Florida SOS

Army Corps Regulations

Under the Clean Water Act, the Corps has authority (also called jurisdiction) to protect and regulate “waters of the United States.” Such waters are defined to include wetlands, which generally include swamps, marshes, bogs, and similar areas.

How does the Corps know a property is a wetland?

A wetlands delineation must be made. Sometimes the Corps makes the wetlands’ delineation. Most often a consultant for the property owner makes it.

What are the criteria for determining whether a property is a wetland?

Water, vegetation and soil condition can each be important in determining wetlands jurisdiction.

Water: Water is the criterion that creates the wetlands system by producing wetlands soils and vegetation. However, water does not have to be present for jurisdiction.

Water’s effect on soil and plants: Inundation or saturation drives oxygen from the soils to produce wetlands soils. Plants that occur under conditions of saturation or inundation must have adaptations for growth in soils lacking atmospheric oxygen. Plants with this adaptation are considered wetlands plants.

Groundwater: A number of court cases have ruled on the connection of a property to groundwater as sufficient for the assertion of wetlands jurisdiction by the Corps if the wetlands are determined to be adjacent connected to navigable waters.

Adjacency factor: Clean Water Act implementing regulations define adjacent as “bordering, contiguous, or neighboring” and provides “ “Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ 40 C.F.R. § 230(b). Adjacent wetlands are thus protected by the Clean Water Act.

Intermittent or ephemeral stream jurisdiction: This includes drainage pathways that receive water only during rain events. This has resulted in some very high land falling within the Corps’ jurisdiction. The Corps limits jurisdiction over these flow ways to those have a defined bank or an ordinary high water mark. 33 C.F.R. § 328.3(e).

Temporary ponds: Areas where ponds form after rain events have been held to be subject to Corps’ jurisdiction.

What activities are subject to wetlands’ jurisdiction?

The Clean Water Act gives the Corps jurisdiction over two pollutants placed in “waters of the United States”: dredged and fill materials. In practical terms, that means that discharge of fill such as rock, silt, organic debris, sand, etc., into wetlands are regulated and cannot be undertaken without authorization via Corps’ permit. Also, subject to Corps’ regulation are covering, leveling, grading and filling formerly vegetated wetland sites.

What activities are not subject to wetlands’ jurisdiction?

The Clean Water Act does not establish federal regulation over all activities that impact wetlands. Certain notable exemptions to regulation include:

• Draining: Drainage activities unquestionably destroy vast wetland areas. They are not, however, subject to federal regulation unless they involve a discharge of dredged or fill material into wetlands.
• Landfill: The Ninth Circuit Court of Appeals held that the conversion of a wetland into a garbage dump is not subject to Corps’ regulation under the Clean Water Act because the Corps’ authority is limited to discharge of “dredged” and “fill” material, and garbage does not meet this definition.
• Farming, silviculture and ranching activities
• Construction or maintenance of farm or stock ponds or irrigation ditches
• Construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment
• Go to the Jacksonville Division of the Corps (Florida Corps)

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