OKAY, LETS START WITH WHAT ARE JURISDICTIONAL WATERS OF THE UNITED STATES NOW?

We saw in Blog Post 1 that changes have been made frequently.  Substantive changes occurred in 1973-1975, 1980, 1985, 1986-1988, 1993, 2001, 2006, 2015, 2019, 2021, and now the 2023 rules implemented on March 20, 2023.  Here are the categories of WOTUS.

Categories of Jurisdictional Waters (WOTUS)

(a)(1):  (i) Traditional Navigable Waters, (ii) Territorial Seas, (iii)Interstate Waters

(a)(2) Impoundments of Jurisdictional Waters

(a)(3) Tributaries

(a)(4) Adjacent Wetlands

(a)(5) Intrastate lakes and ponds, streams, and wetlands that do not fall within (a)(1) – (a)(4)

WHAT ARE THE EXCLUSIONS?

Exclusions:

(b)(1) Waste treatment systems (Pre-2015 exclusions, modified in the final rule)

(b)(2) Prior converted cropland (Pre-2015 exclusions, modified in the final rule)

(b)(3) Certain ditches (Pre-2015 “generally non-jurisdictional features,” added to the final rule as exclusions)

 (b)(4) Artificially irrigated areas that would revert to dry land if irrigation ceased (Pre-2015 “generally non-jurisdictional features,” added to the final rule as exclusions)

(b)(5) Certain artificial lakes and ponds (Pre-2015 “generally non-jurisdictional features,” added to the final rule as exclusions)

(b)(6) Artificial reflecting or swimming pools or other small ornamental bodies of water (Pre-2015 “generally non-jurisdictional features,” added to the final rule as exclusions)

(b)(7) Certain waterfilled depressions (Pre-2015 “generally non-jurisdictional features,” added to the final rule as exclusions)

(b)(8) Swales and erosional features (Pre-2015 “generally non-jurisdictional features,” added to the final rule as exclusions)

WERE THE OLDER DEFINITIONS CHANTED?

Definitions

(c)(1) Wetlands (Pre-2015 definitions, with no changes)

(c)(2) Adjacent (Pre-2015 definitions, with no changes)

(c)(3) High tide line (Pre-2015 definitions, with no changes)

(c)(4) Ordinary high-water mark (Pre-2015 definitions, with no changes)

(c)(5) Tidal waters (Pre-2015 definitions, with no changes)

(c)(6) Significantly affect (New term and definition in the 2023 final rule)

 

Next Time we’ll describe the WOTUS in layman’s terms.