Revised Waters of the United States Definitions Summarized by V3 Companies

REVISED WATERS OF THE UNITED

STATES DEFINITIONS

Summary of definitions by V3 Companies.

The revised definition becomes effective on March 20, 2023, pending any legal challenges.

WATERS OF THE UNITED STATES REVISION

EFFECTIVE MARCH 20, 2023

Pursuant to Section 404 of the Clean Water Act, the U. S. Army Corps of Engineers (USACE) has jurisdiction over the placement of fill or dredged material in all jurisdictional waters of the United States, including wetlands. On January 18, 2023, the Final Revised Definition of “Waters of the United States” was published in the Federal Register. The revised definition becomes effective on March 20, 2023, pending any legal challenges.

SUMMARY OF DEFINITIONS

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The five categories THAT qualify as jurisdictional “Waters of the United States” Under the revised definition

The areas that ARE NOT jurisdictional “Waters of the United States”

Definitions that have been finalized

Under the revised definition the following five categories qualify as jurisdictional

“Waters of the United States”:

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Navigable waters; the territorial interstate wetlands; Impoundments of these waters; Tributaries of navigable waters, waters that are relatively bodies of water; or that either situated waters in the region, or biological integrity of navigable interstate waters.

Interstate lakes, ponds, streams,

a) Relatively permanent, and with a continuous 1-4 above; or

b) That either alone or in region, significantly affect navigable waters, the territorial nexus).

territorial seas; or interstate waters including waters; waters, the territorial seas and interstate permanent, standing or continuously flowing either alone or in combination with similarly region, significantly affect the chemical, physical, navigable waters, the territorial seas or Wetlands adjacent to the following waters:

a) Navigable waters; the territorial seas; or interstate waters;

b) Relatively permanent, standing or continuously flowing bodies of water, and with a continuous surface connection to those waters;

c) Impoundments of waters and tributaries when the wetland either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of navigable waters, the territorial seas or interstate waters (i.e., significant nexus). streams, or wetlands not identified above that are: standing or continuously flowing bodies of water, surface connection to the waters identified in items in combination with similarly situated waters in the affect the chemical, physical, or biological integrity of territorial seas or interstate waters (i.e., significant

The following areas ARE NOT jurisdictional “Waters of the United States”:

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Waste treatment systems;

Prior converted cropland;

Ditches, including roadside ditches, excavated wholly in and land and that do not carry a relatively permanent flow of

Artificially irrigated areas that would revert to upland should irrigation water to that area cease;

Artificial lakes and ponds created by excavating or diking retain water;

Water-filled depressions created in dry land incidental to and pits excavated in dry land for the purpose of obtaining unless and until the construction or excavation operation resulting body of water meets the definition of waters of Swales and erosional features (e.g., gullies, small washes) volume, infrequent, or short duration flow.

and draining only dry water;

should application of dry land to collect and construction activity obtaining fill, sand, or gravel is abandoned and the the United States; and

characterized by low

The following definitions have been finalized:

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ADJACENT means bordering, contiguous, or neighboring. Wetlands separated from other waters of the US by man-made dikes or barriers, natural river berms, beach dunes, and the like are “adjacent wetlands”.

Significantly affect means a material influence on the chemical, physical, or biological integrity of jurisdictional waters. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of jurisdictional waters, the functions and factors below will be considered.

Functions to be assessed for “significantly affect”:

ƒ Contribution of flow

ƒ Trapping, transformation, filtering, and transport of materials (including Nutrients, sediment, and other pollutants)

ƒ Retention and attenuation of floodwaters and runoff

ƒ Modulation of temperature in jurisdictional waters

ƒ Provision of habitat and food resources for aquatic species located in jurisdictional waters.

Factors for determining the influence of “significantly affect”:

ƒ Distance from a traditional navigable waters

ƒ Frequency, duration, magnitude, timing and rate of hydrologic connections, including shallow subsurface flow

ƒ Size, density, or number of waters that have been determined to be similarly situated

ƒ Landscape position and geomorphology

ƒ Temperature, rainfall, and snowpack

ORDINARY HIGH WATER MARK means the line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

The Preamble to the revised definitions clarifies the following:

ƒ The first two factors, distance and hydrology are key to a significant nexus determination

ƒ Under the significant nexus standard in this rule, the agencies must identify the waters that are “similarly situated” and the “region” for purposes of determining whether waters “significantly affect” TNW.

ƒ In assessing the functions under this rule, if a water, either alone or in combination with similarly situated waters in the region, performs one function that has a material influence on the integrity of a TNW, that water would have a significant nexus.

ƒ “In the region” for purposes of the significant nexus standard in this rule is defined as the catchment of the tributary