Waters of the U.S. are the oceans, rivers, streams, lakes, creeks, marshes, and wetlands that are considered "jurisdictional" under the Clean Water Act - as in, they are within the regulatory jurisdiction of the USACE. However, determining exactly which waters are jurisdictional has been quite a debate for the last decade.
Since the passing of the Clean Water Act in 1972, the definition of "waters of the U.S" has been volleyed around through dozens of court cases, a handful of executive orders, and a couple of final rules. We won't bore you with the timeline or the details, but here is what you really need to know: the definition of waters of the U.S. changes on a fairly regular basis, so don't get too comfortable with any one definition.
The most recent change to the definition of waters of the U.S. was established in the 2020 Navigable Waters Protection Rule, a rule that was passed under the Trump administration that drastically narrows the definition of waters of the U.S. in comparison to previously accepted standards and court interpretations.
Under the current 2020 Navigable Waters Protection Rule, waters of the U.S. are generally defined as:
A notable categorical exclusion to the current definition of waters of the U.S. under the 2020 rule is ephemeral (dry) tributaries, which have historically been considered jurisdictional if they had some form of chemical, physical, or biological connection to a downstream waters of the U.S. Under the current rule, dry tributaries are never jurisdictional.
The U.S. Army Corps of Engineers (USACE) is the regulatory agency that authorizes impacts to waterways and wetlands that are jurisdictional under Section 404 of the CWA. Permitting or pre-construction authorization for impacts to waters of the U.S. may be required for a proposed project, depending on the amount of impact to waters of the U.S. and on the federal, state, and local regulatory requirements.
For projects that have only minimal impacts to waters of the U.S., the project can often proceed with minimal USACE coordination under a streamlined 'general' or 'nationwide' permit. Projects with more than minimal impacts may require an individual permit.
All general conditions of the general and nationwide permits must be met in order to use these streamlined permits. Two of the most common general conditions consider the project’s effects to federally-protected species and cultural resources. As such, these resources are often considered as part of the USACE permitting process.
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