Jurisdictional waters, or waters of the United States (WOTUS) are regulated by the United States Army Corps of Engineers (USACE) and include (1) all waters currently or previously used for interstate or foreign commerce, (2) all interstate waters and interstate wetlands, (3) tributaries to navigable WOTUS, including adjacent wetlands, lakes, and ponds, (4) interstate waters and their tributaries, including adjacent wetlands; and, (5) all other waters of the U.S. not identified above, such as intrastate lakes, rivers, intermittent streams, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the U.S., where the use, degradation or destruction of these waters could affect interstate or foreign commerce (40 CFR 230.3(s)). Some states have more stringent definitions of regulated waters within the state.

Section 404 of the Clean Water Act (CWA) defines the limit of jurisdiction as the ordinary high water mark (OHWM). Therefore, any drainage channel that exhibits an OHWM is classified as jurisdictional and is subject to regulation. OHWM is defined as, “the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas” (USACE, 2005). Click here for information from the United States Environmental Protection Agency about the Waters of the United States.

In 1948, Congress passed the Federal Water Pollution Control Act (FWPCA) to address water pollution in the United States. Amendments to the FWPCA were passed in 1972 that became known as the Clean Water Act (CWA). The CWA established the regulatory structure for preventing pollution and restoring water quality in rivers, streams, and other navigable waters of the United States.

Development projects that could impact jurisdictional waters are subject to CWA permitting through the United States Army Corps of Engineers (USACE). To determine if waterways on your property fall under the regulation of the CWA and find out if you are subject to permitting requirements, VET will perform a formal jurisdictional waters delineation in accordance with USACE and state-specific requirements. VET will help you understand what regulatory requirements apply to your property and how you can comply with applicable regulations. Click here for a summary of the Clean Water Act from the EPA.

If you are planning to develop a property that has jurisdictional waters, or WOTUS, on-site, you may need to formally determine and delineate the extent of the WOTUS to assess whether you will need CWA permitting. VET provides a number of services, including Phase I Environmental Site Assessments and Wetland Delineations that may identify potential jurisdictional waters at a property. If previous environmental investigations at your property identified potential jurisdictional waters, or if you know there are waterways such as streams or ditches on the property, VET will conduct a jurisdictional waters determination at your property to quantify both the amount of jurisdictional waters and the potential impacts from your project. VET’s jurisdictional waters determinations use a combination of desktop reconnaissance and field investigation to provide you with the highest quality descriptions, quantifications, and visual displays of jurisdictional waters on your property.

VET will complete desktop reconnaissance and field investigations at your property within two weeks of contracting the work for most projects. VET will conduct analysis of the desktop reconnaissance and field investigations to provide you with a technical and easily digestible report, complete with visual aids to enhance your understanding of VET’s work and recommendations. VET can deliver the finalized report to you within three weeks of contracting the work for most projects. We understand that each project is different and will work with you on a timeline that meets your needs and makes sense for you.

Once we have completed the jurisdictional waters determination, VET will guide you through the permitting process with the appropriate regulatory agency.

Click here for the documentation provided by the United States Environmental Protection Agency on the permitting associated with the Clean Water Act.

If you are planning to develop a property and jurisdictional streams are present, permitting and compensatory mitigation may be required through the United States Army Corps of Engineers (USACE) and/or the Indiana Department of Environmental Management (IDEM). USACE and IDEM permits are required for any work in jurisdictional waters. IDEM issues Section 401 Water Quality Certifications (401 WQC) for work impacting wetlands, streams, rivers, lakes, or other waters of the United States (WOTUS). USACE issues Section 404 Dredge and Fill Permits. In most cases where WOTUS will be impacted, both state-specific (401 WQC) and USACE permits are required. If you are located outside of Indiana, we will assist you in meeting your state-specific requirements. As part of VET’s formal jurisdictional waters determination report, VET will work with you to understand potential permitting requirements. Permitting requirements will depend on the results of the jurisdictional waters determination and your development plans at the property.

If development at your property will impact jurisdictional waters, you will be required to offset the impacts through restoring, enhancing, or preserving the aquatic environment that will be impacted. Streams are generally mitigated via restoration on a foot for foot basis.

For information on obtaining permitting from the USACE, click here.