April 27 and May 18, 2017. Tribes and tribal organizations sent 43 pre-
proposal comment letters to the agencies as part of the consultation
process. The agencies met with nine Tribes at a staff-level and with
three Tribes at a leader-to-leader level, and additional meetings with
Tribes are to be scheduled. The agencies continued engagement with
Tribes after the end of the formal consultation, including at national
update webinars on December 12, 2017 and February 20, 2018, and an in-
person Tribal Co-Regulators Workshop on March 6-7, 2018. The agencies
have prepared a report summarizing the consultation and further
engagement with tribal nations. This report, Summary Report of Tribal
Consultation and Engagement for the Proposed Rule: Definition of
``Waters of the United States'' (Docket Id. No. EPA-HQ-OW-2018-0149),
is available in the docket for this proposed rule.
    This action may have tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law.

H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because the environmental health or safety risks
addressed by this action do not present a disproportionate risk to
children.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply, distribution
or use of energy.

J. National Technology Transfer and Advancement Act

    This proposed rule does not involve technical standards. The
agencies recognize, however, that if they pursue a separate rulemaking
to establish a process for approving methodologies and geospatial
datasets as discussed in Section III.H, there would be technical
standards involved.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    This action is not subject to Executive Order 12898 (59 FR 7629,
February 11, 1994) because there is no significant evidence of
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations, and/or
indigenous peoples, as specified in Executive Order 12898.

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure,
Navigation (water), Water pollution control, Waterways.

40 CFR Part 110

    Environmental protection, Oil pollution, Reporting and
recordkeeping requirements.

40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and
recordkeeping requirements.

40 CFR Part 116

    Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.

40 CFR Part 117

    Environmental protection, Hazardous substances, Penalties,
Reporting and recordkeeping requirements, Water pollution control.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.

40 CFR Part 230

    Environmental protection, Water pollution control.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water
pollution control.

40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Occupational safety and health, Oil pollution,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Reporting and recordkeeping requirements, Superfund,
Water pollution control, Water supply.

40 CFR Part 401

    Environmental protection, Waste treatment and disposal, Water
pollution control.

    Dated: December 11, 2018.
Andrew R. Wheeler,
Acting Administrator, Environmental Protection Agency.
    Dated: December 11, 2018.
R.D. James,
Assistant Secretary for the Army (Civil Works), Department of the Army.

Title 33--Navigation and Navigable Waters

    For the reasons set forth in the preamble, the Corps of Engineers
proposes to amend 33 CFR part 328 as follows:

PART 328--DEFINITION OF WATERS OF THE UNITED STATES

0
1. The authority citation for part 328 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
2. Section 328.3 is revised to read as follows:

Sec.  328.3  Definitions.

    For the purpose of this regulation these terms are defined as
follows:
    (a) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(b) of this section, the term ``waters of the United States'' means:
    (1) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (2) Tributaries of waters identified in paragraph (a)(1) of this
section;
    (3) Ditches that satisfy any of the conditions identified in
paragraph (a)(1) of this section, ditches constructed in a tributary or
that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (4) Lakes and ponds that satisfy any of the conditions identified
in paragraph (a)(1) of this section, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(a)(1) in a typical year either directly or indirectly through a
water(s) identified in paragraphs (a)(2) through (6) of this

section or through water features identified in paragraph (b) of this
section so long as those water features convey perennial or
intermittent flow downstream, and lakes and ponds that are flooded by a
water identified in paragraphs (a)(1) through (5) of this section in a
typical year;
    (5) Impoundments of waters identified in paragraphs (a)(1) through
(4) and (6) of this section; and
    (6) Adjacent wetlands to waters identified in paragraphs (a)(1)
through (5) of this section.
    (b) The following are not ``waters of the United States'':
    (1) Waters or water features that are not identified in paragraphs
(a)(1) through (6) of this section;
    (2) Groundwater, including groundwater drained through subsurface
drainage systems;
    (3) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (4) Ditches that are not identified in paragraph (a)(3) of this
section;
    (5) Prior converted cropland;
    (6) Artificially irrigated areas, including fields flooded for rice
or cranberry growing, that would revert to upland should application of
irrigation water to that area cease;
    (7) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (a)(4) or (5) of
this section;
    (8) Water-filled depressions created in upland incidental to mining
or construction activity, and pits excavated in upland for the purpose
of obtaining fill, sand, or gravel;
    (9) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (10) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (11) Waste treatment systems.
    (c) Definitions: In this section, the following definitions apply:
    (1) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (a)(1) through (5) of this section in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (a)(1) through (5) of this section. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (a)(1) through (5) water to a wetland or via perennial
or intermittent flow between a wetland and a paragraph (a)(1) through
(5) water. Wetlands physically separated from a paragraph (a)(1)
through (5) water by upland or by dikes, barriers, or similar
structures and also lacking a direct hydrologic surface connection to
such waters are not adjacent.
    (2) Ditch. The term ditch means an artificial channel used to
convey water.
    (3) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (4) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (5) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (6) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (7) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (8) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (c)(15)
of this section. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (9) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (10) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (11) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(a)(1) of this section in a typical year either directly or indirectly
through a water(s) identified in paragraphs (a)(2) through (6) of this
section or through water features identified in paragraph (b) of this
section so long as those water features convey perennial or
intermittent flow downstream. A tributary does not lose its status as a
tributary if it flows through a culvert, dam, or other similar
artificial break or through a debris pile, boulder field, or similar
natural break so long as the artificial or natural break conveys
perennial or intermittent flow to a tributary or other jurisdictional
water at the downstream end of the break. The alteration or relocation
of a tributary does not modify its status as a tributary as long as it
continues to satisfy the elements of this definition.
    (12) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (13) Upland. The term upland means any land area that under normal
circumstances does not satisfy all three wetland delineation criteria
(i.e., hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph (c)(15) of this section, and does
not lie below the ordinary high water mark or the high tide line of a
water identified in paragraph (a)(1) through (6) of this section.
Waters identified in paragraphs (a)(1) through (6) of this section are
not upland.
    (14) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (15) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.

Title 40--Protection of Environment

    For reasons set out in the preamble, the EPA proposes to amend 40
CFR part 110 as follows:

PART 110--DISCHARGE OF OIL

0
3. The authority citation for part 110 continues to read as follows: 33
U.S.C.

    Authority: 1251 et seq., 33 U.S.C. 1321(b)(3) and (b)(4) and
1361(a); E.O. 11735, 38 FR 21243, 3 CFR parts 1971-1975 Comp., p.
793.

0
4. Section 110.1 is amended by revising the definition of ``navigable
waters'' to read as follows:

Sec.  110.1  Definitions.

* * * * *
    Navigable waters means waters of the United States, including the
territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this
definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (1)(i) of this definition, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this definition so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (1)(i) through (v) of this
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of
this definition;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this definition. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (1)(i) through (v) water to a wetland or via perennial
or intermittent flow between a wetland and a paragraph (1)(i) through
(v) water. Wetlands physically separated from a paragraph (1)(i)
through (v) water by upland or by dikes, barriers, or similar
structures and also lacking a direct hydrologic surface connection to
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.

    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (3)(xv)
of this definition. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this definition so long as those water features convey
perennial or intermittent flow downstream. A tributary does not lose
its status as a tributary if it flows through a culvert, dam, or other
similar artificial break or through a debris pile, boulder field, or
similar natural break so long as the artificial or natural break
conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break. The alteration
or relocation of a tributary does not modify its status as a tributary
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this definition, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition. Waters
identified in paragraphs (1)(i) through (vi) of this definition are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
* * * * *

PART 112--OIL POLLUTION PREVENTION

0
5. The authority citation for part 112 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
6. Section 112.2 is amended by revising the definition of ``navigable
waters'' to read as follows:

Sec.  112.2  Definitions.

* * * * *
    Navigable waters means waters of the United States, including the
territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this
definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (a)(1) of this definition, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this section in a typical year either directly or indirectly
through a water(s) identified in paragraphs (1)(ii) through (iv) of
this definition or through water features identified in paragraph (2)
of this definition so long as those water features convey perennial or
intermittent flow downstream, and lakes and ponds that are flooded by a
water identified in paragraphs (1)(i) through (v) of this definition in
a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (1)(iv) or (1)(v)
of this definition;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to

convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this definition. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (1)(i) through (v) water to a wetland or via perennial
or intermittent flow between a wetland and a paragraph (1)(i) through
(v) water. Wetlands physically separated from a paragraph (1)(i)
through (v) water by upland or by dikes, barriers, or similar
structures and also lacking a direct hydrologic surface connection to
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (3)(xv)
of this definition. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this section so long as those water features convey
perennial or intermittent flow downstream. A tributary does not lose
its status as a tributary if it flows through a culvert, dam, or other
similar artificial break or through a debris pile, boulder field, or
similar natural break so long as the artificial or natural break
conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break. The alteration
or relocation of a tributary does not modify its status as a tributary
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this definition, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition. Waters
identified in paragraphs (1)(i) through (vi) of this definition are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
* * * * *

PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES

0
7. The authority citation for part 116 is continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
8. Section 116.3 is amended by revising the definition of ``Navigable
waters'' to read as follows:

Sec.  116.3  Definitions.

* * * * *
    Navigable waters means waters of the United States, including the
territorial seas.

    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this
definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (a)(1) of this definition, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(iv) of this definition or through water features identified in
paragraph (2) of this definition so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (1)(i) through (v) of this
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of
this definition;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this definition. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (1)(i) through (v) water to a wetland or via perennial
or intermittent flow between a wetland and a paragraph (1)(i) through
(v) water. Wetlands physically separated from a paragraph (1)(i)
through (v) water by upland or by dikes, barriers, or similar
structures and also lacking a direct hydrologic surface connection to
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (3)(xv)
of this definition. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water

channel that contributes perennial or intermittent flow to a water
identified in paragraph (1)(i) of this definition in a typical year
either directly or indirectly through a water(s) identified in
paragraphs (1)(ii) through (vi) of this definition or through water
features identified in paragraph (2) of this section so long as those
water features convey perennial or intermittent flow downstream. A
tributary does not lose its status as a tributary if it flows through a
culvert, dam, or other similar artificial break or through a debris
pile, boulder field, or similar natural break so long as the artificial
or natural break conveys perennial or intermittent flow to a tributary
or other jurisdictional water at the downstream end of the break. The
alteration or relocation of a tributary does not modify its status as a
tributary as long as it continues to satisfy the elements of this
definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this definition, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition. Waters
identified in paragraphs (1)(i) through (vi) of this definition are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
* * * * *

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS
SUBSTANCES

0
9. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq., and Executive Order 11735,
superseded by Executive Order 12777, 56 FR 54757.

0
10. Section 117.1 is amended by revising paragraph (i) to read as
follows:

Sec.  117.1   Definitions.

* * * * *
    (i) Navigable waters is defined in section 502(7) of the Act to
mean ``waters of the United States, including the territorial seas.''
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(i)(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (i)(1)(i) of
this section;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (i)(1)(i) of this section, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (i)(1)(i) of this section, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(i)(1)(i) of this section in a typical year either directly or
indirectly through a water(s) identified in paragraphs (i)(1)(ii)
through (vi) of this section or through water features identified in
paragraph (i)(2) of this section so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (i)(1)(i) through (v) of
this section in a typical year;
    (vi) Impoundments of waters identified in paragraphs (i)(1)(i)
through (iv) and (vi) of this section; and
    (vii) Adjacent wetlands to waters identified in paragraphs
(i)(1)(i) through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(i)(1)(i) through (vi) of this section;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (i)(1)(iii) of
this section;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (i)(1)(iv) or (v)
of this section;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this paragraph (i), the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (i)(1)(i) through (v) of this section in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (i)(1)(i) through (v) of this section. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (i)(1)(i) through (v) water to a wetland or via
perennial or intermittent flow between a wetland and a paragraph
(i)(1)(i) through (v) water. Wetlands physically separated from a
paragraph (i)(1)(i) through (v) water by upland or by dikes, barriers,
or similar structures and also lacking a direct hydrologic surface
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation

lines, tidal gages, or other suitable means that delineate the general
height reached by a rising tide. The line encompasses spring high tides
and other high tides that occur with periodic frequency but does not
include storm surges in which there is a departure from the normal or
predicted reach of the tide due to the piling up of water against a
coast by strong winds, such as those accompanying a hurricane or other
intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph
(i)(3)(xv) of this section. Abandonment occurs when prior converted
cropland is not used for, or in support of, agricultural purposes at
least once in the immediately preceding five years. For the purposes of
the Clean Water Act, the EPA Administrator shall have the final
authority to determine whether prior converted cropland has been
abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(i)(1)(i) of this section in a typical year either directly or
indirectly through a water(s) identified in paragraphs (i)(1)(ii)
through (vi) of this section or through water features identified in
paragraph (i)(2) of this section so long as those water features convey
perennial or intermittent flow downstream. A tributary does not lose
its status as a tributary if it flows through a culvert, dam, or other
similar artificial break or through a debris pile, boulder field, or
similar natural break so long as the artificial or natural break
conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break. The alteration
or relocation of a tributary does not modify its status as a tributary
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (i)(3)(xv) of this section, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (i)(1)(i) through (vi) of this section. Waters
identified in paragraphs (i)(1)(i) through (vi) of this section are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
* * * * *

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

0
11. The authority citation for part 122 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

0
12. Section 122.2 is amended by revising the definition of ``Waters of
the United States'' to read as follows:

Sec.  122.2  Definitions.

* * * * *
    Waters of the United States or waters of the U.S. means:
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this
definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (1)(i) of this definition, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this definition so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (1)(i) through (v) of this
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this definition.

    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of
this section;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this definition. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (1)(i) through (v) water to a wetland or via perennial
or intermittent flow between a wetland and a paragraph (1)(i) through
(v) water. Wetlands physically separated from a paragraph (1)(i)
through (v) water by upland or by dikes, barriers, or similar
structures and also lacking a direct hydrologic surface connection to
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (3)(xv)
of this definition. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this section so long as those water features convey
perennial or intermittent flow downstream. A tributary does not lose
its status as a tributary if it flows through a culvert, dam, or other
similar artificial break or through a debris pile, boulder field, or
similar natural break so long as the artificial or natural break
conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break. The alteration
or relocation of a tributary does not modify its status as a tributary
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this definition, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition. Waters
identified in paragraphs (1)(i) through (vi) of this definition are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or remove pollutants, either
actively or passively, from wastewater prior to discharge (or
eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
* * * * *

PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL

0
13. The authority citation for part 230 continues to read as follows:

    Authority: The Clean Water Act, Secs. 404(b) and 501(a) of the
Clean Water Act of 1977 (33 U.S.C. 1344(b) and 1361(a)).

0
14. Section 230.3 is amended by revising paragraph (o) to read as
follows:

Sec.  230.3  Definitions.

* * * * *
    (o) The term waters of the United States means:
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(o)(3) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (o)(1)(i) of
this section;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (o)(1)(i) of this section, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (o)(1)(i) of this section, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(o)(1)(i) of this section in a typical year either directly or
indirectly through a water(s) identified in paragraphs (o)(1)(i) of
this section or through water features identified in paragraph (o)(2)
of this section so long as those water features convey perennial or
intermittent flow downstream, and lakes and ponds that are flooded by a
water identified in paragraphs (o)(1)(i) through (v) of this section in
a typical year;
    (v) Impoundments of waters identified in paragraphs (o)(1)(i)
through (iv) and (vi) of this section; and
    (vi) Adjacent wetlands to waters identified in paragraphs (o)(1)(i)
through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(o)(1)(i) through (vi) of this section;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (o)(1)(iii) of
this section;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (o)(1)(iv) or (v)
of this section;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this paragraph (o), the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (o)(1)(i) through (v) of this section in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (o)(1)(i) through (v) of this section. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (o)(1)(i) through (v) water to a wetland or via
perennial or intermittent flow between a wetland and a paragraph
(o)(1)(i) through (v) water. Wetlands physically separated from a
paragraph (o)(1)(i) through (v) water by upland or by dikes, barriers,
or similar structures and also lacking a direct hydrologic surface
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean

Water Act when the area is abandoned and has reverted to wetland, as
defined in paragraph (o)(3)(xv) of this section. Abandonment occurs
when prior converted cropland is not used for, or in support of,
agricultural purposes at least once in the immediately preceding five
years. For the purposes of the Clean Water Act, the EPA Administrator
shall have the final authority to determine whether prior converted
cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(o)(1)(i) of this section in a typical year either directly or
indirectly through a water(s) identified in paragraphs (o)(1)(i)
through (vi) of this section or through water features identified in
paragraph (o)(3) of this section so long as those water features convey
perennial or intermittent flow downstream. A tributary does not lose
its status as a tributary if it flows through a culvert, dam, or other
similar artificial break or through a debris pile, boulder field, or
similar natural break so long as the artificial or natural break
conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break. The alteration
or relocation of a tributary does not modify its status as a tributary
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (o)(3)(xv) of this section, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (o)(1)(i) through (vi) of this section. Waters
identified in paragraphs (o)(1)(i) through (vi) of this section are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.

PART 232--404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING
404 PERMITS

0
15. The authority citation for part 232 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
16. Section 232.2 is amended by revising the definition of ``Waters of
the United States'' to read as follows:

Sec.  232.2  Definitions.

* * * * *
    Waters of the United States means:
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this
definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (1)(i) of this definition, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this definition so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (1)(i) through (v) of this
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of
this definition;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this definition. A
direct hydrologic surface connection occurs as

a result of inundation from a paragraph (1)(i) through (v) water to a
wetland or via perennial or intermittent flow between a wetland and a
paragraph (1)(i) through (v) water. Wetlands physically separated from
a paragraph (1)(i) through (v) water by upland or by dikes, barriers,
or similar structures and also lacking a direct hydrologic surface
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (3)(xv)
of this definition. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this section in a typical year either directly or indirectly
through a water(s) identified in paragraphs (1)(ii) through (vi) of
this section or through water features identified in paragraph (b) of
this section so long as those water features convey perennial or
intermittent flow downstream. A tributary does not lose its status as a
tributary if it flows through a culvert, dam, or other similar
artificial break or through a debris pile, boulder field, or similar
natural break so long as the artificial or natural break conveys
perennial or intermittent flow to a tributary or other jurisdictional
water at the downstream end of the break. The alteration or relocation
of a tributary does not modify its status as a tributary as long as it
continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this definition, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition. Waters
identified in paragraphs (1)(i) through (vi) of this definition are not
upland.
    (xvi) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN

0
17. The authority citation for part 300 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
18. Section 300.5 is amended by revising the definition of ``Navigable
waters'' to read as follows:

Sec.  300.5  Definitions.

* * * * *
    Navigable waters means the waters of the United States, including
the territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this
definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in

an adjacent wetland as long as those ditches also satisfy the
conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (1)(i) of this definition, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this section so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (1)(i) through (v) of this
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of
this definition;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this definition. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (1)(i) through (v) water to a wetland or via perennial
or intermittent flow between a wetland and a paragraph (1)(i) through
(v) water. Wetlands physically separated from a paragraph (1)(i)
through (v) water by upland or by dikes, barriers, or similar
structures and also lacking a direct hydrologic surface connection to
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (3)(xv)
of this definition. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this definition so long as those water features convey
perennial or intermittent flow downstream. A tributary does not lose
its status as a tributary if it flows through a culvert, dam, or other
similar artificial break or through a debris pile, boulder field, or
similar natural break so long as the artificial or natural break
conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break. The alteration
or relocation of a tributary

does not modify its status as a tributary as long as it continues to
satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this definition, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition. Waters
identified in paragraphs (1)(i) through (vi) of this definition are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
* * * * *
0
19. In appendix E to part 300, section 1.5 Definitions is amended by
revising the definition of ``Navigable waters'' to read as follows:

Appendix E to Part 300--Oil Spill Response

* * * * *
1.5 Definitions. * * *
    Navigable waters means the waters of the United States,
including the territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq.
and its implementing regulations, subject to the exclusions in
paragraph (2) of this definition, the term ``waters of the United
States'' means:
    (i) Waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including the territorial seas and waters which are subject to the
ebb and flow of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of
this definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a
tributary or that relocate or alter a tributary as long as those
ditches also satisfy the conditions of the tributary definition, and
ditches constructed in an adjacent wetland as long as those ditches
also satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions
identified in paragraph (1)(i) of this definition, lakes and ponds
that contribute perennial or intermittent flow to a water identified
in paragraph (1)(i) of this section in a typical year either
directly or indirectly through a water(s) identified in paragraphs
(1)(ii) through (vi) of this definition or through water features
identified in paragraph (2) of this definition so long as those
water features convey perennial or intermittent flow downstream, and
lakes and ponds that are flooded by a water identified in paragraphs
(1)(i) through (v) of this definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i)
through (iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in
paragraphs (1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through
subsurface drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off,
including directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of
this definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland
(including water storage reservoirs, farm and stock watering ponds,
and log cleaning ponds) which are not identified in paragraph
(1)(iv) or (v) of this definition;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for
the purpose of obtaining fill, sand, or gravel;
    (xi) Stormwater control features excavated or constructed in
upland to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such
as detention, retention and infiltration basins and ponds, and
groundwater recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this
definition. A direct hydrologic surface connection occurs as a
result of inundation from a paragraph (1)(i) through (v) water to a
wetland or via perennial or intermittent flow between a wetland and
a paragraph (1)(i) through (v) water. Wetlands physically separated
from a paragraph (1)(i) through (v) water by upland or by dikes,
barriers, or similar structures and also lacking a direct hydrologic
surface connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing
or pooling only in direct response to precipitation (e.g., rain or
snow fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum
height reached by a rising tide. The high tide line may be
determined, in the absence of actual data, by a line of oil or scum
along shore objects, a more or less continuous deposit of fine shell
or debris on the foreshore or berm, other physical markings or
characteristics, vegetation lines, tidal gages, or other suitable
means that delineate the general height reached by a rising tide.
The line encompasses spring high tides and other high tides that
occur with periodic frequency but does not include storm surges in
which there is a departure from the normal or predicted reach of the
tide due to the piling up of water against a coast by strong winds,
such as those accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water
flowing continuously during certain times of a typical year and more
than in direct response to precipitation (e.g., seasonally when the
groundwater table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of
water and indicated by physical characteristics such as clear,
natural line impressed on the bank, shelving, changes in the
character of soil, destruction of terrestrial vegetation, the
presence of litter and debris, or other appropriate means that
consider the characteristics of the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted
cropland means any area that, prior to December 23, 1985, was
drained or otherwise manipulated for the purpose, or having the
effect, of making production of an agricultural product possible.
EPA and the Corps will recognize designations of prior converted
cropland made by the Secretary of Agriculture. An area is no longer
considered prior converted cropland for purposes of the Clean Water
Act when the area is abandoned and has reverted to wetland, as
defined in paragraph (3)(xv) of this definition. Abandonment occurs
when prior converted cropland is not used for, or in support of,
agricultural purposes at least once in the immediately preceding
five years. For the purposes of the Clean Water Act, the EPA
Administrator shall have the final authority to determine whether
prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic
regions and high altitudes (e.g., in northern climes and mountainous
regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal

waters and waters subject to the ebb and flow of the tide mean those
waters that rise and fall in a predictable and measurable rhythm or
cycle due to the gravitational pulls of the moon and sun. Tidal
waters and waters subject to the ebb and flow of the tide end where
the rise and fall of the water surface can no longer be practically
measured in a predictable rhythm due to masking by hydrologic, wind,
or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii)
through (vi) of this definition or through water features identified
in paragraph (2) of this definition so long as those water features
convey perennial or intermittent flow downstream. A tributary does
not lose its status as a tributary if it flows through a culvert,
dam, or other similar artificial break or through a debris pile,
boulder field, or similar natural break so long as the artificial or
natural break conveys perennial or intermittent flow to a tributary
or other jurisdictional water at the downstream end of the break.
The alteration or relocation of a tributary does not modify its
status as a tributary as long as it continues to satisfy the
elements of this definition.
    (xii) Typical year. The term typical year means within the
normal range of precipitation over a rolling thirty-year period for
a particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this definition, and does not lie
below the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition.
Waters identified in paragraphs (1)(i) through (vi) of this
definition are not upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such
as settling or cooling ponds), designed to convey or retain,
concentrate, settle, reduce, or remove pollutants, either actively
or passively, from wastewater prior to discharge (or eliminating any
such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated
or saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.
* * * * *

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
20. The authority citation for part 302 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
21. Section 302.3 is amended by revising the definition of ``Navigable
waters'' to read as follows:

Sec.  302.3  Definitions.

* * * * *
    Navigable waters means the waters of the United States, including
the territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this
definition;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (1)(i) of this definition, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (1)(i) of this definition, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this definition in a typical year either directly or
indirectly through a water(s) identified in paragraphs (1)(ii) through
(vi) of this definition or through water features identified in
paragraph (2) of this definition so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (1)(i) through (v) of this
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i)
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of
this definition;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (xi) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (1)(i) through (v) of this definition in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (1)(i) through (v) of this definition. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (1)(i) through (v) water to a wetland or via perennial
or intermittent flow between a wetland and a paragraph (1)(i) through
(v) water. Wetlands physically separated from a paragraph (1)(i)
through (v) water by upland or by dikes, barriers, or similar
structures and also lacking a direct hydrologic surface connection to
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line

encompasses spring high tides and other high tides that occur with
periodic frequency but does not include storm surges in which there is
a departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph (3)(xv)
of this section. Abandonment occurs when prior converted cropland is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(1)(i) of this section in a typical year either directly or indirectly
through a water(s) identified in paragraphs (1)(ii) through (vi) of
this definition or through water features identified in paragraph (2)
of this definition so long as those water features convey perennial or
intermittent flow downstream. A tributary does not lose its status as a
tributary if it flows through a culvert, dam, or other similar
artificial break or through a debris pile, boulder field, or similar
natural break so long as the artificial or natural break conveys
perennial or intermittent flow to a tributary or other jurisdictional
water at the downstream end of the break. The alteration or relocation
of a tributary does not modify its status as a tributary as long as it
continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal
range of precipitation over a rolling thirty-year period for a
particular geographic area.
    (xiii) Upland. The term upland means any land area that under
normal circumstances does not satisfy all three wetland delineation
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils)
identified in paragraph (3)(xv) of this section, and does not lie below
the ordinary high water mark or the high tide line of a water
identified in paragraph (1)(i) through (vi) of this definition. Waters
identified in paragraphs (1)(i) through (vi) of this definition are not
upland.
    (xiv) Waste treatment system. The term waste treatment system
includes all components, including lagoons and treatment ponds (such as
settling or cooling ponds), designed to convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
* * * * *

PART 401--GENERAL PROVISIONS

0
22. The authority citation for part 401 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
23. Section 401.11 is amended by revising paragraph (l) to read as
follows:

Sec.  401.11  General definitions.

* * * * *
    (l) Navigable waters means ``waters of the United States, including
the territorial seas.''
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(l)(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
the territorial seas and waters which are subject to the ebb and flow
of the tide;
    (ii) Tributaries of waters identified in paragraph (l)(1)(i) of
this section;
    (iii) Ditches that satisfy any of the conditions identified in
paragraph (l)(1)(i) of this section, ditches constructed in a tributary
or that relocate or alter a tributary as long as those ditches also
satisfy the conditions of the tributary definition, and ditches
constructed in an adjacent wetland as long as those ditches also
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified
in paragraph (l)(1)(i) of this section, lakes and ponds that contribute
perennial or intermittent flow to a water identified in paragraph
(l)(1)(i) of this section in a typical year either directly or
indirectly through a water(s) identified in paragraphs (l)(1)(ii)
through (vi) of this section or through water features identified in
paragraph (l)(2) of this section so long as those water features convey
perennial or intermittent flow downstream, and lakes and ponds that are
flooded by a water identified in paragraphs (l)(1)(i) through (v) of
this section in a typical year;
    (v) Impoundments of waters identified in paragraphs (l)(1)(i)
through (iv) and (vi) of this section; and
    (vi) Adjacent wetlands to waters identified in paragraphs (l)(1)(i)
through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs
(l)(1)(i) through (vi) of this section;

    (ii) Groundwater, including groundwater drained through subsurface
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (l)(1)(iii) of
this section;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for
rice or cranberry growing, that would revert to upland should
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including
water storage reservoirs, farm and stock watering ponds, and log
cleaning ponds) which are not identified in paragraph (l)(1)(iv) or (v)
of this section;
    (viii) Water-filled depressions created in upland incidental to
mining or construction activity, and pits excavated in upland for the
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as
detention, retention and infiltration basins and ponds, and groundwater
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this paragraph (l), the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands
that abut or have a direct hydrologic surface connection to a water
identified in paragraphs (l)(1)(i) through (v) of this section in a
typical year. Abut means to touch at least at one point or side of a
water identified in paragraphs (l)(1)(i) through (v) of this section. A
direct hydrologic surface connection occurs as a result of inundation
from a paragraph (l)(1)(i) through (v) water to a wetland or via
perennial or intermittent flow between a wetland and a paragraph
(l)(1)(i) through (v) water. Wetlands physically separated from a
paragraph (l)(1)(i) through (v) water by upland or by dikes, barriers,
or similar structures and also lacking a direct hydrologic surface
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
    (iv) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics,
vegetation lines, tidal gages, or other suitable means that delineate
the general height reached by a rising tide. The line encompasses
spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds, such as those
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing
continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland
means any area that, prior to December 23, 1985, was drained or
otherwise manipulated for the purpose, or having the effect, of making
production of an agricultural product possible. EPA and the Corps will
recognize designations of prior converted cropland made by the
Secretary of Agriculture. An area is no longer considered prior
converted cropland for purposes of the Clean Water Act when the area is
abandoned and has reverted to wetland, as defined in paragraph
(l)(3)(xv) of this section. Abandonment occurs when prior converted
cropland is not used for, or in support of, agricultural purposes at
least once in the immediately preceding five years. For the purposes of
the Clean Water Act, the EPA Administrator shall have the final
authority to determine whether prior converted cropland has been
abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that
accumulate over extended periods of time in certain geographic regions
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the
tide. The terms tidal waters and waters subject to the ebb and flow of
the tide mean those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters and waters subject to the ebb and flow of the
tide end where the rise and fall of the water surface can no longer be
practically measured in a predictable rhythm due to masking by
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or
similar naturally occurring surface water channel that contributes
perennial or intermittent flow to a water identified in paragraph
(l)(1)(i) of this section in a typical year either directly or
indirectly through a water(s) identified in paragraphs (l)(1)(ii)
through (vi) of this section or through water features identified in
paragraph (l)(2) of this section so long as those water features convey
perennial or intermittent flow downstream. A tributary does not lose