Stream and Wetland Regulations 101
In 1972, Congress passed the Clean Water Act (CWA) with goals to restore the chemical, physical, and biological integrity of water in the United States. Its basic structure is to regulate discharges of pollutants into the nation’s waters. Discharges can mean anything from a wastewater treatment plant outflow to filling a wetland with sediment. In the U.S., any impacts to streams or wetlands are regulated by the United States Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA). Section 404 of the CWA regulates the discharge of dredged material and/or fill material into waters of the U.S. This is typically administered by USACE. The USACE will issue nationwide permits for certain activities; however, if that activity doesn’t fall under a particular permit or may surpass the limitations of that permit, the USACE may need to issue an individual permit. The CWA also requires state agencies, like the Ohio EPA, to evaluate projects that will result in a discharge of dredged or fill material in waters of the U.S. This falls under Section 401 Water Quality Certification. Activities that typically require permits under Section 404 or Section 401 include bank stabilization, culvert installation, stream rerouting, dredging a stream, or filling in a wetland for development. Every situation is different and also may not require a permit, which we will dive into in the next few sections.
What waters are regulated?
When it comes to deciding which types of streams and wetlands are regulated by federal and state law, policies are always changing. The term “Waters of the United States” is also an ever-changing definition and leaves a lot of uncertainty on what is determined to be waters of the U.S. The waters of the U.S. rule has changed several times with the changes of presidential administrations. The rule was recently revised in early 2023. To put it in simplest terms, waters of the U.S. include waterways, like streams and rivers, that are considered traditionally navigable or are in continuous connection with traditionally navigable waters. These streams are mostly like the larger, permanent streams that flow year round. In Butler County, think of the Great Miami River and streams that connect to it, like Sevenmile Creek. These can also be intermittent and ephemeral streams that only flow during certain times of the year. Wetlands can also be considered waters of the U.S. if they are adjacent to navigable waterways, but this rule has also been uncertain and has recently changed. USACE will review projects that may impact wetlands or other waterways and visit the site to determine if the waters of question fall under waters of the U.S. and therefore Army Corps jurisdiction. These determinations are based on certain criteria that will be discussed in further sections.
If you have a stream on your property that you believe may or may not be a waters of the U.S. and may be federally regulated, you can obtain a jurisdictional determination from Army Corps. For streams to be considered jurisdictional, they require a defined bed and bank and ordinary high water mark. You may be able to locate the ordinary high water mark if you can see a clear transitional zone along the streambank of a stream, or a clear line where water is occasionally present and leaves a mark of erosion. You can also tell by the transition of the presence of aquatic vegetation, like sedges, to terrestrial vegetation, like woody shrubs and grasses that meet a gravel stream bed. However, these criteria can be difficult for a landowner to identify and these determinations need to be made by a qualified field professional. To be considered a jurisdictional stream, they may also need a continuous connection to a navigable waterway. For ephemeral streams, or streams that only flow when there is precipitation, may not be regulated depending on if they fit these criteria. In Ohio, House Bill 175 was passed in April 2022 that deregulated certain ephemeral stream features. Previously, Ohio EPA regulated impacts to all ephemeral streams, not those that were solely jurisdictional. The bill states that Ohio law now excludes ephemeral streams that are not determined to be federally jurisdictional by Army Corps. Impacts to jurisdictional ephemeral streams are still regulated and may require mitigation. Butler County also has a 75-foot buffer requirement for any stream that is a USGS blue-lined 2nd order stream or higher. If you do determine that the stream is not jurisdictional and not a 2nd order blue-lined stream, it is still good practice to minimize nay impacts that you can. We highly recommend maintaining vegetation along streambanks and keeping a riparian buffer between the stream and your property.
There are several different types of wetlands in Ohio. Wetlands are extremely important ecological features and support a wide variety of species as well as provide flood control and nutrient filtration. Unfortunately, wetland regulations are always changing and have recently been changing to benefit development. To be considered jurisdictional by Army Corps, wetlands need to have all three parameters of hydrophytic vegetation, hydric soils, and primary hydrology. This determination will also require site visits and review by a qualified professional. If a wetland is found to not have one of these components, Army Corps may not take jurisdiction over them. A wetland could have hydric soils and primary hydrology; however, if it was historically planted as row crop agriculture, it does not fall into the category of jurisdictional. If Army Corp finds a wetland on site, but is found to not be in direct connection to a navigable water, then the Army Corp might not take jurisdiction. Just last week, the Supreme Court ruled in Sackett vs. EPA that the wetlands must have a continuous surface connection with waters of the U.S to be considered jurisdictional and regulated. These might be considered isolated wetlands, which are still regulated by Ohio EPA through the Isolated Wetlands Permit.
As previously mentioned, the most common types of permits required for stream and wetland impacts include Section 404, administered by USACE, and Section 401, administered by Ohio EPA. The USACE issues permits on discharging dredged materials and/or fill material into waters of the U.S. Dredged materials include materials that are excavated or removed from waters of the U.S. Fill material means any material, including sediment or rocks, that are placed in waters which changes the water elevation or replaces any water with those materials. There are both general nationwide and individual Section 404 permits. General Nationwide Permits (NWPs) are issued to cover minor environmental impact activities. There are many NWPs that each cover a certain activity, several including stream and wetland activities. Some of the most common permits that you might need include NWP 3, maintenance of culverts or bridges that result in discharges, NWP 13, bank stabilization, and NWP 18 and 19, minor discharges and minor dredging. These permits all have specific limitations that if tripped up, may require you to submit a pre-construction notification (PCN) to the Corps. For example, NWP 13 requires a PCN if you stabilize more than 500 linear feet of a streambank. If your activities exceed minimal impacts, an Individual 404 permit may be required. A Section 401 Water Quality Certification (WQC) Permit from Ohio EPA may also be required if you are required to have an Individual 404 permit or even at times some of the NWPs. Section 401 permits regulate projects to ensure they comply with Ohio water quality standards. Ohio EPA has a map to locate whether the waters you are planning on impacting require an individual 401WQC permit. For isolated wetlands, Ohio EPA requires an Isolated Wetlands permit that is dependent on the category of wetland as well. Mitigation requirements may also be required under the Oho Revised Code for certain categories of wetlands and acreage of wetlands on site. It may also be a good idea to contact your local floodplain administrator as well as your local engineer’s office before commencing with any work for safety regulations.
All of this can get confusing, so please feel free to reach out to Butler SWCD at (513) 887-3720. If you do not live in Butler County, you can also call your local Soil and Water Conservation District for guidance.
USACE Louisville District Website: https://www.lrl.usace.army.mil/Missions/Regulatory/