Proposed 'Definition of 'Waters of the United States' Under the Clean Water Act

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 691-692

Proposed “Def‌inition of ‘Waters of the United States’ Under the Clean Water Act” Page 691

Proposed “Defintion of ‘Waters of the United States’ Under the Clean Water Act”

40 CFR 230.3

(s) For purposes of all sections of the Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing

regulations, subject to the exclusions in paragraph (t) of this section, the term “waters of the United

States” means:

(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate

or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(2) All interstate waters, including interstate wetlands;

(3) The territorial seas;

(4) All impoundments of waters identified in paragraphs (s)(1) through (3) and (5) of this section;

(5) All tributaries of waters identified in paragraphs (s)(1) through (4) of this section;

(6) All waters, including wetlands, adjacent to a water identified in paragraphs (s)(1) through (5) of this

section; and

(7) On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in

combination with other similarly situated waters, including wetlands, located in the same region, have a

significant nexus to a water identified in paragraphs (s)(1) through (3) of this section.

(t) The following are not “waters of the United States” notwithstanding whether they meet the terms of

paragraphs (s)(1) through (7) of this section—

(1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements

of the Clean Water Act.

(2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted

cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority

regarding Clean Water Act jurisdiction remains with EPA.

(3) Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.

(4) Ditches that do not contribute flow, either directly or through another water, to a water identified in

paragraphs (s)(1) through (4) of this section.

(5) The following features:

(i) Artificially irrigated areas that would revert to upland should application of irrigation water to that

area cease;

(ii) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such

purposes as stock watering, irrigation, settling basins, or rice growing;

(iii) Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;

(iv) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic

reasons;

(v) Water-filled depressions created incidental to construction activity;

(vi) Groundwater, including groundwater drained through subsurface drainage systems; and

(vii) Gullies and rills and non-wetland swales.

(u) Definitions—

(1) Adjacent. The term adjacent means bordering, contiguous or neighboring. Waters, including

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 waters.”

(2) Neighboring. The term neighboring, for purposes of the term “adjacent” in this section, includes

waters located within the riparian area or floodplain of a water identified in paragraphs (s)(1) through (5)

of this section, or waters with a shallow subsurface hydrologic connection or confined surface

hydrologic connection to such a jurisdictional water.