WOUS TNWs Attachment

Waters that Qualify as Waters of the United States Under Section (a)(1) of the Agencies’ Regulations

The Environmental Protection Agency (E PA) and United States Army Corps of Engineers (Corps) “Guidance on Identifying Waters Protected by the Clean Water Act” guidance (Guidance) affirms that EPA and the Corps will continue to assert jurisdiction over “[a]ll 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.” 33 C.F.R. § 328.3(a)(1); 40 C.F.R. § 230.3(s)(1). Th e Guidance also states th at, for purposes of the guidance, these “(a)(1)waters” ar e the “traditional navigable waters .” These (a)(1) waters include all of the “navigable waters of the United States,” defined in 33 C.F.R. Part 329 and by numerous decisions of the federal courts, plus a ll other waters that are navigable-in-fact (e.g., the Great Salt Lake, UT and Lake Minnetonka, MN).

EPA and the Corps are providing this guidan ce on determining whether a water is a “traditional navigable water” for purposes of th e Guidance, the Clean Water Act (CWA), and the agencies’ CWA implementing regulations. This guida nce is not intended to be used for any other purpose. To determine whether a water body constitu tes an (a)(1) water under the regulations, relevant considerations include Corps regulatio ns, prior determinations by the Corps and by the federal courts, and case law. Corps district s and EPA regions should determine whether a particular waterbody is a traditional navigable wate r based on application of those considerations to the specific facts in each case.

As noted above, the (a)(1) waters include, but are not limited to, the “navigable waters of the United States.” A water body qualifies as a “navig able water of the United States” if it meets any of the tests set forth in 33 C.F.R. Part 329 (e.g. , the water body is (a) s ubject to the ebb and flow of the tide, and/or (b) the water body is presen tly used, or has been used in the past, or may be susceptible for use (with or without reasonab le improvements) to tr ansport interstate or foreign commerce). The Corps districts have made determinations in the past regarding whether particular water bodies qualify as “navigable waters of the United States” for purposes of asserting jurisdiction under Sect ions 9 and 10 of the Rivers and Harbors Act of 1899 (33 USC Sections 401 and 403). Pursuant to 33 C.F.R. § 329.16, the Corps should main tain lists of final determinations of navigability for purposes of Corps jurisdiction under the Rivers and Harbors
Act of 1899. While absence from the list should not be taken as an indication that the water is not navigable (329.16(b)), Corps districts and EP A regions should rely on any final Corps determination that a water body is a na vigable water of the United States.

If the federal courts have determined that a water body is navigabl e-in-fact under federal law for any purpose, that water body qualifies as a “traditional navigable water” subject to CWA jurisdiction under 33 C.F.R. § 328.3(a)(1) and 40 C. F.R. § 230.3(s)(1). Corps districts and EPA regions should be guided by the relevant opinions of the federal courts in determining whether waterbodies are “currently used, orwere used in the past, or may be susceptible to use in interstate or foreign commerce” (33 C.F.R. § 328.3( a)(1); 40 C.F.R. § 230.3(s)(1)) or “navigablein-fact.”2 This definition of “navigable-in-fact” comes from a long line of cas es originating with
The Daniel Ball , 77 U.S. 557 (1870). The Supreme Court stated:

Those rivers must be regarded as pub lic navigable rivers in law which are navigable in fact. And they are navigabl e in fact when they are used, or are susceptible of being used, in their ordina ry condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of
trade and travel on water.

The Daniel Ball , 77 U.S. at 563.

In The Montello , the Supreme Court clarified that “cu stomary modes of trade and travel on water” encompasses more than just navigation by larger vessels:

The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of be ing used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.

The Montello , 87 U.S. 430, 441-42 (1874). In that case, the Court held that early fur trading using canoes sufficiently showed that the Fox Rive r was a navigable water of the United States. The Court was careful to note that the bare fact of a water’s capacity for navigation alone is not sufficient; that capacity must be indicative of th e water’s being “generally and commonly useful to some purpose of trade or agriculture.” Id . at 442.

In Economy Light & Power , the Supreme Court held that a waterway need not be continuously navigable; it is navigable even if it has “occasional na tural obstructions or portages” and even if it is not navigable “at all seasons . . . or at all stages of the water.” Economy Light & Power Co. v. U.S ., 256 U.S. 113, 122 (1921).

In United States v. Holt State Bank, 270 U.S. 49 (1926), the S upreme Court summarized the law on navigability as of 1926 as follows:

The rule long since approved by this c ourt in applying the Constitution and laws
of the United States is that streams or lakes which are navigable in fact must be regarded as navigable in law; that they are navigable in fact when they are used, or are susceptible of being used, in their natural and or dinary condition, as highways for commerce, over which trade a nd travel are or may be conducted in the customary modes of trade and travel on water; and further that navigability does not depend on the particular mode in which such use is or may be had - whether by steamboats, sailing vessels or flatboats- nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition a ffords a channel for useful commerce.

Holt State Bank , 270 U.S. at 56.

In U. S. v. Utah , 283 U.S. 64 (1931) and U.S. v. Appalachian Elec. Power Co , 311 U.S.3 377 (1940), the Supreme Court held th at so long as a water is suscep tible to use as a highway of commerce, it is navigable-in-fact, even if th e water has never been used for any commercial purpose. U.S. v. Utah , at 81-83 (“The question of that suscep tibility in the ordi nary condition of the rivers, rather than of the mere manner or extent of actual use, is the crucial question.”); U.S. v. Appalachian Elec. Power Co ., 311 U.S. 377, 416 (1940) (“Nor is la ck of commercial traffic a bar to a conclusion of navigability where pers onal or private use by boats demonstrates the availability of the stream for the simp ler types of commercial navigation.”).

In 1971, in Utah v. United States , 403 U.S. 9 (1971), the Supreme Court held that the Great Salt Lake, an intrastate water body, was navigable under federal law even though it “is not part of a navigable interstate or international commer cial highway.” Id . at 10. In doing so, the Supreme Court stated that the fact that the Lake was used for hauling of animals by ranchers rather than for the transportation of “wate r-borne freight” was an “irrelevant detail.” Id . at 11. “The lake was used as a highway and that is the gist of the federal test.” Ibid

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In summary, when determining whether a wa ter body qualifies as a “traditional navigable water” (i.e ., an (a)(1) water), relevant considerati ons include whether a Corps District has determined that the water body is a navigable water of the United States pursuant to 33 C.F.R § 329.14, or the water body qualifies as a navigable water of the Un ited States under any of the tests set forth in 33 C.F.R. § 329, or a federal court has determined that the water body is navigable-in-fact under federal law for any purpo se, or the water body is “navigable-in-fact”
under the standards that have b een used by the federal courts.

1 Also of note are two decisions from the c ourts of appeals. In FPL Energy Marine Hydro , a case involving the Federal Power Act, the D.C. Circuit reiterated the fact that “ actual

use is not necessary for a navigability determ in ation” and repeated earlier Supreme Court holdings that navigability and capacity of a water to carry commerce could be shown through “physical characteristics a nd experimentation.” FPL Energy Marine Hydro LLC v. FERC, 287 F.3d 1151, 1157 (D.C. Cir. 2002). In that case, th e D.C. Circuit upheld a FERC navigability determination that was based upon three experi mental canoe trips taken specifically to demonstrate the river’s navigability. Id. at 1158-59.

The 9th Circuit has also implemented the Supr eme Court’s holding that a water need only be susceptible to being used for waterborne co mmerce to be navigable-in-fact. Alaska v. Ahtna,
Inc ., 891 F.2d 1404 (9th Cir. 1989). In Ahtna , the 9th Circuit held that current use of an Alaskan river for commercial recreational boating is suffici ent evidence of the water’s capacity to carry
waterborne commerce at the time that Alaska became a state. Id. at 1405. It was found to be irrelevant whether or not the river was actually being navigated or being used for commerce at the time, because current navigation showed that the river always had the capacity to support such navigation. Id . at 1404.