Chapter 3 - Waters of the U.S. and the State

The term "waters of the U.S." (PDF) has broad meaning and incorporates both deep-water aquatic habitats and special aquatic sites, including wetlands. This section defines the term “waters of the U.S.” as it applies to the jurisdictional limits of the authority of the USACE under the Clean Water Act (CWA). It prescribes the policy, practice, and procedures to be used in determining the extent of jurisdiction of the USACE concerning “waters of the U.S.”

The lateral limits of jurisdiction of waters may be divided into three categories. The categories include the territorial seas, tidal waters, and nontidal waters (see 33 CFR 328.4 (PDF), (a), (b), and (c), respectively). More specifically, 33 CFR 328.3(a) (PDF) provides the following clear definition of Waters of the U.S.

The term waters of the U.S. means (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all water which are subject to the ebb and flow of the tide; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) Which are used or could be used for industrial purposes by industries in interstate commerce; (4) All impoundments of waters otherwise defined as waters of the U.S. under this definition; (5) Tributaries of waters identified in paragraphs (1)-(4); (6) The territorial seas; (7) Wetlands adjacent to waters (other than waters that are themselves wetland) identified in paragraphs (1)-(6).

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (other than cooling ponds as defined in 40 CFR § 123.11(m) which also meet the criteria of this definition) are not waters of the U.S. 33 CFR § 328.3(a) (PDF); 40 CFR § 230.3(s) (PDF).

Adjacent wetlands subject to CWA Section 404 jurisdictions are those that are bordering, contiguous, or neighboring to other waters of the U.S. Frequently, the term "wetlands and other waters of the U.S." is used when describing areas under USACE jurisdiction.

Waters of the U.S. includes essentially all surface waters such as all navigable waters and their tributaries, all interstate waters and their tributaries, all wetlands adjacent to these waters, and all impoundments of these waters.

Wetlands are driven by hydrology and occur where water is present near the soil surface resulting in soil and plant characteristics that are not found in upland (mostly dry) or aquatic (almost always wet and un-vegetated) habitats. Wetlands are generally found in transition zones between upland and aquatic habitats.

For the regulatory process, the USACE and U.S. Environmental Protection Agency (EPA) jointly define wetlands as follows:

"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 (EPA, 40 CFR 230.3 and USACE, 33 CFR 328.3)."

For addressing federal permit issues, Caltrans recognizes this definition and uses it in the assessment of biological effects of transportation projects. The USACE, U.S. Fish and Wildlife Service (FWS), California Coastal Commission (CCC), and Regional Water Quality Control Board (RWQCB) review and approve the permits most frequently required for projects which will affect these resources.

Regulatory changes and/or litigation may result in modification of the definition of waters of the U.S. and State, including wetlands; therefore, the District Biologist or other users of the Standard Environmental Reference (SER), Volume 1 and Volume 3, must use the latest guidance from the USACE.

The number of wetland definitions contained in state law for planning and regulatory purposes has expanded significantly over the years. The term “Waters of the State” is an attempt to capture all the various aquatic resources regulated by numerous state agencies. It includes rivers, streams, lakes, wetlands, mudflats, vernal pools, and other aquatic sites.

There have been attempts to codify a single State of California definition of “wetlands” that could be used by all state agencies; however, this has not been achieved to date. Each agency is bound by their laws, regulations and policy. Each maintains their own definition of a “wetland.”

For example, the California Department of Fish and Wildlife (CDFW) found the FWS wetland definition and classification system to be the most biologically valid. The FWS definition includes swamps; freshwater, brackish water, and saltwater marshes; bogs; vernal pools; periodically inundated saltflats; intertidal mudflats; wet meadows and pastures; springs and seeps; and portions of lakes, ponds, rivers and streams. CDFW staff use this definition as a guide in identifying wetlands while conducting on-site inspections for implementing the Fish and Game Commission’s wetlands policy.

Waters found in the “coastal zone” are regulated under the California Coastal Act of 1976 and the federal Coastal Zone Management Act of 1972 (CZMA), and are within the jurisdiction of the California Coastal Commission  (CCC). Under the Coastal Act, wetlands are defined as “land 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.” This statutory definition has been expanded upon in the Coastal Commission’s regulations as: “...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 wetlands 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 time during each year and their location within, or adjacent to vegetated wetland or deep water habitats.” (14 CCR 13577)

Waters in the San Francisco Bay, however, do not lie within the Coastal Commissions jurisdiction and are managed by the San Francisco Bay Conservation and Development Commission (BCDC). The primary law governing the BCDC, the McAteer-Petris Act, does not define wetlands, but does outline the BCDC’s geographical jurisdiction respective to wetlands. BCDC defines jurisdictional wetlands as “managed wetlands consisting of all areas which have been diked off from the bay and have been maintained during the three years immediately preceding the effective date of the amendment of this section during the 1969 Regular Session of the Legislature as a duck hunting preserve, game refuge or for agriculture. (Government Code Section 66610(b)).

As previously stated, regulatory changes and/or litigation may result in modification of the definition of waters of state; therefore, the District Biologist, or other users of the SER, must use the latest guidance from USACE.

The definition of Waters of the U.S. and the State, have been controversial due to conflicting court decisions. In 2008, the EPA and USACE issued revised joint guidance interpreting the bounds of CWA jurisdictions  following the 2006 Supreme Court case, Rapanos v. United States. The revised guidance replaces a previous policy issued in June 2007 and clarifies the 2006 Supreme Court decision in Rapanos. In the Rapanos case, the Supreme Court considered where the Federal government can apply the CWA, specifically by determining whether a wetland or tributary is a “water of the U.S.” The Court was divided on these issues, creating two vastly different tests for CWA jurisdiction.

Four justices, in a plurality opinion authored by Justice Scalia, rejected the argument that the term “waters of the U.S. is limited to only those waters that are navigable in the traditional sense and their abutting wetlands. However, the plurality concluded that the agencies’ regulatory authority should extend only to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to” such relatively permanent waters. Justice Kennedy did not join the plurality’s opinion but instead authored an opinion concurring in the judgment vacating and remanding the cases to the Sixth Circuit Court of Appeals. Justice Kennedy agreed with the plurality that the statutory term “waters of the U.S.” extends beyond water bodies that are traditionally considered navigable. Justice Kennedy, however, found the plurality’s interpretation of the scope of the CWA to be “inconsistent with the Act’s text, structure, and purpose” and he instead presented a different standard for evaluating CWA jurisdiction over wetlands and other water bodies. Justice Kennedy concluded that wetlands are “waters of the U.S.” “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’

Despite the substantial differences between the two Rapanos opinions, the joint guidance instructs the EPA and USACE to assert CWA jurisdiction when either opinion is met. Due to the Rapanos case, wetland/waters delineation reports should document hydrologic connections between the wetland and waters of the U.S. Special aquatic sites that receive special protection during the Section 404 permitting process should also be identified in delineations. In addition to wetlands, special aquatic sites include sanctuaries and refuges, mudflats, vegetated shallows, coral reefs, and riffle and pool complexes (40 CFR 230.40 et seq.).

In California, wetlands are commonly classified according to the length of time that an area is inundated or saturated by water, or by the types of plants and animals an area supports. For example, if an area is only saturated or inundated for part of the year, it can be classified as a seasonal or perennial wetland. Likewise, areas that are inundated or saturated throughout the entire year may be referred to as a permanent wetland.

The following are common types of waters found in California:

Freshwater: These areas may be permanent or seasonal, inland or coastal. This category includes riparian, or streamside areas, marshes, seeps, montane mountain meadows, and vernal pools. In some cases, wetlands may also occur within riparian settings above the wettest portions of the streambed areas subject to saltwater influence in coastal settings support vegetation adapted to brackish conditions. Alkaline conditions may support vegetation similar to that found in areas influenced by saltwater.

Saltwater: Coastal marsh, subject to full tidal action, occurs along the coast of California. Tidal marshes can be found along protected coastlines in middle and high latitudes worldwide. Some are freshwater marshes, others are brackish (somewhat salty), and still others are saline (salty), but they are all influenced by the motion of ocean tides. Tidal marshes are normally categorized into two distinct zones, the lower or intertidal marsh and the upper or high marsh. In saline tidal marshes, the lower marsh is normally covered and exposed daily by the tide.

Non-tidal marshes also exist, and are the most prevalent and widely distributed wetland/waters in North America. They are mostly freshwater marshes, although some are brackish or alkaline. They frequently occur along streams in poorly drained depressions, and in the shallow water along the boundaries of lakes, ponds, and rivers. Water levels in these wetland/waters generally vary from a few inches to two or three feet, and some marshes, like prairie potholes, may periodically dry out completely.

Vernal Pools/Seasonal Wetlands: Vernal pools are seasonal depressional wetlands that occur under the Mediterranean climate conditions of the West Coast. They are covered by shallow water for variable periods from winter to spring, but may be completely dry for most of the summer and fall. These wetlands range in size from small puddles to shallow lakes and are usually found in a gently sloping plain of grassland. Although generally isolated, they are sometimes connected to each other by small drainages known as vernal swales. Beneath vernal pools lies either bedrock or a hard clay layer in the soil that helps keep water in the pool.

USACE is primarily responsible for implementing the CWA Section 404 program. Section 404 of the CWA establishes a permit program administered by USACE which regulates the discharge of dredged or fill material into waters of the U.S. Section 404(b)(1) guidelines allow the discharge of dredged or fill material into the aquatic system only if there is no practicable alternative which would have less adverse effects. Implementing regulations by USACE are found at 33 CFR Parts 320-330.

The purpose of the USACE and Section 404 program is to ensure that the physical, biological, and chemical quality of our nation's water is protected from irresponsible and unregulated discharges of dredged or fill material that could permanently alter or destroy these valuable resources. The USACE Regulatory Program administers and enforces Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the CWA. Under the Rivers and Harbors Act, Section 10, a permit is required for work or structures in, over or under navigable waters of the U.S. Under CWA, Section 404, a permit is required for the discharge of dredged or fill material into waters of the U.S. Many water bodies in the nation are waters of the U.S, as described in section 3-3, and are subject to the USACE regulatory authority.

The USACE regulatory authority under the Rivers and Harbors Act of 1899 is limited to traditional "navigable waters". Traditional navigable waters regulated by Section 10 are waters that are, could be, or were once used to transport interstate or foreign commerce. In contrast,"waters of the U.S." regulated under Section 404 also include "other waters" such as wetlands that have a sufficient nexus to interstate commerce. In practice, USACE regulatory authority under the Rivers and Harbors Act has been integrated with regulatory authority under the CWA, and USACE uses one permit application for both types of permits.

The diagram below illustrates the USACE lateral extent of jurisdiction under Section 10 and Section 404.

   

The District Biologist is typically responsible for delineation of jurisdictional waters. USACE is then responsible for verifying the Biologist’s delineation. The permit process is typically initiated by a jurisdictional determination (JD) that the proposed project would occur in waters. The District Biologist prepares a wetland/waters delineation report to USACE requesting verification. USACE will review JD reports and either verifies the conclusions in the report or request changes to the report based on the review. Once the USACE agrees with the conclusions presented in the JD report, USACE will make a JD. The USACE may then proceed with the evaluation of a permit application submittal from the District Biologist (individual permit application, general permit, pre-construction notification or general permit verification request). The USACE may also send a letter affirming a preliminary or approved JD. Upon verification, these areas are referred to as "jurisdictional areas." A graphical depiction of the overall permit review process (PDF) is provided from USACE.

USACE RGL 08-02, issued June 26, 2008, entitled “Jurisdictional Determinations,” (JD) explains the differences between JDs and preliminary JDs. Approved JDs and preliminary JDs are tools used by the USACE to help implement Section 404 of the CWA and Sections 9 and 10 of the Rivers and Harbors Act of 1899. RGL 08-02 provides guidance on when an approved JD is required and when the District Biologist can decline to request and obtain an approved JD and elect to use a preliminary JD instead.

Approved JDs are an official USACE determination that jurisdictional “waters of the U.S.” or “navigable waters of the U.S., or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters on the project site determined to be jurisdictional under the CWA and Rivers and Harbors Act (33 CFR 331.2). Preliminary JDs are not binding, but written indications that there may be wetland/waters of the U.S. on a project site. Preliminary JDs are advisory in nature and may not be appealed (33 CFR 331.2).

A Section 404 permit is required from the USACE when a project requires fill or other modification of waters. There are two types of permits issued by the USACE: Standard and General permits.

Standard Permits

There are two types of Standard permits: Individual permits and Letters of Permission

General Permits

There are two types of General permits: Nationwide permits (NWP) and Regional permits (GPs).

Initiation of a request for a USACE permit to affect waters involves other resource and regulatory agencies as a part of the interagency review process. The USACE submits permit applications to the EPA, CDFW, NMFS, and FWS for review and comment. Time periods and extent of commenting required by these agencies varies depending upon the permit type. Individual permits are the most lengthy and involved.

Applications for USACE permits may be prepared and submitted by the Project Engineer, the District Biologist, or others, using information on delineated waters as prepared by the Biologist. The Project Engineer provides information on the extent of the construction effects responsible for proposed fill. The District Biologist is the key liaison with resource and regulatory agency staff regarding the wetland/waters habitat effects and potential mitigation required.

For Standard permits, the USACE permit decision is based on whether the proposed project complies with EPA’s Section 404 (b) (1) Guidelines, and whether issuance of a permit is in the public interest. The Guidelines (40 CFR 230 et seq.) state that the USACE may not issue a permit if there is a less environmentally damaging practicable alternative (LEDPA) to the proposed discharge that would have less effects on the waters, and not have other significant adverse environmental consequences. This means that the District Biologist must document that a sequence of avoidance, minimization, and compensation has been followed, in that order. This sequence is required under the Section 404(b)(1) Guidelines (40 CFR Part 230).

The Guidelines also restrict permitting activities that:

• Violate water quality or toxic effluent standards
• Jeopardize the continued existence of listed species
• Violate marine sanctuary protections
• Cause “significant degradation” to waters of the U.S

To review the requirements for the use of Nationwide, Regional or General permits, and to determine which permit applies to your project, please visit the USACE Regulatory website in your region.

USACE RGLs were developed by the USACE as a system to organize and track written guidance issued to its field agencies. RGLs are normally issued as a result of evolving policy, judicial decisions, and changes to USACE regulations or another agency’s regulations which affect the permit program. RGLs are used only to interpret or clarify existing Regulatory Program policy, but do provide mandatory guidance to the USACE district offices. Below is a list of RGLs related to wetland and waters of the U.S. The RGLs are described in further detail in this chapter.

• RGL 08-03 (PDF) - Minimum Monitoring Requirements for Compensatory Mitigation Projects Involving the Restoration, Establishment, and/or Enhancement of Aquatic Resources
• RGL 08-02 (PDF) - Jurisdictional Determinations
• RGL 02-02 (PDF) - Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899
• RGL 02-01 (PDF) - Inclusion of Disclaimer Statements in Jurisdictional Letters Indicating that the Clean Water Act (CWA) Jurisdictional Determinations/Delineations May Not Meet the Requirements of the Food Security Act (FSA) of 1985

EPA activities which affect waters include, but are not limited to, developing rules to regulate municipal and industrial wastewater discharge, stormwater discharge; overseeing drinking water quality; overseeing USACE regulatory activities pertaining to protection of waters of the U.S., and dredge and fill activities. The mission of the EPA includes protection of human health and safeguarding the natural environment. The EPA has the right to challenge a USACE permit approval. Section 404 (b) (1) of the EPA and USACE guidelines involve assurance that the proposed activity does not violate water quality standards (USACE, EPA 1993). It requires that the District Biologist, along with the PDT, to provide an alternative’s analysis to illustrate that the alternative least damaging to waters of the U.S. has been selected (LEDPA). The EPA also has jurisdiction over violations. The EPA and USACE have issued several memoranda of agreement (MOA’s), including one that defines each agency’s roles more specifically.

The FWS jurisdiction is nationwide and operates under a host of federal legal mandates that explicitly and implicitly refer to waters of the U.S. The mission of the FWS includes working to conserve, protect, and enhance fish and wildlife and their habitats for the continuing benefit of the American people. According to the Fish and Wildlife Coordination Act, all federal agencies are required to contact the FWS, NMFS, and California's wildlife agency, CDFW, regarding activities that affect, control, or modify waters of any stream or other bodies of water. These consulted agencies review applications for permits issued under Section 404 and provide comments to the USACE about the environmental effects of the proposed project. Regulations pertaining to wetland/waters overlap with FESA requirements because wetland/waters could be habitat for federally listed plants and animals. The granting of a permit is a “federal action” for purposes of FESA; thus, if a listed species may be affected, a 404 permit request triggers the need for a consultation with FWS under FESA. FWS retains jurisdiction over terrestrial species and freshwater aquatic species.

NMFS comments on all NEPA and Section 404 documents for projects that could affect marine, estuarine, or anadromous fish, or their habitat. This includes intertidal wetlands, sub tidal areas, eelgrass habitat for marine and estuarine species, as well as riparian habitat for salmonids. NMFS is also responsible for designating critical habitat for species it lists under FESA. The critical habitat designation may include specific areas within the geographical area occupied by the species at the time of listing, if they contain physical or biological features essential to conservation, those features that may require special management considerations or protection; and specific areas outside the geographical area occupied by the species if the agency determines that the area itself is essential for conservation. Regulations pertaining to wetland/waters overlap with FESA requirements because wetland/waters could be habitat for federally listed plants and animals. As with FWS, if a listed species may be affected, a 404 permit request triggers the need for consultation with NMFS under FESA. NMFS retains jurisdiction over marine species and most anadromous fish.

The USCG administers the various bridge statutes, environmental laws of the U.S., and pertinent regulations and policies. The USCG is responsible for approval of the location and plans of bridges and causeways constructed across navigable waters of U.S. In addition, the Coast Guard is responsible for approval of the location and plans of international bridges and the alteration of bridges found to be unreasonable obstructions to navigation. Section 9 of the Rivers and Harbors Appropriations Act is administered by the U.S. Coast Guard and requires Caltrans to obtain a Bridge Permit (PDF). A Bridge permit is required by the USCG when there is construction of a new bridge or causeway or reconstruction or modification of an existing bridge or causeway across navigable waters. When Caltrans applies for a Bridge permit, they must submit an application package (PDF) to the USCG. The Bridge Application must be sent to the Coast Guard District office with jurisdiction in the vicinity of the proposed bridge site. Remember to include any approvals or other permits that you have already received.

Caltrans may be required to coordinate with the NRCS, formerly the Soil Conservation Service, when a proposed transportation project may affect agricultural lands where farmers have been growing commodity crops in areas that were drained, filled, or otherwise altered wetlands prior to 1985. The Food Security Act of 1985 (referred to as "Swampbuster") ended the NRCS approval of the draining of wetlands for commodity crops. The NRCS administers the Act, as amended by the Food, Agriculture, Conservation, and Trade Act of 1990 and the Federal Agriculture Improvement and Reform Act of 1996.

In 1994, the NRCS signed a Memorandum of Agreement (MOA) with USACE which makes the NRCS responsible for wetland/waters delineations on prior converted croplands and farmed wetlands that receive agricultural subsidies through the federal government. The NRCS may use the procedures for delineating wetland/waters as described in the National Food Security Act Manual, Third Edition (PDF). The NFSAM 4th Edition contains only the common provisions and the Highly Erodible Land Conservation compliance parts. The National Food Security Act Manual (NFSAM) 5th Edition will be out soon. It is comprised of 12 parts, covering both the highly erodible land conservation and wetland/waters conservation compliance provisions. This edition will be available online in its entirety. Please refer to the latest guidance from NRCS. Linear projects such as roadway improvements may be excluded from the NRCS involvement.

When the NRCS is involved, the District Biologist is responsible for contacting the NRCS, submitting the wetland/waters delineation report to the appropriate NRCS field office, and requesting verification. In some cases, the USACE may take the responsibility for the NRCS verification, or provide evaluation of an "other waters" determination. It is best to obtain guidance from the NRCS regarding responsibility of all aspects of the determination.

Waters may also be subject to jurisdiction of the CDFW in accordance with Fish and Game Code Sections 1600-1607. The CDFW regulates activities that would alter the flow, bed, channel or bank of streams and lakes by issuing Lake or Streambed Alteration Agreements. In riparian areas, CDFW jurisdictional limits are usually delineated by the top of the stream or lake banks, or the outer edge of riparian vegetation; whichever is wider. Waters under jurisdiction of the USACE may or may not be included in the area covered by a Lake or Streambed Alteration Agreement obtained from the CDFW.

Caltrans must contact the CDFW regarding any potential Section 1600-1607 effects independent of their role as reviewer on USACE Section 404 permits. The CDFW contacts for Section 1600 are best facilitated by coordination with the District Biologist.

SWRCB and the nine (9) Regional Water Quality Control Boards (RWQCB) work together to protect California's water resources. The SWRCB is generally responsible for setting statewide water quality policy and considering petitions contesting RWQCB actions. The State Board is also solely responsible for allocation of surface water rights. Section 401 of the CWA (33 U.S.C. 1341) requires any applicant of a federal license or permit conducting any activity that may result in a discharge of a pollutant into waters of the U.S. to obtain certification from the state in which the discharge originates. As a result, proposed fill in waters requires coordination with the appropriate RWQCB that administers Section 401 and provides certification. The RWQCB also plays a role in review of water quality and wetland/waters issues, including avoidance and minimization of effects. Section 401 certification is required prior to issuance of a Section 404 permit.

Projects affecting waters within the limits of San Francisco Bay may require a permit from the BCDC. The BCDC has jurisdiction over all areas of San Francisco Bay subject to tidal action up to the mean high tide line, or a line five feet above mean sea level in marshlands. The area 100 feet inland from the mean high tide is also within jurisdiction. All projects proposed in tidal wetland/waters within the BCDC's jurisdiction require an approved BCDC permit before proceeding. Projects that require BCDC permits often must receive authorization from the RWQCB and USACE. Under state and federal law the BCDC is required to set conditions for these permits in order to minimize effects on waters and to offset those effects that are unavoidable. The BCDC is responsible for federal implementation of the CZMA within the limits of San Francisco Bay, rather than the CCC. The Project Engineer is usually the key contact for this agency. The District Biologist provides analysis of wetland/waters effects and may work directly with agency staff on mitigation requirements unique to the BCDC.

The California SLC manages some 4.5 million acres of land held in trust for the people of California. The State holds these lands for all people of the State for the public trust purposes of water related commerce, navigation, fisheries, recreation, and open space. The Commission manages the use of the State owned waters through leases to other public agencies and private parties. The Commission staff reviews permit applications submitted to the CCC, the San Francisco BCDC, and the USACE. The Commission has jurisdiction and control over State owned lands pursuant to PRC 6000 et seq. These lands include: a three mile-wide section of tidal and submerged land adjacent to the coast and offshore islands, including bays, estuaries, and lagoons; the waters and underlying beds of more than 120 rivers, lakes, streams, and sloughs; and 585,000 acres of school lands granted to the state by the federal government to support public education.

It is important to identify potential effects to waters as early in the environmental process as possible. Complex wetlands/waters delineation and assessment reports require extensive involvement from the District Biologist. Early coordination is an informal process where the Biologist meets with project managers (PM), the developed PDT, and regulatory agencies, to discuss the project in its early planning stages. These early coordination meetings allow time to review your proposed plans and discuss permit requirements, potential problems, timeframes, and ways to change the project to reduce or further minimize effects. Early involvement will also help to avoid potential delays in project delivery and minimize potential changes in the project scope that may result in project cost increases. You are encouraged to contact the USACE for proposed work in waters in your project area. Exemptions, nationwide, regional and individual requirements will be reviewed. By discussing all information prior to application submittal, your application will be processed more efficiently. Click here for more information on USACE pre-application consultation.

Early notification to the PM, PDT, and resource and regulatory agencies also allows time for investigation of design modifications to avoid or minimize potential effects to waters. If effects cannot be avoided, and have been reduced to the minimum level practicable, wetland/waters mitigation proposals to compensate for those effects must be developed by the District Biologist and others on the PDT, and evaluated as part of the environmental impact analysis process.

Caltrans has implemented early coordination with the state and federal agencies involved in the wetland/waters regulation process. In 1993, Caltrans signed a Memorandum of Understanding (MOU) with the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), EPA, USACE, FWS, NMFS, and the Arizona and Nevada Departments of Transportation. The objective of the MOU is to integrate the National Environmental Policy Act (NEPA) and the CWA, Section 404. Referred to as the NEPA/404 integration process, the MOU commits these agencies to ensuring the earliest possible consideration and identification of environmental concerns pertaining to waters of the U.S. This is accomplished in conjunction with land use and transportation planning.

Early stage planning meetings allow for full discussion of project alternatives to avoid wetland/waters. These alternatives may need to be discussed in the environmental document as a “Wetlands Only Practicable Alternative Finding” (WOPAF). Executive Order 11990 , Protection of Wetlands (1977), calls for no net loss of habitats referred to as wetlands and established a national policy to avoid adverse effects on wetlands wherever there is a practicable alternative. The Federal Department of Transportation promulgated DOT Order 5660.1A in 1978 to comply with this direction. On Federally funded projects, effects to wetland/waters must be identified in the environmental document. Alternatives that avoid wetland/waters must be considered. If wetland/waters effects cannot be avoided, then all practicable measures to minimize harm must be included. If the preferred alternative is located in wetlands/waters, the final EIS needs to contain the finding required by Executive Order 11990. The finding will document compliance with the Executive Order 11990 requirements (23 CFR 771.125(a)(1)). The finding should be included in a separate subsection entitled "Wetlands Only Practicable Alternative Finding" and should be supported by the following information:

1. A reference to Executive Order 11990;
2. An explanation why there are no practicable alternatives to the proposed action;
3. An explanation why the proposed action includes all practicable measures to minimize harm to wetland/waters; and
4. A concluding statement that: "Based upon the above considerations, it is determined that there is no practicable alternative to the proposed construction in wetland and that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use."

An additional requirement is the opportunity for early public involvement in projects affecting waters. The Federal Highway Administration provides technical assistance in meeting these criteria (FHWA Technical Advisory 6640.8A) and reviews environmental documents for compliance. Section 404 Individual Permit applications also require a Section 404(b)(1) alternatives analysis (LEDPA), as discussed above in section 3-4.1.

• No set format
• Typical example:
• Introduction
• Setting
• Methods
• Results
• Include a summary and table of contents only it is a lengthy report
• Useful near the beginning of long reports is a list of acronyms and abbreviations
• Contents: Review USACE’s minimum standards for reports
• Is Rapanos required?

Typically Includes:

• Project location
• Directions to the site
• Property ownership (including any property to be acquired)
• How the study limits were determined
• Total area within the study limits
• Name(s) of the preparer(s) of the delineation report and/or applicant, together with contact information

Typically includes:

• Physical setting of the project area
• Topography
• Watershed(s)
• Climate, in particular, mean annual rainfall and snowfall
• Hydrology
• Where does the water come from?
• Where does it go?
• Keep the Rapanos requirements in mind
• Soils
• Vegetation