Memo clarifying the waters the Corps will retain for permitting under section 404(g):

1. Waters that are jurisdictional under Sec. 10 of the Rivers and Harbors Act of 1899 provided that
a. Retained waters include tidal waters shoreward to their mean high water mark, or mean higher high water mark on the west coast, and
b. retained waters to not include those waters that qualify as “navigable” solely because they were “used in the past” to transport interstate or foreign commerce; and
2. wetlands adjacent to waters retained above, landward to an administrative boundary agreed upon by the state or tribe and the Corps.
3. For ease of implementation and to provide transparency the Corps will use the existing RHA section 10 lists of waters as a starting point, which could be amended by the Corps as appropriate consistent with applicable regulations and case law.