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What is considered a Waters of the United States?

June 8, 2015

The recent finalized Clean Water Rule from EPA and the Army Corps of Engineers has a lot of people confused. It also has created concerns among farmers and industry groups about potential effects on production agriculture. I’ve reviewed the part of the rule that defines what is considered a Waters of the United States. Here is my summary:

Waters of the United States as defined in the Clean Water Rule

  • Navigable waters that can be / are / have been used for national and foreign commerce
  • All interstate waters and wetlands, which includes waters that flow across states or form state boundaries
  • Territorial Seas which extend up to 12 nautical miles from the baseline of all US coasts
  • All water controls and tributaries associated with navigable waters, interstate waters/wetlands, and territorial seas
  • All waters adjacent to navigable waters, interstate waters/wetlands, territorial seas, and their associated water controls and tributaries. This includes wetlands, ponds, lakes, oxbows, and similar waters
  • Waters that have been determined to be of significant nexus to navigable waters, interstate waters/wetlands, and territorial seas. Significant nexus is defined as waters that have a significant affect on the chemical, physical, or biological integrity of navigable waters, interstate waters/wetlands, and territorial seas
  • All waters located within the 100-year floodplain of navigable waters, interstate waters/wetlands, and territorial seas and all waters located within 4000 feet of the high tide line or ordinary high water mark and have a significant nexus to navigable waters, interstate waters/wetlands, and territorial seas
  • When water is determined to be significant nexus the entire water is considered a water of the United States even if just a small portion is located in the 100-year floodplain or 4000ft ordinary high water mark.

NOT Waters of the United State as defined in the Clean Water Rule

  • Waste treatment systems and associated industry approved practices
  • Prior converted cropland
  • ditches that are not a relocated tributary or excavated tributary and ditches that do not flow directly or through another waters into a Waters of the United States
  • Artificial irrigation areas and constructed lakes and ponds including those used for livestock watering, irrigation, settling, log cleaning, cooling, and flooding of rice fields
  • All dry land constructed reflecting pools, swimming pools, and ornamental waters
  • Water filled depressions created on dry land relating to mining or construction
  • Erosion created rills, gullies, and ephemeral gullies
  • Puddles
  • Storm water control features on dry land
  • Waste Water recycling structures on dry land

  

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