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L4.9 Biological Resources circumstances, the federal definition of wetlands requires three wetland identification parameters be present: wetland hydrology, hydric soils, and hydrophytic vegetation. Examples of wetlands include freshwater marsh, seasonal wetlands, and vernal pool complexes that have a hydrologic link to other waters of the U.S. INN Wetlands are a subset of"waters of the United States"and receive protection under Section 404 of the Clean Water Act. Wetlands are defined by the federal government[CFR,Section 328.3(b), ` 1991] as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support,a prevalence of ` vegetation typically adapted for life in saturated soil conditions. The term"waters of the United States,"defined in CFR(33 CFR 328.3[a]; 40 CFR 230.3[s]), also includes (but is not limited to) waters that are or could be used in interstate or foreign commerce, and"Other waters of the U.S." that are hydric features exhibiting a defined bed and bank and an ordinary high-water mark that are regulated by the Clean Water Act but are not wetlands (33 CFR 328.4). Examples of other waters of the U.S. include intrastate lakes,rivers, streams (including intermittent streams),mud flats, sand flats,and natural ponds, the use,degradation, or destruction of which could affect interstate or foreign commerce including any such waters.I Regulated wetlands and other waters of the United States are subject to jurisdiction under Section 404 of the Clean Water Act. Waters of the U.S. do not include prior converted cropland. Wet areas that are not regulated would include stock watering ponds, irrigated uplands, and agricultural irrigation ditches created in upland areas. U.S. Fish and Wildlife Service ` The USFWS administers the Migratory Bird Treaty Act(16 USC Section 703-711), the Bald and Golden Eagle Protection Act(16 USC Section 668), and the FESA (FESA, 16 USC Section 153 et seq.). Projects that would result in adverse effects on any federally listed threatened or endangered species are required to consult with and mitigate through consultation with the USFWS. This consultation can be pursuant to either Section 7 or Section 10 of the ESA, depending on whether there is involvement by another federal government agency. California Department of Fish and Game The CDFG administers a number of laws and programs designed to protect fish and wildlife ` resources. Principal of these is the CESA of 1984(CESA-Fish and Game Code Section 2050 et seq.), which regulates the listing and "take"of endangered(CE)and threatened species(CT). A ` "take"of such a species may be permitted by CDFG through issuance of permits pursuant to Fish and Game Code section 2081. I Since the SWANCC decision,waters covered solely by this definition by virtue of their use as habitat by migratory birds are no longer considered"waters of the United States" The Supreme Court's opinion did not specifically ►. address,but by analogy does call into question,whether other connections with interstate commerce support the assertion of CWA jurisdiction over"nonnavigable,isolated,intrastate waters";the ACOS is recommending case by case consideration.A factor that may be relevant to this consideration includes,but is not limited to,the following: Jurisdiction of isolated,intrastate,and nonnavigable waters may be possible if their use,degradation,or destruction 1101 could affect other"waters of the United States;'thus establishing a significant nexus between the water in question and other"waters of the United States"(ACOE,undated memorandum). 11" RMC Pacific Vernalis Quarry Mining and Reclamation Project 4.9-9 ESA/203015 Draft Environmental Impact Report May 2006 r