US Army Corps of Engineers
Louisville District

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Definitions of Other Waters of the U.S.

Other waters include the following:

Navigable waters of the United States 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. Precise definitions of navigable waters of the United States or navigability are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. (Source: 33 CFR 329)

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. Precise definitions of navigable waters of the United States or navigability are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. (Source: 33 CFR 329)

Waters of the United States include the following: (Source: 33 CFR 328 and Supplementary Information)

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:

a. which are or could be used by interstate or foreign travelers for recreational or other purposes; or

b. from which fish or shellfish are or could be taken and sold in interstate or foreign commerce;

or

c. which are used or could be used for industrial purpose by industries in interstate commerce.

1. All impoundments of waters otherwise defined as waters of the United States under the definition.

2. Tributaries of waters identified in paragraphs 1-4 above.

3. The territorial seas.

4. Wetlands adjacent to waters (other than wetlands) identified in paragraphs 1-6 above.

5. EPA has clarified that waters of the United States also include the following waters:

a. which are or would be used as habitat by birds protected by Migratory Bird Treaties; or

b. which are or would be used as habitat by other migratory birds which cross state lines; or

c. which are or would be used as habitat for endangered species; or

d. used to irrigate crops sold in interstate commerce.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the 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. It should be noted that we generally do not consider the following waters to be Waters of the United States. However, the Corps and EPA reserve the right on a case-by-case basis to determine that a particular waterbody within these categories of waters is a water of the United States.

1. Non-tidal drainage and irrigation ditches excavated on dry land.

2. Artificially irrigated areas which would revert to upland if the irrigation ceased.

3. Artificial lakes created by excavating and or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.

4. Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating andor diking dry land to retain water for primarily aesthetic reasons.

5. Water filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States.