Special Topics in Environmental Management

Understanding ‘Waters of the United States’

The agencies will categorically assert jurisdiction over the following waters:

  • Traditional navigable waters, which includes all waters described in 33 CFR 328.3(a)(1) and 40 CFR 230.3(s)(1)
  • Wetlands adjacent to traditional navigable waters
  • Nonnavigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months)
  • Wetlands that directly abut such tributaries

The agencies will decide jurisdiction over the following waters based on fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water:

  • Nonnavigable tributaries that are not relatively permanent
  • Wetlands adjacent to nonnavigable tributaries that are not relatively permanent
  • Wetlands adjacent to, but that do not directly abut, a relatively permanent nonnavigable tributary

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The agencies generally will not assert jurisdiction over the following:

  • Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or slow duration flow)
  • Ditches (including roadside ditches) excavated wholly in and draining only uplands that do not carry a relatively permanent flow of water

Generally, EPA and the Corps will not exert jurisdiction over ditches, swales, or erosional features because they lack a significant nexus to downstream traditional navigable waters. However, if one of these water features is classified as having a hydrologic connection that has a significant effect on navigable waters and thereby meets the significant nexus criteria, it may fall under the jurisdiction of the agencies as well. In addition, even if the water feature does not fall under the definition of "waters of the United States," it may qualify as a point source, and if discharges of pollutants are made to other waters through these features, other CWA regulations may apply.

Applying the significant nexus test to determine CWA jurisdiction for a wetland, tributary, or stream will be lengthy and labor intensive. It requires an evaluation of wetland and stream functions and knowledge of how specific wetlands impact downstream waters. Although EPA and the Corps may decide that certain water features will not fall under CWA coverage, state and local regulations may still apply. In addition, it is expected that EPA and the Corps will continue to consider jurisdictional issues, including the clarification and definition of terminology, through rulemaking or other policy process.

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Note: In April 2011, EPA and the Corps released draft guidance to clarify protection of waters under the CWA and, since that time, have submitted final guidance to the Office of Management and Budget for federal interagency review. The goal of the new guidance is to provide more predictable and consistent procedures for identifying waters and wetlands protected under the CWA. If finalized, the guidance will supersede existing guidance to field staff issued in 2003 and 2008 on the scope of "waters of the United States" subject to CWA programs. Although guidance does not have the force of law, it is frequently used by federal agencies to explain and clarify their understanding of existing requirements.

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Inspection Requirements for EHS Managers, is divided into tables for easy use. You have everything you’ll need in just 4 tables:

Table 1 provides a listing of self-inspection requirements under federal environmental laws.

Table 2 provides requirements under federal safety laws.

Table 3 provides requirements that apply to hazardous materials motor carriers.

Table 4 is a listing of major environmental and safety acts that have requirements for right of entry, inspections, sampling, and testing. Be advised that your state may have different and additional inspection requirements.

Inspection Requirements for EHS Managers also contains checklists to help with preparing for an agency inspection, participating in an inspector visit, and responding to violation notices and enforcement orders.

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