Wisconsin. The state
issues its permits through the Wisconsin Department of Natural Resources. Wisconsin
has an authorized state NPDES permit program, state pretreatment program, general
permits program, biosolids program, and is authorized to regulate federal facilities.613
605 Wise. Admin. Code NR section 1.52(3); http://www.ncsl.org/research/environment-and-natural-resources/state-agencv-
authority-to-adopt-more-stringent-environmental-standards.aspx.
606 Wis. Stat. Ann. section 281.36.
607 Wis. Stat. Ann. section 227.11 (2)(a), 281.11, 281.12(1), 283.001; Admin. Code Chapters. NR 299,102 103,106.
608 Wis. Stat. Ann. chapters 30, 31. Admin. Code chapters NR 300-353.
609 Wis. Stat. Ann. sections 144.26, 59.971, 62.63 and 61.351; Admin. Code. Chapter 115,116,117.
610 Wise. Admin. Code Comm. chapter 10.
611 Id.
612 Wis. Stat. Ann. sections 292.98-.99.
613 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
Resource and Programmatic Assessment for the Proposed Rule
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• EPA issues all NPDES permits on tribal lands.614
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.615
• Issues state permits for dredged and fill activities in waters and wetlands.616
Table 60. Wisconsin Wetland Program Summary
YES
NO
UNCLEAR/
UNKNOWN
NOTES
"No Net Loss" Goal
X
In addition, has a formal "Net Gain/Increase" policy
from WDRN
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Wetland-specific WQS
Wetland Monitoring & Assessment Program
X
Source: ASWM (2015) Status and Trends Report; Wisconsin DNR, email, March 18, 2018
57. WYOMING
Definition of Waters of the State:
• All surface and groundwater, including waters associated with wetlands, within the
state.617
Definition of Wetlands:
• Those areas in Wyoming having all three (3) essential characteristics: (A) Hydrophytic
vegetation; (B) Hydric soils; and (C) Wetland hydrology.618
Additional State Conditions and Requirements:
• No limitations identified.
State Programs:
• Notice to drain waters619
• Parallel to section 3 03.620
• Parallel to section 311.621
• Parallel to section 402.622
614 EPA, Wisconsin NPDES Permits, available at https://www.epa.gov/npdes-permits/wisconsin-npdes-permits.
615 The state has conducted multiple assumption studies in 1991, 2000 and 2014. The Department would like to pursue
assumption but lack of federal funding and jurisdictional differences are major blocks; WI LRF 4115/4110 granted WDNR
authority to pursue assumption.
616 Wise. Stat. Ann., chs. 30, 31.
617 Wyo. Stat. Ann. section 35-ll-103(c)(vi)
618 Wyo. Stat. Ann. section 35-ll-103(c)(x)
619 Wyo. Stat. Ann. section 35-11-310.
620 Wyo. Stat. Ann. section 35-1 l-302(a)(i); 020.0011.1 Wyo. CodeR.
621 Wyo. Stat. Ann. section 35-11-301, 302; 020.0011.1,020.0011.4 Wyo. CodeR.
622 Wyo. Stat. Ann. section 35-1 l-302(a)(ii), (v); 020.0011.2 Wyo. CodeR.
Resource and Programmatic Assessment for the Proposed Rule
176
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• Dredged and fill for non-CWA wetlands, parallel to section 404.623
303 Water Quality Standards:
• Has EPA-approved WQS.
311 Oil Spill Prevention, Preparedness and Response:
• The 311 program is administered by EPA Region 8 in coordination with the state of
Wyoming.
• State has adopted the Uniform Fire Code (NFPA 30 and 30A) for aboveground storage
tanks, administered by the State Fire Marshal, including plan review.
• State requires notification to Wyoming Department of Environmental Quality for
aboveground storage tanks containing gasoline and diesel fuel. State also has specific
technical requirements for aboveground storage tanks, including construction, secondary
containment, cathodic protection, overfill prevention (additional requirements for tanks >
100,000 gallons), and leak detection; for facilities with tanks of capacities of 100,000
gallons or greater, follow inspection requirements in API Standard 653.
• Facilities with storage capacities greater than 1,320 gallons required to have a federal
SPCC plan filed with the state.
• State code authorizes cost recovery for spills and related damages. State does not have a
spill trust fund.624
401 Certification:
• The state has authority to certify, conditionally certify, waive review, or deny
certification of federal permits and licenses. Without certification or waiver the federal
agency cannot issue the permit or license.
402 NPDES Program:
• EPA has delegated authority to issue NPDES permits to the state of Wyoming. The state
issues its permits through the Wyoming Department of Environmental Quality. Wyoming
has an authorized state NPDES permit program, general permits program, and is
authorized to regulate federal facilities. Wyoming does not have an authorized biosolids
or state pretreatment program.625
• EPA issues all NPDES permits on tribal lands. 626
404 Dredged and Fill Permitting:
• Has not assumed the 404 program.
• Does not issue state permits for dredged and fill activities in waters and wetlands.
• Relies on federal permitting authority and CWA section 401.
Table 61. Wyoming Wetland Program Summary
YES
NO
UNCLEAR/
NOTES
UNKNOWN
623 020.0011.2 Wyo. Code R. sections 2, 7.
624 Wyo. Stat. Ann. section 35-11-901, 903.
625 EPA, State Program Authority, available at https://www.epa.gov/npdes/npdes-state-program-information.
626 EPA, Wyoming NPDES Permits, available at https://www.epa.gov/npdes-permits/wvoming-npdes-permits.
Resource and Programmatic Assessment for the Proposed Rule
177
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"No Net Loss" Goal
X
State Issues Permits for Dredged and Fill
Activities
X
404 Assumption
X
Isolated Wetland Permitting
X
State Wetland Permitting Fees
X
WQS for Wetlands
X
Applies existing WQS to wetlands (not wetland-
specific)
Wetland Monitoring & Assessment Program
X
Conducts project-specific M&A only
Source: ASWM (2015) Status and Trends Report
Resource and Programmatic Assessment for the Proposed Rule
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Appendix C. Tribe-by-Tribe CWA Authorization
Table 62. EPA Approvals of Tribal Water Quality Standards627
Tribe
EPA
Region
Date Found
Eligible to
Administer a
WQS Program
(TAS)
Date Initial WQS
Approved by EPA
Assiniboine and Sioux Tribes of the
Fort Peck Indian Reservation (MT)
8
8/29/1996
4/25/2000
Bad River Band of Lake Superior
Chippewa (WI)
5
6/26/2009
9/21/2011
Big Pine Band of Owens Vallev (CA)
9
10/24/2005
1/18/2006
Blackfeet Tribe (MT)
8
5/2/2012
Coeur D'Alene Tribe (ID)
10
8/5/2005
6/12/2014
Confederated Salish and Kootenai
Tribes of the Flathead Reservation
(MT)
8
3/1/1995
3/18/1996
Confederated Tribes of the Chehalis
Reservation (WA)
10
3/7/1995
2/3/1997
Confederated Tribes of the Colville
Reservation (WA)
10
5/1/2018
7/6/1989
(promulgation by
EPA; tribal WQS
under
development)
Confederated Tribes of the Warm
Springs Reservation (OR)
10
5/25/1999
9/28/2001
Confederated Tribes of Umatilla (OR)
10
4/30/2001
10/18/2001
Cortina Band of Wintun Indians (CA)
9
4/7/2016
627 For the latest information on EPA approvals of tribal water quality standards, please visit:
https://www.epa.gov/was-tech/epa-approvals-tribal-water-gualitv-standards-and-contacts/.
Resource and Programmatic Assessment for the Proposed Rule
179
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Tribe
EPA
Region
Date Found
Eligible to
Administer a
WQS Program
(TAS)
Date Initial WQS
Approved by EPA
Drv Creek Rancheria Band of Porno
Indians (CA)
9
10/17/2011
Eastern Band of Cherokee Indians (NO
4
1/26/2015
Fond du Lac Band of Chippewa (MN)
5
5/16/1996
12/27/2001
Gila River Indian Communitv (AZ)
9
10/30/2018
Grand Portage Band of Chippewa (MN)
5
7/16/1996
11/2/2005
Havasupai Tribe (AZ)
9
4/26/2011
Hoopa Vallev Tribe
9
5/17/1996
9/11/2002
Hopi Tribe (AZ)
9
4/23/2008
7/8/2008
Hualapai Indian Tribe (AZ)
9
7/22/2004
9/17/2004
Kalispel Indian Communitv (WA)
10
11/4/2002
6/24/2004
Lac du Flambeau Band of Chippewa
(WI)
5
4/8/2008
9/17/2010
Lummi Tribe (WA)
10
3/5/2007
9/30/2008
Makah Indian Nation (WA)
10
12/23/2003
9/29/2006
Miccosukee Tribe (FL)
4
12/20/1994
5/25/1999
3/15/2001
(Miccosukee
Reserve Area)
Mole Lake Band of the Lake Superior
Tribe of Chippewa Indians. Sokaogon
Chippewa Communitv (WI)
5
9/29/1995
1/22/1996
Morongo Band of Mission Indians
9
4/3/2018
Navajo Nation (AZ. NM, UT)
9
1/20/2006
4/11/2006
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Tribe
EPA
Region
Date Found
Eligible to
Administer a
WQS Program
(TAS)
Date Initial WQS
Approved by EPA
Northern Chevenne (MT)
8
8/11/2006
3/21/2013
Ohkav Owingeh (NM) (formerly the
Pueblo of San Juan)
6
5/12/1993
9/16/1993
Paiute-Shoshone Indians of the Bishop
Community (CA)
9
4/11/2006
8/15/2008
Pala Band of Mission Indians (CA)
9
4/19/2016
Pawnee Nation (OK)
6
11/4/2004
Port Gamble S'Klallam (WA)
10
9/24/2003
9/27/2005
Pueblo of A com a (NM)
6
4/17/2001
4/17/2001
Pueblo of Isleta (NM)
6
10/13/1992
12/24/1992
Pueblo of Lauuna (NM)
6
12/20/2016
7/19/2017
Pueblo of Nambe (NM)
6
8/18/1995
8/18/1995
Pueblo of Picuris (NM)
6
8/7/1995
8/7/1995
Pueblo of Poioaciue (NM)
6
3/21/1996
3/21/1996
Pueblo of Sandia (NM)
6
12/24/1992
8/10/1993
Pueblo of Santa Ana (NM)
6
7/20/2015
8/31/2015
Pueblo of Santa Clara (NM)
6
7/19/1995
7/19/1995
Pueblo of Taos (NM)
6
12/8/2005
6/19/2006
Pueblo of Tesuque (NM)
6
4/29/1997
4/29/1997
Puvallup Tribe of Indians (WA)
10
5/25/1994
10/31/1994
Pyramid Lake Paiute (NV)
9
1/30/2007
12/19/2008
Ouinault Indian Nation (WA)
10
9/20/2018
Resource and Programmatic Assessment for the Proposed Rule
181
December 18, 2018
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Tribe
EPA
Region
Date Found
Eligible to
Administer a
WQS Program
(TAS)
Date Initial WQS
Approved by EPA
Rincon Band of Luiseno Indians
9
4/3/2018
Saint Regis Mohawk Tribe (NY)
2
10/16/2002
9/14/2007
Seminole Tribe (FL)
4
6/1/1994
9/26/1997 (Big
Cypress
Reservation)
11/18/1998
(Brighton
Reservation)
Shoshone-Bannock Tribes (ID)
10
9/5/2008
Southern Ute Indian Tribe (CO)
8
3/28/2018
Spokane Tribe of Indians (WA)
10
7/23/2002
4/22/2003
Swinomish Indian Tribal Communitv
(WA)
10
4/18/2008
8/25/2017
Tulalip Tribes (WA)
10
5/9/1996
Twentv-Nine Palms (CA)
9
10/26/2006
8/20/2015
Ute Mountain Ute (CO)
8
9/26/2005
10/19/2011
Walker River Paiute Tribe (NV)
9
2/29/2016
White Mountain Apache Tribe (AZ)
9
2/3/1997
9/27/2001
Resource and Programmatic Assessment for the Proposed Rule
182
December 18, 2018
-------
Appendix D. References
1. Legal References
A. Statutes
10 Guam Code Ann. chapter 45.
10 Guam Code Ann. chapter 47.
10 Guam Code Ann. chapter 48.
10 Guam Code Ann. section 46102(b).
10 Guam Code Ann. section 48106.
16 U.S.C. section 1453.
16 U.S.C. section 1801 et seq.
18 U.S.C. section 1151(a).
2 N. Mar. I. Code section 3103 et seq.
2 N. Mar. I. Code section 3311 et seq.
20 111. Comp. Stat. 830/.
20 111. Comp. Stat. 830/1-1 to 830/4-1.
20 111. Comp. Stat. 830/l-6(a).
21 Guam Code Ann. section 63101.
32 Pa. Cons. Stat, section 679.101 et seq.
32 Pa. Cons. Stat, section 693.1 et seq.
32 Pa. Cons. Stat, sections 680.1 et seq.
33
U.S.C.
1344(e).
33
U.S.C.
section
1251(b).
33
U.S.C.
section
1311(b)(1)(C)
33
U.S.C.
section
1321(b)(1).
33
U.S.C.
section
1321(b).
33
U.S.C.
section
1321 (j)(l)(C).
33
U.S.C.
section
1329(i).
33
U.S.C.
section
1341 et seq.
33
U.S.C.
section
1341(a)(1).
33
U.S.C.
section
1341(d).
33
U.S.C.
section
1342(1).
Resource and Programmatic Assessment for the Proposed Rule
183
December 18, 2018
-------
33 U.S.C. section 1342.
33 U.S.C. section 1344.
33 U.S.C. section 1362(7).
33 U.S.C. section 1362(8).
33 U.S.C. section 1377(e).
33 U.S.C. section 1377.
33 U.S.C. section 1501 et seq.
33 U.S.C. section 2701(21).
33 U.S.C. section 403.
35 Pa. Cons. Stat, section 691.1 et seq.
35 Pa. Cons. Stat, section 691.1.
35 Pa. Cons. Stat, section 691.602.
35 Pa. Cons. Stat, section 691.8.
415 111. Comp. Stat. 5/.
415 111. Comp. Stat. 5/25c-l.
415 111. Comp. Stat. 5/3.550.
415 111. Comp. Stat. 5/42.
42 U.S.C. section 9601(14).
42 U.S.C. section 9601(33).
42 U.S.C. section 9607(a)(4)(C).
42 U.S.C. section 9607(f)(1).
43 U.S.C. section 1331 et seq.
615 111. Comp. Stat. 5/.
615 111. Comp. Stat. 5/4.9 to 5/35.
Alaska Stat, section 16.05.871-874.
Alaska Stat, section 38.05.
Alaska Stat, section 46.03.758-759.
Alaska Stat, section 46.03.822.
Alaska Stat, section 46.03.824.
Alaska Stat, section 46.03.900(37).
Alaska Stat, section 46.08.005 et seq.
Alaska Stat, section 46.40.
Ariz. Rev. Stat, section 41-1052.
Resource and Programmatic Assessment for the Proposed Rule
184
December 18, 2018
-------
Ariz. Rev. Stat, section 49-104.
Ariz. Rev. Stat, section 49-201(41).
Ariz. Rev. Stat, section 49-203.
Ariz. Rev. Stat, section 49-262.
Ariz. Rev. Stat, section 49-282.
Ariz. Rev. Stat, section 49-285.
Cal. Gov't Code section 66650 et seq.
Cal. Gov't Code section 8670.46.
Cal. Gov't Code section 8670.48.
Cal. Gov't Code section 8670.56.5.
Cal. Gov't Code section 8670.66.
Cal. Gov't Code section 8670.67.
Cal. Health & Safety Code section 25270 et seq.
Cal. Pub. Res. Code section 30000 et seq.
Cal. Pub. Res. Code section 30121.
Cal. Water Code section 13000 et seq.
Cal. Water Code section 13050(e).
Clean Water Act (CWA) 33 U.S.C. (1972). Sections 401(a)(1) and 401(d).
Colo. Rev. Stat, section 25-8-103(19).
Colo. Rev. Stat, section 25-8-104.
Colo. Rev. Stat, section 25-8-202(8).
Colo. Rev. Stat, section 25-8-207.
Colo. Rev. Stat, section 25-8-501.
Colo. Rev. Stat, section 25-8-504.
Colo. Rev. Stat, section 33-5-101-107.
Colo. Rev. Stat, section 34-60-121.
Colo. Rev. Stat, section 34-60-124.
Colo. Rev. Stat, section 34-60-130.
Conn. Gen. Stat, section 22a-28 et seq.
Conn. Gen. Stat, section 22a-29.
Conn. Gen. Stat, section 22a-359 et seq.
Conn. Gen. Stat, section 22a-36 et seq.
Conn. Gen. Stat, section 22a-361.
Resource and Programmatic Assessment for the Proposed Rule
185
December 18, 2018
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Conn. Gen. Stat, section 22a-38.
Conn. Gen. Stat, section 22a-423.
Conn. Gen. Stat, section 22a-42a.
Conn. Gen. Stat, section 22a-438.
Conn. Gen. Stat, section 22a-452.
Conn. Gen. Stat, section 22a-90 et seq.
Conn. Gen. Stat, section 29-291 et seq.
D C. Code section 8-103.01(26).
Del. Code tit. 7, section 6205.
Del. Code tit. 7, section 6207.
Del. Code tit. 7, section 6601 et seq.
Del. Code tit. 7, section 7201 et seq.
Del. Code tit. 7, section 7202(h), (i).
Fla. Stat, section 161.011 et seq.
Fla. Stat, section 373.012 et seq.
Fla. Stat, section 373.019(22).
Fla. Stat, section 373.019(27).
Fla. Stat, section 373.413(1).
Fla. Stat, section 373.4135.
Fla. Stat, section 373.414(1 l)(a).
Fla. Stat, section 376.11.
Fla. Stat, section 376.12.
Fla. Stat, section 376.121.
Fla. Stat, section 376.16.
Fla. Stat, section 380.20 et seq.
Fla. Stat, section 403.031(13).
Fla. Stat, section 403.804.
Ga. Code Ann. 12-14-4.
Ga. Code Ann. 12-5-51.
Ga. Code Ann. section 120-3-11.
Ga. Code Ann. section 12-2-8 (b).
Ga. Code Ann. section 12-5-2 et seq.
Ga. Code Ann. section 12-5-22(13).
Resource and Programmatic Assessment for the Proposed Rule
186
December 18, 2018
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Ga. Code Ann. section 12-5-280 et seq.
Ga. Code Ann. section 12-7-1 et seq.
Ga. Code Ann. section 12-7-3(16).
Haw. Rev. Stat, section 128D-2.
Haw. Rev. Stat, section 128D-5.
Haw. Rev. Stat, section 128D-6.
Haw. Rev. Stat, section 128D-8.
Haw. Rev. Stat, section 205A-21 et seq.
Haw. Rev. Stat, section 342D.
Haw. Rev. Stat, section 342D-1.
Haw. Rev. Stat, section 342D-53.
Idaho Code section 39-103(18).
Idaho Code section 39-107D.
Idaho Code section 39-175A et seq.
Idaho Code section 39-3601 et seq.
Idaho Code section 42-3801 et seq.
Idaho Code section 58-1301 et seq.
Ind. Code section 13-11-2-221.5.
Ind. Code section 13-11-2-265.
Ind. Code section 13-11-2-265.7.
Ind. Code section 13-11-2-74.5.
Ind. Code section 13-14-9-3.
Ind. Code section 13-14-9-4.
Ind. Code section 13-18-22.
Ind. Code section 13-18-22-1 et seq.
Ind. Code section 13-24-1-4.
Ind. Code section 13-25-4-2.
Ind. Code section 13-30-4-1.
Ind. Code section 14-26-2.
Ind. Code section 14-26-2-1 set seq.
Ind. Code section 14-28-1.
Iowa Code section 101.1 et seq.
Iowa Code section 455B. 105(3).
Resource and Programmatic Assessment for the Proposed Rule
187
December 18, 2018
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Iowa code section 455B.171.
Iowa Code section 455B.173.
Iowa Code section 455B.191.
Iowa Code section 455B.392.
Iowa Code section 455B.423.
Iowa Code section 456B. 1.
Iowa Code section 459.311.
Iowa Code section 481 A. 151.
Kan. Stat, section 65-161(a).
Kan. Stat, section 65-162 et seq.
Kan. Stat, section 65-171.
Kan. Stat, section 82a-301 et seq.
Ky. Rev. Stat, section 13A. 120.
Ky. Rev. Stat, section 13A.245.
Ky. Rev. Stat, section 151.250.
Ky. Rev. Stat, section 224.1-010(32).
Ky. Rev. Stat, section 224.1-070.
Ky. Rev. Stat, section 224.1-400(15).
Ky. Rev. Stat, section 224.46-580.
Ky. Rev. Stat, section 224.99-010.
La. Stat, section 30:2073(7).
La. Stat, section 41:1701 et seq.
La. Stat, section 49:214.2(16).
La. Stat, section 49:214.21.
La. Stat, section 49:214.23(6).
La. Stat.section 30:2479.
La. Stat.section 30:2483.
La. Stat.section 30:2488.
La. Stat.section 30:2491.
La. Stat.section 49:214.21 et seq.
Mass. Gen. Laws ch. 130, section 105.
Mass. Gen. Laws ch. 21M, section 8.
Mass. Gen. Laws ch. 130, section 105.
Resource and Programmatic Assessment for the Proposed Rule
188
December 18, 2018
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Mass. Gen. Laws ch. 131, section 40.
Mass. Gen. Laws ch. 131, section 40A.
Mass. Gen. Laws ch. 21, section 26A.
Mass. Gen. Laws ch. 21E, section 11.
Mass. Gen. Laws ch. 2IE, section 5.
Mass. Gen. Laws ch. 91.
Md. Code, Envir. section 16-101 et seq.
Md. Code, Envir. section 16-101(p).
Md. Code, Envir. section 4-401 et seq.
Md. Code, Envir. section 4-408.
Md. Code, Envir. section 4-409.
Md. Code, Envir. section 4-411.
Md. Code, Envir. section 4-417.
Md. Code, Envir. section 4-418.
Md. Code, Envir. section 5-101(1).
Md. Code, Envir. section 5-501 et seq.
Md. Code, Envir. section 5-901 et seq.
Md. Code, Envir. section 5-90l(m).
Md. Code, Nat. Res. section 8-1801 et seq.
Me. Stat. tit. 25, section 2482.
Me. Stat. tit. 38, section 341-H(3).
Me. Stat. tit. 38, section 361-A(7).
Me. Stat. tit. 38, section 480-A et seq.
Me. Stat. tit. 38, section 480-B.
Me. Stat. tit. 38, section 480-Z.
Me. Stat. tit. 38, section 551.
Me. Stat. tit. 38, section 552.
Me. Stat. tit. 8, section 435-449.
Mich. Comp. Laws section 29.1 et seq.
Mich. Comp. Laws section 324.101 et seq.
Mich. Comp. Laws section 324.2010.
Mich. Comp. Laws section 324.20119.
Mich. Comp. Laws section 324.20126a.
Resource and Programmatic Assessment for the Proposed Rule
189
December 18, 2018
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Mich. Comp. Laws section 324.30301(m).
Mich. Comp. Laws section 324.3101.
Minn. Stat, section 103G.
Minn. Stat, section 103G.005-17.
Minn. Stat, section 103G.005-19.
Minn. Stat, section 103G.221 et seq.
Minn. Stat, section 103G.222 et seq.
Minn. Stat, section 103G.2375.
Minn. Stat, section 103G.245.
Minn. Stat, section 114D.
Minn. Stat, section 115.
Minn. Stat, section 115.03-22.
Minn. Stat, section 115B.17.
Minn. Stat, section 116.07.
Minn. Stat, section 116.155.
Miss. Code section 29-15-1 et seq.
Miss. Code section 49-17-34(2).
Miss. Code section 49-17-43.
Miss. Code section 49-17-5(f).
Miss. Code section 49-27-1 et seq.
Miss. Code section 49-27-5(a).
Mo. Rev. Stat, section 260.530, 260.535.
Mo. Rev. Stat, section 644.016(27).
Mont. Code section 75-5-103.
Mont. Code section 75-5-203.
Mont. Code section 75-5-309.
Mont. Code section 75-5-63.
Mont. Code section 75-5-635.
Mont. Code section 75-6-116.
Mont. Code section 75-7-201 et seq.
Mont. Code section 77-5-301 et seq.
N.C. Gen. Stat. 143-212(6).
N.C. Gen. Stat, section 113-229.
Resource and Programmatic Assessment for the Proposed Rule
190
December 18, 2018
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N.C. Gen. Stat, section 113A-100 et seq.
N.C. Gen. Stat, section 143-215.87.
N.C. Gen. Stat, section 143-215.88.
N.C. Gen. Stat, section 143-215.88A.
N.C. Gen. Stat, section 143-215.90.
N.C. Gen. Stat, section 143-215.93.
N.C. Gen. Stat, section 143-215.95 et seq.
N.C. Gen. Stat, section 150B-19.3.
N.D. Cent. Code section 23-01-04.1.
N.D. Cent. Code section 61-01-01.
N.D. Cent. Code section 61-31-02 (7).
N.D. Cent. Code, section 23-20.3-05.1.
N.D. Cent. Code, section 23-20.3-09.
N.D. Cent. Code, section 23-31-01.
N.D. Cent. Code, section 23-37-12.
N.H. Rev. Stat, chapter 146-A.
N.H. Rev. Stat, chapter 482-A.
N.H. Rev. Stat, chapter 485-A.
N.H. Rev. Stat, section 482-A:2.
N.H. Rev. Stat, section 485-A: 1.
N.H. Rev. Stat, section 485-A:2(XIV).
N.J. Rev. Stat, section 13:18A-1 et seq.
N.J. Rev. Stat, section 13:20-1 et seq.
N.J. Rev. Stat, section 13:9A-1 et seq.
N.J. Rev. Stat, section 13:9A-2.
N.J. Rev. Stat, section 13:9B-3.
N.J. Rev. Stat, section 58:10-23.11.
N.J. Rev. Stat, section 58:16A50 et seq.
N.J. Rev. Stat, section 58:lA-3.
N.M. Stat, section 74-4-10.
N.M. Stat, section 74-4-7.
N.M. Stat, section 74-4-8.
N.M. Stat, section 74-6-2.
Resource and Programmatic Assessment for the Proposed Rule
191
December 18, 2018
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N.Y. Env. Law section 15-0505.
N.Y. Env. Law section 24-0101 et seq.
N.Y. Env. Law section 24-0301.
N.Y. Env. Law section 25-0101 et seq.
N.Y. Envtl. Conserv. section 15.
N.Y. Envtl. Conserv. section 17-0105(2).
N.Y. Envtl. Conserv. section 17-1001 et seq.
N.Y. Envtl. Conserv. section 24.
N.Y. Envtl. Conserv. section 24-0107(1).
N.Y. Envtl. Conserv. section 25.
N.Y. Envtl. Conserv. section 25-0103(1).
N.Y. Nav. Law section 12.
N.Y. Nav. Law section 171.
N.Y. Nav. Law section 189.
Neb. Rev. Stat, section 81-1501 et seq.
Neb. Rev. Stat, section 81-1502(21).
Neb. Rev. Stat, section 81-1502.
Neb. Rev. Stat, section 81-1504.
Neb. Rev. Stat, section 81-1505(2)(e).
Neb. Rev. Stat, section 81-1505.
Neb. Rev. Stat, section 81-1506.
Neb. Rev. Stat, section 81-1508.
Nev. Rev. Stat, section 233B.0603(l)(a)(9).
Nev. Rev. Stat, section 233B.0609(6).
Nev. Rev. Stat, section 233B.066(l)(i).
Nev. Rev. Stat, section 322.100 et seq.
Nev. Rev. Stat, section 445A.415.
Nev. Rev. Stat, section 445A.700.
Nev. Rev. Stat, section 445C.310.
Nev. Rev. Stat, section 503.425.
Ohio Rev. Code section 121.39.
Ohio Rev. Code section 1501.30(A)(6).
Ohio Rev. Code section 3745.12 to .13.
Resource and Programmatic Assessment for the Proposed Rule
192
December 18, 2018
-------
Ohio Rev. Code section 6111.02(P).
Ohio Rev. Code section 6111.021 et seq.
Oil Pollution Act of 1990, Pub. L. No. 101-380, section 1001(5), 104 Stat. 484, (1990).
Okla. Stat. tit. 27A, section 1-1-201 (20).
Okla. Stat. tit. 27A, section 1-1-206.
Okla. Stat. tit. 27A, section 2-7-129.
Or. Rev. Stat, section 183.332.
Or. Rev. Stat, section 196.600 et seq.
Or. Rev. Stat, section 196.800 et seq.
Or. Rev. Stat, section 468B.005.
Or. Rev. Stat, section 468B. 110(2).
Or. Rev. Stat, section 468B.310.
Or. Rev. Stat, section 468B.320.
Or. Rev. Stat, section 468B.45.
Or. Rev. Stat, section 468B.455.
P.R. Laws act 416, tit. 2, section 1301.1.
P.R. Laws tit. 12, section 1115 et seq.
P.R. Laws tit. 12, section 1401 et seq.
P.R. Laws tit. 12, section 405 et seq.
P.R. Laws tit. 12, section 5005.
R.I. Gen. Laws section 2-1-18 et seq.
R.I. Gen. Laws section 2-1-20.
R.I. Gen. Laws section 46-12.5.1-6.
R.I. Gen. Laws section 46-12.5.1-7.
R.I. Gen. Laws section 46-12.7-2.1.
R.I. Gen. Laws section 46-12-1.
R.I. Gen. Laws section 46-23-1 et seq.
R.I. Gen. Laws section 46-23-6.
S.C. Code section 39-41-260.
S.C. Code section 48-1-10(2).
S.C. Code section 48-1-10.
S.C. Code section 48-39-10(G).
S.C. Code section 8-39-10 et seq.
Resource and Programmatic Assessment for the Proposed Rule
193
December 18, 2018
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S.D. Codified Laws section 1-40-4.1.
S.D. Codified Laws section 34A-12.
S.D. Codified Laws section 34A-12-12.
S.D. Codified Laws section 34A-12-3.
S.D. Codified Laws section 34A-18.
S.D. Codified Laws section 34A-2-100.
S.D. Codified Laws section 34A-2-11.
S.D. Codified Laws section 34A-2-2(12).
S.D. Codified Laws section 34A-2-34.
S.D. Codified Laws section 34A-2-36.
S.D. Codified Laws section 34A-2-53.
S.D. Codified Laws section 34A-2-6.
S.D. Codified Laws section 34A-2-96.
S.D. Codified Laws section 9-12-17.
Tenn. Code section 4-5-226(k).
Tenn. Code section 50-3-101 et seq.
Tenn. Code section 68-212-114.
Tenn. Code section 68-216-103.
Tenn. Code section 69-3-101 et seq.
Tenn. Code section 69-3-103.
Tenn. Code section 69-3-108.
Tex. Nat. Res. Code chapter 40.
Tex. Nat. Res. Code section 40.202.
Tex. Nat. Res. Code section 40.251.
Tex. Water Code section 26.001(5).
Tex. Water Code section 26.017(5).
Tex. Water Code section 26.023 to .026.
Tex. Water Code section 26.027.
Tex. Water Code section 26.0271.
Tex. Water Code section 26.0272.
Tex. Water Code section 26.0405.
Tex. Water Code section 26.121.
Tex. Water Code section 26.261 to .267.
Resource and Programmatic Assessment for the Proposed Rule
194
December 18, 2018
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Utah Code section 19-5-102.
Utah Code section 19-5-105.
Utah Code section 19-5-115.
Utah Code section 53-7-106.
Utah Code section 73-3-29.
Va. Code Ann. section 62.1-44.15.
Va. Code section 28.2-13.
Va. Code section 62.1-3.1.
Va. Code section 62.1-44.15(10).
Va. Code section 62.1-44.15(3a).
Va. Code section 62.1-44.15:1.
Va. Code section 62.1-44.15:67 et seq.
Va. Code section 62.1-44.19:7(B).
Va. Code section 62.1-44.3.
Vt. Stat. tit. 10, chapter 151.
Vt. Stat. tit. 10, chapter 37.
Vt. Stat. tit. 10, chapter 47.
Vt. Stat. tit. 10, section 1251(13).
Vt. Stat. tit. 10, section 1929a, chapter 159.
Vt. Stat. tit. 10, section 6081.
Vt. Stat. tit. 10, section 6612.
Vt. Stat. tit. 10, section 6615.
Vt. Stat. tit. 10, section 6615d.
Vt. Stat. tit. 10, section 902(3).
Vt. Stat. tit. 10, section 902(5).
W. Va. Code section 22-11.
W. Va. Code section 22-11-22.
W. Va. Code section 22-11-25.
W. Va. Code section 22-11-29.
W. Va. Code section 22-l-3a.
W. Va. Code section 22-19-2.
W. Va. Code section 22-30.
W. Va. Code section 22-31.
Resource and Programmatic Assessment for the Proposed Rule
195
December 18, 2018
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W. Va. Code section 22-5-4.
W.Va. Code section 22-11-3(23).
Wash. Rev. Code section 36.70A.
Wash. Rev. Code section 36.70A.030(23).
Wash. Rev. Code section 77.55.
Wash. Rev. Code section 90.48.
Wash. Rev. Code section 90.48.020.
Wash. Rev. Code section 90.56.330.
Wash. Rev. Code section 90.56.360.
Wash. Rev. Code section 90.56.500.
Wash. Rev. Code section 90.58.
Wis. Stat, chapter 30.
Wis. Stat, chapter 31.
Wis. Stat, section 144.26.
Wis. Stat, section 227.1 l(2)(a).
Wis. Stat, section 23.32(1).
Wis. Stat, section 281.01(18).
Wis. Stat, section 281.11.
Wis. Stat, section 281.12(1).
Wis. Stat, section 281.36.
Wis. Stat, section 283.001.
Wis. Stat, section 283.11(2).
Wis. Stat, section 59.971.
Wis. Stat, section 61.351.
Wis. Stat, section 62.63.
Wis. Stat, sections 292.98 to .99.
Wyo. Stat, section 35-1 l-103(c)(vi).
Wyo. Stat, section 35-1 l-103(c)(x).
Wyo. Stat, section 35-11-301.
Wyo. Stat, section 35-1 l-302(a)(i).
Wyo. Stat, section 35-1 l-302(a)(ii).
Wyo. Stat, section 35-1 l-302(a)(v).
Wyo. Stat, section 35-11-302.
Resource and Programmatic Assessment for the Proposed Rule
196
December 18, 2018
-------
Wyo. Stat, section 35-11-310.
Wyo. Stat, section 35-11-901.
Wyo. Stat, section 35-11-903.
filiations: Federal
15
C.F.R.
section 990.
15
C.F.R.
section 990.62.
33
C.F.R.
section 154.
33
C.F.R.
section 155.
33
C.F.R.
section 328.3(b).
33
C.F.R.
section 328.3(c).
33
C.F.R.
section 328.3.
33
C.F.R.
section 331.2.
40
C.F.R.
section 112.
40
C.F.R.
section 112.1-112.12.
40
C.F.R.
section 112.1-112.15.
40
C.F.R.
section 112.20.
40
C.F.R.
section 112.21.
40
C.F.R.
section 121.
40
C.F.R.
section 122.2.
40
C.F.R.
section 122.28.
40
C.F.R.
section 122.41.
40
C.F.R.
section 122.44(d)(l)(vii)(B)
40
C.F.R.
section 122.44(d)(1).
40
C.F.R.
section 122.44(d).
40
C.F.R.
section 123(d)(2).
40
C.F.R.
section 123. l(i)(l).
40
C.F.R.
section 123. l(i)(2).
40
C.F.R.
section 123.31-123.34.
40
C.F.R.
section 125.83.
40
C.F.R.
section 130.16.
40
C.F.R.
section 131.4(c).
40
C.F.R.
section 131.8.
Resource and Programmatic Assessment for the Proposed Rule
197
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40
C.F.R.
section
230.
40
C.F.R.
section
230.3.
40
C.F.R.
section
232.2.
40
C.F.R.
section
233.1(c).
40
C.F.R.
section
233.1(d).
40
C.F.R.
section
233.16(d)(3).
40
C.F.R.
section
233.60-233.62
40
C.F.R.
section
260.10.
40
C.F.R.
section
264.1(g)(6).
40
C.F.R.
section
265.1(c)(10).
40
C.F.R.
section
270.1(c)(2)(v).
40
C.F.R.
section
270.60(c).
40
C.F.R.
section
300.
40
C.F.R.
section
403.3(q).
40
C.F.R.
section
451.20).
43
C.F.R.
section
11.
43
C.F.R.
section
11.15.
49
C.F.R.
section
194.
C. Regulations: States, District of Columbia, Tribes, and Other United Stales
Jurisdictions
020.0011.1 Wyo. Code R.
020.0011.2 Wyo. Code R.
020.0011.2 Wyo. Code R. section 2.
020.0011.2 Wyo. Code R. section 7.
020.0011.4 Wyo. Code R.
06-096-305 Me. CodeR. section 1.
11-6-1 Miss. CodeR. section 1.3(b)(4).
117 Neb. Admin. Code, ch. 1, section 082.
117 Neb. Admin. Code.
119 Neb. Admin. Code.
12 V.I. Code section 182(f).
12 V.I. Code section 186.
Resource and Programmatic Assessment for the Proposed Rule
198
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12 V.I. Code section 901 et seq.
120 Neb. Admin. Code.
126 Neb. Admin. Code ch. 18.
126 Neb. Admin. Code.
138.00.07-003 Ark. Code R.
15 N.C. Admin. Code 02B.0233.
15 N.C. Admin. Code 02B.0250.
15 N.C. Admin. Code 02B.0259.
153 Neb. Admin. Code, ch. 17.
153 Neb. Admin. Code.
158 Neb. Admin. Code.
159 Neb. Admin. Code.
15AN.C. Admin. Code 02B.0202.
15AN.C. Admin. Code 2H.1300.
18 Guam Admin. R. & Regs section 3504(b).
1989 Pa. Laws 169, No. 32.
2013 Mich. Pub. Acts 3.
22 Guam Admin. R. & Regs section 5105 (2001).
25 Pa. Code Chapter 105.
25 Pa. Code Chapter 106.
250 R.I. Code R. 140-25-2.
30 Tex. Admin. Code chapter 279.
30 Tex. Admin. Code chapter 307.
30 Tex. Admin. Code chapter 334.
30 Tex. Admin. Code section 307.3(a)(84).
4 Pa. Code section 1.371(5).
401 Ky. Admin. Regs. 5:002(177).
5 Colo. Code Regs. Sections 1002-31.5(51).
527 Mass. Code Regs. 5.00, 9.00.
675 Ind. Admin. Code 22-2.3.
7 Colo. Code Regs, sections 1101-14.
7 Del. Admin. Code 7502.
7-1352 Del. Admin. Code 1.0 et seq.
Resource and Programmatic Assessment for the Proposed Rule
199
December 18, 2018
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7-7201 Del. Admin. Code 2.0.
7-7502 Del. Admin. Code 5.0.
815 Ky. Admin. Regs. 7:120(3)(7)(i).
9 Va. Admin. Code section 25-210.
9 Va. Admin. Code sections 25-210-10 et seq.
Ala. Admin. Code r. 335-13-1-.03(146).
Ala. Admin. Code r. 335-6-15.
Ala. Admin. Code r. 335-8-1.01 et seq.
Ala. Admin. Code r. 335-8-l-.02(nnn).
Ala. Admin. Code r. 335-8-2-.02.
Ala. Admin. Code r. 335-8-2-.03.
Ala. Code section 22-22 et seq.
Ala. Code section 22-22-1(2).
Ala. Code section 22-22-9.
Ala. Code section 22-22A-6.
Ala. Code section 9-10B-1 et seq.
Ala. Code section 9-10B-2(7).
Alaska Admin. Code tit. 18, section 75.065.
Alaska Admin. Code tit. 6, section 80.050.
Alaska Admin. Code tit. 6, section 80.080.
Alaska Admin. Code tit. 6, section 80.900(19).
Alaska Admin. Code tit. 6, section 85.
Am. Samoa Admin. Code section 24.0201 et seq.
Am. Samoa Admin. Code section 24.0201.
Am. Samoa Code section 24.0102.
Ariz. Admin. Code section 18-11-101(49).
Ariz. Admin. Code section 4-36-201 et seq.
Ark. Code section 15-22-1001 et seq.
Ark. Code section 26-51-1501 et seq.
Ark. Code section 8-4-102(10).
Ark. Code section 8-4-103.
Ark. Code section 8-7-509.
Ark. Code section 8-7-514.
Resource and Programmatic Assessment for the Proposed Rule
200
December 18, 2018
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Bad River Reservation, Wetland and Watercourse Protection Ordinance, Resolution No. 12-16-
09.138 (2009).
Blackfeet Nation Environmental Office, Aquatic Lands Protection Ordinance 90-A-amended
(2012). Accessed 2017.
http://vvvvvv.blackfeetenvironmental.com/ordinance90/blackfeet aquatic lands protection ordina
nce90a.pdf.
Cal. Code Regs. tit. 14, section 13577(b)(1).
D.C. Mun. Regs., tit. 21, section 1103.
D.C. Mun. Regs., tit. 21, section 516 et seq.
D.C. Mun. Regs., tit. 21, section 540 et seq.
D.C. Mun. Regs., tit. 21, section 600.
Fla. Admin. Code chapter 62-345.
Fla. Admin. Code chapter 62-762.
Ga. Comp. R. & Regs. 391-3-16.03(3).
Haw. CodeR. section 11-54.
Haw. CodeR. section 11-54-1.
Haw. CodeR. section 11-54-2.
Haw. CodeR. section 11-54-3.
Haw. CodeR. section 11-54-4.
Haw. CodeR. section 11-54-5.2(c).
Haw. CodeR. section 11-55.
Haw. CodeR. section 15-150.
Idaho Admin. Code r. 20.03.04.
Idaho Admin. Code r. 37.03.07.
Idaho Admin. Code r. 58.01.02.
Idaho Admin. Code r. 58.01.02.800 et seq.
Idaho Admin. Code r. 58.01.25.
Idaho Admin. Code r. 58.01 25.010(01)(110).
111. Admin. Code tit. 41, section 180.20.
Iowa Admin. Code r. 561-70.1 et seq.
Iowa Admin. Coder. 571-13.1 et seq.
Kan. Admin. Regs, section 28-16-1 et seq.
Kan. Admin. Regs, section 28-16-28b et seq.
Kan. Admin. Regs, section 28-16-28b(fff)(3).
Resource and Programmatic Assessment for the Proposed Rule
201
December 18, 2018
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Kan. Admin. Regs, section 28-44-12 et seq.
Kan. Admin. Regs, section 5-44-1.
Kan. Admin. Regs, section 82-3-603.
La. Admin. Code tit. 33, chapter 9.
Md. Code Regs. 26.10.01.
Minn. R. 6115.
Minn. R. 7151.1100.
Mo. Code Regs. tit. 10, 20-7.031(1)(FF).
Mo. Code Regs. tit. 26, 414.012 et seq.
Mont. Admin. R. 17.30.502(12).
Mont. Admin. R. 17.58.326.
Mont. Admin. R. 36.11.3.
N. Mar. I. Admin Code section 15-10-001 et seq.
N. Mar. I. Admin Code section 65-130-001.
N. Mar. I. Admin Code section 65-130-015(aa).
N. Mar. I. Admin Code section 65-130-015(1).
N. Mar. I. Admin Code section 65-5-001 et seq.
N. Mar. I. Pub. L. 11-103.
N.H. Code Admin. R. Env-Or 300.
N.J. Admin. Code section 7: IE.
N.M. Code R. section 20.5.
N.M. Code R. section 20.6.4.7.W(4).
Nev. Admin. Code section 321.448.
Nev. Admin. Code section 459.9921.
Ohio Admin. Code 1301:7-7-01 et seq.
Ohio Admin. Code 3745-1-50.
Okla. Admin. Code 165:26-1 et seq.
Okla. Admin. Code 252:205-13-1.
Okla. Admin. Code 252:205-23-2.
Okla. Admin. Code 460:30-1-3.
Or. Admin. R. 340-055-0010.
Or. Admin. R. 660-015-0010.
Or. Admin. R. 837-040-0010 et seq.
Resource and Programmatic Assessment for the Proposed Rule
202
December 18, 2018
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S.C. Code section 48-43-560.
S.C. Code section 48-43-610.
S.D. Admin. R. 74:51:01:01(53).
Tenn. Comp. R. & Regs. 0400-40-07-.03.
Tenn. Comp. R. & Regs. 1200-4-7.
The Confederated Salish and Kootenai Tribes, Aquatic Lands Conservation Ordinance No. 87-A
(December 5, 1986). Accessed 2017.
http://www.csktnrd.org/component/rsfiles/download7patlFEP%252F87areg.pdf.
The Confederated Salish and Kootenai Tribes, Shoreline Protection Ordinance 64(A) (July
1977).
Utah Admin. Code r. 317-8-1.5(60).
Va. Code Ann. section 28.2-1300 et seq.
Va. Code Ann. section 62.1-44.5.
Vt. CodeR. 12 004 056.
W.Va. CodeR. section 47-10-2.58.
Wash. Admin. Code sections 173-180.
Wash. Admin. Code sections 173-182.
Wis.
Admin.
Code Comm. chapter 10.
Wis.
Admin.
Code NR chapter 102.
Wis.
Admin.
Code NR chapter 103.
Wis.
Admin.
Code NR chapter 106.
Wis.
Admin.
Code NR chapter 299.
Wis.
Admin.
Code NR chapters 300-353
Wis.
Admin.
Code NR section 1.52(3).
Wis.
Admin.
Code, chapter 115.
Wis.
Admin.
Code, chapter 116.
Wis.
Admin.
Code, chapter 117.
s Law: Supreme Court
126 S. Ct. 2208 (2006).
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (February 24, 1987).
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141-142 (January 24, 1982).
Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (2018).
Resource and Programmatic Assessment for the Proposed Rule
203
December 18, 2018
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Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505,
511 (February 25, 1991).
PUD N. 1 Of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 711-712 (May
30, 1994).
Rapanos v. United States, 547 U.S. 715 (2006).
United States v. Mazurie, 419 U.S. 544, 557 (January 20, 1975).
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 (June 26, 1980).
E. Case Law: nils
Albuquerque v. Browner, 97F.3d. 415, 423 (1996).
American Petroleum Ins. v. Johnson, 541 F. Supp. 2d 165 (D. D.C. 2008).
Dep't of Def. & U.S. Envtl. Prot. Agency Final Rule, 713 Fed. App'x 489 (6th Cir. 2018).
Florida Elec. Power Coordinating Group, Inc. v. Askew, 366 So.2d 1186, 1188 (Fla. Dist. Ct.
App., 1st Dist. 1978).
Georgia v. Pruitt, No. 15-cv-79 (S.D. Ga.).
New Hope Power Co. v. U.S. Army Corps of Eng'rs, 746 F. Supp. 2d 1272, 1282 (S.D. Fla.
2010).
North Dakota v. U.S. Envtl. Prot. Agency, 127 F. Supp. 3d 1047 (D.N.D. 2015).
North Dakota v. U.S. Envtl. Prot. Agency, No. 3:15-cv-59 (D.N.D. 2018).
Puget Soundkeeper Alliance v. Andrew Wheeler, No. C15-1342-JCC (W.D. Wash. November
26, 2018).
South Carolina Coastal Conservation League v. Pruitt, No. 2-18-cv-330-DCN (D.S.C. Aug. 16,
2018).
Texas v. U.S. Envtl. Prot. Agency, No. 3:15-CV-00162 (S.D. Tex. Sep. 12, 2018).
U.S. Envtl. Prot. Agency & Dep't of Def. Final Rule, 803 F.3d 804 (6th Cir. 2015).
United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1324-25 (6th Cir. 1974).
United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979).
g References
38 Fed. Reg. 34,164 (December 11, 1973).
51 Fed. Reg. 41,206 (November 13, 1986).
51 Fed. Reg. 41,206. (Nov. 13, 1986).
51 Fed. Reg. 41,217 (November 13, 1986).
55 Fed. Reg. 47,990 (November 16, 1990).
56 Fed. Reg. 54,612 (October 22, 1991).
Resource and Programmatic Assessment for the Proposed Rule
204
December 18, 2018
-------
56
Fed.
Reg.
64,876 (December 12, 1991).
56
Fed.
Reg.
64,881 (December 12, 1991).
57
Fed.
Reg.
64,878-79 (December 12, 1991).
58
Fed.
Reg.
45,034 (August 25, 1993).
63
Fed.
Reg.
7,254 (February 12, 1998).
63
Fed.
Reg.
7,257-58 (February 12, 1998).
64
Fed.
Reg.
68,722 (December 8, 1999).
67
Fed.
Reg.
47,042 (July 17, 2002).
68
Fed.
Reg.
1,991 (January 15,2003).
68
Fed.
Reg.
1,995 (January 15, 2003).
80
Fed.
Reg.
37,054 (June 29, 2015).
81
Fed.
Reg.
30,183 (May 16, 2016).
81
Fed.
Reg.
30,192 (May 16, 2016).
81
Fed.
Reg.
50,068 (July 29, 2016).
81
Fed.
Reg.
65,901 (September 26, 2016).
81
Fed.
Reg.
85,792 (November 28, 2016).
82
Fed.
Reg.
1,860 (January 6, 2017).
83
Fed.
Reg.
10,383 (March 9, 2018), Section J
83
Fed.
Reg.
4,235 (January 30, 2018).
83
Fed.
Reg.
5,200 (February 6, 2018).
ice and Memoranda
Memorandum of Agreement Between the Department of the Army and the Environmental
Protection Agency Concerning Federal Enforcement for the Section 404 Program of the Clean
Water Act (January 19, 1989).
United States Environmental Protection Agency, "Clean Water Act Jurisdiction Following the
U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States."
December 2, 2008. Accessed 2017.
https://www.epa.gov/sites/production/files/2016Q2/documents/cwa jurisdiction following rapan
osl20208.pdf.
mrces
United States Environmental Protection Agency, "EPA Policy for the Administration of
Environmental Programs on Indian Reservations" (1984 Indian Policy), November 8, 1984.
Accessed 2017.
Resource and Programmatic Assessment for the Proposed Rule
205
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-------
I. Other Legal References
Exec. Order No. 12,777, 56 Fed. Reg 54, 757 (October 22, 1991).
115 Cong. Rec. H9030 (April 15, 1969) (House debate).
115 Cong. Rec. S28958-59 (Oct. 7, 1969) (Senate debate).
1996 Safe Drinking Water Act Amendments. EPA Office of Water, EPA 816-K-06-005,
September 2006.
Arkansas Pollution Control and Ecology Commission, Regulation for the Prevention of Pollution
by Salt Water and Other Oil Field Wastes Produced by Wells in all Fields or Pools. Regulation
No. 1 (1993). Accessed 2017. https://www.adeq.state.ar.us/regs/files/reg01 final 930316.pdf.
Arkansas Pollution Control and Ecology Commission, Regulation to Require a Disposal Permit
for Real Estate Subdivisions in Proximity to Lakes and Streams. Regulation No. 4 (1973).
Accessed 2017. https://vvvvvv.adeci.state.ar.us/regs/files/reg04 final 730707.pdf.
Arkansas Pollution Control and Ecology Commission, Storage Tanks. Regulation No. 12 (2014).
Accessed 2017. https://vvvvvv.adeci.state.ar.us/regs/files/reg 12 final 20140714.pdf.
H.R. 1082, 119 (Ind. 2016).
H.R. Res. 6124, 110th Cong. (2008).
Md. Exec. Order No. 01.01.1996.03 (1996).
N.J. Exec. Order No. 2 (Gov. Christie), Jan. 20, 2010.
N.J. Exec. Order No. 27 (Gov. Whitman), Nov. 2, 1994.
Pa. Exec. Order No. 1996-1, Feb. 6, 1996.
SPCC Information Collection Request (ICR) renewal (EPA ICR No. 0328.17, OMB No. 2050-
0021).
Wis. LRB-4115/1, SB 600, 2017.
Wis. LRF 4410/1, AB 547, 2017.
2. Other References
Alaska Department of Environmental Conservation (ADEC), Division of Water. "Outstanding
National Resource Water (Tier 3 water), Fact Sheet. "2015.
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Sheet-4-20-15 Final.pdf.
Arizona Department of Water Resources. "Arizona Water Initiative." 2017.
http s: //new, az water. gov/ water-initi ative.
Association of State Wetland Managers, Section 401 Certification Best Practices in Dredge and
Fill Permit Programs, January 2012.
https://vvvvvv.asvvm.org/pdf lib/401 best practices suininarv.pdf.
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206
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-------
Association of State Wetland Managers. "Alaska, ELI State Wetland Protection: Status Trends
and Model Approaches." 2017. https://www.aswm.org/aswm/58-wetland-programs/state-
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nce90a.pdf.
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California State Water Resources Control Board. "State Wetland Definition and Procedures for
Discharges of Dredged or Fill Material to Waters of the State." Clean Water Act Section 401 -
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regulations." 2018. https://vvvvvv.colorado.gov/pacific/cdphe/vvater-qualitv-control-commission-
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Research. 2017. https://vvvvvv.csgmidvvest.org/policvresearch/ciom-03 17.aspx.
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Subaqueous Lands Section: What is Regulated and Where is it Regulated?" 2018.
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gulated.aspx.
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Management of Its Flood Mapping Programs, OIG-17-110. September 27, 2017.
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Assumable Waters," https://vvvvvv.armv.mi1/e2/c/dovvnloads/525981 .pdf.
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Feasibility Study, Report to the Legislature. Minnesota Department of Natural Resources and
Minnesota Board of Water and Soil Resources, January 17, 2017.
http://vvvvvv.bvvsr.state.mn.us/vvetlands/cvva 404/Minn Section 404 Assumption Feasibility St
udv Report Final.pdf.
Resource and Programmatic Assessment for the Proposed Rule
207
December 18, 2018
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Environmental Law Institute, State Constraints: State-Imposed Limitations on the Authority of
Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act. An ELI 50-State
Study, May 2013. https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf.
Environmental Law Institute, State Wetland Program Evaluation: Phase II, June 2006,
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Redlands, California: ESRI. 2016. http://www.esri.com/arcgis/about-arcgis.
Environmental Systems Research Institute (ESRI). "Calculating area, length, and other geometric
properties." ArcMap, ArcGIS Desktop, http://desktop.arcgis.com/en/arcmap/10,3/manage-
data/tables/calculating-area-length-and-other-geometric-properties.htm.
Eric V. Schaeffer (Office of Regulatory Enforcement) to EPA Water Protection/Management
Division Directors, Regions I-X, Director, Office of Environmental Stewardship, Region I,
Director, Division of Environmental Protection and Planning, Region II, Enforcement and
Compliance Assistance Directors, Regions II, VI, and VIII, Water, Wetlands, and Pesticides
Division Director, Region VII, and Regional Counsels, memorandum, September 29, 1999,
"Injunctive Relief Requirements in Section 404 Enforcement Actions,"
https://vvvvvv.epa.gov/sites/production/files/documents/iniunctivereliefreciuirements-
sec404enfactions.pdf.
Exchange Network. "Integrated Compliance Information System forNPDES - ICIS-NPDES.
December 2017, http://vvvvvv.exchangenetvvork.net/data-exchange/icis-npdes/.
Federal Geographic Data Committee, Classification of Wetlands and Deepwater Habitats of the
United States, FGDC-STD-004-2013. Washington DC: Second Edition, 2013.
https://www.fws.gov/wetlands/documents/Classification-of-Wetlands-and-Deepvvater-Habitats-
of-the-United-States-2013.pdf.
Fritz, Ken M., Elisabeth Hagenbuch, Ellen D'Amico, Molly Reif, Parker J. Wigington Jr., Scott
G. Leibowitz, Randy L. Comeleo, Joseph L. Ebersole, Tracie-Lynn Nadeau. "Comparing the
Extent and Permanence of Headwater Streams from Two Field Surveys to Values from
Hydrographic Databases and Maps." Journal of the American Water Resources Association 49,
no. 4 (2013):867-882. https://doi.org/10.1111/iavvr. 12040.
Grumbles, Benjamin, H. and John Paul Woodley, Jr. Clean Water Act Jurisdiction Following the
U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States. United
States Environmental Protection Agency and Department of the Army, December 2, 2008.
https://www.epa. gov/ sites/production/files/2016-
02/docuinents/cvva jurisdiction following rapanosl20208.pdf
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"Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of
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Iowa Department of Natural Resources. "Lake Restoration Program and Water Quality
Improvement." Lake Restoration, http://www.iowadnr.gov/Environmental-Protection/Water-
Oual i t v/Lak e-Restorati on.
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208
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-------
Iowa Department of Natural Resources. "River Restoration." 2018.
http://www.iowadnr.gov/Environmental-ProtectionAVater-Oualitv/River-Restoration.
Lewis Cowardin, Virginia Carter, Francis C. Golet, and Edward T. LaRoe, Classification of
Wetlands and Deepwater Habitats of the United States (FWS/OBS-79/31). United States Fish
and Wildlife Service, Biological Services Program, Washington D.C. December 1979, reprinted
1992. https://www.fws.gov/wetlands/Documents/Classification-of-Wetlands-and-Deepwater-
Habitats-of-the-United-States.pdf.
Lucinda McKay, Timothy Bondelid, Tommy Dewald, Craig Johnston, Richard Moore, and Alan
Rea. NHDPlus Version 2: User Guide (Data Model Version 2.1). United States Environmental
Protection Agency, ftp://ftp.horizon-
systems.com/NHDplus/NHDPlusV2 l/Documentation/NHDPlusV2 User Guide.pdf.
Michigan Department of Environmental Quality. "State and Federal Wetlands Regulations."
http://vvvvvv.michigan.gOv/deci/0.4561.7-135-33 13 3687-10801 —.00.html.
Nancy Stoner, EPA Office of Water Acting Assistant Administrator to Lamar Smith,
Congressman, July 28, 2014,
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s letter.pdf.
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North Dakota Attorney General, Wayne Stenehjem. "Above Ground Storage of Liquid Fuels."
https://attomevgeneral.nd.gov/public-safetv/above-ground-storage-liciuid-fuels.
R.W. Lichvarand J.T. Kartesz. Nomenclature and the National Wetland Plant List,
ERCD/CRREL TN-09-1. United States Army Corps of Engineers, Engineer Research and
Development Center, Cold Regions Research and Engineering Laboratory, 2009.
http://wetland-
plants.usace.armv.mil/nvvpl static/data/DOC/NWPL/pubs/2009 Lichvar Kartesz.pdf.
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June 14, 2005. https://usace.contentdm.oclc.Org/utils/getfile/collection/p 16021 col 19/id/1246.
Roxanne Thomas, Brad Klein, Jessica Wilkinson, and Seema Kakade (Environmental Law
Institute), State Wetland Program Evaluation: Phase I, January 2005,
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