The USACE, acting under Section 404 of the Clean Water Act and Section 10 of the River and Harbors Act of 1899, regulates certain activities occurring in waters of the United States and navigable waters of the United States. The term "waters of the United States" found at 33 CFR 328.3 (a) means:
- All waters which are 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;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purpose by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under the definition;
- Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section.
- Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the United States do not include 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 the EPA. Under Section 404 of the Clean Water Act, authorization must be obtained from the USACE for discharges of dredged and fill material into waters of the United States, including wetlands. The Fort Worth District has compiled Procedures for Jurisdictional Determinations (dated March 24, 2003) for permit applications.
The Corps of Engineers Wetland Delineation Manual, dated January 1987, (1987 Manual) describes technical guidelines and methods using a multiparameter approach to identify and delineate wetlands for purposes of Section 404 of the Clean Water Act (143 pages). The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. The Data Form for Routine Wetland Determination (dated March 1992) is used for wetland delineations in which office data and applied onsite methods are employed to determine whether an area is a wetland. Recognizing Wetlands is an online brochure that describes how to determine if an area is a wetland for purposes of the USACE Regulatory Program (Jacksonville USACE District). The Waterways Experiment Station (WES) has compiled a useful set of wetland publications that you can either view online or download.
The USACE is currently developing 10 regional supplements to the 1987 Manual. The USACE is proposing supplements for the following regions: Alaska; Arid West; Western Mountains, Valleys & Coast; Great Plains; Midwest; Atlantic & Gulf Coastal Plain; Northcentral & Northeast; Caribbean Islands; Mid-Atlantic & Southeast; and Hawaii/Pacific Islands. The Arid West, Great Plains, and Atlantic & Gulf Coastal Plain regions are located within the Fort Worth District.
The Supreme Court of the United States (Supreme Court) ruled on January 9, 2001, that the USACE does not have jurisdiction over intrastate isolated waters that have no nexus to interstate commerce other than use by migratory birds (Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers et al.). It invalidated the use of the migratory bird rule. The USACE is working with the EPA and other agencies to revise regulations to address SWANCC issues (Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory (ANPRM) published in the Federal Register on January 15, 2003). In the ANPRM the USACE and EPA requested public comment on issues associated with the scope of waters that are subject to the Clean Water Act and provided clarifying guidance on the SWANCC decision.
On June 19, 2006, the Supreme Court issued its opinions on the Rapanos v. United States and Carabell v. USACE ("Rapanos") cases. That decision addresses the scope of Clean Water Act (CWA) jurisdiction over certain waters of the United States, including wetlands. The decision provides two new analytical standards for determining whether water bodies that are not traditional navigable waters (TNWs), including wetlands adjacent to those non-TNWs, are subject to CWA jurisdiction: (1) if the water body is relatively permanent, or if the water body is a wetland that directly abuts (e.g., the wetland is not separated from the tributary by uplands, a berm, dike, or similar feature) a realtively permanent water body (RPW), or (2) if a water body, in combination with all wetlands adjacent to that water body, has a significant nexus with TNWs. A significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or an insubstantial effect on the chemical, physical, and/or biological integrity of a TNW. On June 5, 2007, the USACE and EPA issued joint guidance clarifying CWA jurisdiction in light of the "Rapanos" decision. Based on the joint guidance, a greater level of documentation to support an agency jurisdictional determination (JD) for a particular water body is required, including completion of a new JD form. The Fort Worth District USACE recommends that applicants download and complete the JD form (read the JD Instructional Guidebook and instructions for downloading the new JD form before downloading and completing the form) and include the completed forms in submittals to the Fort Worth District USACE in order to expedite JDs and other actions. The JD form can be downloaded from the Jacksonville District website.
Under Section 10 of the Rivers and Harbors Act of 1899 the USACE regulates work in, or affecting, navigable waters of the United States. The Fort Worth District has compiled a list of the navigable waters of the United States in the Fort Worth, Albuquerque, and Tulsa Districts. Navigable waters of the United States (definition found at 33 CFR Part 329.4) are those 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. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity. The several factors which must be examined when making a determination whether a waterbody is a navigable water of the United States are listed below. Generally, the following conditions must be satisfied:
- Past, present, or potential presence of interstate or foreign commerce;
- Physical capabilities for use by commerce as in paragraph (a) of 33 CFR Part 329.5; and
- Defined geographic limits of the waterbody.
The USACE, Fort Worth District, maintains a list of jurisdictional determinations. The list is updated weekly and each JD is available online for three months. The USACE, Fort Worth District, also maintains a list of determinations of no jurisdiction for areas determined not to be waters of the United States based on the SWANCC decision addressed above. The list is updated weekly and every determination of no jurisdiction is available online.