Waters of the U.S. and the State

At a minimum, the early coordination meeting shall:

• Determine if wetland/waters are present within the BSA by undertaking the wetland/waters delineation and assessment process conducted by a qualified Biologist. The Department recognizes the joint definition of waters and wetlands issued by USACE and EPA.
• Determine the jurisdictional boundaries of wetland/waters affected by the project.
• Determine acreage of wetland/waters affected by project.

If resources will be affected by the project:

• Undertake a Wetland/Waters Evaluation in accordance with the state and current USACE guidelines.
• If the project is a local assistance project, refer to the Local Assistance Procedures Manual (LAPM), Chapter 6. The LAPM Exhibit 6-A , PES form, and Exhibit 6-B, Step 10 through 18; Instructions for Completing the Preliminary Environmental Study (PES) Form, provides a complete and sufficient checklist.
• Prepare the Wetland/Waters Evaluation consistent with the format and content prescribed in the LAPM, Chapter 6, and the SER, Volume 3, Chapter 3, Waters of the U.S. and State for a complete and sufficient checklist.
• Summarize the results of the Wetland/Waters Evaluation in the appropriate Environmental Document. Refer to the Quality Control and Assurance for Biological Technical Documents which provides document preparation requirements, quality control and assurance procedures, criteria of what is to be included in a final draft, along with the independent peer review process and correspondence procedures.
• Prepare a public notice and invite public comment.
• The SER, Volume 3, Chapter 3, Waters of the U.S. and State provides general procedures that should be implemented by the District Biologist when dealing with wetland/waters effects.

If the proposed action will require construction in wetlands or waters:

• Prepare the formal "Wetlands Only Practicable Alternative Finding" in accordance with LAPM and Volume 3, Chapter 3, Waters of the U.S. and the State.
• The Local agency shall provide the District Local Assistance Engineer (DLAE) with three (3) complete electronic copies of the Wetland Study (Technical Report) and three (3) electronic copies of the Environmental Document containing a summary of the Wetland Study.
• The District Biologist prepares the finding for the Environmental Document.
• Document agency coordination, including the NEPA/404 integration process and include copies of the correspondence.

NEPA Assignment authorizes the Department to make wetlands and other waters of the U.S. findings. California participated in the Surface Transportation Project Delivery Pilot Program under Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) from 2005 to 2012. With the enactment of MAP-21 in 2012, the Project Delivery Pilot Program was made permanent. The Department's original application, and a Memorandum of Understanding between the Department and FHWA, identify the Department's and FHWA's roles and responsibilities under NEPA Assignment. Under NEPA Assignment, FHWA assigned and the Department assumed all of the Department of Transportation (USDOT) Secretary's responsibilities under NEPA. The Department has also assumed the USDOT Secretary's responsibilities for environmental review, interagency consultation, and regulatory compliance for the review and/or approval of projects. The Department has assumed responsibilities for the federal environmental laws listed in Section 3.2 of the Pilot Program MOU (see also Appendix B of the 23 USC 326 CE Assignment MOU). The Department is responsible for complying with the requirements of all applicable environmental laws and regulations regardless of its inclusion on the list of FHWA assigned responsibilities.

A Wetlands/Waters Delineation Report and Wetlands/Waters Assessment are prepared for all projects where waters or wetlands may be affected.

Wetland Delineation identifies wetland/waters under USACE jurisdiction for purposes of Section 404 of the CWA. This process is described in more detail on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-7. 

The USACE will make the final determination of jurisdiction when the delineation is submitted for their review and approval.   An approved jurisdictional determination (JD) is an official USACE determination that jurisdictional waters of the United States, or navigable waters of the United States, or both, are either present or absent on a particular site.  An approved JD precisely identifies the limits of those waters in the biological study area determined to be jurisdictional under the CWA and Rivers and Harbors Act (See 33 C.F.R. 331.2.)

The Wetlands/Waters Assessment is a report that includes the results of the wetland delineation and an analysis of effects with respect to the proposed loss of wetland/waters functions and values.  Proposed mitigation or compensation actions are also included in the assessment. The Assessment is described in more detail on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-8.

The District Biologist should refer to local USACE District guidance on preparation of wetland delineations, processes, and reporting procedures (see USACE links provided below).

A qualified Biologist, with successful completion of a training course covering all USACE wetland regulations, methodologies, and requirements, must delineate wetlands, and other waters of the U.S. Biologists who do not have the appropriate training need to be supervised by a qualified District Biologist when delineating these resources. Persons preparing Wetland/Waters Assessments should have, at a minimum, the equivalent of a state civil service classification of Environmental Planner (Natural Science). Refer to the Department's Quality Control and Assurance for Biological Technical Documents for additional information for wetland/waters quality control and assurance procedures.

Where specialized studies are required, the preparer must have additional qualifications necessary to perform the required studies. Specialized surveys required for wetlands/waters technical reports may require special training, permits, or approval from the USFWS or NMFS, and/or the CDFG.

The District Biologist takes site information and background materials to prepare what is commonly referred to as a Wetland Delineation Report, or more accurately referred to as the Wetlands/Waters Delineation and Assessment Report, which also covers wetlands and other waters of the U.S. Further information regarding wetland delineations and report preparation is available for reference on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-7, as well as your local USACE office's website.

Wetland delineations should be conducted following the procedures described in the1987 USACE Wetland Delineation Manual (Environmental Laboratory 1987) and either the Arid West Region (USACE 2008) or Western Mountains, Valleys, and Coast Region (USACE 2010) Regional Supplements to the Corps of Engineers Delineation Manual. The USACE publishes guidance regarding the standard procedures required to delineate wetlands and other waters of the U.S. that may be under USACE jurisdiction (Env. Lab. 1987). Refer to the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-7 and 3-8 for further information regarding wetland delineations.

The USACE Districts each have specific requirements for wetland/waters delineation reports.

• USACE - San Francisco District
• USACE - Los Angeles District
• USACE - Sacramento District

A Wetland Delineation and Assessment Report format is also provided on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-9.

The Wetlands/Waters Assessment is summarized in the Natural Environment Study (NES).  For projects involving more than minor effects, the Assessment is usually developed through coordination with regulatory agencies to identify resource issues, ways to avoid or minimize effects, and to develop appropriate mitigation measures.

As part of the Department's continuing effort to streamline the environmental process and facilitate development of well crafted, high quality environmental documents and technical reports, the Department has adopted quality control standards.  The Quality Control and Assurance for Biological Technical Documents guidelines help facilitate and streamline reviews of Department biological technical studies. The quality control process will be documented and available in the project file for review.

Format and content are covered on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State  Section 3-9, and you may refer to your agency’s project files for examples of previously approved wetlands/waters assessments.  Be sure to determine if the local USACE District has specific requirements for the assessment.

This information should be documented in the Environmental Impact Report prepared for the Regional Transportation Plan and serve as a building block in subsequent decision making.

Regional Transportation Planning Agencies within the State of California produce Regional Transportation Plans and receive and allocate transportation funds. Councils of Government, Transportation Commissions, and Metropolitan Planning Organizations (MPO) can all be designated RTPA's. MPO's are designated by the Governor as a forum for cooperative transportation decision making for the metropolitan planning area. Federal provision requires an MPO in urbanized areas.

A Regional Transportation Plan (RTP) requires the preparation of a CEQA environmental document, normally a program or master Environmental Impact Report.  The Department encourages the MPO and RTPA to include the following information, as appropriate, in the environmental document for the plan:

1. Statement of purpose and need for project, at a level of detail appropriate for the corridor or subarea stage of project development;
2. Verification of concurrence by the NEPA/404 Integration MOU signatories on the RTP statement of purpose and need;
3. Location of any previously delineated jurisdictional wetlands/waters in corridor or study area (displayed on USGS quad 7.5' or 15');
4. Presence of "waters of the U.S." in the BSA; and,
5. Identification of possible future disposal areas in corridor or biological study area, if appropriate (for subsequent Section 404 permit).

This information should be included in the Preliminary Environmental Analysis Report (PEAR) prepared as part of the Project Initiation Document (PID). Refer to Chapter 9 of the Project Development Procedures Manual (PDPM) and the SER Volume 1, Chapter 4 for detailed discussions of the PID.

The "Guidelines for the Preparation of Project Study Reports" dated November 3, 1999 stipulate that Project Study Reports (PSR) and project study report equivalents contain an inventory of environmental resources, identification of potential environmental issues, and anticipated environmental processing type. Potential mitigation requirements and associated costs should also be identified.

For projects off the State Highway System, the DLAE completes the Preliminary Environmental Scoping (PES) form. The PES is the initial step in the federal environmental process for projects off the State Highway System, and is required for all local assistance projects. The PES will provide the information required to determine the studies to be performed and the recommended level of NEPA documentation (Categorical Exclusion, Environmental Assessment, or Environmental Impact Statement). The purpose of the PES is to determine the potential presence of sensitive environmental resources within the BSA. A complete and signed PES form is required for all projects.

The PES form is located in the LAPM, Chapter 6, Exhibit A. Instructions for completing the PES can be found in Exhibit B. The information required for the PES satisfies the environmental requirement for the Project Study Report (PSR) equivalent.

For projects on the State Highway System, the following level of information is recommended to fulfill the requirements of the guidelines:

1. Verification of all information from RTP stage;
2. Location and size of any previously delineated jurisdictional wetlands, or other waters within the BSA
3. Location of wetland and upland vegetative communities within the BSA;
4. Functions and values of compensatory mitigation, if appropriate; and,
5. Concurrence on programming level project statement of purpose and need and range of alternatives to be studied in the NEPA document by the NEPA/404 Integration MOU signatories, as applicable.

This information should be presented in the Draft Environmental Document or used as supporting documentation for a Categorical Exclusion/Exemption, as appropriate.

Verify all information from RTP stage and PID stage, and:

1. Concurrence on project purpose and need and alternatives by NEPA/404 Integration MOU signatories, when applicable;
2. Delineate type, quality, functions and values of wetlands, or other waters within the BSA;
3. Description of project effects on aquatic resources and their functions and values;
4. Analysis of effects of project alternatives;
5. Feasibility analysis of potential compensatory mitigation sites; and,
6. Draft 404(b)(1) with preliminary identification of Least Environmentally Damaging Practicable Alternative (LEDPA), when applicable.

Under a separate subheading, a Wetlands Only Practicable Alternative Finding (WOPAF), which references Executive Order 11990.  Explain why there are no practicable avoidance alternatives and discuss inclusion of all practicable measures to minimize harm.  The District Biologist will include boilerplate language for the conclusion and discuss the least environmentally damaging practicable alternative (LEDPA) and the rationale used for its identification.

If there are permanent effects to wetlands, include the following information in the Final Environmental Document:

1. Wetlands Only Practicable Alternative Finding (WOPAF);
2. Least Environmentally Damaging Practicable Alternative (LEDPA), when applicable;
3. Detailed description of mitigation measures for wetlands, or other waters, resources, and associated sensitive species;
4. Final feasibility study of compensatory mitigation sites, if appropriate; and,
5. Cost estimates for mitigation measures

For the final environmental document, the District Biologist will refer to the SER, Forms and Templates, Environmental Document Review Checklist for major required content per the annotated outline provided.

• U.S. Army Corp of Engineers : Standard permits (including Individual and Letters of Permission), General permits (including Nationwide and Regional permit)
• United States Coast Guard: Bridge Permit: (see Rivers and Harbors Act Section 9)  

• California Department of Fish and Game: 1602 Permit, Streambed Alteration Agreement
• California Coastal Commission: Coastal Development Permit
• Regional Water Quality Control Board: CWA, Section 401 permit; National Pollutant Discharge Elimination system (NPDES) permit
• San Francisco Bay Conservation and Development Commission: Development Permits: Abbreviated Regionwide Permit, Regionwide, Administrative, Major Permit, and Joint Aquatic Resource Permit Application (JARPA)
• Tahoe Regional Planning Agency (TRPA): Project Permit affecting the Lake Tahoe Watershed.