Wetland Delineations & Determinations
CWA Section 401/404 Permits
Wetland & Stream Mitigation
Stream Bioassessments & Monitoring
Natural Resource Inventories
NEPA Report Writing
Environmental Regulations Seminars
Statement of Qualifications
Providing Wetlands & Environmental Consulting Services Nationwide
primarily pursuing projects in Arkansas, Oklahoma,
Kansas, & Missouri
Status of the definition of "waters of the U.S."?
With the recent August 30, 2021, court decision in the U.S. District Court for the District of Arizona (Pasqua Yaqui Tribe, et al. v. United States Environmental Protection Agency, et al., No. CV-20-00266-TUC-RM), WOTUS definitions have reverted to pre-2015 regulations, guidance, and applicable memoranda.
As of September 3, 2021, the U.S. Army Corps of Engineers uses the following definitions for Waters of the U.S. (WOTUS) as taken from the pre-2015 USACE Nationwide permit regulations, and JD Guidebook:
Pre-2015 WOTUS Categories:
1. Traditional Navigable Waters;
2. Interstate Waters and Wetlands;
3. Territorial Seas;
4. Impoundments of Waters of the U.S.;
5. Tributaries of categories 1-3;
6. Adjacent Waters to categories 1-5;
7. Case Specific Assessments of Non-Relatively Permanent Waters.
A Few Term Definitions:
Adjacent is defined as bordering, contiguous or neighboring in the pre-2015 regulations; the "weak link" of this regulatory regime due to unclear and inconsistent nationwide interpretations.
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).
The WOTUS definition is currently under review by the EPA and Corps of Engineers. Public comment period closed Feb. 7, 2022, for this latest round of requested comments.