Sec. 4. Definition of navigable waters

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Section 502 of the Federal Water Pollution Control Act ( 33 U.S.C. 1362 ) is amended— by striking the heading and section designation and all that follows through Act: in the matter preceding paragraph

(1)and inserting the following: In this Act: ; by indenting the margins of each of paragraphs

(1)through

(20)appropriately; in each of paragraphs (1), (2), (3), (4), (5), (6), (8), (9), (10), (11), (13), (14), (15), (16), (17), (18), (19), and (20), by inserting a paragraph heading, the text of which comprises the term defined in the paragraph; in paragraph (12), by striking

(12)The term and inserting the following: The term ; by redesignating paragraphs

(1)through

(27)as paragraphs (24), (10), (23), (12), (17), (19), (13), (25), (3), (14), (6), (5), (26), (18), (1), (4), (22), (9), (20), (11), (2), (7), (16), (15), (21), (27), and (8), respectively, and moving the paragraphs so as to appear in numerical order; and by striking paragraph

(13)(as so redesignated) and inserting the following: The terms navigable waters and waters of the United States mean— the territorial seas; a body of water, including a body of water subject to the ebb and flow of the tide, that— is used in interstate or foreign commerce; has previously been used in interstate or foreign commerce; or may be susceptible for use in interstate or foreign commerce; a tributary; a lake, pond, or covered impoundment; and adjacent wetland. The terms navigable waters and waters of the United States do not include— a body of water or a water feature that is not described in subparagraph (A); groundwater, including groundwater drained through a subsurface drainage system; an ephemeral feature, including an ephemeral stream, swale, gully, rill, or pool; diffuse stormwater run-off and directional sheet flow over upland; a ditch that is not described in clause (i), (ii), or

(iii)of subparagraph (A); the portion of a ditch constructed in an adjacent wetland that does not meet the requirements described in subparagraph (C)(i); prior converted cropland; an artificially irrigated area, including a field flooded for agricultural production, that would revert to upland if the application of irrigation waters to that areas cease; an artificial lake or pond, including a water storage reservoir and a farm, irrigation, stock watering, or log cleaning pond, that is constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph (A), if the artificial lake or pond is not otherwise a lake, pond, or covered impoundment; a water-filled depression constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph

(A)that is incidental to mining or construction activity; a pit excavated in upland or in a body of water that is not otherwise described in subparagraph

(A)to obtain fill, sand, or gravel; a stormwater control feature constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph

(A)to convey, treat, infiltrate, or store stormwater runoff; a groundwater recharge, water reuse, or wastewater recycling structure, including a detention, retention, or infiltration basin or pond, that is constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph (A); or a waste treatment system. In this paragraph: The term adjacent wetland means a wetland that— touches at least 1 point or side of a body of water described in clause (i), (ii), (iii), or

(iv)of subparagraph (A); is inundated by flooding from a body of water described in clause (i), (ii), (iii), or

(iv)of subparagraph

(A)in a typical year; or is physically separated from a body of water described in clause (i), (ii), (iii), or

(iv)of subparagraph

(A)only by— a natural berm, bank, dune, or similar natural feature; or an artificial dike, an artificial barrier, or a similar artificial structure, if that structure allows for a direct hydrologic surface connection between the wetland and the body of water described in clause (i), (ii), (iii), or

(iv)of subparagraph

(A)during a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. For the purposes of subparagraph (A)(v), the division of an adjacent wetland by a road or similar artificial structure does not prevent the adjacent wetland in its entirety from being a navigable water or water of the United States if the road or similar artificial structure allows for a direct hydrologic surface connection through or over that structure in a typical year. The term body of water subject to the ebb and flow of the tide means a body of water that rises and falls in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. For purposes of this clause, a body of water described in subclause

(I)ends when 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. The term ditch means a constructed or excavated channel used to convey water. The term ephemeral means surface water flowing or pooling only in direct response to precipitation, such as rain or snow fall. The term high tide line means the line of intersection of the land with the surface of a body of water at the maximum height reached by a rising tide. The term high tide line includes the maximum height reached by a spring high tide or other high tide that occurs with periodic frequency. The term high tide line does not include the maximum height reached as a result of a storm surge in which there is a departure from the normal or predicted 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. For purposes of this clause, in the absence of data on the high tide line, the high tide line may be determined 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 term intermittent means surface water that flows continuously during certain times of the year and more than in direct response to precipitation, such as water that flows seasonally when the groundwater table is elevated or when snowpack melts. The term lake, pond, or covered impoundment means a standing body of open water that contributes surface water flow to a body of water described in clause

(i)or

(ii)of subparagraph

(A)during a typical year through— direct means; or 1 or more bodies of water described in clause (iii), (iv), or

(v)of that subparagraph. The term lake, pond, or covered impoundment includes a body of water described in subclause

(I)that— contributes surface water flow to a downstream body of water described in subparagraph

(A)in a typical year through— a channelized surface water feature that is not otherwise described in that subparagraph; a culvert, dike, spillway, or other similar artificial feature; or a debris pile boulder field, or similar natural feature; or is inundated by flooding from a body of water described in clause (i), (ii), (iii), or

(iv)of subparagraph

(A)during a typical year. The term ordinary high water mark means a line on the shore of a body of water— established by the fluctuations of the water; and indicated by physical characteristics such as— a clear, natural line impressed on the bank; shelving; changes in the character of the soil; destruction of terrestrial vegetation; the presence of litter and debris; and other appropriate means that consider the characteristics of the surrounding areas. The term perennial means surface water that flows continuously throughout the year. The term prior converted cropland means an area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible. For purposes of this clause— the Secretary of Agriculture may designate an area as prior converted cropland; and except as provided in subclause (III), the Administrator and the Secretary shall recognize a designation by the Secretary of Agriculture under item

(aa)for purposes of this Act. The term prior converted cropland does not include an area described in subclause

(I)that has, as determined by the Secretary, in coordination with the heads of other relevant Federal agencies, as appropriate— subject to items

(bb)and (cc), been abandoned; and reverted to a wetland. For purposes of subitem

(AA)of item (aa), an area described in that item is considered abandoned when the area is not used for, or in support of, agricultural purposes at least once in the 5-year period immediately preceding a determination described in that item. Notwithstanding a determination by the Secretary of whether an area described in subclause

(I)has been abandoned, the Administrator shall have final authority to make that determination. The term Secretary means the Secretary of the Army, acting through the Chief of Engineers. The term snowpack means 1 or more layers of snow that have accumulated over an extended period of time in certain geographic regions or at high elevations, such as in northern climes or in mountainous regions. The term tributary means a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent surface water flow to a body of water described in clause

(i)or

(ii)of subparagraph

(A)in a typical year through— direct means; or 1 or more bodies of water described in clause (iii), (iv), or

(v)of that subparagraph. The alteration or relocation of a channel described in subclause

(I)does not otherwise modify the status of the channel under this paragraph if the channel continues to meet the requirements of subclause

(I)after that alteration or relocation. A channel described in subclause

(I)shall be considered a tributary for purposes of this clause if the channel contributes surface water flow in a typical year through— a channelized surface water feature that is not otherwise described in subparagraph (A); a subterranean river; a culvert, dam, tunnel, or similar artificial feature; or a debris pile, boulder field, or similar natural feature. A ditch that relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland is a tributary if the ditch meets the requirements of subclause (I). The term typical year means a year within which precipitation and other climactic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable body of water based on the most recent 30-year period. The term upland means a land area that, under normal circumstances— is not a wetland because it does not meet the requirements described in each of items (aa), (bb), and

(cc)of clause (xvii)(I); and does not lie below the ordinary high water mark or the high tide line of a body of water described in subparagraph (A). The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), that are designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge). The term wetland means an area— that is inundated or saturated by surface water or groundwater; for which the inundation or saturation described in item

(aa)is at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation; and in which the vegetation described in item

(bb)is typically adapted for life in saturated soil conditions. The term wetland includes swamps, marshes, bogs, and similar areas. . Section 109(e) of the Deep Seabed Hard Mineral Resources Act ( 30 U.S.C. 1419(e) ) is amended— by striking section 502(12)(B) of the Clean Water Act and inserting paragraph (5)(B) of section 502 of the Federal Water Pollution Control Act ( ; and 33 U.S.C. 1362 ) by striking to the Clean Water Act and inserting to the Federal Water Pollution Control Act ( . 33 U.S.C. 1251 et seq. ) Section 501(b) of the Water Resources Development Act of 1992 ( 33 U.S.C. 1271 note; Public Law 102–580 ) is amended— in paragraph (2), by striking section 502(7) of the Federal Water Pollution Control Act ( and inserting 33 U.S.C. 1362(7) ) section 502 of the Federal Water Pollution Control Act ( ; and 33 U.S.C. 1362 ) in paragraph (3), by striking section 502(6) of the Federal Water Pollution Control Act ( and inserting 33 U.S.C. 1362(6) ) section 502 of the Federal Water Pollution Control Act ( . 33 U.S.C. 1362 ) Section 309(c)(6) of the Federal Water Pollution Control Act ( 33 U.S.C. 1319(c)(6) ) is amended by striking section 502(5) of this Act and inserting section 502 . Section 107(f) of the Ocean Thermal Energy Conversion Act of 1980 ( 42 U.S.C. 9117(f) ) is amended by striking section 502(12)(B) of the Federal Water Pollution Control Act of 1972 ( and inserting 33 U.S.C. 1362(12)(B) ) paragraph (5)(B) of section 502 of the Federal Water Pollution Control Act ( . 33 U.S.C. 1362 )

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