US Army Corps of Engineers
Albuquerque District Website

Waters of the U.S.

 

Regulatory Guidance Letter (RGL) 16-01

Purpose: Approved jurisdictional determinations (AJDs) and preliminary JDs (PJDs) are tools used by the U.S. Army Corps of Engineers (Corps) to help implement Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 of the River and Harbors Act of 1899 (RHA). Both types of JDs specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes.

    Public Notice for RGL 16-01

    Questions and Answers for RGL 16-01

    Quick Reference Chart for RGL 16-01

    Request for Corps Jurisdictional Determination (JD) Form

Clean Water Act regulatory programs address “navigable waters,” defined in the statute as “the waters of the United States (WOTUS), including the territorial seas.”  However, the Clean Water Act does not define WOTUS; as Congress left further clarification to the agencies. As a result, the Environmental Protection Agency (EPA) and the Department of the Army (Army) have defined WOTUS by regulation since the 1970s. 

Navigable waters of the United States

Navigable waters of the U.S. (definition found at 33 CFR Part 329.4) are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity. The several factors which must be examined when making a determination whether a waterbody is a navigable water of the U.S. are listed below. Generally, the following conditions must be satisfied:

    1. Past, present, or potential presence of interstate or foreign commerce;
    2. Physical capabilities for use by commerce as in paragraph (a) of this section; and
    3. Defined geographic limits of the waterbody.

Definition of "Waters of the United States": Rule Status and Litigation

The Corps, acting under Section 404 of the CWA and Section 10 of the RHA, regulates certain activities occurring in waters of the U.S. ) and navigable waters of the U.S. The term "waters of the United States", found at 33 CFR 328.3 (a), means: To encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.

The Navigable Waters Protection Rule became effective on June 22, 2020 and is being implemented by EPA and the Army in 49 of the 50 states. This final rule establishes categorical bright lines to improve clarity and predictability for regulators and the regulated community by defining "waters of the United States" to include the following four categories:

    1. The territorial seas and traditional navigable waters;
    2. Tributaries of such waters;
    3. certain lakes ponds, and impoundments of jurisdictional waters; and
    4. wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands)

On April 21, 2020, the Environmental Protection Agency (EPA) and the Department of the Army’s Navigable Waters Protection Rule: Definition of “Waters of the United States” was published in the Federal Register. Colorado subsequently filed an amended motion for a preliminary injunction requesting the United States District Court for the District of Colorado enjoin the EPA and the Department of the Army from implementing the Navigable Waters Protection Rule in the State of Colorado. On June 19, 2020, the district court stayed the effective date of the rule and enjoined the EPA and the Department of the Army to continue administering Section 404 of the Clean Water Act in Colorado under the then-current regulations. The district court’s determination to grant Colorado injunctive relief under the Navigable Waters Protection Rule expired on April 23, 2021. The Navigable Waters Protection Rule is now in effect in Colorado. Additional information regarding the status of the rule and litigation can be found on the EPA's webpage under Definition of waters of the United States: Rule Status and Litigation update.

Additional information and updates can also be found on the Corps of Engineers Headquarters, Jurisdictional Information webpage.

Jurisdictional Waters (WOTUS)

(a)(1) Territorial seas and Traditional Navigable waters (TNW):

The territorial seas, and waters which are used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide.

(a)(2) Tributaries:

"Tributary" means a naturally occurring surface water channel that contributes surface water flow to a paragraph (a)(1) water in a typical year either directly or through one or more paragraph (a)(2)-(4) waters. A tributary must be perennial or intermittent in a typical year.

A tributary does not lose its jurisdiction status if it contributes surface water flow to a downstream TNW or territorial sea in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature.

The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of the definition.

The term tributary includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of the definition.

(a)(3) Lakes and ponds , and impoundments of jurisdictional waters:

Lakes and ponds , and impoundments of jurisdictional waters means standing bodies of open water that contribute surface water flow to a paragraph (a)(1)  water in a typical year.

A lake and pond , or impoundment does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature (e.g. an ephemeral stream, non-jurisdictional ditch), through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature.

A lake, pond, or impoundment is also jurisdictional if it is inundated by flooding from a paragraph (a)(1)-(3) water in a typical year.

(a)(4) Adjacent wetlands:

The term "adjacent" means wetlands that:

abut, meaning to touch at least one point or side of a paragraph (a)(1)-(3) water;

are inundated by fludding from a paragraph (a)(1)-(3) water ina typical year;

are physically separated from paragraph  (a)(1)-(3) water only by a natural berm , bank, dune, or similar natural feature; or

are physically separated from a paragraph  (a)(1)-(3) water only by an artificial dike, barrier, or similar artificial structure so long that structure allows for a direct hydrologic surface connection  in a typical year through a culvert, flood or tide gate, pump, or similar artificial feature.

An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over  that structure  in a typical year.

The rule does not change the long-standing definition of "wetlands."

Definition of "Typical Year"

The term typical year means: "when precipitation and other climatic variables are within  the normal periodic range (e.g. seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period."

"Typical Year is a key concept for establishing jurisdiction based on surface water flow between a relatively permanent body of water (e.g. a perennial or intermittent surface water channel, a standing body of open water)  and TNWs/territorial seas, and between wetlands and other jurisdictional waters.

Application of the typical year concept ensures that the hydrologic flows and surface water connections necessary to establish jurisdiction are characterized based on normal climatic conditions (e.g. neither too wet or too dry).

When determining whether climatic conditions are typical, the period of time examined may be a year, or a shorter or longer time period, depending on factors relevant to the water resource of interest.

Paragraph b Exclusions: Aquatic Features Excluded from WOTUS Definition

The final rule details 12 categories of features excluded from the definition of WOTUS. These are listed below.

  • (b)(1) - Waters not listed as WOTUS
  • (b)(2) - Groundwater
  • (b)(3) - Ephemeral features
  • (b)(4) - Diffuse Stormwater run-off
  • (b)(5) - Ditches not identified as WOTUS
  • (b)(6) - Prior converted cropland (PCC)
  • (b)(7) - Artificially irrigated areas
  • (b)(8) - Artificial lakes and ponds
  • (b)(9) - Water-filled depressions incidental to mining or construction activity
  • (b)(10) - Stormwater control features
  • (b)(11) - Groundwater recharge, water reuse, and wastewater recycling structures
  • (b)(12) - Waste treatment systems

Jurisdictional Determination Information

To request a JD, contact your area Regulatory office.

Additional resources: