Wetlands and Other Waters of the United States

• Clean Water Act of 1977, 33 USC 1344 (Section 404)
• Executive Order 11990, Protection of Wetlands
• Federal Endangered Species Act of 1973
• Fish and Wildlife Coordination Act
• National Wild and Scenic Rivers Act
• Rivers and Harbor Act Section 10

• California Endangered Species Act
• California Wild and Scenic Rivers Act
• Fish and Game Code Section 1600 et seq., Streambed Alterations

• 33 CFR Part 323, ACOE implementing regulations
• 40 CFR Part 230, Environmental Protection Agency (EPA) implementing regulations "Section 404 (b)(1) Guidelines"
• SWANNC decision
  
• Advance Notice of Proposed Rulemaking by COE and EPA
  
• Wetlands guidance on EPA website
  
• COE - Los Angeles District Regulatory
  
• COE - San Francisco District Regulatory
  
• COE - Sacramento District Regulatory

• NEPA/404 MOU

Refer to DOT Order 5660.1A (not available on-line)

• Technical Advisory T6640.8A, Guidance for Preparing and Processing Environmental and Section 4(f) Documents, October 30, 1987 (FHWA)
• FHWA California Division "Draft" NEPA Document Checklist
• FHWA California Division "Final" NEPA Document Checklist
• FHWA Guidebook on Wetlands
• 23 CFR 777, Privately-owned wetlands

For more informationon wetlands issues, including delineation, assessment, restoration, training, and products, refer to the following web sites:

• Army Corps of EngineersWetlands Delineation Manual
• FHWA Wetlands Products Abstracts
• EPA's Office of Water - Wetlands Laws, Regulations & Guidance
• USDA/NRCSWetland Science Institute

It is important to identify potential waters of the U.S. and the State (waters) impacts as early in the environmental process as possible. Early notification to the Project Manager allows time for investigation of design modifications to avoid or minimize potential impacts to waters. If impacts cannot be avoided, and have been reduced to the minimum level practicable, wetland mitigation proposals to compensate for those impacts must be developed by the District Biologist and others on the Project Development Team, and evaluated as part of the environmental impact analysis process.

Local Agencies: refer to Local Assistance Procedures Manual, Chapter 6, Sect. 6-7, Step 12.

Caltrans has implemented early coordination with the State and Federal agencies involved in the wetland regulation process. In 1993, Caltrans signed a Memorandum of Understanding (MOU) with the Federal Highway Administration, Federal Transit Administration, EPA, ACOE, FWS, NMFS, and the Arizona and Nevada Departments of Transportation. The objective of the MOU is to integrate the National Environmental Policy Act (NEPA) and the Clean Water Act, Section 404. Referred to as the NEPA/404 integration process, the MOU commits these agencies to ensuring the earliest possible consideration of environmental concerns pertaining to waters of the U.S., including wetlands.

Early stage planning meetings allow for full discussion of project alternatives to avoid waters. These alternatives may need to be discussed in the environmental document as a Wetlands Only Practicable Finding (WOPAF). Individual permit applications also require an alternatives analysis pursuant to Section 404(b)(1) of the Clean Water Act.

• Waters of the U.S. and the State (including wetlands) Report
• Early Coordination Meeting - Suggested Points for Discussion

At a minimum, the local agency shall:

• Determine if waters including, wetlands, are present within the project area. The definition of waters and wetlands on a project shall be in accordance with the definition issued by U.S. Army Corps of Engineers (ACOE) and applicable State agency with jurisdiction (Coastal Commission, Fish and Game, etc.) and a biologist with wetland evaluation experience shall make the determination.
• Determine the jurisdictional boundaries of waters affected by the project.
• Determine exact boundaries of wetlands affected by the project.

If wetlands will be affected by the project, the local agency shall:

• Undertake a Wetland Evaluation in accordance with LPM Vol 3, Appendix H, Sections II & III.
• Prepare the Wetland Evaluation consistent with the format and content prescribed in LAPM Chapter 6. Refer to Exhibit 6-Z for a complete and sufficient checklist.
• Summarize the results of the Wetland Evaluation in the appropriate Environmental Document. Refer to the Federal Highway Administration California Division Environmental Checklist "Draft" Environmental Documents (available from the DLAE) to ensure a complete and sufficient submittal.
• Prepare a public notice and invite public comment.

If the proposed action will require construction in wetlands, the local agency shall:

• Prepare the formal “Wetlands Only Practicable Alternative Finding” in accordance with LPM.
• Local agency shall provide the DLAE with three (3) complete copies of the Wetland Study (Technical Report) and three (3) copies of the Environmental Document containing a summary of the Wetland Study.

NOTE: FHWA is responsible for making the wetlands finding. This finding is not delegated to any other agency. Therefore, FHWA must evaluate any action that involves a wetland impact.

The NEPA/404 MOU process must be followed if impacts to waters meet the current MOU threshold for applicability.

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

Please refer to Caltrans Environmental Handbook, Volume 3: Biological Resources, Section 3-7.

The Wetland Delineation identifies wetlands that may be under the Army Corps of Engineers jurisdiction for purposes of Section 404 of the Clean Water Act.

The Wetland Delineation is described in Caltrans Environmental Handbook, Volume 3: Biological Resources Section 3-7. Also refer to local ACOE District guidance on preparation of wetland delineations.

The Wetland/Waters Assessment is a report that includes the results of the wetland delineation and an analysis of impacts with respect to the proposed loss of wetland functions and values. Proposed mitigation or compensation actions are also included in the assessment.

The Wetland/Waters Assessment is described in Caltrans Environmental Handbook, Volume 3: Biological Resources Section 3-8.

The wetland delineation must be made by a qualified biologist. A qualified biologist is one who has successfully completed an ACOE approved training course in wetland delineation in accordance with the currently approved methodology. Biologists who have not completed the training should be supervised by a qualified biologist when preparing wetland delineations.

Please refer to Caltrans Environmental Handbook, Volume 3: Biological Resources, Section 3-7.

Persons preparing Wetland/Waters Assessments should have, at minimum, a Bachelor's Degree in the Biological Sciences with concentration in animal biology, plant biology, ecology, fisheries management or wildlife management. For State projects, a state civil service classification of Environmental Planner (Natural Science), or equivalent state service classification is required.

Wetland delineations should be conducted following the procedures in the 1987 ACOE Wetland Delineation Manual for non-agricultural lands. For wetland assessments, Caltrans uses the functions and values described in the Wetland Evaluation Technique (WET) (Adamus et al. 1987).

Please refer to Caltrans Environmental Handbook, Volume 3: Biological Resources, Section 3-7 and Section 3-8.

The U.S. Army Corps of Engineers Districts have specific requirements for Wetlands/Waters delineation reports. Please refer to their websites for current requirements. Caltrans has developed its own outline as one way to present the project information in a report format. The outline may be adapted to meet the needs of a particular project.

Please refer to Caltrans Environmental Handbook, Volume 3: Biological Resources, Section 3-7.

The Wetlands/Waters Assessment is summarized in the Natural Environment Study (NES). For projects involving more than minor impacts, the Wetlands Assessment is usually developed through coordination with regulatory agencies to identify resource issues, ways to avoid or minimize impacts and to develop appropriate mitigation measures. The Wetland Assessment is reviewed and approved by a Senior Environmental Planner or equivalent. The Wetland Delineation report is approved by a Senior EP and submitted to the U.S. Army Corps of Engineers for verification.

Please refer to Caltrans Environmental Handbook, Volume 3: Biological Resources, Section 3-7

Format and content are covered in Section 3-9 of Volume 3, Caltrans Environmental Handbook.

Refer to your agency’s project files for examples of previously approved biological assessments.

This information should be included in the Preliminary Environmental Analysis Report (PEAR) prepared as part of the Project Initiation Document (PID).

The “Guidelines for the Preparation of Project Study Reports” dated November 3, 1999 stipulate that PSRs 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, complete the Preliminary Environmental Assessment (PES) form. The information required for the PES satisfies the environmental requirement for the PSR equivalent.

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

• Verification of all information from RTP stage;
• Location and size of any previously delineated jurisdictional wetlands within project area;
• Location of wetland and upland vegetative communities within project study area;
• Functions and values of compensatory mitigation, if appropriate; and,
• 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 Exemption, as appropriate.

Verify all information from RTP stage & PID stage and:

• Concurrence on project purpose and need and alternatives by NEPA/404 Integration MOU signatories;
• Delineate type, quality, functions and values of wetlands within project area;
• Description of project impacts on aquatic resources and their functions and values;
• Analysis of impacts of project alternatives;
• Feasibility analysis of potential compensatory mitigation sites; and,
• Draft 404(b)(1) with preliminary identification of Least Environmentally Damaging Practicable Alternative (LEDPA) in consultation with NEPA/404 Integration MOU signatories.

This information should be presented in the Final Environmental Document.

Add information needed for Final Environmental Document:

• “Wetlands Only Practicable Alternative Finding” if appropriate;
• Least Environmentally Damaging Practicable Alternative;
• Detailed description of mitigation measures for aquatic resources and associated sensitive species;
• Final feasibility study of compensatory mitigation sites, if appropriate; and,
• Cost estimates for mitigation measures

• Clean Water Act Section 401 Permit
• Clean Water Act Section 404 Permit

• DF&G 1601 Streambed Alteration Agreement
• Rivers and Harbors Act Section 10 Permit
• Bay Conservation and Development Commission
• Tahoe Regional Planning Agency
• Coast Guard Permit