tributaries as defined in section (a)(5) have a significant nexus to
waters described in paragraphs (a)(1) through (a)(3). Because
smaller streams, whether perennial, intermittent, or ephemeral, are
much more common than larger streams, the volume of a stream's flow
is not the best measure of its contribution to the chemical,
physical, or biological integrity of downstream waters. Report at 4-
2, 4-3. As discussed in more detail in Appendix A, small streams
cumulatively exert a strong influence on downstream waters, partly
by collectively providing a substantial amount of the river's water,
id. at 4-3, 4-4 to 4-5, but also by playing unique roles that large
streams typically do not, including providing habitat for aquatic
macroinvertebrates which help maintain the health of the downstream
water. Waters adjacent to those small tributary streams, therefore,
also significantly affect (a)(1) through (a)(3) waters through the
movement of energy and materials between adjacent waters and those
tributaries, resulting ultimately in significant downstream effects
on the chemical, physical, and biological integrity of the (a)(1)
through (a)(3) waters.

``Other Waters''

    In Rapanos, Justice Kennedy provides an approach for determining
what constitutes a ``significant nexus'' that can serve as a basis
for defining ``waters of the United States'' through regulation.
Justice Kennedy concluded that ``to constitute `navigable waters'
under the Act, a water or wetland must possess a `significant nexus'
to waters that are or were navigable in fact or that could
reasonably be so made.'' Id. at 759 (citing SWANCC, 531 U.S. at 167,
172). Again, the four justices who signed on to Justice Stevens'
opinion would have upheld jurisdiction under the agencies' existing
regulations and stated that they would uphold jurisdiction under
either the plurality or Justice Kennedy's opinion. Justice Kennedy
stated that wetlands should be considered to possess the requisite
nexus in the context of assessing whether wetlands are
jurisdictional: ``if the wetlands, either alone or in combination
with similarly situated [wetlands] in the region, significantly
affect the chemical, physical, and biological integrity of other
covered waters more readily understood as `navigable.' '' Id. at
780. In light of Rapanos and SWANCC, the ``significant nexus''
standard for CWA jurisdiction that Justice Kennedy's opinion applied
to adjacent wetlands also can reasonably be applied to other waters
such as ponds, lakes, and non-adjacent wetlands that may have a
significant nexus to a traditional navigable water, an interstate
water, or the territorial seas.
    The proposed rule includes a definition of significant nexus
that is consistent with Justice Kennedy's significant nexus
standard. In characterizing the significant nexus standard, Justice
Kennedy stated: ``The required nexus must be assessed in terms of
the statute's goals and purposes. Congress enacted the [CWA] to
`restore and maintain the chemical, physical, and biological
integrity of the Nation's waters' . . ..'' 547 U.S. at 779. It clear
that Congress intended the CWA to ``restore and maintain'' all three
forms of ``integrity,'' 33 U.S.C. 1251(a), so if any one form is
compromised then that is contrary to the statute's stated objective.
It would subvert the intent if the CWA only protected waters upon a
showing that they had effects on every attribute of a traditional
navigable water, interstate water, or territorial sea. Therefore, a
showing of a significant chemical, physical, or biological affect
should satisfy the significant nexus standard.
    Justice Kennedy's opinion provides guidance pointing to many
functions of waters that might demonstrate a significant nexus, such
as sediment trapping, nutrient recycling, pollutant trapping and
filtering, retention or attenuation of flood waters, and runoff
storage. See 547 U.S. at 775, 779-80. Furthermore, Justice Kennedy
recognized that a hydrologic connection is not necessary to
establish a significant nexus, because in some cases the absence of
a hydrologic connection would show the significance of a water to
the aquatic system, such as retention of flood waters or pollutants
that would otherwise flow downstream to the traditional navigable
water or interstate water. Id. at 775. Finally, Justice Kennedy was
clear that the requisite nexus must be more than ``speculative or
insubstantial'' in order to be significant. Id. at 780. Justice
Kennedy's standard is consistent with basic scientific principles
about how to restore and maintain the integrity of aquatic
ecosystems.

Similarly Situated

    For purposes of analyzing the significant nexus of tributaries
and adjacent waters, tributaries that meet the proposed definition
of ``tributary'' in a watershed draining to an (a)(1) through (a)(3)
water are similarly situated, and adjacent waters that meet the
proposed definition of ``adjacent'' in a watershed draining to an
(a)(1) through (a)(3) water are similarly situated. That is
reasonable because the agencies are identifying characteristics of
these waters through the regulation and documenting the science that
demonstrates that these defined tributaries and defined adjacent
waters provide similar functions in the watershed. As stated above,
the functions of the tributaries are inextricably linked and have a
cumulative effect on the integrity of the downstream traditional
navigable water or interstate water. There is also an obvious
locational relationship between the (a)(1), (a)(2) or (a)(3) water
and the streams, lakes, and wetlands that meet the definition of
tributaries and the definition of adjacent waters; these waters have
a clear linear relationship resulting from the simple existence of
the channel itself and the direction of flow. See Appendix A,
Scientific Evidence.
    ``Other waters,'' on the other hand, constitute a broad range of
different types of waters performing different functions. In light
of the range and degree of functions performed by waters that are
neither tributaries nor adjacent waters under today's proposed rule,
the agencies propose a definition of similarly situated which takes
into account similarity of functions provided and situation in the
landscape. Since the focus of the significant nexus standard is on
protecting the chemical, physical, and biological integrity of the
nation's waters, the agencies propose to interpret the phrase
``similarly situated'' in terms of whether the functions provided by
the particular ``other waters'' are similar and, therefore, whether
such ``other waters'' are collectively influencing the chemical,
physical, or biological integrity of downstream waters. There are
many functions of waters that might demonstrate a significant nexus,
such as sediment trapping, nutrient recycling, pollutant trapping
and filtering, retention or attenuation of flood waters, runoff
storage, and provision of habitat. See 547 U.S. at 775, 779-80. This
approach is consistent not only with the significant nexus standard,
but with the science of aquatic systems.
    The absence of a hydrologic connection between ``other waters''
and traditional navigable waters, interstate waters, or the
territorial seas may demonstrate the presence of a significant nexus
between such waters, as Justice Kennedy recognized in his opinion.
``Other waters'' frequently function alone or cumulatively with
similarly situated ``other waters'' in the region to capture runoff,
rain water, or snowmelt and thereby protect the integrity of
downstream waters by reducing potential flooding or trapping
pollutants that would otherwise reach a traditional navigable water
or interstate water. See id. at 775. Such waters can be crucial in
controlling flooding as well as in maintaining water quality by
trapping or transforming

pollutants such as excess nutrients or sediment, for example, or
retaining precipitation or snow melt, thereby reducing contamination
or flooding of traditional navigable waters, interstate waters, or
the territorial seas.

Significant Nexus

    The agencies propose to define the term ``significant nexus''
consistent with language in SWANCC and Rapanos. The proposed
definition of ``significant nexus'' at (c)(7) relies most
significantly on Justice Kennedy's Rapanos opinion which recognizes
that not all waters have this requisite connection to waters covered
by paragraphs (a)(1) through (a)(3) of the proposed regulations.
Justice Kennedy was clear that the requisite nexus must be more than
``speculative or insubstantial. . ., '' Rapanos, 547 U.S. at 780, in
order to be significant and the proposed rule defines significant
nexus in precisely those terms. In Rapanos, Justice Kennedy stated
that in both the consolidated cases before the Court the record
contained evidence suggesting the possible existence of a
significant nexus according to the principles he identified. See id.
at 783. Justice Kennedy concluded that ``the end result in these
cases and many others to be considered by the Corps may be the same
as that suggested by the dissent, namely, that the Corps' assertion
of jurisdiction is valid.'' Id. Justice Kennedy remanded the cases
because neither the agency nor the reviewing courts properly applied
the controlling legal standard--whether the wetlands at issue had a
significant nexus. See id. Justice Kennedy was clear however, that
``[m]uch the same evidence should permit the establishment of a
significant nexus with navigable-in-fact waters, particularly if
supplemented by further evidence about the significance of the
tributaries to which the wetlands are connected.'' Id. at 784.
    With respect to one of the wetlands at issue in the consolidated
Rapanos cases, Justice Kennedy stated:

    In Carabell, No. 04-1384, the record also contains evidence
bearing on the jurisdictional inquiry. The Corps noted in deciding
the administrative appeal that ``[b]esides the effects on wildlife
habitat and water quality, the [district office] also noted that the
project would have a major, long-term detrimental effect on
wetlands, flood retention, recreation and conservation and overall
ecology. . . . The Corps' evaluation further noted that by
`eliminat[ing] the potential ability of the wetland to act as a
sediment catch basin,'' the proposed project ``would contribute to
increased runoff and . . . accretion along the drain and further
downstream in Auvase Creek.' . . . And it observed that increased
runoff from the site would likely cause downstream areas to ``see an
increase in possible flooding magnitude and frequency.''

Id. at 785-86. Justice Kennedy also expressed concern that ``[t]he
conditional language in these assessments--`potential ability,'
`possible flooding'--could suggest an undue degree of speculation.''
Id.at 786.
    Justice Kennedy's observations regarding the above case provide
guidance as to what it means for a nexus to be more than merely
speculative or insubstantial and inform the proposed definition of
``significant nexus.'' It is important to note, however, that where
Justice Kennedy viewed the language ``more than speculative or
insubstantial'' to suggest an undue degree of speculation,
scientists do not equate certain conditional language (such as
``may'' or ``could'') with speculation, but rather with the rigorous
and precise language of science necessary when applying specific
findings in another individual situation or more broadly across a
variety of situations. Certain terms used in a scientific context do
not have the same implications that they have in a legal or policy
context. Scientists use cautionary language, such as ``may'' or
``could,'' when applying specific findings on a broader scale to
avoid the appearance of overstating their research results and to
avoid inserting bias into their findings (such that the reader may
think the results of one study are applicable in all related
studies). Words like ``potential'' are commonly used in the
biological sciences, but when viewed under a legal and policy veil,
may seem to mean the same as ``speculative'' or ``insubstantial.''
Instead, potential in scientific terms means ability or capability.
For example, when the term ``potential'' is used to describe how a
wetland has the potential to act as a sink for floodwater and
pollutants, scientists mean that wetlands in general do indeed
perform those functions, but whether a particular wetland performs
that function is dependent upon the circumstances that would create
conditions for floodwater or pollutants in the watershed to reach
that particular wetland to retain and transform. That does not mean,
however, that this nexus to downstream waters is ``speculative;''
indeed the wetland would be expected to provide these functions
under the proper circumstances.

    Definition of ``Waters of the United States'' Under the Clean Water
Act.

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure,
Intergovernmental relations, Navigation, Water pollution control,
Waterways.

40 CFR Part 110

    Environmental protection, Water pollution control.

40 CFR Part 112

    Environmental protection, Water pollution control.

40 CFR Part 116

    Environmental protection, Water pollution control.

40 CFR Part 117

    Environmental protection, Water pollution control.

40 CFR Part 122

    Environmental protection, Water pollution control.

40 CFR Part 230

    Environmental protection, Water pollution control.

40 CFR Part 232

    Environmental protection, Water pollution control.

40 CFR Part 300

    Environmental protection, Water pollution control.

40 CFR Part 302

    Environmental protection, Water pollution control.

40 CFR Part 401

    Environmental protection, Water pollution control.

    Dated: March 25, 2014.
Gina McCarthy,
Administrator, Environmental Protection Agency.
    Dated: March 24, 2014.
Jo Ellen Darcy,
Assistant Secretary of the Army (Civil Works), Department of the Army.

Title 33--Navigation and Navigable Waters

    For the reasons set out in the preamble, title 33, chapter I of the
Code of Federal Regulations is proposed to be amended 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:  The Clean Water Act, 33 U.S.C. 1251 et seq.

0
2. Section 328.3 is amended by removing the introductory text and
revising paragraphs (a), (b), and (c) to read as follows:

Sec.  328.3  Definitions.

    (a) For purposes of all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (2) All interstate waters, including interstate wetlands;
    (3) The territorial seas;
    (4) All impoundments of waters identified in paragraphs (a)(1)
through (3) and (5) of this section;
    (5) All tributaries of waters identified in paragraphs (a)(1)
through (4) of this section;

    (6) All waters, including wetlands, adjacent to a water identified
in paragraphs (a)(1) through (5) of this section; and
    (7) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(a)(1) through (3) of this section.
    (b) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (a)(1)
through (7) of this section--
    (1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (2) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (3) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (4) Ditches that do not contribute flow, either directly or through
another water, to a water identified in paragraphs (a)(1) through (4)
of this section.
    (5) The following features:
    (i) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (ii) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (iii) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (iv) Small ornamental waters created by excavating and/or diking
dry land for primarily aesthetic reasons;
    (v) Water-filled depressions created incidental to construction
activity;
    (vi) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (vii) Gullies and rills and non-wetland swales.
    (c) Definitions--
    (1) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (2) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (a)(1)
through (5) of this section, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (3) Riparian area. The term riparian area means an area bordering a
water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (4) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (5) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (a)(1) through (4) of this section. In addition, wetlands,
lakes, and ponds are tributaries (even if they lack a bed and banks or
ordinary high water mark) if they contribute flow, either directly or
through another water to a water identified in paragraphs (a)(1)
through (3) of this section. A water that otherwise qualifies as a
tributary under this definition does not lose its status as a tributary
if, for any length, there are one or more man-made breaks (such as
bridges, culverts, pipes, or dams), or one or more natural breaks (such
as wetlands at the head of or along the run of a stream, debris piles,
boulder fields, or a stream that flows underground) so long as a bed
and banks and an ordinary high water mark can be identified upstream of
the break. A tributary, including wetlands, can be a natural, man-
altered, or man-made water and includes waters such as rivers, streams,
lakes, ponds, impoundments, canals, and ditches not excluded in
paragraph (b)(3) or (4) of this section.
    (6) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (7) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (a)(1) through (3)
of this section), significantly affects the chemical, physical, or
biological integrity of a water identified in paragraphs (a)(1) through
(3) of this section. For an effect to be significant, it must be more
than speculative or insubstantial. Other waters, including wetlands,
are similarly situated when they perform similar functions and are
located sufficiently close together or sufficiently close to a ``water
of the United States'' so that they can be evaluated as a single
landscape unit with regard to their effect on the chemical, physical,
or biological integrity of a water identified in paragraphs (a)(1)
through (3) of this section.
* * * * *

Title 40--Protection of Environment

    For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

PART 110--DISCHARGE OF OIL

0
3. The authority citation for part 110 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1321 et seq.

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 the waters of the United States, including
the territorial seas.
    (1) For purposes of all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (1)(i)
through (iii) and (v) of this definition;

    (v) All tributaries of waters identified in paragraphs (1)(i)
through (iv) of this definition;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (1)(i) through (v) of this definition; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(1)(i) through (iii) of this definition.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (1)(i)
through (vii) of this definition--
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (1)(i)
through (iv) of this definition.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (1)(i)
through (v) of this definition, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (1)(i) through (iv) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(1)(i) through (iii) of this definition. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (2)(iii) or (iv) of this definition.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition), significantly affects the chemical,
physical, or biological integrity of a water identified in paragraphs
(1)(i) through (iii) of this definition. For an effect to be
significant, it must be more than speculative or insubstantial. Other
waters, including wetlands, are similarly situated when they perform
similar functions and are located sufficiently close together or
sufficiently close to a ``water of the United States'' so that they can
be evaluated as a single landscape unit with regard to their effect on
the chemical, physical, or biological integrity of a water identified
in paragraphs (1)(i) through (iii) of this definition.
* * * * *

PART 112--OIL POLLUTION PREVENTION

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

    Authority:  The Clean Water Act, 33 U.S.C. 1321 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 the waters of the United States, including
the territorial seas.
    (1) For purposes of all sections 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:
    (i) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (1)(i)
through (iii) and (v) of this definition;

    (v) All tributaries of waters identified in paragraphs (1)(i)
through (iv) of this definition;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (1)(i) through (v) of this definition; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(1)(i) through (iii) of this definition.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (1)(i)
through (vii) of this definition ----
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (1)(i)
through (iv) of this definition.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (1)(i)
through (v) of this definition, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (1)(i) through (iv) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(1)(i) through (iii) of this definition. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (2)(iii) or (iv) of this definition.
    (6) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (7) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition), significantly affects the chemical,
physical, or biological integrity of a water identified in paragraphs
(1)(i) through (iii) of this definition. For an effect to be
significant, it must be more than speculative or insubstantial. Other
waters, including wetlands, are similarly situated when they perform
similar functions and are located sufficiently close together or
sufficiently close to a ``water of the United States'' so that they can
be evaluated as a single landscape unit with regard to their effect on
the chemical, physical, or biological integrity of a water identified
in paragraphs (1)(i) through (iii) of this definition.
* * * * *

PART 116--DESIGNATION OF HAZARDOUS SUBSTANCE

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

    Authority: The Clean Water Act, 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 is defined in section 502(7) of the Act to mean
``waters of the United States, including the territorial seas.''
    (1) For purposes of all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (1)(i)
through (iii) and (v) of this definition;.

    (v) All tributaries of waters identified in paragraphs (1)(i)
through (iv) of this definition;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (1)(i) through (v) of this definition; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(1)(i) through (iii) of this definition.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (1)(i)
through (viii) of this definition--
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (1)(i)
through (iv) of this section.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (1)(i)
through (v) of this definition, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (4) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (5) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (1)(i) through (iv) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(1)(i) through (iii) of this definition. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (2)(iii) or (iv) of this definition.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition), significantly affects the chemical,
physical, or biological integrity of a water identified in paragraphs
(1)(i) through (iii) of this definition. For an effect to be
significant, it must be more than speculative or insubstantial. Other
waters, including wetlands, are similarly situated when they perform
similar functions and are located sufficiently close together or
sufficiently close to a ``water of the United States'' so that they can
be evaluated as a single landscape unit with regard to their effect on
the chemical, physical, or biological integrity of a water identified
in paragraphs (1)(i) through (iii) of this definition.
* * * * *

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS
SUBSTANCES

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

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

0
10. Section 117.1 is amended by revising the definition of ``navigable
waters'' to read as follows:

Sec.  117.1  Definitions.

* * * * *
    (i) Navigable waters means ``waters of the United States, including
the territorial seas.''
    (1) For purposes of all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (i)(1)(i)
through (iii) and (v) of this section;

    (v) All tributaries of waters identified in paragraphs (i)(1)(i)
through (iv) of this section;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (i)(1)(i) through (v) of this section; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(i)(1)(i) through (iii) of this section.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (i)(1)(i)
through (vii) of this section--
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (i)(1)(i)
through (iv) of this section.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs
(i)(1)(i) through (v) of this section, or waters with a shallow
subsurface hydrologic connection or confined surface hydrologic
connection to such a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (i)(1)(i) through (iv) of this section. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(i)(1)(i) through (iii) of this section. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (i)(2)(iii) or (iv) of this section.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (i)(1)(i) through
(iii) of this section), significantly affects the chemical, physical,
or biological integrity of a water identified in paragraphs (i)(1)(i)
through (iii) of this section. For an effect to be significant, it must
be more than speculative or insubstantial. Other waters, including
wetlands, are similarly situated when they perform similar functions
and are located sufficiently close together or sufficiently close to a
``water of the United States'' so that they can be evaluated as a
single landscape unit with regard to their effect on the chemical,
physical, or biological integrity of a water identified in paragraphs
(i)(1)(i) through (iii) of this section.
* * * * *

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'' and removing the note and editorial note at the end
of the section.
    The revision reads as follows:

Sec.  122.2  Definitions.

* * * * *
    Waters of the United States or waters of the U.S. means:
    (a) For purposes of all sections 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 definition, the term ``waters of
the United States'' means:
    (1) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (2) All interstate waters, including interstate wetlands;
    (3) The territorial seas;

    (4) All impoundments of waters identified in paragraphs (a)(1)
through (3) and (5) of this definition;
    (5) All tributaries of waters identified in paragraphs (a)(1)
through (4) of this definition;
    (6) All waters, including wetlands, adjacent to a water identified
in paragraphs (a)(1) through (5) of this definition; and
    (7) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(a)(1) through (3) of this definition.
    (b) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (a)(1)
through (7) of this definition--
    (1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act. This
exclusion applies only to manmade bodies of water which neither were
originally created in waters of the United States (such as disposal
area in wetlands) nor resulted from the impoundment of waters of the
United States.\1\
    (2) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (3) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (4) Ditches that do not contribute flow, either directly or through
another water, to a water identified in paragraphs (a)(1) through (4)
of this definition.
    (5) The following features:
    (i) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (ii) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (iii) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (iv) Small ornamental waters created by excavating and/or diking
dry land for primarily aesthetic reasons;
    (v) Water-filled depressions created incidental to construction
activity;
    (vi) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (vii) Gullies and rills and non-wetland swales.
    (c) Definitions--
    (1) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (2) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (a)(1)
through (5) of this section, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (3) Riparian area. The term riparian area means an area bordering a
water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (4) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (5) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (a)(1) through (4) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(a)(1) through (3) of this definition. A water that otherwise qualifies
as a tributary under this definition does not lose its status as a
tributary if, for any length, there are one or more man-made breaks
(such as bridges, culverts, pipes, or dams), or one or more natural
breaks (such as wetlands at the head of or along the run of a stream,
debris piles, boulder fields, or a stream that flows underground) so
long as a bed and banks and an ordinary high water mark can be
identified upstream of the break. A tributary, including wetlands, can
be a natural, man-altered, or man-made water and includes waters such
as rivers, streams, lakes, ponds, impoundments, canals, and ditches not
excluded in paragraphs (b)(3) or (4) of this definition.
    (6) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (7) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (a)(1) through (3)
of this definition), significantly affects the chemical, physical, or
biological integrity of a water identified in paragraphs (a)(1) through
(3) of this definition. For an effect to be significant, it must be
more than speculative or insubstantial. Other waters, including
wetlands, are similarly situated when they perform similar functions
and are located sufficiently close together or sufficiently close to a
``water of the United States'' so that they can be evaluated as a
single landscape unit with regard to their effect on the chemical,
physical, or biological integrity of a water identified in paragraphs
(a)(1) through (3) of this definition.
* * * * *
    \1\At 45 FR 48620, July 21, 1980, the Environmental Protection
Agency suspended until further notice in Sec.  122.2, the last
sentence, beginning ``This exclusion applies . . .'' in the definition
of ``Waters of the United States.'' This revision (48 FR 14153, Apr. 1,
1983) continues that suspension.

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, 33 U.S.C. 1251 et seq.

0
14. Section 230.3 is amended by revising paragraphs (s) and (t) and
adding paragraph (u) to read as follows:

Sec.  230.3  Definitions.

* * * * *
    (s) For purposes of all sections of the Clean Water Act, 33 U.S.C.
1251 et seq.

and its implementing regulations, subject to the exclusions in
paragraph (t) of this section, the term ``waters of the United States''
means:
    (1) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (2) All interstate waters, including interstate wetlands;
    (3) The territorial seas;
    (4) All impoundments of waters identified in paragraphs (s)(1)
through (3) and (5) of this section;
    (5) All tributaries of waters identified in paragraphs (s)(1)
through (4) of this section;
    (6) All waters, including wetlands, adjacent to a water identified
in paragraphs (s)(1) through (5) of this section; and
    (7) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(s)(1) through (3) of this section.
    (t) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (s)(1)
through (7) of this section--
    (1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (2) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (3) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (4) Ditches that do not contribute flow, either directly or through
another water, to a water identified in paragraphs (s)(1) through (4)
of this section.
    (5) The following features:
    (i) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (ii) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (iii) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (iv) Small ornamental waters created by excavating and/or diking
dry land for primarily aesthetic reasons;
    (v) Water-filled depressions created incidental to construction
activity;
    (vi) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (vii) Gullies and rills and non-wetland swales.
    (u) Definitions--
    (1) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (2) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (s)(1)
through (5) of this section, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (3) Riparian area. The term riparian area means an area bordering a
water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (4) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (5) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (s)(1) through (4) of this section. In addition, wetlands,
lakes, and ponds are tributaries (even if they lack a bed and banks or
ordinary high water mark) if they contribute flow, either directly or
through another water to a water identified in paragraphs (s)(1)
through (3) of this section. A water that otherwise qualifies as a
tributary under this definition does not lose its status as a tributary
if, for any length, there are one or more man-made breaks (such as
bridges, culverts, pipes, or dams), or one or more natural breaks (such
as wetlands at the head of or along the run of a stream, debris piles,
boulder fields, or a stream that flows underground) so long as a bed
and banks and an ordinary high water mark can be identified upstream of
the break. A tributary, including wetlands, can be a natural, man-
altered, or man-made water and includes waters such as rivers, streams,
lakes, ponds, impoundments, canals, and ditches not excluded in
paragraph (t)(3) or (4) of this section.
    (6) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (7) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (s)(1) through (3)
of this section), significantly affects the chemical, physical, or
biological integrity of a water identified in paragraphs (s)(1) through
(3) of this section. For an effect to be significant, it must be more
than speculative or insubstantial. Other waters, including wetlands,
are similarly situated when they perform similar functions and are
located sufficiently close together or sufficiently close to a ``water
of the United States'' so that they can be evaluated as a single
landscape unit with regard to their effect on the chemical, physical,
or biological integrity of a water identified in paragraphs (s)(1)
through (3) of this section.

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:  The Clean Water Act, 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 or waters means:
    (1) For purposes of all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (1)(i)
through (iii) and (v) of this definition;
    (v) All tributaries of waters identified in paragraphs (1)(i)
through (iv) of this section;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (1)(i) through (v) of this definition; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(1)(i) through (iii) of this definition.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (1)(i)
through (vii) of this definition--
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (1)(i)
through (iv) of this section.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (1)(i)
through (v) of this definition, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (1)(i) through (iv) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(1)(i) through (iii) of this definition. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (2)(iii) or (iv) of this definition.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition), significantly affects the chemical,
physical, or biological integrity of a water identified in paragraphs
(1)(i) through (iii) of this definition. For an effect to be
significant, it must be more than speculative or insubstantial. Other
waters, including wetlands, are similarly situated when they perform
similar functions and are located sufficiently close together or
sufficiently close to a ``water of the United States'' so that they can
be evaluated as a single landscape unit with regard to their effect on
the chemical, physical, or biological integrity of a water identified
in paragraphs (1)(i) through (iii) of this definition.

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

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

    Authority:  The Clean Water Act, 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 as defined by 40 CFR 110.1, means the waters of
the United States, including the territorial seas.
    (1) For purposes of all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (1)(i)
through (iii) and (v) of this definition;
    (v) All tributaries of waters identified in paragraphs (1)(i)
through (iv) of this definition;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (1)(i) through (v) of this definition; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(1)(i) through (iii) of this definition.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (1)(i)
through (vii) of this definition--
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (1)(i)
through (iv) of this definition.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (1)(i)
through (v) of this definition, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (1)(i) through (iv) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(1)(i) through (iii) of this definition. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (2)(iii) or (iv) of this definition.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition), significantly affects the chemical,
physical, or biological integrity of a water identified in paragraphs
(1)(i) through (iii) of this definition. For an effect to be
significant, it must be more than speculative or insubstantial. Other
waters, including wetlands, are similarly situated when they perform
similar functions and are located sufficiently close together or
sufficiently close to a ``water of the United States'' so that they can
be evaluated as a single landscape unit with regard to their effect on
the chemical, physical, or biological integrity of a water identified
in paragraphs (1)(i) through (iii) of this definition.
* * * * *
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 as defined by 40 CFR 110.1, means the waters of
the United States, including the territorial seas.
    (1) For purposes of all sections 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) All waters which are currently used, were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the
tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;

    (iv) All impoundments of waters identified in paragraphs (1)(i)
through (iii) and (v) of this definition;
    (v) All tributaries of waters identified in paragraphs (1)(i)
through (iv) of this definition;
    (vi) All waters, including wetlands, adjacent to a water
identified in paragraphs (1)(i) through (v) of this definition; and
    (vii) On a case-specific basis, other waters, including
wetlands, provided that those waters alone, or in combination with
other similarly situated waters, including wetlands, located in the
same region, have a significant nexus to a water identified in
paragraphs (1)(i) through (iii) of this definition.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (1)(i)
through (vii) of this definition--
    (i) Waste treatment systems, including treatment ponds or
lagoons, designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination
of an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (1)(i)
through (iv) of this definition.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland
should application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or
diking dry land and used exclusively for such purposes as stock
watering, irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking
dry land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through
subsurface drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters
of the United States by man-made dikes or barriers, natural river
berms, beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs
(1)(i) through (v) of this definition, or waters with a shallow
subsurface hydrologic connection or confined surface hydrologic
connection to such a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area
bordering a water where surface or subsurface hydrology directly
influence the ecological processes and plant and animal community
structure in that area. Riparian areas are transitional areas
between aquatic and terrestrial ecosystems that influence the
exchange of energy and materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering
inland or coastal waters that was formed by sediment deposition from
such water under present climatic conditions and is inundated during
periods of moderate to high water flows.
    (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (1)(i) through (iv) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed
and banks or ordinary high water mark) if they contribute flow,
either directly or through another water to a water identified in
paragraphs (1)(i) through (iii) of this definition. A water that
otherwise qualifies as a tributary under this definition does not
lose its status as a tributary if, for any length, there are one or
more man-made breaks (such as bridges, culverts, pipes, or dams), or
one or more natural breaks (such as wetlands at the head of or along
the run of a stream, debris piles, boulder fields, or a stream that
flows underground) so long as a bed and banks and an ordinary high
water mark can be identified upstream of the break. A tributary,
including wetlands, can be a natural, man-altered, or man-made water
and includes waters such as rivers, streams, lakes, ponds,
impoundments, canals, and ditches not excluded in paragraph (2)(iii)
or (iv) of this definition.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition), significantly affects the chemical,
physical, or biological integrity of a water identified in
paragraphs (1)(i) through (iii) of this definition. For an effect to
be significant, it must be more than speculative or insubstantial.
Other waters, including wetlands, are similarly situated when they
perform similar functions and are located sufficiently close
together or sufficiently close to a ``water of the United States''
so that they can be evaluated as a single landscape unit with regard
to their effect on the chemical, physical, or biological integrity
of a water identified in paragraphs (1)(i) through (iii) of this
definition.
* * * * *

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

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

    Authority:  The Clean Water Act, 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 all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (1)(i)
through (iii) and (v) of this definition;
    (v) All tributaries of waters identified in paragraphs (1)(i)
through (iv) of this definition;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (1)(i) through (v) of this definition; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(1)(i) through (iii) of this definition.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (1)(i)
through (vii) of this definition--
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.

    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another water, to a water identified in paragraphs (1)(i)
through (iv) of this definition.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs (1)(i)
through (v) of this definition, or waters with a shallow subsurface
hydrologic connection or confined surface hydrologic connection to such
a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
    (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (1)(i) through (iv) of this definition. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(1)(i) through (iii) of this definition. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (2)(iii) or (iv) of this definition.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition), significantly affects the chemical,
physical, or biological integrity of a water identified in paragraphs
(1)(i) through (iii) of this definition. For an effect to be
significant, it must be more than speculative or insubstantial. Other
waters, including wetlands, are similarly situated when they perform
similar functions and are located sufficiently close together or
sufficiently close to a ``water of the United States'' so that they can
be evaluated as a single landscape unit with regard to their effect on
the chemical, physical, or biological integrity of a water identified
in paragraphs (1)(i) through (iii) of this definition.
* * * * *

PART 401--GENERAL PROVISIONS

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

    Authority:  The Clean Water Act, 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) The term navigable waters means the waters of the United
States, including the territorial seas.
    (1) For purposes of all sections 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) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (ii) All interstate waters, including interstate wetlands;
    (iii) The territorial seas;
    (iv) All impoundments of waters identified in paragraphs (l)(1)(i)
through (iii) and (v) of this section;
    (v) All tributaries of waters identified in paragraphs (l)(1)(i)
through (iv) of this section;
    (vi) All waters, including wetlands, adjacent to a water identified
in paragraphs (l)(1)(i) through (v) of this section; and
    (vii) On a case-specific basis, other waters, including wetlands,
provided that those waters alone, or in combination with other
similarly situated waters, including wetlands, located in the same
region, have a significant nexus to a water identified in paragraphs
(l)(1)(i) through (iii) of this section.
    (2) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs (l)(1)(i)
through (vii) of this section--
    (i) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act.
    (ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act the final authority
regarding Clean Water Act jurisdiction remains with EPA.
    (iii) Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow.
    (iv) Ditches that do not contribute flow, either directly or
through another

water, to a water identified in paragraphs (l)(1)(i) through (iv) of
this section.
    (v) The following features:
    (A) Artificially irrigated areas that would revert to upland should
application of irrigation water to that area cease;
    (B) Artificial lakes or ponds created by excavating and/or diking
dry land and used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
    (C) Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land;
    (D) Small ornamental waters created by excavating and/or diking dry
land for primarily aesthetic reasons;
    (E) Water-filled depressions created incidental to construction
activity;
    (F) Groundwater, including groundwater drained through subsurface
drainage systems; and
    (G) Gullies and rills and non-wetland swales.
    (3) Definitions--
    (i) Adjacent. The term adjacent means bordering, contiguous or
neighboring. Waters, including wetlands, separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ``adjacent waters.''
    (ii) Neighboring. The term neighboring, for purposes of the term
``adjacent'' in this section, includes waters located within the
riparian area or floodplain of a water identified in paragraphs
(l)(1)(i) through (v) of this section, or waters with a shallow
subsurface hydrologic connection or confined surface hydrologic
connection to such a jurisdictional water.
    (iii) Riparian area. The term riparian area means an area bordering
a water where surface or subsurface hydrology directly influence the
ecological processes and plant and animal community structure in that
area. Riparian areas are transitional areas between aquatic and
terrestrial ecosystems that influence the exchange of energy and
materials between those ecosystems.
    (iv) Floodplain. The term floodplain means an area bordering inland
or coastal waters that was formed by sediment deposition from such
water under present climatic conditions and is inundated during periods
of moderate to high water flows.
     (v) Tributary. The term tributary means a water physically
characterized by the presence of a bed and banks and ordinary high
water mark, as defined at 33 CFR 328.3(e), which contributes flow,
either directly or through another water, to a water identified in
paragraphs (l)(1)(i) through (iv) of this section. In addition,
wetlands, lakes, and ponds are tributaries (even if they lack a bed and
banks or ordinary high water mark) if they contribute flow, either
directly or through another water to a water identified in paragraphs
(l)(1)(i) through (iii) of this section. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more man-made
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands at the head of or along the run of a
stream, debris piles, boulder fields, or a stream that flows
underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A tributary, including
wetlands, can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, lakes, ponds, impoundments, canals, and
ditches not excluded in paragraph (l)(2)(iii) or (iv) of this section.
    (vi) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater 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.
    (vii) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region (i.e., the watershed that
drains to the nearest water identified in paragraphs (l)(1)(i) through
(iii) of this section), significantly affects the chemical, physical,
or biological integrity of a water identified in paragraphs (l)(1)(i)
through (iii) of this section. For an effect to be significant, it must
be more than speculative or insubstantial. Other waters, including
wetlands, are similarly situated when they perform similar functions
and are located sufficiently close together or sufficiently close to a
``water of the United States'' so that they can be evaluated as a
single landscape unit with regard to their effect on the chemical,
physical, or biological integrity of a water identified in paragraphs
(l)(1)(i) through (iii) of this section.
* * * * *
[FR Doc. 2014-07142 Filed 4-18-14; 8:45 am]
BILLING CODE 6560-50-P