San Francisco District > Missions > Regulatory

2023 Rule- Revised Definition of Waters of the United States

2023 Rule – Revised Definition of "Waters of the United States"

EPA WOTUS Rule webpage

2023 Implementation Memos:

2022 Ag Memo: Memorandum to the Field Concerning Issues Related to Implementation of Section 404 of the Clean Water Act (CWA) and the Food Security Act of 1985, as Amended (FSA)
2020 Ditch Exemptions Memo: Memorandum to the Field on Exemptions from Regulation under Section 404(f)(1)(C) of the CWA for the Construction or Maintenance of Irrigation Ditches and for the Maintenance of Drainage Ditches
2022 Coordination Memo: Joint Coordination Memorandum to the Field Between the U.S. Department of the Army, U.S Army Corps of Engineers, and the U.S. Environmental Protection Agency
TNW Guidance: Waters That Qualify as “Traditional Navigable Waters” Under Section (a)(1) of the Agencies’ Regulations

Pre-2015 WOTUS Regulatory Regime (not currently applicable )

Regulatory Jurisdiction Overview

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The U.S. Army Corps of Engineers has permitting authority over activities affecting waters of the United States. Waters of the United States include surface waters such as navigable waters and their tributaries, all interstate waters and their tributaries, natural lakes, all wetlands adjacent to other waters, and all impoundments of these waters.

Two federal statutes mandate Corps jurisdiction over navigable waterways and adjacent wetlands. These are Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Section 10 of the Rivers and Harbors Act applies to all navigable waters of the United States and Section 404 of the Clean Water Act applies to all waters including wetlands that have sufficient nexus to interstate commerce. The diagram below illustrates the lateral limit where Section 10 and Section 404 apply.

Limits of jurisdiction

Territorial Seas. The limit of jurisdiction in the territorial seas is measured from the baseline in a seaward direction a distance of three nautical miles. (See 33 CFR 329.12)
Tidal (Navigable) Waters of the U.S. The landward limits of jurisdiction in tidal waters:
Extends to the high tide line, or
When adjacent non-tidal waters of the United States are present, the jurisdiction extends to the limits identified for Non-Tidal Waters of the U.S.
Guidelines for establishing the upstream limit of navigation
Non-Tidal Waters of the United States. The limits of jurisdiction in non-tidal waters:
In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark, or
When adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands.
When the water of the United States consists only of wetlands the jurisdiction extends to the limit of the wetland.

Corps Regulations / Statutory Authorities

The regulatory authorities and responsibilities of the Corps of Engineers are based on the following laws:

Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits the obstruction or alteration of navigable waters of the United States without a permit from the Corps of Engineers.

Section 404 of the Clean Water Act (33 U.S.C. 1344). Section 301 of this Act prohibits the discharge of dredged or fill material into waters of the United States without a Section 404 permit from the Corps of Engineers.

Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) authorizes the Corps of Engineers to issue permits for the transportation of dredged material for the purpose of dumping it into ocean waters.

Other laws may also affect the processing and evaluation of applications for Corps of Engineers permits. Among these laws are the National Environmental Policy Act, the Coastal Zone Management Act, the Fish and Wildlife Coordination Act, the Endangered Species Act, the National Historic Preservation Act, the Federal Power Act, the Marine Mammal Protection Act, and the Wild and Scenic Rivers Act.

Wetland Delineations and Jurisdictional Determinations

The Corps of Engineers receives thousands of requests each year to perform wetland delineations for potential applicants for permits under Section 404 of the Clean Water Act. Due to limited staff and resources, response time can be several months or longer. To expedite this process, the San Francisco District encourages applicants to use consultants to conduct wetland delineations, especially for large and/or complex areas. The San Francisco District is not authorized to recommend any private consulting services and advises applicants to check references and referrals of prospective consultants before contracting services.

All delineations must be conducted in accordance with the 1987 Corps of Engineers Wetlands Delineation Manual and appropriate Regional Supplement(s). Four Regional Supplements have been approved for use within the boundaries of the San Francisco District:

Wetland:

Ordinary High Water Mark:

Automated Wetland Determination Data Sheets

Please see the attached document for a list of requested information for verification of Corps' jurisdiction. The Aquatic Resources sheet of the Consolidated ORM Upload workbook is also requested for acceptance of delineation reports. This spreadsheet facilitates efficient and accurate data entry of the aquatic resources into the Corps' database.

The Consolidated ORM Upload workbook spreadsheet contains a validation tool to ensure accuracy of the data. To run the validation tool, first enter all data in the appropriate columns and tabs. Once you have completed entering the data and have saved the document in a .csv format, click the gold shield at the top of the workbook window. The tool has a tooltip showing "Validate Worksheets." After clicking this button, validation of data is performed and any possible errors are added to the Validation tab. This tab is opened after the process is complete to allow the user to see the output. The validation output includes the tab (data type), column, and cell for where the possible error was found and a brief explanation of the issue.

Approved jurisdictional determinations (JDs) and Preliminary JDs are tools used by the U.S. Army Corps of Engineers (Corps) to help implement Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 of the Rivers and Harbors Act of 1899 (RHA).

Regulatory Guidance Letter (RGL) 16-01 explains the differences between these two types of JDs and provides guidance on when an approved JD is required and when a landowner, permit applicant, or other “affected party” can decline to request and obtain an approved JD and elect to use a preliminary JD instead.

Map and Drawing Standards have been established for the South Pacific Division Regulatory Program for maps and drawings submitted as part of delineations and applications for U.S. Army permits and jurisdictional determinations.

National Wetland Plant List (NWPL) - The NWPL, update May 18, 2020, provides the most recent list of wetland plants by species and their wetland ratings and should be referenced on data forms used in the wetland delineation. Changes from the 2016 list can be found here.

Verified Jurisdictional Determinations

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APPROVED JURISDICTIONAL DETERMINATIONS

Appeals Data

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Appeals Data

Appeals Information

For more information about the Regulatory Administrative Appeal Program,
please see the Corps' South Pacific Division web site.

Summary of Appeals

Applicant's Name and Location	Corps File Number	Action Appealed	Date Received	Final Appeal Decision Date	Final Appeal Decision	District Follow-up Action
Mr. Michael Halperin Hollister, CA	2011-00146S	Jurisdictional Determination	November 29, 2013	pending	pending	pending
Half Moon Bay Development/Pullman Ditch Half Moon Bay, CA	2010-00191S	Jurisdictional Determination	December 15, 2011	January 30, 2012	Withdrawn - New Information Received	Referred to District for reverification
Grand View Terrace Half Moon Bay, CA	2007-400560S	Jurisdictional Determination	August 14, 2008	October 21, 2009	Remanded to District for further consideration	Remand response letter reconfirming Corps jurisdiction on site signed April 19, 2010
Port of Oakland Oakland, CA	276930S	Jurisdictional Determination	July 10, 2008	June 2, 2009	Remanded to District for further consideration	Remand response letter reconfirming Corps jurisdiction on site signed April 16, 2010
Union Pacific Railroad Napa, CA	265570N	Jurisdictional Determination	June 26, 2009	July 2, 2009	Remanded to District for further consideration	Remand response reconfirming Corps jd signed May 14, 2010
Alameda County Juvenile Hall Dublin, CA	268430S	Jurisdictional Determination	May 27, 2003	June 13, 2003	Not Accepted. Appellant provided insufficient basis for request for appeal	No further action required.
Gentry Property Fairfield/Suisun, CA	266130N	Jurisdictional Determination	May 2, 2003	NA	Withdrawn by Appellant.	No further action required.
Industry West (Davenport property) Santa Rosa, CA	206510N	Jurisdictional Determination	December 30, 2002	April 29, 2003	No Merit.	No further action required.
Baccarat Fremont Developers Fremont, CA	232050S	Jurisdictional Determination	July 9, 2001	October 25, 2001	Remanded back to the District for further consideration.	District Engineer reconfirmed wetlands jurisdiction on the subject property.
Murray Dam Committee Cazadero, CA	234930N	Permit Denial	February 3, 2000	May 2, 2000	Remanded back to the District for further consideration.	Section 7 consultation in progress.

2023 Rule- Revised Definition of Waters of the United States

Pre-2015 WOTUS Regulatory Regime (not currently applicable )

Regulatory Jurisdiction Overview

Limits of jurisdiction

Corps Regulations / Statutory Authorities

Wetland Delineations and Jurisdictional Determinations

Verified Jurisdictional Determinations

Appeals Data

Appeals Data

Regulatory Links