This document provides an overview of changing federal and state water regulations and how they affect construction projects. It discusses the Clean Water Act and defines Waters of the United States (WUS), explaining how the CWA regulates WUS at construction sites through Section 404 permitting. It also describes how Maryland regulations facilitate local ordinances and adds additional criteria beyond federal rules. The document summarizes key terms, permitting processes, and best management practices for complying with stormwater management requirements that integrate ecological and engineering standards to protect water resources.

1. How Changing Federal and State
Water Regulations Continue to Affect
Your Project at the Site Level
Presentation for the Maryland Construction
Network “Learn to Know, Learn to Grow”
Business Enhancement Event
Annapolis, Maryland
Andrew T. Der, C.E.P.
Tuesday July 23, 2019
Andrew T. Der & Associates, LLC
Environmental Consulting
1000 Fell Street | Baltimore, MD 21231
410.491.2808 | AndrewTDer@comcast.net

2. What We Will Learn
- How the Clean Water Act (CWA) is a basis for most
surface water regulatory criteria
- What jurisdictional Waters of the United States
(WUS) are
- How the CWA regulates WUS at the site level
- How WUS facilitate Maryland waters regulation at
the site level
- How Maryland criteria facilitates local ordinances
regulating construction activities

3. What is the Clean Water Act?
• 1948 Federal Water
Pollution Control Act
and 1972
amendments
• Most influential water
law in history
• Prohibits
“discharges” for first
time to WUS
• Catalyst for other
state and local
programs we have
today

4. What are Waters of the U. S.?
• Surface water including
tidal navigable water,
nontidal navigable water,
rivers, streams, lakes,
ponds, contiguous
headwaters - and wetlands
contiguous to such waters
• But how far up does it go?
This is the key.
• Extent of WUS determines
extent of CWA Sections
303, 401, 402, and 404
and many state and local
programs (coming up)

5. CWA Section 404
• This is the “most
visible” process for
construction
compliance
• Regulates
discharges (grading,
fill) to WUS, including
wetlands, at the site
level
• Requires a U. S.
Army Corps of
Engineers (COE)
along with a joint
Maryland Department
of the Environment
(MDE) permit

6. Why Wetlands?
• “Hard” upper limits of
open water readily
evident - but not when a
habitat transition – upper
limits of WUS are
wetland limits determined
at the ground level by
COE Manual and
Supreme Court Rulings
• A jurisdictional wetland
requires three concurrent
parameters of hydrology,
hydric soils, and
hydrophytic vegetation
A wetland that looks like a wetland may not be – and an upland that
looks like an upland may be a wetland

7. Three Regulatory Wetland Types
• Forested Wetland
2:1 Mitigation
• Emergent Wetland
1:1 Mitigation
• Scrub-Shrub Wetland
2:1 Mitigation

8. What is – or is Not - Regulated?
• Supreme Court SWANCC (Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers, 2001) says
COE will not consider some isolated WUS jurisdictional
• Supreme Court Rapanos (Rapanos v. United States, 2006)
says COE will not consider some ephemeral WUS (ditches)
jurisdictional
• In addition to WUS, MDE regulates the 100-year floodplain, 25-
foot nontidal wetland buffer, 100-foot buffer to “WSSC” and
“Tier 2 waters”, isolated waters, and “non-COE” impacts such
as wetland excavation and wetland tree clearing
• In addition to WUS and Maryland criteria, localities additionally
regulate the (usually) 100-foot buffer

9. Why are WUS Rules Unclear?
• Initial rules are historically generic leaving determinations more subjective
at the staff and field level
• Current newer rules include regulatory terms such as significant nexus,
neighboring, floodplain, and riparian area which - may - allow more waters
to come under federal authority
• Especially “significant nexus”
• Some stormwater management (SWM) conveyances constructed in “non-
waters”, or upland, areas might now be regulated
• May potentially contradict Supreme Court intentions
• New rules under consideration proposes to align more with Court
intentions

10. Previous vs. Current vs. Proposed?

11. COE/MDE Joint Permitting
Summary
• A federal/state tidal/nontidal wetlands and waterways
permit combines various separate state and federal
permitting regulations into a one-stop-shop authorization
• Impact thresholds established for minimal activities for
WUS and Maryland waters
• Usually, a separate individual COE permit not needed
• An individual COE permit is a lengthy process

12. CWA Section 401 (aka WQC)
• A Water Quality
Certification (WQC) must go
with a Section 404 COE/MDE
permit
• Requires MDE to issue the
WQC
• A WQC certifies that a 404
permit will not violate state
water quality standards –
both numerical - and
narrative
• This was the first means to
require true SWM – but only
when 404 permit
• Sensitive resource and
time-of-year restrictions

13. CWA Section 303 (aka TMDL)
• A Total Maximum Daily Load
(TMDL) establishes the
maximum pollutant level for
restoring WUS
• Compliance is achieved by
documentation and tabulation
of existing state and local water
quality regulatory programs - in
three phases of Watershed
Implementation Plans (WIP)
• This is sufficient in Maryland
but maybe not so much in
some other states
• Been around for smaller
stream segments but the one
for the entire Bay is unique and
largest in country

14. CWA Section 402 (aka NPDES)
• Referred to as National
Pollutant Discharge
Elimination System
(NPDES)
• It originally permitted
individual point sources and
industrial discharges to
WUS – and still does
• But also gradually
transitioned to nonpoint
source control – and farther
upstream – this is key
• U. S. EPA through MDE
implements NPDES – and
is basis for common SWM
principles and requirements

15. CWA Section 402 Synopsis
• Administered by MDE
programmatic permits to
entities in two phases
every five years
• Phase I authorizes new
construction via a
Construction General
Permit (GP) - and
existing built lands via a
Municipal Separate
Storm Sewer System
(MS4) General Permit
• Phase II authorizes
smaller new construction
discharges - and smaller
MS4 entities
Some rural regions of Maryland (gray) not
regulated by NPDES – only SCD or County

16. A Quick SWM Primer

17. Four Categories of Effects
• Hydrology
• Geomorphology
• Habitat
• Water Quality

18. Maryland SWM Compliance
Maryland’s SWM program integrates ecological/
resource and engineering criteria in the context of
waters limits, including wetlands
• MDE administers the CWA Sec 402 NPDES Construction
General Permit criteria concurrently with local SWM ordinance
• Compliance is achieved by a Stormwater Pollution Prevention
Plan (SWPPP) but in Maryland not usually required if an
approved MDE SWM plan - may still apply to industrial property
or discharges
• Certain DoD and federal facilities may have own SWM mandate

19. Maryland’s SWM Criteria
• 2012 Maryland Erosion and Sediment Control Law - temporary
conditions – incorporates E/S Manual
• 2007 Maryland Stormwater Management Act – permanent
conditions - incorporates Maryland Stormwater Design Manual for
BMPs
– Formalizes Environmental Site Design (ESD) to the Maximum
Extent Practicable (MEP) – to maintain channel stability and
mimic “woods in good condition” to receiving waters (usually
WUS)
– Structural stormwater practices may be used if determined to
be necessary

20. SWM at Local Level
• Federal and state property regulated directly by MDE SWM Program,
DNR Forest Conservation, and Bay Critical Area Commission (below)
• Otherwise, MDE SWM Law and other programs delegated to localities
and pass through by local ordinance
Additionally:
• Maryland Forest Conservation Act - requires “NRI/FSD” as part of local
subdivision review which establishes 100’ or more buffers from waters,
including wetlands
• In the Chesapeake Bay Critical Area, - requires planning overlays as part
of local subdivision review which establishes within 1,000 feet from tidal
shoreline (MHW) 100’ buffers from waters, including wetlands

21. What are Best Management
Practices (BMP)
BMPs are not just structural
• Early Planning – grading a site edge to edge is to be minimized
• Environmental site design
• Maximize stream buffer and sheet flow - disconnect impervious
surfaces
• Re-development criteria
• Not readily evident - redevelopment of land with unmanaged
stormwater done under SWM criteria requires retrofit of existing
unmanaged runoff as well as offsite runoff – and can be net
gain to contribute to MS4 compliance and Bay TMDL

22. Structural BMP Synopsis
Smaller Volumes - try first
“First Flush” is preferred and most
compatible with ESD at-source
and/or pretreatment quality control
• Infiltration
– trench/basin
• Filtering
– sand filter/bioretention
• Hydrodynamic Devices above
or underground
– Curb & gutter vortex/filter
basin
• “Newer” Technology
– pervious surfaces/green
roofs
Larger Volumes – if needed
When preferred is Insufficient
for quantity and quality
• Stormwater Ponds
– wet pond
– wet ED pond
– dry ED pond (for cold water
w/
pre-treatment)
– multiple pond system
• Stormwater Wetlands
– shallow marsh
– ED shallow wetland
– pond/wetland systems

23. What Now for WUS Rules?
Legislators, stakeholders and media continue to clash over the clarity
of water rules that may not be so clear - is there political chaos over
what is a technical matter? You be the judge.
- Some circuit courts overturned the current 2015 rules in 28 states reverting to
prior criteria (not Maryland)
- Other courts stayed decisions state-wide and a court in May overturned the
current 2015 rules in three more states
- The Supreme Court has not made relatively significant determinations since
SWAANC and Rapanos
- The executive branch draft of the new rules under deliberation now intends to
refine the current rules to be more congruent with the Court
- Congress continues to disagree among themselves
- The COE – the primary regulatory arm - asserts they have not been privy to any
deliberations
- Maryland (along with most states) and localities regulate more than WUS - the
sky is not falling
Meanwhile the media continues to misunderstand the issues

24. In Summary
- The CWA and the extent of WUS – directly or indirectly –
affects projects at the site level
- Maryland and localities add their own regulatory criteria
that exceed EPA, COE, and WUS
- WUS are referenced for E/S and SWM requirements at the
federal, state, and local level
- WUS and Maryland waters are the baseline for buffers
through the local subdivision review process
- Current and future WUS Rule deliberations can affect
all of these processes

25. Questions/Discussion