[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR328.3]

[Page 456-457]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 328--DEFINITION OF WATERS OF THE UNITED STATES--Table of Contents
 
Sec. 328.3  Definitions.

    For the purpose of this regulation these terms are defined as 
follows:
    (a) The term waters of the United States means
    (1) 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;
    (2) All interstate waters including interstate wetlands;
    (3) 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:
    (i) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes; or
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (iii) Which are used or could be used for industrial purpose by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as waters of the 
United States under the definition;
    (5) Tributaries of waters identified in paragraphs (a) (1) through 
(4) of this section;
    (6) The territorial seas;
    (7) Wetlands adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a) (1) through (6) of 
this section.
    (8) 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 EPA.

Waste treatment systems, including treatment ponds or lagoons designed 
to meet the requirements of CWA (other than cooling ponds as defined in 
40 CFR 423.11(m) which also meet the criteria of this definition) are 
not waters of the United States.
    (b) 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.
    (c) The term adjacent means 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.''
    (d) The term high tide line means the line of intersection of the 
land with the water's surface at the maximum height reached by a rising 
tide. The high tide line may be determined, in the absence of actual 
data, by a line of oil or scum along shore objects, a more or less 
continuous deposit of fine shell or debris on the foreshore or berm, 
other physical markings or characteristics, vegetation lines, tidal 
gages, or other suitable means that delineate the general height reached 
by a rising tide. The line encompasses spring high tides and other high 
tides that occur with periodic frequency but does not include storm 
surges in which there is a departure from the normal or predicted

[[Page 457]]

reach of the tide due to the piling up of water against a coast by 
strong winds such as those accompanying a hurricane or other intense 
storm.
    (e) The term ordinary high water mark means that line on the shore 
established by the fluctuations of water and indicated by physical 
characteristics such as clear, natural line impressed on the bank, 
shelving, changes in the character of soil, destruction of terrestrial 
vegetation, the presence of litter and debris, or other appropriate 
means that consider the characteristics of the surrounding areas.
    (f) The term tidal waters means those waters that rise and fall in a 
predictable and measurable rhythm or cycle due to the gravitational 
pulls of the moon and sun. Tidal waters end where the rise and fall of 
the water surface can no longer be practically measured in a predictable 
rhythm due to masking by hydrologic, wind, or other effects.

[51 FR 41250, Nov. 13, 1986, as amended at 58 FR 45036, Aug. 25, 1993]