Section 3: Authority over Waters of the United States
Anchor: #i1002330Introduction
A number of federal agencies have specific authority over United States waters. In addition to the following paragraphs, refer to the Interagency Coordination section of the Environmental Procedures in Project Development Manual for more information on their constitutional power and policy. Refer to the Environmental Affairs Division for details.
Anchor: #i1002342Constitutional Power
The Congress of the United States has constitutional power to regulate “commerce among the several states.” Part of that power is the right to legislate on matters concerning the instruments of interstate commerce, such as navigable waters. The definition of navigable waters expands and contracts as required to adequately carry out the Federal purpose. The result is that Congress can properly assert regulatory authority over at least some aspects of waterways that are not in themselves subject to navigation.
Four federal agencies carry out existing federal regulations relating to navigable water
US Coast Guard (USCG). Under 23 CFR §650.807(a), the USCG is responsible for determining whether a USCG permit is required for the improvement or construction of a bridge over navigable waters, except for the exemption exercised by FHWA described below, and to approve bridge location, alignment, and appropriate navigational clearances in all bridge permit applications.
US Army Corps of Engineers (USACE). USACE has regulatory authority over the construction of dams, dikes, or other obstructions (that are not bridges and causeways) under Section 9 (33 U.S.C. 401). USACE also has authority to regulate Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), which prohibits the alteration or obstruction of any navigable waterway with the excavation or deposition of fill material in such waterway. Section 11 of the Rivers and Harbors Act of 1899 (33 U.S.C. 404) authorizes the Secretary of the Army to establish harbor lines. Work channelward of those lines requires separate approval of the Secretary of the Army, and work shoreward requires Section 10 permits.
Section 404 of the Clean Water Act (33 U.S.C. 1344), prohibits the unauthorized discharge of dredged or fill material into waters of the United States, including navigable waters. Such discharges require a permit. “Dredged material” is any material that is excavated or dredged from waters of the United States. “Discharges of fill material” refers to the addition of rock, sand, dirt, concrete, or other material into the waters of the United States incidental to any activity. USACE has granted a Nationwide General Permit for 43 categories of certain minor activities involving discharge of fill material.
Refer to the Environmental Affairs Division regarding relevant permit requirements and procedures.
Federal Highway Administration (FHWA). FHWA has authority to implement the Section 404 Permit Program (Clean Water Act of 1977) for Federal-aid highway projects processed under 23 CFR §771.115 (b) categorical exclusions. This authority was delegated to the FHWA by USACE to reduce unnecessary Federal regulatory controls over activities adequately regulated by another agency. This permit is granted for projects where the activity, work, or discharge is categorically excluded from environmental documentation because such activity does not have individual or cumulative significant effect on the environment.
Environmental Protection Agency (EPA). Under Section 404 (c), Clean Water Act (33 U.S.C. 1344), EPA is authorized to prohibit the use of any area as a disposal site if the discharge of materials at the site will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. EPA is also authorized under Section 402 of the Clean Water Act (33 U.S.C. 1342) to administer and issue a National Pollutant Discharge Elimination System (NPDES) permit for point source discharges, provided prescribed conditions are met.
NPDES is the regulatory permit program that controls the quality of treated sewage discharge from sewage treatment plants as established in 40 CFR §125 pursuant to the Clean Water Act, 33 U.S.C. 1342. In compliance with this regulation, TxDOT will need a permit for sewage treatment facilities for highway safety rest areas.
Permits are also required for non-point source pollutants associated with industrial activities and also Municipal Separate Storm Sewer Systems (MS4). Refer to the TxDOT publication “Storm Water Management Guidelines for Construction Activities” for requirements for conformance industrial activity permits. Refer to the Environmental Affairs Division for details regarding the status and provisions of MS4 permits for municipalities.