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Contact
jodieburns@cattailsenvironmental.com

Location
278 Greenhouse Road
Bentonville, Arkansas 72713​

Providing Wetlands & Environmental Consulting Services Nationwide
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primarily pursuing projects in Arkansas, Oklahoma,
Kansas, & Missouri

​Status of the definition of "waters of the U.S."?

Effective 20 March 2023, the U.S. Army Corps of Engineers will be using this final revised WOTUS definition:
(a) Waters of the United States means:

(1) Waters which are:
(i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(ii) The territorial seas; or
(iii) Interstate waters, including interstate wetlands;

(2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section:
(i) That are relatively permanent, standing or continuously flowing bodies of water; or
(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(4) Wetlands adjacent to the following waters:
(i) Waters identified in paragraph (a)(1) of this section; or
(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3)(i) of this section and with a continuous surface connection to those waters; or
(iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section:
(i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of this section; or
(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.

A Few Term Definitions:
Adjacent: bordering, contiguous, or neighboring. 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 wetlands.”; the "weak link" of this regulatory regime due to unclear and inconsistent nationwide interpretations. In practice, 300 FEET seems to be what is unofficially discussed as "proximity of adjacent" in Corps' training sessions.
Traditionally Navigable Water (TNW): waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. 
Relatively Permanent Water (RPW): tributaries that flow year-round or have continuous flow at least seasonally, and that flow directly or indirectly into a TNW (i.e., perennial or intermittent flow).
Non-Relatively Permanent Water: tributaries that do not have continuous flow at least seasonally (i.e., ephemeral flow).

 PENDING COURT CASE DECISION:
The WOTUS definition is currently being contested in the Supreme Court in the Sackett V. Environmental Protection Agency, Docket No. 21-454, case. Arguments by both sides were presented Oct. 3, 2022, with a decision expected before July 2023.