EPA’s new definition for “Waters of the United States”

From internet source: Additionally, since there is only one waters of the U.S. definition in the CWA, any changes to the definition will impact other CWA programs such as the National Pollutant Discharge Elimination System (NPDES), total maximum daily load (TMDL) and other water-quality standards programs, state water quality certification process, or Spill Prevention, Control and Countermeasure (SPCC) programs.

This guidance will affect all CWA programs including:

• Section 303: the water quality standards and total maximum daily load programs
• Section 311: oil spill program
• Section 401: state water quality certification process,
• Section 402: National Pollutant Discharge Elimination System (NPDES) permit program, and
• Section 404: discharges of dredged or fill material.

Under the guidance, a manmade or man-altered ditch, such as a roadside ditch or flood channel, is considered a tributary. A tributary (or a tributary of a tributary) can be regulated if it meets certain conditions.  Non-navigable tributaries can be regulated if they connect through other tributaries to downstream navigable waters and there is a “seasonal” flow. Jurisdictional waters may include perennial, intermittent and ephemeral waters.

The current regulatory definition of “waters of the United States” includes seven categories of “waters.” These seven categories are:
(1) all waters used in interstate or foreign commerce;
(2) all interstate waters;
(3) all other intrastate waters the use of which could affect interstate or foreign commerce;
(4) all impoundments of waters that fall into the definition of waters of the United States;
(5) tributaries of the waters in categories (1)-(4);
(6) territorial seas; and
(7) wetlands adjacent to “waters.”

Amended Definition of “waters of the United States.” The draft rule re-classifies and re-numbers the seven categories of “waters” that are currently in the regulatory definition of “waters of the United States.” Under the draft rule the seven categories of waters would include:
(1) waters used in interstate or foreign commerce;
(2) all interstate waters;
(3) the territorial seas;
(4) all impoundments of waters otherwise defined as waters;
(5) all tributaries of waters in categories (1)-(3);
(6) all waters, including wetlands, adjacent to waters in categories (1)-(5); and
(7) on a “case-specific basis, ‘other waters,’ including wetlands” that have a significant nexus to waters in categories (1)-(3).