The U.S. Army Corps of Engineers (Corps), acting under Section 404 of the Clean Water Act (CWA) and Section 10 of the River and Harbors Act of 1899 (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:
1. 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;
2. All interstate waters including interstate wetlands;
3. 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:
i. Which are or could be used by interstate or foreign travelers for recreational or other purposes;
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 purpose by industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the United States under the definition;
5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;
6. The territorial seas; and
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section.
NOTE: Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the U.S. do not include prior converted cropland.
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 33 CFR Part 329.5; and
3. Defined geographic limits of the waterbody.
On June 26, 2008, the Corps issued Regulatory Guidance Letter No. 08-02 (RGL 08-02) to clarify the use of preliminary and approved jurisdictional determinations (JDs). Preliminary JDs are advisory in nature and may not be appealed. An approved JD is an official Corps determination that "waters of the U.S." and/or "navigable waters of the U.S." are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters on the project site determined to be jurisdictional under the CWA or RHA. In accordance with RGL 08-02, the Albuquerque District procedures to streamline the process for applicants who want to obtain Corps permit authorizations or jurisdictional determinations will assume that a landowner, permit applicant, or other affected party is electing to seek permit authorization based on a preliminary JD and has voluntarily waived or set aside questions regarding jurisdiction over a particular site unless an approved JD is specifically requested in writing. Potential permit applicants may submit a completed and signed copy of the Preliminary Jurisdictional Determination Form in RGL 08-02 with the application or pre-construction notification package to help streamline the permit or JD process.
To request a JD, contact your area Regulatory office.
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