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SECTION 3 Methodology 3.1 Definition of "Waters of the United States" The term waters of the United States is defined in 33 CFR 328.3 as: • All waters that 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 that have a hydrologic link to other waters of the United States. • All other waters such as intrastate lakes, navigable rivers, streams,mudflats, v sandflats, sloughs,or playa lakes. It also includes all intermittent and ephemeral streams and wetlands that have a demonstrated hydrologic link(surface or subsurface)to navigable waters of the United States. V For regulatory purposes,wetlands is defined as"those areas that are inundated or saturated by surface or groundwater 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"(33 CFR 328(3). V Navigable waters is defined as those waters subject to the ebb and flow of the tide shoreward to the mean high water mark and/or presently used,or have been used in the past, or are susceptible for use to transport interstate or foreign commerce. The term includes coastal and inland waters, lakes,navigable rivers and streams, and the territorial seas. In January 2001,the U.S. Supreme Court issued a decision in the case of the Solid Waste Agency of Northern Cook County(SWANCQ v. U.S.Army Corps of Engineers,which altered the Corps' regulatory authority over wetlands that are isolated from navigable waters. V 1 Since the SWANCC decision,waters covered solely by this definition by virtue of their use as habitat by migratory birds are no V. longer considered"waters of the United States." The Supreme Court's opinion did not specifically address,but by analogy does call into question,whether other connections with interstate commerce support the assertion of the Clean Water Actjurisdiction over"nonnavigable,isolated,intrastate waters",the Corps is recommending case-by-case consideration.A factor that may be relevant to this consideration includes the following: Jurisdiction of isolated,intrastate,and nonnavigable waters may be possible Irr„ if their use,degradation,or destruction could affect other"waters of the United States,"thus establishing a significant nexus between the water in question and other"waters of the United States"(Corps,undated memorandum). r Vernalis Quany Mining and Redamaton Project 3-1 ESA 1203015 Wetland Delineation Report Febmary 2006 r