Helpful Definitions

Waters of the United States

  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), mud flats, sand flats, 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: Which are or could be used by interstate or foreign travelers for recreational or other purposes; or From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or 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;
  7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(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 123.11(m) which also meet the criteria of this definition) are not waters of the United States.
  8. 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 the EPA.

Section 404 of the Clean Water Act

Section 404 of the Clean Water Act established a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. Activities in waters of the United States that are regulated under this program include fills for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports), and conversion of wetlands to uplands for farming and forestry. The Army Corps of Engineers, issues, monitors and enforces Section 404 permits.

Regulated activities are controlled by a permit review process. An individual permit is usually required for potentially significant impacts. However, for most discharges that will have only minimal adverse effects, the Army Corps of Engineers also grants upfront General permits. These may be issued on a nationwide, regional, or state basis for particular categories of activities (for example, minor road crossings, utility line backfill, and bedding) as a means to expedite the permitting process.

Section 401 of the Clean Water Act

Section 401 of the Clean Water Act allows for states to have the option to regulate activities in and around waters of the United States within their jurisdiction. State regulations cannot be less stringent than federal regulations.