Clean Water Act Definition of "Waters of the U.S."
The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation's water resources. Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. The proposed rule was published in the Federal Register on Monday, April 21, 2014. The public comment period will be open for 182 days and will close on Monday, October 20, 2014.
- Proposed rule (PDF) (88 pp, 782 K)
- Proposed definition of "waters of the United States" at 40 CFR 230.2 (PDF) (2pp, 52 K)
- Questions and answers about the proposed rule (PDF) (5 pp 355 K)
- Press release
- Op-ed by Administrator McCarthy (External link)
- Blog on public input
- Video by Administrator McCarthy
- What They Are Saying About the Proposed Rule (4 pp, 220K, About PDF)
- Op-eds and Editorials
- Fact sheet on benefits for agriculture (PDF) (2 pp, 289 K)
- Op-ed on agriculture by Administrator McCarthy (External link)
- List of exempted conservation practices (PDF) (2 pp, 118 K) and link to NRCS descriptions
- Interpretive rule (PDF) (3 pp, 619 K)
- Notice of Availability and Public Comment (PDF) (2 pp, 310 K)
- EPA and the Corps accepted public comment until July 7, 2014 regarding implementation of the interpretive rule. Public comments are posted on the docket (EPA-HQ-OW-2013-0820) at regulations.gov.
- Common questions and answers regarding the interpretive rule (PDF) (4 pp, 93K)
- Memorandum of Understanding with USDA and the Department of Army (PDF) (7 pp, 379K)
Streams and Wetlands
- Map of seasonal and rain-dependent streams
- Map of county-by-county drinking water data
- General information on streams and wetlands
- List of who requested rulemaking (PDF) (14 pp, 563 K)
- Report on state limitations by Environmental Law Institute (External link)
- Examples of enforcement challenges: Arizona, Georgia
- Draft scientific assessment (PDF) (331 pp, 11 MB)
- Cost-benefit analysis (PDF) (66 pp, 764 K)
- Summary of small entity outreach (PDF) (14 pp, 154 K)
- Register for July 16th Webinar on Clarifying Misconceptions (PDF) (1 p, 345 K)
- Archive of Watershed Academy Webcast from April 7, 2014
Select from the list below to expand the view and read further information on that topic.
Current Guidance on Waters of the U.S.
- Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States (PDF) December 2, 2008 (13 pp, 1.1MB)
- Questions and Answers Regarding the Revised Rapanos & Carabell Guidance (PDF) (3 pp, 70K)
- Agencies Revise Guidance to Protect Wetlands and Streams - 12/03/08 News Release
- Response to Comments "Clean Water Act Jurisdiction Following the Supreme Court's Decision in Rapanos v. United States & Carabell v. United States Guidance" (PDF) (7 pp, 71K)
- The agencies accepted public comments on the Rapanos guidance until January 20, 2008. Use www.regulations.gov to access guidance comments (Docket number EPA-HQ-OW-2007-0282).
- June 2007 Legal Memorandum (PDF) (12 pp, 149K) discussing Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States.
- June 2007 Memorandum of Agreement (PDF) (7 pp, 131K) regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions.
- For additional information, consult the Army Corps of Engineers Regulatory Program
- January 2003 Legal Memorandum (PDF) (4 pp, 54K) discussing the scope of the Clean Water Act jurisdiction in light of the SWANCC ruling and related court decisions.
Relevant Information about Water
- The draft scientific report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (PDF), synthesizes the peer-reviewed scientific literature pertaining to biological, chemical, and hydrologic connectivity of waters and the effects that small streams, wetlands, and open waters have on larger downstream waters such as rivers, lakes, estuaries, and oceans (331 pp, 11 MB). The draft report was out for public review and comment through November 6, 2013.
- Drinking Water Analysis Relevant to Rapanos Decision is a GIS analysis aimed at illuminating dependence on intermittent, ephemeral, and headwater streams for water to supply public drinking water systems.
- Interactive Drinking Water Map showing the percent of the U.S. population that gets some of its drinking water directly or indirectly from streams that are intermittent, ephemeral or headwaters.
- Map of perennial stream length as a percentage of total stream length by watershed: Low Resolution (659K) or High Resolution (2.22MB)
- Map of seasonal and rain-dependent (intermittent and ephemeral) stream length as a percentage of total stream length by watershed: Low Resolution (604K) or High Resolution (4.46MB)
- Journal of the American Water Resources Association's featured collection on the hydrological connectivity of headwater streams and their contributions to the integrity of downstream waters
- Environmental Law Institute's Clean Water Jurisdictional Handbook (Section Edition) provides an analysis of relevant case law, compilation of related scientific studies, and ELI's set of jurisdictional checklists.
- Environmental Law Institute's State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act is a 50-state study identifying laws that can limit the ability of state agencies to protect wetlands, streams, and other water resources more broadly than federal law.
- Field Operations Manual for Assessing the Hydrologic Permanence and Ecological Condition of Headwater Streams
- The Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and Semi-arid American Southwest (PDF) (116 pp, 2.6MB)
- NatureServe's Biodiversity Values of Geographically Isolated Wetlands
- Special Issue of the Journal Wetlands on isolated wetlands
- Association of State Wetland Managers Report entitled The SWANCC Decision and State Regulations of Wetlands
- Ducks Unlimited Report entitled The SWANCC Decision: Implications for Wetlands and Waterfowl
- U.S. Fish and Wildlife Service Report entitled Geographically Isolated Wetlands: A Preliminary Assessment of their Characteristics and Status in Selected Areas of the United States
Legal Background on Waters of the U.S.
- Supreme Court decision in Rapanos v. U.S. and Carabell v. U.S. - June 19, 2006 (PDF) (104 pp, 787K)
- Post-Rapanos Caselaw on "Waters of the United States" (PDF) (3 pp, 27K)
- Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps - January 9, 2001 (PDF) (41 pp, 227K)
- Supreme Court decision in United States v. Riverside Bayview Homes, Inc. - December 4, 1985 (PDF) (10 pp, 161K)
Current Regulatory Definition of Waters of the U.S.
40 CFR 230.3(s) The term waters of the United States means:
- All waters which are currently used, or 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;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
- The territorial sea;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
(I) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii)(From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purposes by industries in interstate commerce;
Waters of the United States do not include 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.