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What Is In the Final Rule?

The 2023 conforming rule jurisdictional features are:

1. Traditional navigable waters
   • Currently used, or were susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide
   • Territorial seas
   • Interstate waters
2. Impoundments of TNWs
3. Tributaries
   • Relatively permanent, standing or continuously flowing bodies of water
4. Adjacent Wetlands
   • Wetlands adjacent to TNWs
   • Relatively permanent, standing, or continuously flowing body of water with a continuous surface connection to a TNW or impoundment
5. Intrastate Lakes and Ponds
   • Relatively permanent, standing or continuously flowing body of water with a continuous surface connection to TNWs and relatively permanent tributaries

The conforming rule does not change any exclusions from the 2023 rule. The exclusions are:

1. Waste Treatment Systems (WTS), including ponds or lagoons
2. Prior Converted Croplands (PCCs) designated by the Secretary of Agriculture
3. Ditches, including roadside ditches, excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water
4. Artificially irrigated areas that would revert to dry land if the irrigation ceased
5. Artificial lakes or ponds created by excavating or diking dry land
6. Artificial reflecting or swimming pools
7. Waterfilled depressions
8. Swales and erosional features

Definitions:

1. The conforming rule has changed how it defines “adjacent” to mean having a continuous surface connection.
2. The conforming rule lacks a definition of relatively permanent and relies on the conflicting preamble to the 2023 rule.
3. The conforming rule lacks a definition of “continuous surface connection.”