Jurisdictional Issues
In response to the July 21, 1999, Federal Register notice, we received many comments concerning the scope of the Corps regulatory authority. These comments addressed excavation activities in waters of the United States and whether ephemeral streams, drainage ditches, and certain other categories of waterbodies are waters of the United States. Today's action addresses only NWPs, and in no way affects or alters the geographic or activities-based jurisdiction of the CWA nor is it intended to create new policy related to such jurisdiction.
Many commenters said that the Corps is ignoring recent court decisions by including excavation activities as regulated activities in the text of the new and modified NWPs. These commenters cited the recent decision by the United States Court of Appeals for the District of Columbia which upheld the United States District Court for the District of Columbia's decision in the American Mining Congress v. Corps of Engineers lawsuit. This lawsuit challenged the Corps and EPA's revised definition of "discharge of dredged material" that was promulgated on August 25, 1993 (58 FR 45008). The revised definition of "discharge of dredged material" was overturned because the District Court held that the rule was outside of the agencies' statutory authority and contrary to the intent of Congress by asserting Clean Water Act jurisdiction over activities where the only discharge associated with the activity is "incidental fallback." These commenters requested that the Corps remove all references to excavation activities from the new and modified NWPs. Two commenters stated that the reference to excavation activities in the new and modified NWPs requires project proponents to submit a notification to the Corps to determine if a Corps permit is required. One commenter said that the final NWPs should contain guidance that explains when excavation is a regulated activity. This commenter also recommended that the Corps clarify how excavation activities are included in the calculation of acreage loss of waters of the United States, to determine if a particular activity exceeds PCN thresholds or NWP acreage limits.
The agencies revised their regulations on May 10, 1999, to respond to the results of the American Mining Congress lawsuit (64 FR 25120). It is important to recognize that not all excavation activities in waters of the United States are conducted so that only incidental fallback occurs. Excavation activities that result in the redeposit of dredged material into waters of the United States other than incidental fallback require a Section 404 permit. For example, excavated material may be temporarily stockpiled in waters of the United States before it is removed. Excavation activities that result only in discharges identified by the Corps as "incidental fallback" do not require a Section 404 permit. However, all excavation activities in Section 10 navigable waters require Corps permits under section 10 of the Rivers and Harbors Act of 1899. We have retained the excavation language in the new and modified NWPs and the definition of "loss of waters of the United States" because some excavation activities in Section 404 only waters of the United States result in discharges that still require a Section 404 permit. These activities may be authorized by NWPs. NWPs issued under the Corps Section 10 authority also authorize excavation activities in navigable waters of the United States. No permit is required for excavation activities that do not meet the definition of discharge of dredged or fill material. As with any activity in waters of the United States, a landowner who is uncertain whether their activity needs a permit may contact the Corps.
Two commenters noted that a statement in the July 21, 1999, Federal Register notice (64 FR 39276) concerning excavation activities is inaccurate and misleading. This statement said that excavation activities that result in the replacement of an aquatic area with dry land or change the bottom elevation of a waterbody require a Section 404 permit. These commenters said that this statement is actually the definition of "fill material" and that excavation cannot, by itself, result in the replacement of an aquatic area with dry land or change the bottom elevation of a waterbody.
We agree that the statement in the Federal Register is inaccurate and have included clarification concerning when excavation activities require a Section 404 and/or a Section 10 permit from the Corps (see the above discussion). Excavation activities can change the bottom elevation of a waterbody by removing material and increasing the depth of the waterbody. Increasing the depth of a waterbody without associated discharges of dredged material other than incidental fallback does not require a Section 404 permit, but a Section 10 permit would be required if the activity is in Section 10 waters. However, an excavation activity that involves redeposit of dredged material into waters of the United States other than incidental fallback or involves the discharge of fill material that increases the bottom elevation of a waterbody or creates dry land requires a Section 404 permit (unless the activity qualifies for a Section 404(f) exemption).
A number of commenters stated that the Corps does not have authority to regulate discharges into ephemeral streams because these watercourses, by definition, contain water only briefly and therefore are not waters of the United States. One of these commenters noted that 33 CFR 328.3 includes intermittent streams, but does not include ephemeral streams. A few commenters remarked that the Corps has not explained how an ordinary water mark can be present in a watercourse that has water flow only during a short time after rain events. These commenters assert that under ordinary circumstances, ephemeral watercourses do not have flowing water and cannot develop an ordinary high water mark (OHWM). They said that the Corps needs to define what constitutes an "ordinary flow" in an ephemeral watercourse that establishes an OHWM and what indicators are to be used to determine the presence and location of the OHWM. In addition, these commenters stated that the Corps cannot use peak flows and flood stages in lieu of ordinary flows and the Corps cannot use cut banks, shelving, or debris that is influenced only by peak flows or flooding.
An ephemeral stream is a water of the United States, provided it has an OHWM. An ephemeral stream that does not have an OHWM is not a water of the United States. The frequency and duration at which water must be present to develop an OHWM has not been established for the Corps regulatory program. District engineers use their judgement on a case-by-case basis to determine whether an OHWM is present. The criteria used to identify an OHWM are listed in 33 CFR 328.3(e).
Several commenters said that the Corps can only exercise jurisdictional authority over those ephemeral waters that are tributaries to waters of United States. These commenters said that the low frequency of water flows in these watercourses requires the Corps to define criteria and circumstances to determine whether ephemeral watercourses are tributaries to waters of the United States. Some commenters also stated that the Corps has not demonstrated how ephemeral streams have any nexus to interstate commerce or how discharges of dredged or fill material into those watercourses would affect interstate commerce.
We agree that ephemeral streams that are tributary to other waters of the United States are also waters of the United States, as long as they possess an OHWM. The upstream limit of waters of the United States is the point where the OHWM is no longer perceptible (see 51 FR 41217). Ephemeral streams that are part of an interstate surface tributary system are waters of the United States, because they are an integral part of that surface tributary system, which supports interstate commerce.
Three commenters stated that the proposed NWPs illegally assert jurisdiction over drainage ditches. Three commenters objected to a statement in the July 21, 1999, Federal Register notice that drainage ditches constructed in waters of the United States remain waters of the United States. These commenters said that if a drainage ditch converts a water of United States to a non-jurisdictional upland, the drainage ditch would not be a water of United States unless the area remains a wetland or other type of water of United States. These commenters also objected to the Corps assertion that non-tidal drainage ditches are waters of the United States if they extend the OHWM of an existing water of the United States. They said that this position is contrary to preamble to November 13, 1986, final rule for the Corps regulatory program (51 FR 41217) and that this change requires justification. One commenter requested that the Corps clarify whether the entire ditch becomes jurisdictional if the OHWM becomes extended within the ditch or whether jurisdiction is extended only to that portion of the ditch that develops an OHWM. Two commenters asked for clarification whether a drainage ditch that runs through a series of uplands and waters of the United States is jurisdictional. One commenter asked how an OHWM that develops within a drainage ditch would be determined to be due to ordinary flows, not peak flows or flooding.
A drainage ditch constructed in a stream, wetland, or other water of the United States remains a water of the United States, provided an OHWM is still present. Since drainage ditches constructed in waters of the United States are constructed either by channelizing a stream or excavating the substrate to improve drainage, it is unlikely that the drainage ditches will become dry land unless the hydrology is removed by some other action. District engineers will determine, on a case-by-case basis, whether a particular area is a water of the United States. If the construction of a drainage ditch has legally converted the entire area to dry land, then the area drained is not a water of the United States, however, in most cases the drainage ditch would remain a water of the United States.
The statement that non-tidal drainage ditches are waters of the United States if they extend the OHWM of an existing water of the United States is consistent with the final rule published in the November 13, 1986, Federal Register and applies to ditches constructed in waters or that connect waters. Nothing in the NWP notice was intended to change the November 13, 1986, Federal Register notice which states that drainage ditches constructed entirely in upland areas generally are not considered to be waters of the United States.
Drainage ditches constructed in uplands that connect two waters of the United States may be considered waters of the United States if those ditches constitute a surface water connection between those two waters of the United States. As previously noted, drainage ditches constructed entirely in uplands generally are not considered to be waters of the United States. District engineers will use the criteria at 33 CFR 328.3(e) to determine the presence and extent of an OHWM that may have developed in a drainage ditch.
One commenter stated that the July 21, 1999, Federal Register notice incorrectly asserts jurisdiction over farmed wetlands by considering them to be waters of the United States and the Corps does not have authority to require permits for discharges into these areas. Another commenter said that the Corps does not have the authority to regulate activities in isolated wetlands. Two commenters indicated that the Corps contradicts its regulations concerning the construction and maintenance of stormwater management facilities. These commenters assert that the Corps regulations published in the November 13, 1986, Federal Register state that detention and first flush basins are generally not considered waters of the United States. One commenter requested clear definitions of the terms "waters of the United States," "navigable waters," and "navigable waters of the United States."
Farmed wetlands as defined under the Food Security Act are waters of the United States provided they meet the criteria at 33 CFR 328.3. In addition, those criteria further provide that prior converted croplands are not waters of the United States. Isolated wetlands are waters of the United States, provided they meet the criteria at 33 CFR 328.3. (Within the Fourth Circuit, isolated waters must be shown to have an actual connection to interstate or foreign commerce.) Stormwater management facilities constructed in waters of the United States may, under certain circumstances, be considered waters of the United States. The Corps has the discretion to determine on a case-by-case basis whether or not a particular waterbody is a water of the United States (see 51 FR 41217). The term "waters of the United States" is defined at 33 CFR 328.3 and refers to the Corps Section 404 jurisdiction. The term "navigable waters" as used in Section 404 of the Clean Water Act has the same meaning as "waters of the United States." The term "navigable waters of the United States" is defined at 33 CFR part 329 and refers to the Corps Section 10 jurisdiction. None of these definitions were changed by the proposed NWPs or these final NWPs.
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