Waters That Qualify as "Traditional Navigable Waters" Under Section (a)(1) of the Agencies' Regulations
The Environmental Protection Agency (EPA) and United States Army Corps of Engineers (Corps) (“the agencies”) are continuing to provide this guidance, titled “Waters that Qualify as ‘Traditional Navigable Waters’ Under Section (a)(1) of the Agencies’ Regulations,” for determining whether a water is jurisdictional under paragraph (a)(1) of the agencies’ regulations defining “waters of the United States” as a “traditional navigable water” for purposes of the Clean Water Act (CWA) and the agencies’ implementing regulations. 33 C.F.R. § 328.3(a)(1); 40 C.F.R. § 120.2(a)(1). (Posted December 30, 2022)
This guidance was originally referred to as “Appendix D” when it was attached to the May 30, 2007, U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook and has commonly been referred to as such. The text of the “traditional navigable waters” provision in paragraph (a)(1) has not changed through the various rulemakings defining “waters of the United States,” and the agencies have continued to use the guidance for determining whether a water is a “traditional navigable water.” See “Clean Water Rule: Definition of ‘Waters of the United States,’” 80 FR 37054, 37074 (June 29, 2015); Navigable Waters Protection Rule: Definition of “Waters of the United States.” 85 FR 22250, 22281 (April 21, 2020).
There have been no substantive changes to the guidance since it was issued on May 30, 2007. However, for clarity the agencies have deleted references to the Rapanos Guidance and have updated citations to the agencies’ regulations. The agencies will continue to use this guidance to determine whether a water is a “traditional navigable water” for the purposes of the CWA and the agencies’ implementing regulations.