EO12866_CWPG_RIN2010

- ZA11_ Draft Guidance _20101220.docx



### Guidance on Identifying Waters Protected by 

### Determining Geographic

Jurisdiction

Under the Clean Water Act

This draft guidance clarifies describes how the Environmental Protection Agency (EPA)* a and the U.S. Army Corps of Engineers (the Corps) b ( “ Corps ” ) c will identify

waters protected by subject to jurisdiction under the Federal Water Pollution Control Act

Amendments of 1972 1 (Clean Water Act or CWA or Act ) and implement the Supreme Court’s decisions concerning the extent of waters covered by the Act ( Solid Waste Agency of Northern Cook County v. U .S. Army Corps of Engineers (SWANCC) 2 and Rapanos v. United States (Rapanos) 3 ). This document clarifies how the EPA and the Corps understand existing requirements of the CWA and the agencies' implementing regulations in light of SWANCC and Rapanos and provides guidance to agency field staff in making determinations about whet her waters are protected by the CWA. United States v. Rapano s (Rapanos) 4 ). The agencies understand that de cisions concerning whether a waterbody is subject to the CWA have cons equences for tribal, state, and local governments, and for private parties. Key goals of this guidance are to reduce the complexity of EPA and Corps decisions c oncerning coverage of waters by the CWA, improve predictability in th e process of identifying wate rs covered under the CWA, and increase consistency of th ese decisions across the count ry.

This draft guidance document is intended to describe for agency field staff the agencies’ current understandings; it is not a rule, and hence it is not binding and lacks the force of law. Once finalized, this guidance wi ll supersede existing gui dance to field staff issued in 2003 and 2008 on the scope of “water s of the United States ” (also “waters of the U.S.”) subject to CWA programs. d Although guidance does not have the force of law, it is frequently used by Federal agencies to explain and clarify thei r understandings of existing requirements. In this case, the agencies believe that field staff across the country will benefit from new guidance that is informed by lessons learned since 2008 and that reflects the agencies’ understa ndings with respect to CWA jurisdiction, consistent with Supreme Court decisions and existing agency regulations. Each

* To increase clarity of this document, endnotes that primarily simply provide citations will be indicated with Arabic numerals, numerically, and footnotes that provide additional substantive information will be

indicated with Roman numerals. alphabetically.

a EPA Regions will use this guidance to oversee and implement programs under the Clean Water
Act, CWA, including those under sections Sections 303, 311, 401, 402 and 404, 33 U.S.C. §§ 1313, 1321, 1341, 1342 and 1344. (See endnote 1 for an explanation of the relevant history of the Clean Water Act.) 404.

b Corps Districts will utilize this guidance to implement Clean Water Act section 404, 33 U.S.C. § 1344.

c Corps Districts will utilize this guidance to implement CWA Section 404.

d Specifically, this memorandum supersedes the “Joint Memorandum” providing clarifying guidance on
SWANCC, dated January 15, 2003 (68 Fed. Reg. 1991, 1995), and “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, ” dated December 2, 2008.***E.O. 12866 Review

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December 2010 Page 2 jurisdictional determination, however, will be made on a case-by-case basis considering the facts and circumstances of the case and consistent with applicable statutes, regulations, and case law.

After receiving and taking account of public comments on this document, EPA and the Corps expect to finalize it and to undertake rulemaking consistent with the

Administrative Procedure Act. Th is process is expected to st art with a proposed rule, to clarify further via regulation th e extent of Clean Water Act jurisdiction, consistent with the Court's decisions. EPA and the Corps d ecided to begin this process with draft, nonbinding guidance in order to clarify th eir existing understandings while also considering and receiving th e benefit of public comments. Congress enacted the Clean

Water Act “to restore and maintain the chemi cal, physical, and biological integrity of the Nation’s waters,” and this guidance will help the agencies implement specific provisions

of the Act to achieve this objective. 5 The CWA has a number of programs designed to protect and restore the Nation's waters. Together, these achieve this goal . The Clean Water Act, however, applies only to waters that are “ waters of the United States .” This guidance provides that EPA and the Corps will implement programs provide effective protection from pollution for waterbodies across to protect waters consistent with the country, including waters that s upply drinking water, filter pollutants, provide water for irrigation, Clean Water Act, the SWANCC and support hunting Rapanos decisions, and fishing, outdoor recrea tion, and tourism. sound science

.

The Clean Water Act, however, applies only to waters that are “waters of the

United States.” This draft guidance clarifies how EPA a nd the Corps will identify waters to be protected under the Act consistent w ith the statute, regulations, Supreme Court caselaw, relevant science related to aqua tic ecosystems, and the agencies' field experience. As noted above, this gu idance, once finalized, will supersede guidance supersedes previously issued guidance on the scop e of “waters of the United States” (also “waters of the U.S.”) subject to CWA programs. However, it is not 6 This guidance

reflects the relevant science and responds to the agencies’ intention that previously issued jurisdictional determinations be re-o pened as a result of this guidance.

The U.S. Supreme Court has addressed the scope of waters of the United States protected by the CWA in three cases. In United States v. Riverside Bayview Homes, Inc. (474 U.S. 121 (1985)), the Supreme Court held that wetlands adjacent to a traditional navigable water were properly considered to be “waters of the United States.” In

SWANCC , the Court addressed the question of CWA jurisdiction over isolated, nonnavigable, intrastate ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos , the Court addressed CWA protections for wetlands adjacent to non-naviga ble tributaries, and issued five opinions with no single opinion commanding a majority of the Court. The plurality opinion, authored by Justice Scalia, stated that “w aters of the United States” extended beyond traditional navigable waters to include “relat ively permanent, standing or flowing bodies of water.” Id. at 739. The plurality went on to clarify that relatively permanent waters***E.O. 12866 Review

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December 2010 Page 3 ”do not necessarily exclude” streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought, and seasona l rivers, which contain continuous flow during some months of the year but no flow during dry months. The plurality opinion also asserted that only wetlands with a “continuous surface connection” to other jurisdictional waters are considered “adjacen t” and protected by the CWA. Id. at 742.

Justice Kennedy’s concurring opinion took a different approach from Justice Scalia’s. Justice Kennedy c oncluded that “waters of th e United States” included wetlands that had a significant nexus to trad itional navigable wate rs, “if the wetlands,

either alone or in combination with simila rly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’” (id. at 780) . The four justices who signed on to Justice Stevens’ opinion would have upheld jurisdiction under the agencies' existing regulations and stated that they would uphold jurisdiction under eith er the plurality or Justice Kennedy's opinion (id. at 810).

The agencies continue to believe, as expressed in experience implementing previous guidance , that it is most consistent with the Rapanos decision to assert jurisdiction over waters that satisfy either the plurality or the Ju stice Kennedy standard, since a majority of justices would support jurisd iction under either standard. However,

after careful review of these opinions, the agencies conclude d that previous guidance did not make full use of the authority provided by the CWA to include waters within the scope of the Act, as interp reted by the Court. This draft guidance provides a more complete discussion of the agencies’ interp retation, including of how waters with a "significant nexus" to traditional navigable waters or interstate waters are protected by

the CWA. documents. In addition, this guidance explains the legal basis for coverage of waters by the CWA in cases that were alleviates the need to develop extensive administrative records for certain jurisdictional determinations that caused delays and added costs to both federal agencies an d the regulated community.

The 2008 Rapanos guidance reflected a policy choice to interpret Justice Kennedy’s opinion narrowly, resulting in fewe r waterbodies found to be jurisdictional

under the CWA than under a more faithful interpretation

. This guidance clarifies and refines the agencies’ interpretation of the “significant nexus” sta ndard many waterbodies must meet to be jurisdictional under the CW A that is more consistent with Justice Kennedy’s opinion and the science of aquatic ecosystems. The guidance also addresses how to determine the jurisd ictional status of waters not addressed by the previous guidance (for example, interstate waters). The Therefore, the agencies expect , based on relevant science and recent field experience, that under the understandings stated in this draft guidance, the extent number of waters over which the agencies assert found to be subject to CWA jurisdiction under the CWA will increase significantly compared to practices under the extent 2003 SWAN C C guidance and the 2 008 Rapanos guidance. Note, however, that the scope of waters over which subject to CWA jurisdiction has been asserted under existing guidance, though certainly will still not to the full extent that be as***E.O. 12866 Review

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December 2010 Page 4 extensive as it was typically asserted prior to the two Supreme Court decisions in

SWANCC and Rapanos . However, each jurisdictional determination will be made on a case-by-case basis considering the facts and ci rcumstances of the case and consistent with applicable statutes, re gulations, and case law.

.

The agencies understand that decisions c oncerning whether or not a waterbody is subject to the CWA have consequences for State, tribal, and lo cal governments and for private parties. Consistent with Executiv e Order 13563, and in particular its emphasis on predictability and certainty, key goals of this draft guidance are to increase clarity and to reduce costs and delays in obtaining CWA permits by reduci ng the complexity of Corps of Engineers and EPA decisions concerni ng waters protected by the CWA, thus improving the predictability of the process of identifying waters protected by the Act, and increasing consistency of decisions across the country.

There is only one CWA definition of “wat ers of the United States.” Thus, this draft guidance, like the earlier guidan ce it replaces, necessarily will apply This guidance applies to decisions concerning whether a wate rbody is subject to any of the programs authorized under the CWA. Although SWANCC and Rapanos specifically involved

section Section 404 of the CWA and discharges of dredged or fill material, the this guidance addresses the scope of the term “waters of the United States” must be interpreted consistently for all CWA provisions that which use the term. These provisions

include the section Section 402 National Pollutant Disc harge Elimination System (NPDES) permit program, the section Section 311 oil spill program, 7 the water quality standards and total maximum daily load programs under section Section 303, and the

section Section 401 State water quality certification process. However, while While there

is only one CWA definition of “waters of the Unite d States,” there may be other statutory

factors that define the reach of a particular CWA program or provision. 8

This draft guidance does not address the regula tory exclusions from coverage under the CWA for waste treatment systems and prior converted cropla nds, or practices for identifying waste treatment systems or prior converted croplands. 9 It croplands, nor does not it affect any of the exemptions from CWA section Section 404 permitting requirements provided by CWA section Section 404(f), including those for normal agriculture, forestry and ranching practices. 10 This guidance also does not address the statutory and regulatory exemptions from NPDES permitting requirements for agricultural stormwater disc harges and return flows fr om irrigated agriculture. 11

The CWA provisions and supporting regul ations described in this document contain legally binding requirements. The agencies emphasize that this This guidance does not substitute for those provisions or regulations and , nor is not itself it a regulation

. itself. It does not impose legally binding requirements on EPA, the Corps, or the regulated community, and may not apply to a particular situation depending on the circumstances. Any decisions regarding a partic ular water will be based on the applicable statutes, regulations, and case law. Therefor e, interested persons are free to raise***E.O. 12866 Review

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December 2010 Page 5 questions regarding the application of this guidance to a particular situations, situation, and EPA and/or the Corps will consider whether or not the recommendations or interpretations of this guidance are appropria te in that situation based on the statutes, regulations, and case law. The use of language such as "recommend," "may," "should" and "can" is intended to describe agency policies and recommendations, while the use of mandatory terminology such as "must" and "required" is intended to describe the agencies’ interpretations of controlling requirements under the terms of the CWA, its implementing regulations, and relevant case law.

This draft guidance is divided in to eight sections:

• The first two sections address the fundament al classes of waters subject to Clean Water Act jurisdiction: traditional navigable waters (Section 1) and interstate

waters (Section 2).

.

• The next section provides general guida nce relating to the “significant nexus” standard described by Justice Kennedy in the Rapanos decision (Section 3).

• The next three sections provide guidance on determining whether various types of waters are subject to CW A jurisdiction, including:

o Tributaries (Section 4);

o Adjacent wetlands (Section 5); and

o Other waters (Section 6).

• The next section provides examples of wate rs that are generally not waters of the United States under the CWA (Section 7).

• The final section provides guidance on the documentation necessary to support decisions concerning whether waters are protected covered by the CWA (Section 8).

Additional scientific and legal information c oncerning these topics is provided in an appendix at the end of this document.***E.O. 12866 Review

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December 2010 Page 6 Finally, the agencies intend to propose revisions of exis ting regulations in 2011 to provide further clarification of the waters that are subject to CWA jurisdict ion, consistent with the Supreme Court’s decisions.

Summary of Key Points

The following waters a re subject to Clean Wa ter Act jurisdiction:

• Traditional navigable waters;

• Interstate waters;

• Wetlands adjacent to either traditional navigable waters or interstate waters;

• Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning at least seasonal; and

• Wetlands that directly abut relatively permanent waters.

In addition, the following waters are subject to Clean Water Act jurisdiction if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate

water:

• Tributaries to traditional navigabl e waters or interstate waters;

• Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters;

• Waters that fall under the “other wa ters” category of the regulations.

The following aquatic areas are ge nerally not subject to Clean Water Act jurisdiction as waters

of the United States:

• Wet areas that are not tributaries or op en waters or do not meet the agencies’ regulatory definition of “wetlands”;

• Waters excluded from coverage under the CWA by existing regulations;

• Waters that lack a “significant nexus” where one is required for a water to be subject to CWA jurisdiction;

• Artificially irrigated areas that would revert to upland should irrigation cease;

• Artificial lakes or ponds created by exca vating and/or diking dry land and used exclusively for such purposes as stock wat ering, irrigation, settling basins, or rice growing;

• Artificial reflecting pools or swimming pools created by ex cavating and/or diking dry land;

• Small ornamental waters created by excavati ng and/or diking dry land for primarily aesthetic reasons;

• Water-filled depressions created inci dental to construction activity. Summary of Key Points

Based on the agencies’ interpret ation of the statute, implemen ting regulations and relevant caselaw, the following waters are protected by the Clean Water Act:

• Traditional navigable waters;

• Interstate waters;

• Wetlands adjacent to either traditional navigable waters or interstate waters;

• Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally; and

• Wetlands that directly abut relatively permanent waters.

In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a “significant nexus” to a traditional naviga ble water or interstate water:

• Tributaries to traditional navigabl e waters or interstate waters;

• Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters; and

• Waters that fall under the “other waters” ca tegory of the regulations. The guidance divides these waters into two categories, th ose that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be

evaluated.

The following aquatic areas are generally not protected by the Clean Water Act:

• Wet areas that are not tributaries or open waters and do not meet the agencies’ regulatory definition of “wetlands”;

• Waters excluded from coverage under the CWA by existing regulations;

• Waters that lack a “significant nexus” whe re one is required for a water to be protected by the CWA;

• Artificially irrigated areas that would revert to upland should irrigation cease;

• Artificial lakes or ponds created by exca vating and/or diking dry land and used exclusively for such purposes as stock wat ering, irrigation, settling basins, or rice growing;

• Artificial reflecting pools or swimming pools created by ex cavating and/or diking dry land;

• Small ornamental waters created by excavati ng and/or diking dry land for primarily aesthetic reasons;

• Water-filled depressions created incide ntal to construction activity;

• Groundwater drained through subsurface drainage systems and

• Erosional features (gullies and rills), and swal es and ditches that are not tributaries or

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December 2010 Page 7 Section 1: Traditional Navigable Waters

EPA and the Corps will continue to a ssert CWA 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.” 12 These waters are referred to in this guidance as “ traditional navigable

waters. ” The traditional na vigable waters include all of the “navigable waters of the United States,” as defined in 33 C.F.R. part Part 329 and by numerous decisions of the federal courts, plus all other waters that are navigable-in-fact (for example, the Great Salt Lake, Utah, UT

, and Lake Minnetonka, Minnesota). MN). Thus, the traditional navigable waters include, but are not limited to , the “navigable waters of the United States” within the meaning of section Section 10 of the Rivers and Har bors Act of 1899 (also known as “Section 10 waters”). 13

For purposes of CWA jurisdiction and this guidance, waters will be considered traditional navigable waters if:

• They are subject to section Section 9 or 10 of the Rivers and Harbors Act; or

• A federal court has determined that th e water body is navi gable-in-fact under federal law; or

• They are waters currently being used for commercial navigation, including commercial waterborne recreation (for exam ple, boat rentals, guided fishing trips,

or water ski tournaments); tournaments, etc.) ; or

• They have historically been used for commercial navigation, including commercial waterborne recreation; or

• They are susceptible to being used in the future for commercial navigation, including commercial waterborne recreation. Susceptibility for future use may be determined by examining a number of factors, including the physical characteristics and capacity of the water to be used in commercial navigation

, ( for example, size, depth, and flow velocity, e etc.), including commercial recreational navigation (for example, size, depth, and flow velocity f ),

, and the likelihood of future commercial navigation, including commercial waterborne recreation. A likelihood of future commercial naviga tion, including commercial waterborne recreation, can be demonstrated by current boating or canoe trips for recreation or other purposes. g A determination that a water is susceptible to future commercial

e While a traditional navigable water need not be capable of supporting navigation at all times, the frequency, volume, and duration of flow are relevant considerations for determining if a waterbody has the physical charac teristics suitable for navigation.

f While a traditional navigable water need not be capable of supporting navigation at all times, the frequency, volume, and duration of flow are relevant considerations for determining if a waterbody has the physical characteristics suitable for navigation.

g A trip taken solely for the purpose of demonstrating a waterbody can be navigated would be sufficient. See, e.g., FPL Energy Marine Hydro LLC v. FERC , 287 F.3d 1151, 1157 (D.C. Cir. 2002).***E.O. 12866 Review

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December 2010 Page 8 navigation, including commercial waterborne recreation, should be supported by

evidence. h

h A trip taken solely for the purpose of demonstrating a waterbody can be navigated would be sufficient. See, e.g., FPL Energy Marine Hydro L.L.C. v. FERC , 287 F.3d 1151, 1157 (D.C. Cir. 2002).***E.O. 12866 Review

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December 2010 Page 9 Section 2: Interstate Waters EPA and the Corps will assert jurisdiction over all interstate waters, consistent with the agencies’ current regulations defining

“waters of the United States” to include “interstate waters including interstate

wetlands.” 14 Interstate waters, defined by the fe deral water pollution control statutes prior to the CWA as “all rivers, lakes, and other waters that flow across, or form a part of, State boundaries,” remain jurisd ictional waters unde r the CWA, even if such waters are not traditional navigable waters as described in Section 1 above. 15 For purposes of this guidance, lakes, ponds, and similar lentic (or still) water feat ures crossing state boundaries are jurisdictional as in terstate waters in their enti rety. For streams and rivers, including impoundments, field staff shoul d determine the upstream and downstream extent of the stream or river crossing a st ate boundary that should be considered the “interstate water.” One method of determining the extent of a riveri ne “interstate water” is the use of stream order. Thus, for rive rs and streams the “interstate water” would extend upstream and downstream of such boundary for the entire length that the water is

of the same stream order. 16
The agencies will analyze tributaries to interstate waters 17 consistent with the

treatment of tributar ies to traditional navigable waters under Justice Kennedy's standard discussed in Section 4 below. Similarly, the agencies will analyze wetlands adjacent to interstate waters (except wetlands that are adjacent to interstate wetlands) 18 consistent with the treatment of adjacent wetlands unde r Justice Kennedy's standard discussed in Section 5 below. Finally, EPA and the Corps will analyze other wa ters relative to an

interstate water consistent with Section 6 below. Section 3: Significant Nexus Analysis The agencies will assert jurisdiction ove r waters with a significant nexus to traditional navigable waters or interstate waters in accordance with SWANCC and Rapanos . Justice Kennedy stated:

“In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers , 531 U.S. 159 (2001) ( SWANCC ), the Court held, under the circumstances presented there, that to cons titute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significan t nexus’ to waters that are or were navigable in fact or that c ould reasonably be so made.” 19

Waters have the requisite significant nexus if they, either alone or in combination with similarly situated waters in the region, significantly affect th e chemical, physical, or biological integrity of traditional navigable waters or interstate waters. i There is one significant nexus standard for waters of th e United States, and this section provides general guidance for determining the presence or absence of a significant nexus.

i In discussing the significant nexus standard, Justice Kennedy stated: “The required nexus must be assessed in terms of the statute’s goals and purposes. Congress enacted the [CWA] to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’ . . . .” 547 U.S. at 779. Consistent with Justice Kennedy’s instruction, EPA and the Corps will apply the significant nexus standard in a manner that restores and maintains any of these three attributes of traditional navigable waters and

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December 2010 Page 10 Sections 4, 5 and 6 provide more specific guidance to field staff for applying the significant nexus standard when determining jurisdiction over:

• tributaries,

• adjacent wetlands, and

• other waters.

To evaluate the presence or absence of a significant nexus, the agencies intend to, as a general matter, consider:

(1) Waters to be “similarly situated” with waters of the same resource type, specifically (a) tributaries; (b) adjacent wetlands; or (c ) other waters that are in close physical proximity to traditional navigable waters , interstate waters, or their jurisdictional tributaries (“proximate other waters”); j Waters to be “in the region” if they fall within the same watershed. For the purposes of this analysis, the watershed is defined by the area draining into the traditional navigable water or interstate water; and (2) Waters to have a significan t nexus if they alone or in combination with other similarly situated waters in the sa me watershed have an effect on the chemical, physical, or biological integrity of traditional navigable waters or interstate waters that is more than “speculative or insubstantial.”

Therefore, field staff should first determin e whether the water to be evaluated is a tributary, adjacent wetland, or proximate other water under the regulations - waters in the same category should be considered the similarly situated waters.

Next, field staff should determine th e watershed, as defined by the area 20
draining into the nearest traditional navigable water or interstate water, and should identify the “similarly situated” waters in that watershed. The logical and scientifically valid "region" for determining whether similarl y situated waters have a significant nexus

is the watershed that drains to the nearest tr aditional navigable water or interstate water through a single point of entry. There may be circumstances in which field staff, for efficiency purposes, elect to begin the case-by- case significant nexus analysis utilizing a smaller watershed (for example, in some circumstances, the Hydrologic Unit Code (HUC)-10 "watershed" as identified by the U.S. Geological Survey and the Natural Resources Conservation Service, which are typically between 40,000-250,000 acres in size). 21 Field staff should not, however, utilize an area larger than the watershed that drains to the nearest traditional navigable water or interstate water through a single point of entry. When a smaller watershed provides suff icient science-based justification to

j For other waters that are not in close physical proxim ity to traditional navigable waters, interstate waters, or their jurisdictional tributaries, the agencies will apply the significan t nexus standard to each of these waters individually, except in cases where there is a compelling scientific basis for treating a group of such waters as similarly situated waters in the same region (see Section 6).***E.O. 12866 Review

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December 2010 Page 11 establish jurisdiction, field staff need not unnecessarily expend administrative time and resources analyzing the entire sing le point of entry watershed. However, field staff should not use a watershed smaller than the single point of entry watershed as the basis for a finding of no jurisdiction.Finally, fiel d staff should determine whether the water they are evaluating, in combination with other similarly situated waters in the watershed, has a significant nexus to the nearest traditional navigable water or interstate water. Functions of waters that might demonstrate a significant nexus include sediment trapping, nutrient recycling, pollutant trapping and f iltering, retention or attenuation of flood waters, runoff storage, and provision of aqua tic habitat. A hydrologic connection is not necessary to establish a significant nexus, because in some cases the lack of a hydrologic connection would be a sign of the water’s f unction in relationship to the traditional navigable water or interstate water, such as retention of flood wate rs or pollutants that

would otherwise flow downstream to the traditio nal navigable water or interstate water. Within a single point of entry watershed, over a period of time there will probably be multiple jurisdictional determinations. While field staff will have to make case-specific determinations, they may use information us ed in previous determinations, and the agencies would generally expect that if a si gnificant nexus has been established for one water in the watershed, then other similarly s ituated waters in the watershed would also be found to have a significant nexus, becau se under Justice Kennedy’s test, similarly situated waters in the region should be eval uated together. However, the documentation for each case should be complete enough to support the specific jurisdictional

determination without cross-references to othe r files, including an explanation of which waters were considered together as si milarly situated and in the same region.

Among the most important tasks for field st aff is demonstrating that a significant nexus exists between the “similarly situated” wa ters that are the subject of a case-specific jurisdictional determination and the relevant traditional navigable water or interstate

water. Justice Kennedy provides guidance about the nature of the nexus when he

concludes that waters are not jurisdictional when their effects on the physical, chemical, or biological integrity of downstream trad itional navigable waters are speculative or

insubstantial. In the context used by Justice Kennedy, a “significant nexus” includes having a predictable or observable chemi cal, physical, or biol ogical functional relationship between the similarly situated waters and the traditional navigable water or interstate water. EPA and the Corps should fu rther demonstrate that the similarly situated waters significantly affect the traditional navigable water or interstate water.

Thus, field staff should look for indicator s of hydrology, effects on water quality, and physical, chemical, and biological (including ecologi cal) connections or functions when assessing whether a water, alone or in combination with similarly situated waters, has a more than speculative or insubstantial effect on the chemical, physical, or biological integrity of downstream traditional navigable wa ters or interstate waters. Examples of ways in which hydrology can significantly a ffect downstream waters include, but are not limited to, transport of water and materi als and compounds carried by the water (e.g., suspended materials, dissolved compounds), water retention, as a medium for the***E.O. 12866 Review

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December 2010 Page 12 movement of aquatic organisms such as fish and invertebrates, and water discharge (e.g.,

release of retained water to other waters ). Effects on the chemical integrity of downstream waters may include the extent to wh ich the waters have the capacity to carry pollutants (for example, petroleum wastes, toxic wastes, and sedi ment) or flood waters downstream to traditional naviga ble waters or interstate waters; the extent to which the waters reduce the amount of pollutants or flood waters that w ould otherwise enter traditional navigable waters or interstate waters; and the extent to which the waters perform physical functions rela ted to the maintenance of dow nstream water quality such as sediment trapping. Biological functions performed by the waters that may affect downstream traditional navigable waters or in terstate waters include the capacity to transfer nutrients and orga nic carbon to downstream food webs (for example, macroinvertebrates present in headwater stream s convert carbon in l eaf litter, making it available to species downstream), and the main tenance of habitat that provides spawning areas for species in downstream waters.

Analysis of the above indicators, whether documented for an individual water or based on scientific literature describing functi ons applicable to th e waters in question, along with an analysis of how the described functions affect a traditional navigable water

or interstate water will allow field staff to evaluate whether the water alone or in combination with similarly situated waters in the watershed is likely to have a more than speculative or insubstan tial effect on the chemical, physical , or biological integrity of a traditional navigable water or interstate water. It is not appropriate to determine significant nexus based solely on any specifi c threshold of distance (for example, between a tributary and the traditional navigable water). Watershed ecosystems, and their interrelationships, are constructed of component parts that have relevance when considered collectively. Failure to protect the compone nts can undermine the ecosystem in its entirety. Therefore, th e agencies have an obligation to evaluate waters in terms of how they interrelate and function as ecosystems rather than as individual units, especially in the context of complex ecosystems where their integrity may be compromised by environmental harms that individually may not be measurably large but collectively are significant. It is important to clarify that agency field staff, in conducting a significant nexus analysis, are not required to identify or evaluate every similarly situated water located within a particular watershed being assessed. Staff should evaluate as many waters of the same type as is necessary to support and document the presence or absence of a significant nexus for that type of wate r (e.g., adjacent wetland, tributary or proximate other water). Staff should be confident that their significant nexus determination based on evaluation of a representative subset of adjacent wetlands, tributaries, or proximate other waters in a particular watershed woul d be fully consistent with a determination

based on an evaluation of all waters of the sa me type in the waters hed. Field staff should

look at the best available information to identif y the similarly situated waters in the point of entry watershed and their effects on dow nstream traditional navigable waters or interstate waters. In many circumstances, a reliable affirmative jurisdictional determination may be based on consideration of a subset of similarly situated waters, since including additional wate rs in the analysis would onl y establish a more significant***E.O. 12866 Review

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December 2010 Page 13 nexus to the traditional navigable water or inters tate water. In general, field staff are not expected to develop new information on simila rly situated waters (e.g., the identification or delineation of as yet unmapped wetlands or tributaries). In many cases, scientifically credible (e.g., peer reviewed) literature on the functions and effects of similarly situated waters generally will be sufficient, along with site-specific information for the water for which a determination is being conducted, to support a significant nexus jurisdictional

determination. This information should be in corporated into a site -specific explanation of how the waterbody and similarly situated wa ters in the region significantly affect the physical, chemical, or biological integrity of a traditional navigable or interstate water.

Section 4: Tributaries EPA and the Corps will assert jurisdiction over tributaries under either the plurality standard or the Kennedy standard, as described below.

For purposes of this guidance, a water may be a tributary if it c ontributes flow to a traditional navigable water or interstate water, either directly or indirectly by means of

other tributaries. A tributary can be a natural, ma n-altered, or man-made water body. Examples include rivers and streams, as well as lakes and certain wetla nds that are part of the tributary system and flow di rectly or indirectly into tr aditional navigable waters or interstate waters. A tributary is physically characte rized by the presence of a channel with

defined bed and bank. The bed of a st ream is the bottom of the channel. The lateral constraints (channel margins) are the stream banks. Channels are formed, maintained, and altered by the water and sediment they carry, and the forms they take can vary greatly.

A means of identifying the lateral limits of a tributary, including where there are no contiguous wetlands, is the existence of an ordinary high water mark (OHWM). Corps regulations define OHWM as “that line on the shore establ ished by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of so il, destruction of te rrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.” 22 In many tributaries, the be d is that part of the channel below the OWHM, and the banks often extend above the OHWM. Channel characteristics depend on variables such as hydrology, lithology, climate, physiography, and gradient, 23 among others. A tributary continues as far as a channel (i.e., bed and bank) is present. A natural or manmade break (e.g., rock outcrop, underground flow, dam, weir, diversion, or similar break) in th e presence of a bed and bank or ordinary high water mark does not establish the upstream lim it of a tributary in cases where a bed and bank and an ordinary high water mark can be identified upstream and downstream of the

break. Tributaries that have been channelized by being lined with concrete are still

considered tributaries for th e purposes of this guidance. Certain types of erosional features, such as gullies a nd rills, are not tributaries for purposes of this guidance.

Gullies 24 are relatively deep channels that are ordinarily formed on valley sides and floors where no well-defined channel previously existed. They are commonly found in areas with low-density vegetative cover or w ith soils that are highly erodible. Rills 25 are***E.O. 12866 Review

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December 2010 Page 14 formed by overland water flows eroding the so il surface during rain storms. Erosional

features that are not tributar ies for the purposes of this guidance can also be found in environments where compacted soil and sparse vegetation have increased overland flow significantly. The two main pr ocesses that result in the fo rmation of gullies and similar

erosional features are down cutting and headcutting, which are forms of longitudinal (incising) erosion. These actions ordinarily result in er osional cuts that are often deeper than they are wide, with very steep banks , often small beds, and typically only carry water during precipitation events. The principa l erosional processes that modify streams are also downcutting and headcutting. In str eams, however, lateral erosion is also very important. The result is that streams, excep t on steep slopes or where soils are highly erodible, are characterized by the presence of more defined bed and banks as compared to typical erosional features th at are more deeply incised. Field staff should consider these factors as they distinguish st reams and other tributaries th at may be subject to Clean Water Act jurisdiction from othe r types of erosional features. Non-tidal ditches (including roadside and agricultural ditches) are also not tributaries except where they have a bed, bank, and ordinary high water mark; connect directly or indirectly to a traditional navigable or interstate water; and have one of the following fi ve characteristics:

• natural streams that have been alte red (e.g., channelized, straightened or relocated);

• ditches that have been excavated in wa ters of the U.S., including wetlands;

• ditches that have relatively perm anent flowing or standing water;

• ditches that connect two or more ju risdictional waters of the U.S.; or

ditches that drain natural water bodies (including wetlands) into the tributary system of a traditional navi gable or interstate water. If a ditch is considered a tributary, it

will be evaluated in the same ma nner as other tributaries (i.e., plurality standard or Kennedy standard, as appropriate). Note that tidal ditches ar e by definition waters of the

U.S.

Natural and man-made swales are also not tributaries for purposes of this guidance. In certain circumstances, however, ditches or swales include areas that meet the regulatory definition of “w etlands.” Wetland ditches and sw ales will be evaluated as wetlands under the plurality or Kennedy standard, not as tributaries (unless the ditch itself is considered a tributary for one of the reas ons stated above). D itches and swales are considered wetlands when they meet the appl icable criteria in th e Corps of Engineers Wetland Delineation Manual or the appropria te regional supplement to that Wetland

Delineation Manual.

Even when not jurisdictional waters, these ge ographic features (e.g., swales, ditches) may still contribute to a surface hydrologic c onnection between an adjacent wetland and a traditional navigable water or interstate water. In addition, these geographic features may function as “point sources” (i .e., "discernible, confined and discrete conveyance[s]" under CWA section 502(14)), such that discharges of pollutants to waters through these features***E.O. 12866 Review

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December 2010 Page 15 could be subject to other CWA regulations (e.g., CWA section 402). Tributaries Covered

under the Rapanos Plurality Standard

EPA and the Corps will assert jurisdiction over “relatively permanent, standing or continuously flowing bodies of water” conne cted to traditional navigable waters. k Under the plurality standard, relatively permanent waters are jurisdicti onal without making a significant nexus finding.

Under the plurality standard, a non-naviga ble tributary is ju risdictional when it satisfies the following characteristics:

(1) The tributary is connected, directly or indirectly through other tributaries, to a downstream traditional navigable water, and (2) Flow in the tributary, except for dr ought years, is at least seasonal.

A central issue to the plurality standard is what constitutes “seasonal flow.” In this context, a water is “seasonal” when it has predictable flow during wet seasons in

most years. The time period constituting “seasonal” will vary across the country. Rather than having distinct, rigid boundaries, stream r eaches classified as perennial, intermittent, and ephemeral may more accurately be described as dynamic zones within stream

networks. The length or extent of these zones ma y be highly variable and is dictated by multiple factors such as annual precipitation, evapotranspiration, and land- and water-use practices. 26 Thus, determination of whether a water meets the plurality standard for relatively permanent should involve determina tion of the length and timing of seasonal flows in the ecoregion in question. Tributaries that are not relatively permanent will be evaluated under the Kennedy

standard. Tributaries Covered under the Rapanos Kennedy Standard EPA and Corps regulations define “waters of the United States” to include tributaries to traditional navigable waters and to interstate waters. 27 Consistent with the agencies’ interpretation of the CWA, these regulations and the relevant case law, EPA and the Corps expect to assert jurisdiction over all tributaries to traditional navigable waters or interstate waters, provided that the tributary, al one or in combination with other similarly situated tributaries in the watershed, significantly a ffects the chemical, physical, or biological integrity of traditional navigable waters or interstate waters. Thus, a tributary is jurisdictional where:

(1) It is a tributary as defined for purpos es of this guidance to a traditional navigable water or an interstate water; and

k 547 U.S. at 739. k The agencies will not assert jurisdiction over such waters under the plurality standard
within the Eleventh Circuit, i.e., waters in the states of Florid a, Georgia and Alabama. See United States v.

Robison , 505 F.3d 1208 (11th Cir.); 2007); reh’g en banc denied , 521 F.3d 1319 (11th Cir. 2007), cert.
denied

, sub nom. United States v. McWane, Inc. , 129 S. Ct. 627, 630 (2008). Instead the agencies will use the Kennedy standard only.***E.O. 12866 Review

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December 2010 Page 16 (2) The tributary, alone or in combina tion with other tributaries in the watershed, has a significant nexus with the traditional na vigable water or

interstate water.

When performing a significant nexus analysis for a tributary, the first step is to determine whether that tributary has a bed a nd bank and an ordinary high water mark. If the tributary possesses those characteristics, th e next step is to determine whether the tributary drains, or is part of a network of tributaries that drain, into a downstream traditional navigable water or interstate water. If it can be demonstrat ed that the tributary has a bed and bank, and an OHWM, and is part of a tributary system to a traditional navigable water or an interstate water, a nd, therefore, can tran sport pollutants, flood

waters or other materials to a traditional na vigable water or interstate water, then the agencies would generally expect that the tri butary, along with the other tributaries in the watershed (the "similarly situated" waters), can be demonstrated to have a significant nexus with the downstream traditional naviga ble water or interstate water. This expectation is based on the significant harm that pollutants can have on the physical, chemical, or biological integrity of the downstream traditional navigable water or

interstate water. 28 The presence of a bed and bank and an OHWM are physical indicators

of flow and it is likel y that flows through all of the tributaries colle ctively in a watershed with the above characteristics are sufficient to transport pollutants, or other materials

downstream to the traditional na vigable water or interstate water in amounts that would significantly affect its chemical, physical or biolog ical integrity.

When considering whether the tributary be ing evaluated eventually flows to an interstate water or traditional navigable water, field staff should trace the tributary connection using resources such as direct observation or U.S. Geological Survey maps, aerial photography or other reliable remote sens ing information, soil survey data or other appropriate information.

Although the agencies generally expect that tributaries will be found to have a significant nexus with downstream traditional navigable waters or in terstate waters, as explained above, it is still important that fi eld staff document such a significant nexus through a site-specific analysis for tributaries that are not relatively permanent. Field staff should document, using available or readily obtainable information wherever possible, the flow characterist ics and functions of the tribut ary or tributaries, and their hydrologic relationship to the ne arest downstream traditional na vigable water or interstate water. Hydrologic information may include volume, duration, and fr equency of flow (if such information is readily av ailable, e.g., through publicly available reports or on-line resources), as well as physical indicators of flow. Field staff may document the flow

characteristics of tributarie s by using physical indicators of flow, observations of flow considered in the context of local precipit ation patterns and recen t precipitation events, field reports, local expert st atements, and other sources of information. Ordinary high water mark determinations are made by examining recent physical evidence of flow. 29 It is not necessary to document actual flow data via stream gages. 30 Field staff should also***E.O. 12866 Review

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December 2010 Page 17 document other functions provided by the tr ibutary, and describe how those functions may significantly affect the physical, chemi cal, or biological integrity of downstream traditional navigable waters or interstate waters.

Flow characteristics and functions of the tributary or tributaries and their hydrologic relationship to the ne arest downstream traditional na vigable water or interstate water may include topographic maps, gage data, historic records of wa ter flow, statistical data, personal observations/reco rds, and other relevant in formation. Consideration may also be given to relevant contextual fact ors that directly infl uence the hydrology of tributaries, including the size of the waters hed, average annual rainfall, and average annual winter snow pack. The significant nexus evalua tion should also discuss the potential for the tributaries to transport pol lutants to a traditional navigable water or

interstate water. Direct observation of the tributary is not necessary if other available documentation is sufficient to establish the significant nexus.

Examples of other functions provided by tr ibutaries that may significantly affect the physical, chemical, or biological integrity of downstream traditi onal navigable waters

or interstate waters incl ude: distributing sediment 31 to maintain stream and riparian habitat; nutrient cyc ling and removal; providing habitat for amphibians, fish, and other aquatic or semi-aquatic species living in and near the stream that may use the

downstream waters for other portions of their life stages (e.g., spawning areas for recreationally or commercially important sp ecies); improving or maintaining biological integrity in downstream waters; and transfer ring nutrients and orga nic carbon vital to support downstream food webs (e.g., macroinve rtebrates present in headwater streams convert carbon in leaf litter making it available to species downstream). 32 Disruptions in these biological processes can significantly affect the func tional capacity of the entire downstream system. 33 Tributaries help to maintain base flow in the larger rivers downstream, which is particularly important in times of drought. At the same time, a

network of tributaries can re gulate the flow of water into downstream waters, moderate low flow and high flow extremes, reduce local and downstream flooding, and prevent excess erosion caused by flooding. 34 Section 5: Adjacent Wetlands The agencies will assert Clean Water Act jurisdiction over adjacent wetlands that meet either the plurality standa rd or the Kennedy standard under Rapanos

.

Wetlands Covered Under the Rapanos Plurality Standard

EPA and the Corps will assert jurisdiction over “wetlands with a continuous surface connection to” “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters. l

l 547 U.S. at 739, 742. As noted, the agencies will not assert jurisdiction over such waters under the plurality standard within the Eleventh Circuit, i.e., wa ters in the states of Florida, Georgia and Alabama.

See United States v. Robison , supra, footnote h.***E.O. 12866 Review

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December 2010 Page 18 The plurality opinion in Rapanos created a standard for finding statutory jurisdiction under the CWA for we tlands, which is related to the presence of a physical

connection between the wetland and the relati vely permanent water to which it is adjacent. Under the plurality standard, wetlands with a continuous surface connection to relatively permanent waters are jurisdictiona l without the legal obligation to make a significant nexus finding.

Under the plurality standard, an adjacent we tland is jurisdictional when it satisfies the following characteristics:

(1) The wetland is adjacent to a relativel y permanent, non-navigable tributary,

that is connected to a downstream traditional navigable water, and A

continuous surface connection exists between the wetland and a relatively permanent tributary where the wetl and directly abuts the water (e.g., they are not separated by uplands, a berm , dike, or similar feature). A

“continuous surface connection” does not require the presence of water at all times in the connection between the wetland and the jurisdictional

water.

Wetlands Covered Under the Rapanos Kennedy Standard

The agencies will assert Clean Water Act jurisdiction over wetlands m adjacent to traditional navigable waters or non-wetland interstate waters or to another water

of the U.S. where such wetlands have a significant nexus with downstream traditional navigable or interstate waters. n Adjacent wetlands will be considered to have a significant nexus if they, alone or in combination with similarly situated wetlands, have an effect on the chemical , physical, or biol ogical integrity of traditional navigable waters or interstate waters that is more than “speculative or

insubstantial.” 35 As a general matter, “similarly situated” adjacent wetlands include all adjacent wetlands located in the point-of-entry watershed. Wetlands adjacent to traditional na vigable waters or non-wetla nd interstate waters are per se jurisdictional and do not require a showing of significant nexus. 36 Thus, an adjacent wetland is jurisdictional where such wetland meets the definition of “adjacent” as that term is defined in the agencies’ regulations and is either: (1) Adjacent to a traditional navigable wa ter or non-wetland interstate water; or (2) Adjacent to a tributary, lake, reservoir, or other jurisdictional water (except

m

Under normal circumstances, a wetland will meet all three factors of hydrology, hydrophytic vegetation, and hydric soils, as required by agency regulations, and described in the United States, U.S. Army Corps of Engineers, Wetlands Delineation Manual (Washington, D.C.: U.S. Army Corps of Engineers,1987) or appropriate Regional Supplement. The regulatory de finition of waters of the U.S. includes “wetlands adjacent to waters (other than waters that are themse lves wetlands) identified [as jurisdictional].” 33 C.F.R. § 328.3(a)(7); 40 C.F.R. § 230.3(s)(7).

n The plurality standard in Rapanos may provide an alternative basis for asserting jurisdiction. See Section

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December 2010 Page 19 another wetland) and either alone or in combination w ith other adjacent wetlands in the watershed has a significant nexus to the nearest downstream traditional navigable or interstate water.

The regulations define “adjacent” as follows: “The term adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’” 37 Under this definition, a wetland does not need to meet all criteria to be considered adjacent. The ag encies consider wetlands to be bordering, contiguous, or neighboring, and therefore “adjace nt” if at least one of following three

criteria is satisfied:

(1) There is an unbroken surface or shal low sub-surface hydrologic connection between the wetland and jurisdictional waters; or (1) (2) The wetlands are physically separated from jurisdictional waters by “manmade dikes or barriers, natural rive r berms, beach dunes, and the like”;

or Where a wetland’s physical proximity to a jurisdictional water is reasonably close, that wetland is “neighboring” and thus adjacent. For example, wetlands

located within the riparian area or floodplain of a jurisdicti onal water will generally be considered neighboring, and thus adjacent. One test for whether a wetland is sufficiently proximate to be considered “neighboring” is whether there is a demonstrable ecological interconnection between the wetland and the jurisdicti onal waterbody. For example, if resident aquatic species (e.g., amphibians, aquatic turtles, fish, or ducks) rely on both the wetland and the jurisdictional waterbody for all or part of their life cycles (e.g., nesting, rearing, or feeding), that may demonstrate that the wetland is neighboring and thus adjacent. The agencies recogni ze that as the distance between the wetland and jurisdictional water increases, the potential ecological

interconnection between the wate rs is likely to decrease.

An unbroken surface or shallow s ub-surface hydrologic connection to jurisdictional waters may be established by a physical feature or disc rete conveyance that supports periodic flow between the wetland a nd a jurisdictional wate r. Water does not have to be continuously pres ent in this hydrologic connect ion and the flow between the wetland and the jurisdictional water may m ove in either or both directions. The hydrologic connection need not itself be a water of the U.S. A shallow subsurface hydrologic connection is lateral water flow through a shallow subsurface layer, such as may be found in steeply sloping forested areas with shallow soils, soils with a restrictive horizon, or in karst systems. 38 Shallow subsurface connecti ons may be found below the ordinary root zone (below 12 inches), wher e other wetland delineation factors may not be present. A combination of physical fact ors may reflect the presence of a shallow subsurface connection, including, position in the landscape (for example, on a slope directing flow from wetland to jurisdictional waters), stre am hydrograph, and soil surveys (for example, exhibiting indicators of high transmissivity over an impermeable layer). If***E.O. 12866 Review

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December 2010 Page 20 uplands separating a wetland from jurisdictiona l water can reasonably be characterized as “man-made dikes or barriers, natural river be rms, beach dunes, and the like,” then, under the agencies’ regulations, the wetlands are adjacent even if no apparent hydrologic connection exists. It is impor tant to note that natural river berms are formed by sediment deposits accumulating at or near th e stream bank during flood events. Such berms vary in height from inches to feet, and also can be quite wide. 39 Similarly, multiple beach dunes may exist between a wetland and juri sdictional water (including primary and secondary dunes), because beach dunes typi cally function as an interdunal system (particularly on barrier islands).

The link between physical proximity and a physical or ecological (biological)

connection is well documented in the scientific literature. A wetland within the riparian

area 40 or floodplain 41 typically has such an interconnection. For example, adjacent wetlands typically help to store floodwate rs, pollutants, and sediments that could otherwise reach a jurisdictional water. 42 Adjacent wetlands often provide important sources of stored water that augment stream flow during low-flow periods. 43 Species, such as amphibians, certain reptiles (e.g., wate rsnakes), waterfowl, inve rtebrates, and fish (including anadromous and catad romous fish), move between an adjacent wetland and a jurisdictional water for spawning, nesti ng, feeding, refuge, an d other life stage requirements. 44 Species that move between an adjacent wetland and a jurisdictional water are distinguishable from migratory species. Migratory species use the wetland during a journey to a different area 45 and are not to be used as a scientific basis for demonstrating an ecological interconnection fo r adjacency. While it is not appropriate to determine adjacency based solely on any speci fic threshold of distance, as the distance between the wetland and jurisd ictional water increases, th e potential interconnection

between the waters will decrease and a findi ng of adjacency is less likely. The distance between a tributary and its adjacent wetlands may vary by region, as well as based on site-specific factors within regions.

All wetlands within a wetland mosaic should ordinarily be considered collectively when determining adjacency. Wetlands present in such systems act generally as a single ecological unit. A “wetland mosaic” refe rs to a landscape where wetland and nonwetland components are too numerous and clos ely associated to be appropriately delineated or mapped separately. These areas often have complex microtopography, with repeated small changes in elevati on occurring over short distances. Tops of ridges and

hummocks are often non-wetla nd but are interspersed with wetlands having hydrophytic vegetation, hydric soils, and wetland hydrology. Under Justice Kennedy’s standard, the following legal test for Clean Water Act jurisdiction applies: If a wetland is adjacent to a traditional navigable water or a non-wetland interstate water, a finding of adjacency is

sufficient in and of itself to demonstrate th at the wetland is subject to Clean Water Act jurisdiction. On the other hand, a finding that a pa rticular wetland is adjacent to a jurisdictional waterbody other than a traditiona l navigable water or non-wetland interstate

water is not sufficient in and of itself to es tablish Clean Water Act jurisdiction over that wetland. For the latter category of adjacent we tlands, in order to establish Clean Water***E.O. 12866 Review

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December 2010 Page 21 Act jurisdiction, field staff, on a case-by- case basis, must determine whether the particular adjacent wetland, alone or in combin ation with similarly situated wetlands in that watershed, has a significant nexus with traditional navigable waters or non-wetland interstate waters (see discussion below). A determination of adjacency is based on an evaluation of the relationship between a wetland and the nearest jurisdictional water, which includes consideration of both physical and ecological connections between those waterbodies. In contrast, a determination of significant nexus is a different inquiry, which is based on evaluating whether there is a significant nexus between that adjacent wetland (in combination with similarly situated adjacent wetlands in the watershed) and a traditional navigable water or a non-wetland interstate water.

As discussed in Section 3, the agencies ge nerally consider all wetlands within the watershed that are adjacent to jurisdictional waters to be “similarly situated” waters “in the region.” (Wetlands adjacent to non-juri sdictional waters are considered “other waters.”) The relevant watershed is de fined by the topographic area draining into the nearest traditional navigable water or interstate water. However, as with tributaries, field staff may utilize a smaller area for a significant nexus analysis where this is sufficient to establish the presence or absence of a signi ficant nexus for adjacent wetlands within the watershed as a whole. When identifying othe r adjacent wetlands in the watershed to be considered in the significant nexus analysis, field staff may use resources such as direct observation or U.S. Geological Survey maps, aerial photography, or ot her reliable remote sensing information. Using such informati on, staff should include in the evaluation as many adjacent wetlands as is necessary to support and document the presence or absence of a significant nexus. Field st aff are not required to identif y or evaluate every adjacent wetland located within a particular waters hed being assessed and are generally not expected to develop new information on th e location of such wetlands. As with tributaries, field staff should use the best available information on the adjacent wetlands in the point of entry watershed, which may in clude scientific literature on the functions

and effects of wetlands within the wate rshed generally and how those wetlands significantly affect the physical, chemical, or biological integrity of the traditional navigable waters or interstate waters. For affirmative determinations especially,

consideration of a subset of adjacent wetlands may be sufficient, since including additional adjacent wetlands in the analysis would only establish a more significant nexus to the traditional navigable water or interstate water.

When evaluating significant nexus fo r adjacent wetlands, field staff should consider the many functions of waters such as sediment trapping, nutrient recycling, pollutant trapping and filtering, retention or attenuation of flood waters, runoff storage, and provision of habitat. In ge neral, tributaries and their adj acent wetlands function as an integrated hydrologic system, and as a unit they may affect the amount of pollutants and

floodwaters that reach the downs tream traditional navigable wa ters or interstate waters.

Section 6: Other Waters The “other waters” or “(a)(3) wate rs” provision of EPA’s and the Corps regulations includes: All other waters such as intrastate lakes, rivers, streams (including***E.O. 12866 Review

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December 2010 Page 22 intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or na tural ponds, the use, degrada tion or destruction of which

could affect interstate or foreign commerce. . . . 46
The agencies recognize that Supreme Court decisions in SWANCC and Rapanos

have identified limitations on the scope of (a)(3) waters that may be determined to be jurisdictional under the CW A. The agencies expect to furt her clarify the scope of waters subject to CWA jurisdiction, including ju risdiction over (a)( 3) waters after SWANCC and Rapanos, as part of a notice and comment rule making. In the meantime, the agencies will make case-by-case, fact-specific determin ations of jurisdiction under (a)(3) in the

manner discussed below.

Physically Proximate Other Waters

EPA and the Corps will make fact-specific determinations of jurisdiction for other waters that are in close physical proximity to traditional navigable waters, interstate waters, or their jurisdictional tributaries, and that alone or in combination with similarly situated proximate other waters in the regi on significantly affect the chemical, physical, or biological integrity of traditional navigabl e waters or interstate waters. For purposes of this guidance, proximate other waters ar e non-wetland waters that would satisfy the regulatory definition of “adjace nt” if they were wetlands. They include lakes, ponds, and other non-wetland waters that are bordering, contiguous, or neighbori ng to jurisdictional waters, including waters that are separated from jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes a nd the like. Such waters have many of the

same functions and effects with respect to jurisdictional waters as adjacent wetlands. The agencies believe it is scientifically appr opriate and consistent with Justice Kennedy’s opinion to evaluate significant nexus for such waters in the same manner as for adjacent

wetlands.

For purposes of the significant nexus analysis, all physically proximate other waters in the same point-of-entry watershed should be evaluated together as similarly situated waters in the region. This is appropr iate for the same reasons as it is appropriate to evaluate all adjacent wetlands in the point -of-entry watershed together as similarly

situated waters.

Other Waters that Are Not Physically Proximate to Jurisdictional Waters

Non-physically proximate ot her waters are isolated, intrastate, non-navigable

waters and wetlands that woul d not meet the regulatory de finition of “adjacent” with respect to jurisdictional waters. The agenci es note that the (a)(3) provisions of our regulations remain in effect and that the SWANCC decision specifically addressed only the presence of migrat ory birds as a basis for asserting jurisdiction, and not the validity of the (a)(3) provisions generally. However, the agencies interpret Justice Kennedy’s opinion as suggesting that the same significan t nexus standard that he articulated for adjacent wetlands is appropriate for (a)(3) wa ters, and we have thus clarified above how***E.O. 12866 Review

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December 2010 Page 23 this standard should be applied in the case of (a)(3) waters that are in close physical proximity to jurisdictional waters. At the sa me time, we recognize that for other waters that are geographically separate d from jurisdictional tributaries, establishing a significant nexus may be more challenging. Thus, at this time, we are not providing specific guidance on making such determinations and ar e instead directing agency field staff to continue the current practice of referring determinations for non-physically proximate other waters to their resp ective Headquarters and obtaining formal project-specific approval before assertin g or denying jurisdiction.

The general approach for determining signi ficant nexus for such waters would be

the same as discussed in Section 3. Becau se such waters may be widely scattered geographically, and physically remote from jurisdictional waters, field staff should generally conduct signifi cant nexus analyses for such wate rs individually, unless there is a compelling scientific basis for treating a gr oup of such waters as similarly situated waters in the same region. In accordance with the decision in SWANCC , consideration of use by migratory species is not relevant to the significant nexus determination for such

waters.

The agencies emphasize that this document is guidance, which lacks the force of law; the agencies expect to proceed with notice a nd comment rulemaking to further clarify the regulatory definition of the term “waters of the United States.” As a part of that process, we will further consider, based on a review of the scientific literature, how a significant nexus analysis should be conducted for non-physically proximate other waters. Section 7: Waters Generally Not Jurisdictional

The scope of “waters of the United States” does not include all waters. EPA and the Corps previously have described in pream bles to CWA regulations waters that the agencies generally do not consid er to be waters of the U.S. 47 The agencies’ position regarding these waters is unc hanged. The categories of wate rs generally not “waters of

the U.S.” include:

• Wet areas that are not tributaries or open waters and do not m eet the regulatory

definition of wetlands. 48

• Waterbodies excluded from cove rage under the CWA by existing regulations

. Waters that lack a significant nexus when one is required for jurisdiction. Artificially irrigated areas which would revert to upland if the irrigation ceased.

• Artificial lakes or ponds created by excavat ing and/or diking dr y land to collect

and retain water and which are used ex clusively for such purposes as stock watering, irrigation, settling basins, or rice growing.

• Artificial reflecting pools or swim ming pools excavated in uplands.***E.O. 12866 Review

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December 2010 Page 24 • Small ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons.

• Water-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpos e of obtaining fill, sand, or gravel, unless

and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States.

• Groundwater drained through subsurface drainage systems. o

Erosional features (gullies a nd rills), and swales and ditche s that are not tributaries or wetlands (see Section 4). Section 8: Documentation

• EPA and Corps field staff should documen t in the administrative record the available information supporting a jurisdic tional determination. In addition to location and other descriptive information re garding the water at issue, the record should include a clear explanation of the rationale for the jurisdictional conclusion, and include, as appropriate: Information leading to a conclusion that a water falls within a category considered in this guidance to be jurisdictional

without the need to dem onstrate a significant nexus;

• Information used to conclude that a wa ter has a significant nexus when one is required for jurisdiction;

• Information supporting a conclusion that a water lacks a significant nexus, when one is required for jurisdiction; or

• Information supporting a conclusion that a water falls within one of the categories of geographic features ge nerally considered non-jurisdictional.

In short, both affirmative and negative jurisdictional determinations should be well-documented, to ensure both public tran sparency and defensibility should a jurisdictional conclusi on be challenged. The level of documentation may be greater for jurisdictional determinations asso ciated with complex projects.

Other sections of this guidance discu ss the findings necessary for particular categories of waters to be considered jurisd ictional and/or to have a significant nexus. Information relevant to these findings can come from many sources, including but not limited to maps, aerial photogr aphy, soil surveys, watershed studies, local development plans, literature citations, and references fr om studies pertinent to the parameters being

reviewed. Such information need not always be sp ecific to the water whose jurisdictional

o A “subsurface” drainage system is an agricultural pr actice designed to drain subsurface water through a below ground pipe system in order to maintain the gr oundwater table below the root zone to facilitate crop production. The construction or maintenance of subsurface drain systems may require a CWA permit, if it involves discharges of dredged or f ill material into waters of the U.S.***E.O. 12866 Review

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December 2010 Page 25 status is being evaluated; re gional and national studies of the same type of water or similarly situated waters can help to inform a jurisdictional analysis as long as they are applicable to the water bei ng evaluated. Information deri ved from field observation is not required in cases where a "desktop" anal ysis can provide sufficient information to make the requisite findings. However, for more complex or difficult jurisdictional determinations, it may be important to supplement such information with field

observation.

An important part of a jurisdictional an alysis is the locati on and type of water under consideration, so as to readily determin e if the jurisdictional status of similarly situated waters in the region has been previ ously determined. If so, the jurisdictional conclusion, rationale, and supporting informa tion for a similarly situated water are directly relevant. As Justice Kennedy noted in Rapanos , where a significant nexus has been established for a particular wetland, “it may be permissible, as a matter of administrative convenience or necessity, to pr esume covered status for other comparable wetlands in the region.” 49 Therefore, once the jurisdictional status for a particular water within a watershed has been established, fi eld staff can apply the significant nexus analysis for that water to any subsequent dete rminations if they establish (and document) that the water at issue is the same type a nd in the same watershed as the jurisdictional

water.***E.O. 12866 Review

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December 2010 Page 26 APPENDIX

DISCUSSION OF LEGAL AND SCIENTIFIC BASIS FOR

GUIDANCE SECTIONS

The U.S. Supreme Court has addressed the scope of waters of the United States protected by the CWA in three cases. In United States v. Riverside Bayview Homes, Inc. (474 U.S. 121 (1985)), the Supreme Court held that wetlands adjacent to a traditional navigable water were properly considered to be “waters of the United States.” In

SWANCC , the Court addressed the question of CWA jurisdiction over isolated, nonnavigable, intrastate ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos , the Court addressed CWA protections for wetlands adjacent to non-naviga ble tributaries, and issued five opinions with no single opinion commanding a majority of the Court. The plurality opinion, authored by Justice Scalia, stated that “w aters of the United States” extended beyond traditional navigable waters to include “relat ively permanent, standing or flowing bodies

of water.” 50 The plurality went on to clarify that relatively permanent waters ”do not necessarily exclude” streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought, and seasona l rivers, which contain continuous flow during some months of the year but no flow during dry months. The plurality opinion also asserted that only wetlands with a “continuous surface connection” to other jurisdictional waters are considered “adjacent” and protected by the CWA. 51 Justice Kennedy’s concurring opinion took a different approach than Justice Scalia’s. Justice Kennedy concluded that “waters of the Unite d States” included wetlands that had a significant nexus to traditional navigable wate rs, “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’” ( id. at 780). The four justices who signed on to Justice Stevens’ opinion would have upheld jurisdiction under the agenci es' existing regulations and stated that they would uphold jurisdiction under either th e plurality or Justice Kennedy's opinion ( id. at 810). Neither SWANCC nor the opinions in Rapanos invalidated any of the regulatory provisions defining “waters of the United States.”

Section 1: Traditional Navigable Waters Legal Basis

The Supreme Court has recognized that navigability “ [N]avigability is a flexible concept and “ [e]ach application of [ the [ Daniel Ball test] .

. . .. is apt to uncover variations and refinements which requi re further elaboration.” 52 EPA and the Corps will be guided by examples of some of the types of evidence found relevant and sufficient for a traditional navigable waters determination in court decisions, alt hough these will be factspecific determinations and not every type of evidence will be available or needed in every circumstance. Field staff have sought guidance in particular on how to determine***E.O. 12866 Review

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December 2010 Page 27 whether a water is susceptible to being used for commercial navigation such that it is a traditional navigable water. The cases discussed below provide specific examples of the types of evidence courts have found suffici ent to demonstrate such susceptibility.

In FPL Energy Marine Hydro L.L.C. v. FERC

, , a case involving the Federal Power Act, the U.S. Court of Appeals for the District of Columbia Circuit reiterated the fact that “actual use is not necessary for a navigability determination” and repeated earlier Supreme Court holdings that naviga bility and capacity of a water to carry commerce could be shown through “physical characteristics and experimentation.” 53 In that case, the D.C. Circuit upheld a Federa l Energy Regulatory Commission navigability determination that was based upon three experi mental canoe trips taken specifically to demonstrate the river’s navigability. 54 The navigability determination was affirmed although the stream had five sets of rapids, and all parties agreed that the stream has never been used for commercial traffic, that there was no evidence of recreational use of the stream, and that the only evidence indica ting actual use of the stream came from the three trips made for the purpose of litigation. 55

The U.S Court of Appeals for the Ni nth Circuit has also implemented the Supreme Court’s holding that a water need only be susceptible to being used for

waterborne commerce to be navigable-in-fact. 56 In Alaska v. Ahtna

, Inc., the Ninth 9th

Circuit held that current use of an Alaskan river for commercial recreational boating is sufficient evidence of the water’s capacity to carry waterborne commerce at the time that

Alaska became a state. 57 It was found to be irrelevant whether or not the river was actually being navigated or being used fo r commerce at the time, because current recreational boating showed that the river always had the ca pacity to support navigation by the types of boats that were in use at the time of statehood. 58

. 59 Here, the stream was found to be navigable although the shallowest part of the river is just a foot deep during the low season; the river is customarily used, or is susceptible to use, by watercraft such as powerboats, 12-foot-long inflatable raft s, and motorized freight canoes and doubleended paddle canoes; hunters and fishermen tr avelled the river by boat in the past; most

of the use of the river is recreational; and it is possible to take guided fishing and sightseeing trips on the river. 60

Section 2: Interstate Waters

Section 2: Interstate Waters EPA and the Corps will assert jurisdiction over all

interstate waters , consistent with the agencies’ current regulations defining “ waters of

the United States ” to include “ interstate waters and interstate wetlands

. ” 61 Interstate

wate rs , defined by the federal water pollution co ntrol statutes prior to the CWA as “ all rivers, lakes, and other waters that flow across, or form a part of, State boundaries, ”

remain jurisdictional waters under the CWA. For purposes of this guidance, lakes, reservoirs, and similar lentic (or still) water features crossing state boundaries are jurisdictional in their entirety to the lateral limits of their ordinary high water mark. For purposes of this guidance, streams, rivers, and similar lotic (or flowing) water features***E.O. 12866 Review

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December 2010 Page 28 crossing a state boundary are ju risdictional upstream and downstream of such boundary for the entire length that the wa ter is of the same stream orde r (i.e., the entire reach of the water crossing a state boundary that is of the same order)

.

The agencies will consider tributaries to interstate waters jurisdictional when they have a significant nexus with such interstate waters, consistent with the treatment of

tributaries to traditiona l navigable waters in Section 4 below. Tributaries to interstate

waters will be evaluated using the same significant nexus framework articulated by Justice Kennedy for tributaries to traditional navigable waters. A stream is a tributary to

an interstate water if it flows directly or indirect ly into the reach determined to be an

interstate water. Tributarie s located downstream of the interstate stream reach are not tributary to that interstate stream reach, but instead to the stream reach into which those

tributaries flow.

Similarly, the a gencies will assess jurisdiction over wetlands adjacent to interstate

waters (except wetlands that are adjacent to interstate wetlands) 62 consistent with the framework established by Justice Kennedy ’ s standard. Thus, w etlands adjacent to non

wetland inters tate waters themselves will be considered jurisdictional consistent with Justice Kennedy ’ s conclusion that wetlands adjacent to traditional navigable waters are jurisdictional under the Act based on a showing of adjacency alone. 63 Wetlands adjacent

to trib utaries of an interstate water are jurisdictional where they have a significant nexus

with that interstate water alone or in combination with similarly situated wetlands,

consistent with Section 5

. Finally, EPA and the Corps will analyze other waters rela tive

to an interstate water consistent with Section 6.

Legal Basis

The language of the CWA indicates that Congress intended the term “navigable

waters” to include interstate waters wit hout imposing a requirement that they be traditional navigable waters themselves or be connected to traditional navigable waters. The precursor statutes to the CWA always subj ected interstate waters and their tributaries to federal jurisdiction. p The text of the CWA, specifically a provision in the CWA

section 303 that establishes ongoing requirements fo r interstate waters, in conjunction with the definition of navigable waters, provi des clear indication of Congress’ intent to protect interstate waters that were previ ously subject to federal regulation. Other

p See endnote 13. Section 1948 Act § 2(d)(1) of the Water Pollution Control Act of 1948, ,(4), 62 Stat. at 1156, stated:

The 1156

- 1157, declaring the pollution of interstate waters in or adjacent to any State or States (whether

, “whether the matter causing or contributing to such pollution is discharge d directly into such waters or reaches such waters after discharge d into a tributary of such waters), waters,” which endangers the health or welfare of persons in a State other than that in which the discharge originates, is hereby declared to be a public nuisance and

, subject to abatement as herein provided

. by the Act, including suit by the United

States.***E.O. 12866 Review

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December 2010 Page 29 provisions of the statute provi de additional textual evidence of the scope of the primary jurisdictional term of the Act.

Congress defined “navigable waters” in CWA section 502(7) to mean “the waters of the United States, including the territorial seas.” Interstate waters are the waters of the several States and, thus , the United States. While the 1972 Act was clearly not limited to interstate wate rs, it was equally clearly intended to include interstate waters. Most importantly, there is a specific provision in the 1972 CWA establishing requirements for t hose interstate waters which were subject to the prior Water Pollution Cont rol Acts. The CWA requires States to establish water quality standards for na vigable waters and submit them to the Administrator for review, including “int erstate waters.” CWA section 303(a)(1)

states: states, “ In order to carry out the purpose of this Ac t, any water quality standard applicable to interstate waters which was adopted by any State and submitted to, and approved by, or is awaiting approval by, the Administrator pursuant to this Act as in effect immediat ely prior to the date of enactment of the

Federal Water Pollution Cont rol Act Amendments of 1972, shall remain in effect

.

. . .

(Emphasis added.) ...” ( emphasis added )

. Thus, Congress intended continued protection

of interstate waters.

While EPA and the Corps believe congression al intent is clear, the agencies also have a longstanding regu latory interpretation of the CWA that interstate waters fall within the scope of CWA jurisdiction. 64 The agencies’ interpretation was promulgated contemporaneously with the passage of the CW A and is consistent w ith the statutory and legislative history of the Act. Furthermore, the Supreme Court has never addressed the CWA’s coverage of interstate waters, and its decisions in SWANCC and Rapanos do not question the jurisdictional status of interstate waters or impose additional jurisdictional requirements on interstate waters.

As noted above, the precursor statutes to the CWA always subjected interstate

waters and their tributaries to federal jurisdiction. While Congress clearly intended tributaries to interstate waters to be subject to the CWA, the statute does not define the

extent of tributaries that ar e covered. In light of Justice Kennedy’s opinion, the agencies believe it is reasonable to assert jurisdiction over tributaries, adjacent wetlands and other

waters which have a significant nexus to interstate waters consistent with the framework established by Justice Kennedy ’ s standard in Rapanos for establishing jurisdiction over waters with a significant nexus to traditional navigable waters (see sections 4, 5, and 6 of this guidance for additional information).

. Justice Kennedy’s sta ndard seeks to ensure that waters Congress intended to subject to federal jurisdicti on are indeed protected, both by recognizing that waters and wetlands with a significant nexus to covered waters have important beneficial effect s on those waters, and by r ecognizing that polluting or destroying waters with a si gnificant nexus can harm downstream covered waters.***E.O. 12866 Review

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December 2010 Page 31 Section 3: Significant Nexus Analysis

The agencies will assert jurisdiction over waters with a significant nexus to traditional navigable waters or interstate waters. Waters have the requisite nexus if they,

either alone or in combination with similarl y situated waters in the region, significantly affect the chemical, physical, or biological integrity of trad itional navigable waters or

inte rstate waters. 65 This section provides general guid ance for determining the presence or absence of a significant nexus; the follo wing sections provide more specific guidance for determining jurisdiction over tributar ies, adjacent wetlands, and other waters under the agencies’ regulations.

To evaluate the presence or absence of a significant nexus, the agencies will, as a general matter, consider:

(3) Waters to be “similarly situated” with other waters of the same regulatory or resource type (i.e., the same s ubsection of the regulato ry definition at 33 CFR 328.3(a) and 40 CFR 230.3(s); but see Section 6 for additional guidance on how to determine whether waters within the other waters regulatory category are “similarly situated”); (4) Waters to be “in the region” if they fall within the same watershed. For the purposes of this analysis, the watershed is defined by the area draining into the nearest traditional navigable water or interstate water. However, there may be

circumstances in which field staff ma y utilize a smaller area for a significant nexus analysis (see discussion below) ; and (5) Waters to have a significan t nexus if they alone or in combination with other similarly situated waters in the sa me watershed have an effect on the chemical, physical, or biological integrity of trad itional navigable waters or interstate waters that is more than “speculative or insubstantial.”

Therefore, field staff should first determin e whether the water to be evaluated is a tributary, adjacent wetland, or other wat er under the regulations

- waters in each of these categories should be considered the similarly situated waters (aga in, see Section 6 for additional guidance on how to determine whether waters within the other waters regulatory category are “similarly sit uated”).

Next, field staff should determine th e watershed as defined by the area 66 draining into the nearest traditional navigable wate r or interstate wate r and should generally identify the “similarly situated” waters in that watershed. Generally, the l ogical and scientifically valid "region" for determining whether similarly situated waters have a significant nexus is the geographic area that dr ains through a single point of entry to the traditional navigable water or interstate water given that signifi cant nexus determinations are made in reference to the closest downstream traditional navigable water or interstate

water. There may be circumstances in which field staff, for efficiency purposes, elect to begin the case

- by

- case significant nexus analysis utilizing a smaller watershed (i.e., the***E.O. 12866 Review

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December 2010 Page 32 Hydrologic Unit Classification (HUC)

- 10 "watershed" as identified by the U.S. Geological Survey and the Natural Resources Conservation Service). Field staff should

not however utilize an area larger than the watersh ed that drains through a single point of entry to the traditional navigable water or interstate water. When a smaller watershed provides sufficient science

- based justification to establish jurisdicti on, field staff need not unnecessarily expend administrative time and resources an alyzing the entire single point

of entry watershed. However, field staff should use the single point of entry

watershed as the basis for a finding of no jurisdiction.

Finally, field staff should determine whether the wa ter they are evaluating, in combination with other similarly situated wa ters in the watershed, has a significant nexus to the nearest traditional navigable water or interstate water. Justice Kennedy’s opinion pointed to many functions of waters that might demonstrate a significant nexus, such as sediment trapping, nutrient recycling, pollu tant trapping and filt ering, retention or attenuation of flood waters, runoff st orage, and provision of habitat. Furthermore, Justice Kennedy noted that a hydrologic con nection is not necessary to establish a significant nexus, since in some cases the lack of hydrologic connection would be a sign of the

water’s function in relationship to the traditional navigable water or interstate water , such

as retention of flood wate rs or pollutants that would ot herwise flow dow nstream to the traditional navigable water or interstate water.

Thus, field staff should look for indicator s of hydrology, effects on water quality, and physical, chemical, biological and ecological connect ions or functions when assessing whether a water, alone or in co mbination, has a more than speculative or insubstantial effect on the integrity of dow nstream traditional navigable waters or interstate waters. Hydrologic da ta may include volume, duration, and frequency of flow, as well as physical characteristics. Eff ects on the chemical integrity of downstream waters may include the extent to which the wa ters have the capacity to carry pollutants (for example, petroleum wastes , toxic wastes, and sediment) or flood waters downstream to traditional navigable waters or interstate waters; the extent to which the waters reduce the amount of pollutants or flood waters that would otherwise enter traditional navigable waters or interstate waters; and the extent to which the similarly situated waters perform physical functions related to the maintena nce of downstream wa ter quality such as sediment trapping. Ecological functions performed by the waters that may affect downstream traditional navigable waters or inter state waters include the capacity to transfer nutrients and orga nic carbon to downstream food webs (for example, macroinvertebrates present in headwater stream s convert carbon in l eaf litter, making it available to species downstream), and the maintenance of habitat that provides spawning areas for recreationally or commercially important species in downstream waters.

Analysis of such indicators, whether documented for an individual water or based

on scientific literature descri bing functions of the types of waters in question, will allow

field staff to evaluate whether the water al one or combination with similarly situated waters in the watershed is likely to have an effect that is more than speculative or***E.O. 12866 Review

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December 2010 Page 33 insubstantial on the chemical, physical, or biolo gical integrity of a traditional navigable

water or interstate water. It is not appropriate to determ ine significant nexus based solely on any specific threshold of distance (for ex ample, between a tributary and its adjacent wetland or between a tributary and the traditional navigable water). Watershed ecosystems, and their interrelationships, are constructed of component parts that have relevance when considered collectively. Failure to protect the components undermines the ecosystem in its entirety. T herefore, the agencies have an obligation to evaluate waters in terms of how they interrelate and function as ecosystems rather than as individual units, especially in the context of complex eco systems where their integrity may be compromised by environmen tal harms that individually may not be measurably large but collectively are so.

Among the most difficult questions fo r field staff is determining how “significant” a nexus must be and how to document its presence or lack thereof. Justice Kennedy provides guidance about the nature of the nexus when he concludes that waters are not jurisdictional when their effects on the physical, chemical, or biological integrity of downstream traditional navigable waters are speculative or insubstantial. Althoug h the word “significant” has different meanings in different statutes and environmental programs, here it can fairly be interp reted to mean “more than speculative or

insubstantial.” In the context used by Justice Kennedy, a “significant nexus” does not

re quire that the effect on the traditional navigable water be “substantial” or “ measurably large.” 67 Instead, Justice Kennedy’s use of the terms “related to” and “more than speculative and insubstantial” suggest that he meant that “significant,” as used in this context, includes having a predictable or obs ervable chemical, physical, or biological functional relationship.

It is important to clarify that agency field staff, in conducting a significant nexus analysis, are not required to identify or evaluate every similarly situated water located within a particular watershed being assessed. Section 3: Significant Nexus Staff should evaluate as many adjacent wetlands, tributaries or other waters as is necessary to support and document the presence or absence of a significant nexus for the type of water being

assessed. Staff should be confident that their si gnificant nexus determination based on evaluation of a representative subset of adjacen t wetlands, tributaries, or other waters in a

watershed would be fu lly consistent with a determina tion based on an evaluation of all waters of the same type in the watershed.

Legal and Scientific Basis

In Rapanos , Justice Kennedy provides an approach for determining what constitutes a “significant nexus” that can serve serving as a basis for statutory jurisdiction. q “The required nexus must be assessed in terms of the statute’s goals and

q Again, the four justices who signed on to Justice Stevens’ opinion would have upheld jurisdiction under the agencies' existing regulations and so stated that they would uphold jurisdiction under either the plurality or Justice Kennedy's opinion. Justice Kennedy concludes that Riverside Bayview and SWANCC “ establish***E.O. 12866 Review

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December 2010 Page 34 purposes. Congress enacted the law to ‘restor e and maintain the chemical, physical, and biological integrity of the Nation’s waters,’ 33 U.S.C. § 1251(a), and it pursued that objective by restricting dumping and filli ng in ‘navigable waters,’ §§ 1311(a), 1362(12).” 68 1362(12). 69 Justice Kennedy provided further guidance for determining whether wetlands should be considered to po ssess the requisite nexus in the context of assessing whether wetlands are jurisdictional: “if the wetlands, either alone or in combination with similarly situated [wetla nds] in the region, signi ficantly affect the chemical, physical, and biologi cal integrity of other cove red waters more readily

understood as ‘navigable.’” 70 ‘navigable’ .” 71 While Justice Kennedy focused on adjacent wetlands in light of the facts of the cases be fore him, it is reasonable to utilize the same analysis for tributaries and other waters su ch as ponds, lakes and non-adjacent wetlands that are not themselves directly connected to a tributary system but may still have a significant nexus to a traditional navigable water or interstate water.

In determining which waters to consid er “similarly situated” for purposes of analyzing whether they have a significant nexus “in combination” with the water at issue, combination,” it is reasonable to begin with the categories of waters the agencies identified in promulgating their definition of “water of the United States.” For example, tributaries are similarly situated within the landscape because they are part of a stream network that provides provide flow to the downstream traditional navigable water or

interstate water

. and provide similar functions to that water. Adjacent wetlands are similarly situated within the landscape b ecause the agencies’ definition is focused on their proximity to another water of the United States – “adjacent” is defined in regulations as bordering, nei ghboring or contiguous (see Section 5 for further discussion). Similarly, other waters (“(a)(3) waters”) that are in close physical proximity to traditional navigable or interstate waters or their tributaries are similarly situated with respect to those waters in much the same way as adjacent wetlands. Justice Kennedy’s standard allows the agencies to analyze whet her all similarly situated waters in a region together have a significant nexus to the downstream traditional navigable water. With this standard, Justice Kennedy has recognized the scientific reality that even where while

it is may be difficult to demonstrate that a particul ar individual wetland adjacent to a small headwater tributary has a si gnificant nexus to a traditi onal navigable water, the destruction of all such adjacent wetlands in a region could have a significant effect on the traditional navigable water and, thus, in such circumstances the CWA must protect those wetlands in order to protect the traditional na vigable water. The same logic applies to

tributaries and physically proximate similarly situated other waters.

Waters should generally be considered “in the region” if they are within a

watershed that drains to a tr aditional navigable water or in terstate water, defined by the

the framework for ” determining whether an assertion of jurisdiction constitutes a reasonable interpretation of “navigable waters” - “ the connection between a nonnavigable wa ter or wetland and a navigable water may be so close, or potentially so close, th at the Corps may deem the water or wetland a ‘navigable “navigable water’ water” under the Act”; Act; “[a]bsent a significant nexus, jurisdiction under the Act is lacking.” 547 U.S.Id

. at 767. 2241.***E.O. 12866 Review

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December 2010 Page 35 point at which a tributary system first enters a traditional navigable water or interstate

water. Using a watershed as the framework fo r conducting significant nexus evaluations is scientifically supportable. Watersheds are generally regarded as the most appropriate spatial unit for water resource management. 72 Anthropogenic actions and natural It is

more e ffective than focusing on a specific site, su ch as an individua l stream segment, because actions by humans, wildlife, and climactic events can have widespread effects within the watershed that collectively impact the quality of the relevant traditional navigable water or interstate water. 73 For this reason, it is more appropriate to conduct a significant nexus determination at the watershed scale than to focus on a specific site, such as an individual stream segment. The watershed that contributes flow to the that point of entry to a traditional na vigable or interstate water is a logical spatial framework

for the evaluation of the nexus. The Reasonably, the functions of the contributing waters are inextricably linked and have in having a cumulative effect on the integrity of the traditional navigable water or interstate water. The size of that watershed can be determined by identifying tracing the topographic area that drains flowpath from the water being evaluated to the nearest a traditional navigable water or interstate water, and then using that point of entry to define the watershed to conduct a significant nexus

evaluation. 74 , including all the waters that cont ribute to the flow at that point. 75

Justice Kennedy’s opinion provides guida nce pointing to many functions of waters that might demonstrate a significant nexus, such as sediment trapping, nutrient recycling, pollutant trapping and filtering, rete ntion or attenuation of flood waters, runoff storage, and provision of habitat. 76 Furthermore, Justice Kennedy noted that a hydrologic connection is not necessary to establish a significant nexus, because since in some cases the lack of hydrologi c connection would show be a sign of the significance of a

water water’s function in relationship to the aquatic system, covered water

, such as

retention of flood waters or pollutants that would otherw ise flow downstream to the traditional navigable water or interstate water. 77 Finally, If a water has a systemati c physical, chemical, hydrological, biological, or ecological relationship to the integrity of traditional navigable waters or interstate waters, then showing that a water of this type, individually or in aggr egate, performs such a function is sufficient t o demonstrate a significant nexus. As noted above, Justice Kennedy was clear that the requisite significant nexus must here can fairly be interpreted to mean “ more than “ speculative or

insubstantial” 78 in order to be significant. insubstantial,” and the agen cies reasonably interpret significant nexus to mean having a predictable or observable chemical, physical, or biological functional relationship.

Section 4: Tributaries

EPA and the Corps will assert jurisdiction over tributaries under either the plurality standard or the Kennedy standard , as described below

.

For purposes of this guidance, a water is a tributary when it contributes flow to a traditional navigable water or interstate water, either directly or indirectly by means of***E.O. 12866 Review

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December 2010 Page 36 other tributarie s. A tributary can be a natural, man

- altered, or man

- made water body. Examples include rivers and streams, and lake s and certain wetlands th at are part of the tributary system and flow dir ectly or indirectly into trad itional navigable waters or

interstate waters. A trib utary may be physically characterized by the presence of a

channel with defined bed and bank. The bed of a stream is the bottom of the channel. The lateral constraints (channel ma rgins) are the stream banks. One means of identifying the

lat eral constraints is the existence of an ordi nary high water mark (OHWM). Corps regulations define OHWM as “ that line on the shore establis hed by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of so il, destruction of te rrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ” 79 As a general rule, the bed is that p art of the channel below the “normal” water line, and the banks often extend above the water line. Channel characteristics depend on variables such as hydrology, lithology, climate, physiography, and gradient, 80 among others

, and are subject to local interp retation. A tributary continues as far as a chan nel (i.e., bed and bank) is present. A natural or manmade break ( e.g.
, rock outcrop, underground flow, dam, weir, diversion, or similar break) in the presence of a bed and bank or ordinary high water mark does not establish the limit of a tributary in cases where a bed and bank and an ordinary high water mark can be identified upstream and downstream of the break.

Certain types of erosional f eatures, such as gullies and rills, are not tributaries for

pu rposes of this guidance. Gullies are relatively deep channels that are generally formed on valley sides and floors where no well

- defined channel previously existed. They are commonly found in areas with low

- density vegetative cover or with soils that are highly

erodible. Rills 81 are formed by overland water flows eroding the soil surf ace during rain

storms. Erosional features that are not tributaries for the purposes of this guidance can also be found in environments where compacted soil and sparse vegeta tion have

increased overland flow significantly. The two main processes that result in the formation of gullies and similar erosiona l features are downcu tting and headcutting, which are forms of longitudinal (incising) erosion. These actions generally re sult in erosional cuts that are often deeper than they are wide, with very steep banks, often small beds, and typically only carry water during precipitation events . The principle erosional processes that modify streams ar e also downcutting and headcuttin g. In streams however, lateral erosion is also very important. The result is that streams, except on steep slopes or where soils are highl y erodible, are characterized by the presence of more defined bed and banks as compared to typical erosional features that are more deeply

incised. Field staff should consider these factors as they distinguish streams and other tributaries that may be subj ect to Clean Water Act jurisd iction from other types of

erosional features.

Tributaries Covered under the Rapanos Plurality Standard***E.O. 12866 Review

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December 2010 Page 37 EPA and the Corps will assert jurisdiction over “relatively permanent, standing or continuously flowing bodies of water” conne cted to traditional navigable waters. r Under the plurality standard, rela tively permanent waters are jurisdictional without making a significant nexus finding.

Under the plurality standard, a non

- navigable tributary is jurisdictional when it satisfies the following characteristics:

(3) The tributary is connected, directly or indirectly through other tributa ries, to a downstream traditional navigable water, and (4) Flow in the tributary, except for dr ought years, is at least seasonal.

Other tributaries will be evalua ted under the Kennedy standard.

Tributaries Covered under the Rapanos Kennedy Standard

EPA and Corps regulations define “water s of the United St ates” to include tributaries to traditional navigable waters and to interstate waters. 82 EPA and the Corps will assert jurisdiction over all tributaries to traditional navigable waters or interstate

wate rs , provided that the tributary, alone or in combination with other similarly situated

tributaries in the watershed , significantly affects the chem ical, physical, or biological integrity of traditional navigable waters or interstate waters.

Thus, a tribu tary is jurisdictional where:

(3) It is a tributary as defined for purpos es of this guidance to a traditional navigable water or an interstate water; and (4) The tributary, alone or in combina tion with other tributaries in the

watershed , has a significant nexus with th e traditional navi gable water or

interstate water.

When performing a significant nexus analysis for a tributary, the first step is to determine whether that tributary has a bed a nd bank and an ordinary high water mark. I f the tributary possesses those characteristics, th e next step is to determine whether the tributary drains, or is part of a network of tributaries that drain, into a downstream traditional navigable water or interstate water. If it can be demonstrated th at the tributary has a bed and bank, an OHWM and is part of a tributary system to a traditional navigable water or an interstate water, and, therefore, can tr ansport pollutants , sediments, flood

r 547 U.S. at 739. r The agencies will not assert jurisdiction over such waters under the plurality standard
within the Eleventh Circuit, i.e.

, waters in the states of Fl orida, Georgia and Alabama. See United States v.

Robison , 505 F.3d 1208 (11th Cir. ); 2007); reh’g en banc denied , 521 F.3d 1319 (11th Cir. 2007 ), cert.
denied

, sub nom. United States v. McWane, Inc. , 129 S. Ct. 627, 630 (2008). Instead the agencies will use the Kennedy standard only

.***E.O. 12866 Review

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December 2010 Page 38 waters and other materials to a traditional navigable water o r interstate water, generally EPA and the Corps will conclude that the tributary can be demonstrated on a case

- by

case basis to have a significant nexus with the do wnstream traditional navigable water or interstate water. This conclusion is based on the s ignificant harm that pollutants can have on the physical, chemical, or biological integr ity of the downstream traditional navigable

water or interstate water. 83 The presence of a bed and bank and an OHWM are physical

indicators of flow and i t is likely tha t flows through tributaries with the above characteristics are generally sufficient to transport pollutants, sediments, and other materials downstream to the traditional navigable water or interstate water.

Thus, field staff may conclude on a case

- by

- cas e basis that a tributary is jurisdictional when they have determined and documented that the tributary has a bed and

bank and an OHWM

, is part of a tributary system to a traditional navigable water or an

interstate water , and that there is no reasonable ba sis to conclude th at pollutants, if introduced, would not be transported to the downstream traditional navigable water or

interstate water

. Wherever possible, f ield staff should also document , using available or readily obtainable information, the flow charac teristics and functions of the tributary or tributaries, and their hydrol ogic relationship to the near est downstream traditional navigable water or intersta te water. Field staff should also addre ss other functions, as appropriate, provided by the tr ibutary that may affect the physical, chemical, or biological integrity of downstream traditiona l navigable waters or in terstate waters. In addition, a tributary is a juri sdictional water when, either alone or in combination with other tributaries in the same watershed, it has a significant nexus with the nearest downstream traditional navigable or interstate water. Therefore, to further support a significant nexus determinat ion for a tributary, field staff should determine whether the tributary

, in combination with other tributaries in the watershed

, has a significant nexus with a downstream traditional navigable water or interstate water

.

When considering whether the tr ibutary at hand eventually flow s to an interstate water or traditional navigable water, field st aff should trace the tributary connection using

resources such as direct obs ervation or U.S. Geological Su rvey maps, aerial photography

or other reliable remote se nsing information, soil surv ey data or other appropriate

information.

When field staff provide a dditional information on the flow characteristics and functions of the tributary or tributaries, and their hydrologic relati onship to the nearest downstream traditional navigable water o r interstate water, such information may include topographic maps, gage data, historic records of wate r flow, statistical data, personal observations/records, etc., as well as other information th at characterizes the hydrologic and ecological relationships between the tributaries and the nearest downstream traditional navigable water or interstate water. Consideration may also be given to

certain relevant contextual factors that di rectly influence the hydrology of tributaries

, including the size of the wat ershed, average annual rainfall, and average annual winter***E.O. 12866 Review

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December 2010 Page 39 snow pack. The significant nexus evaluation should also discuss the potential for the tributaries to transport pollutants to a trad itional navigable water or interstate water.

Examples of other f unctions provided by tributaries th at may affect the physical, chemical, or biological integrity of downstream traditional navi gable waters or interstate waters include: distributing sediment 84 to maintain stream and riparian habitat; nutrient cycling and r emoval; providing habitat for amphibians, fish, and other aquatic or semi

aquatic species living in and near the st ream that may use the downstream waters, including traditional navigable waters, for other portions of their life stages (e.g., spawning areas for recreationally or commercia lly important species); improving or maintaining biological integrity in downstr eam waters; and transferring nutrients and organic carbon vital to suppor t downstream food webs (e.g., macroinvertebrates present

in headwa ter streams convert carbon in leaf litter making it available to species downstream). 85 Disruptions in these biological processes affect the functional capacity of the entire downstream system. 86 The network of tributaries al so regulates the flow of

water i nto downstream traditional navigable wate rs and interstate waters, moderate low flow and high flow extremes, reduce downs tream flooding, and prevent excess erosion caused by flooding. 87 Field staff may document any of these functions to bolster the

conclus ion that a tributary is jurisdictional.

To further support a significant nexus determination , field staff should , using their best professional judgment, knowledge of the area, and relevant maps, assess the

contribution of all tributaries in the wate rshed in evaluating the significance of the chemical, physical, or biological nexus w ith the nearest traditional navigable water or interstate water. When identifying other tributaries in the watershe d to be considered in combination for a significant nexus analysis, fi eld staff may use resources such as direct observation or U.S. Geological Survey maps, aerial photography, or ot her reliable remote sensing information. Field staff are not required to identify or evaluate every tributary located within a particular watershed being assessed. Using available maps and other appropriate information, staff should include in the evaluati on as many tributaries as is necessary to support and document the prese nce or absence of a significant nexus.

Swales or erosional features (e.g., gulli es, small washes characterized by low volume, infrequent, or short duration flow) ar e generally not waters of the United States because they are not tr ibutaries or they do n ot have a significant nexus to downstream traditional navigable waters or interstate waters . In addition, ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry relatively permanent flow of water are generally not waters of the Un ited States because they are not tributaries or they do not have a significant nexus to downstream traditional navigable

waters or interstate waters. s Even when not jurisdictional waters subject to § 404, these

s Consistent with longstanding guidance, "the Corps reserves the right on a case

- by

- case basis to determine that a particular waterbody within these categories of waters is a water of the United States. EPA also has the right to determine on a case

- by

- case basis if any of these waters are 'waters of the United States.'" Final

R ule for Regulatory Programs of the Corps of Engineers, 51 FR 41206, 41217 (Nov. 13, 1986); see also***E.O. 12866 Review

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December 2010 Page 40 geographic fea tures (e.g., swales, ditches) may stil l contribute to a surface hydrologic connection between an adjacent wetland and a traditional navigable water or interstate waters. In addition, these geographic features may func tion as point sources (i.e.,

"discerni ble, confined, and discrete conveyances"), such that discharges of pollutants to other waters through these features could be subject to other CWA regulations (e.g., CWA §§ 311 and 402).

To clarify, o nly certain types of non

- tidal ditches will be conside red tributaries for the purposes of this guidance (tidal ditches are, by definition, waters of the U.S.)

. For a

non

- tidal ditch to be considered a tributary, it must first have a bed and bank, an ordinary high water mark, and connect directly or indirectl y (through other tributaries or conveyances) to a traditional navigable water or interstate water. If these requirement s

are satisfied, d itches are considered tributaries for th e purposes of this guidance if they

are:

• natural streams that have been altered (e.g.

, channelized, straightened or relocated ) ;

• ditches or portions of ditches that have been excavated in waters of the U

. S

. , including wetlands;

• ditches that have relatively permane nt flowing or standing water; or

• ditches that c onnect two or more jurisdictional waters of the U.S.

If a ditch is considered a tributary, it w ill be evaluated in the same manner as other tributaries ( i.e.

, plurality standard or Kennedy standard , as appropriate).

Exempt activities defined at 33 CFR 323.4 are not affected by this guidance.

Erosional features such as gul lies and rills are not part of the tributary system, are not jurisdictional waters, and shall not be a ssessed as part of the significant nexus

determination. Natural and man

- made s wal es are also not tributarie s for purposes of this guidance.

In certain cases, ditches or swales include areas that meet the regulatory definition

of “wetlands .” Wetland ditches will be evaluated as wetlands under the plurality or Kennedy standard, not at as tributary (unless the ditch itself is considered a tributary for one of the reasons stated above).

Field staff should assess the contri bution of all tri butaries in the watershed in evaluating the significance of the chem ical, physical, or biological nexus with the nearest

Clean Water Act Section 404 Program Definitions and Permit Exemptions; Section 404 State Program Regulations, Final Rule, 53 FR 20764, 20765 (June 6, 1988). Any such case

- by

- case determinations would

be made consistent with the standards in Rapanos . EPA expects that such case

- by

- case determinations would generally be limited to circumstances in which a person discharges a pollutant into this category of

wat ers that could adversely imp act downstream water quality.***E.O. 12866 Review

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December 2010 Page 41 traditional navigable water or interstate water. Generally EPA and the Corps will conclude that the tributary can be demonstrated on a case

- by

- case basis to hav e a significant nexus with the downstream traditi onal navigable water or interstate water based on the significant harm that pollutant s can have on the physical, chemical, or biological integrity of the downstream traditional navigable water or interstate water. In addition, in light of the flow contributed by all th e tributaries in a watershed and the

scientific consensus on the func tions provided by tributaries, the agencies expect that tributaries will generally be found to have a significant nexus on a watershed basis. The agencies expect that the substantial volume of flow contributed by the combination of

tributaries in the watershed will be suffici ent to demonstrate that the tributaries significantly affect the physical , chemical and biological inte grity of the downstream traditional navigable water or interstate water. Tributaries help to maintain base flow in the larger rivers downstream, which is pa rticularly important in times of drought. At the same time, a network of tributaries can regulate the flow of water into downstream waters, moderate low flow and high flow extremes, reduce local and downstream flooding, and prevent excess erosion caused by flooding. 88

As when assessing a tributary on its own, fi eld staff may also, if necessary, assess the other functions provided by the tributaries as a whole in a watershed. The agencies expect that in light of the substantial functions provided by the tributaries in combination in a watershed, such tributaries wi ll generally be found jurisdictional.

Legal and Scientific Basis

Tributaries Covered Under the Rapanos Plurality Standard

As noted above, jurisdictional Jurisdictional determinations based on the plurality standard would have the support of the four justices joining the plurality opinion as well as the four dissenting justices. The As noted above, the plurality concluded that the agencies’ regulatory authority should extend only to “relatively permanent, standing or continuously flowing bodies of water” 89 connected to traditional navigable waters, and to

“wetlands with a continuous surface connecti on to” such relatively permanent waters. 90
“Relatively permanent waters” were described as waters that typically flow year-round except in times of drought, or waters that have a continuous flow at least seasonally. The plurality opinion emphasized that relatively permanent waters do not include tributaries

“whose flow is ‘[c]oming ‘ coming and going at intervals . . . [b]roken, ... broken,

fitful.’” 91 Therefore, “relatively permanent wate rs” do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not have continuous flow at least seasonally. t

t Note that under the Kennedy standard, such waters may be jurisdictional where they have a significant

nexus.***E.O. 12866 Review

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December 2010 Page 42 Moreover, waters that have had at least seasonal flow on a historic basis remain jurisdictional despite th e fact that man-made diversions for irrigation, water supply or for other reasons have caused a tributary, or por tion thereof, to flow less than seasonally. u

A central issue to the plurality standard is what c onstitutes “seasonal flow.” In this context, a water is “seasonal” when it has predictable flow during wet seasons in

most years. The time period constituting “seasonal ” will vary across the country. Rather than having distinct, rigid boundaries, stream reaches classified as perennial, intermittent, and ephemeral may more accurately be described as dynamic zones within stream

networks. The length or extent of these z ones may be highly variable and i s dictated by multiple factors such as annual precipitat ion, evapotranspiration, and land

- use practices

. 92

Thus, determination of whether a water meet s the plurality standard for relatively permanent should involve determination of the length and timing of seasonal flows in the ecoregion in question.

Field staff have flexibility to determ ine what seasonal flow means in each particular case. 93 Seasonal flow runoff can be the result of snow melt, seasonal patterns in precipitation, and seasonal fluc tuations in ground water levels . In the arid west, stream discharges are driven by three large-scale weather patterns. 94 Precipitation produced by these weather patterns varies greatly for any given locality, but generally, precipitation

shifts from winter in the north to summer in the south. The varia tion of precipitation in time, coupled with the highly variable topograp hy of the arid west, results in spatially variable precipitation patterns. 95 For example, seasonal flow in most of New Mexico and large portions of Arizona and Colo rado would be during the period of ju st two months, July and August, when they normally rece ive between 30-50 percent of their annual precipitation as rain. 96 In some areas, snow melt drives stream flow, and seasonal flow is typically in the spring. 97 Seasonal patterns of flow may be less pronounced in the semiarid Midwest, perhaps because of less seas onal precipitation patterns and relatively more vegetative cover. 98 In the east precipitation is more uniform but increased evapotranspiration during the growing season can reduce ground water levels and surface flows to create seasonal and ephemeral flows. 99

Tributaries Covered Under the Rapanos Kennedy Standard

Justice Kennedy rejected the plurality’s appr oach that only “relatively permanent”

tributaries are within the sc ope of CWA jurisdiction. Inst ead, Justice Kennedy concluded that “Congress could draw a line to exclude irregular waterways, but nothing in the statute suggests it has done so”; so; ” in fact, he states that Congress has done “[q]uite “ quite the opposite.” 100 Further, Justice Kennedy concludes, based on “a full reading of the dictionary definition” of “water,” that “the Corps can reasonably interpret

u See S. D. Warren Co. v. Maine Bd. Board of Envtl. Prot.

, Environmental Protection

, 547 U.S. 370 , 379

n.5 (2006)("[N]or (2006)("nor can we agree that one can denationali ze national waters by exerting private control over them.").***E.O. 12866 Review

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December 2010 Page 43 the Act to cover the paths of such impermanent streams.” v Even in Justice Kennedy’s rejection of Justice Stevens' Steven ’ s opinion it is clear that he was specifically rejecting only rejects the broad scope of jurisdicti on over wetlands without further analysis, and not specifically addressing not jurisdiction over tributaries : “[T]he regardless of their size or characteristics: “ the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drai n, however remote and insubstantial, that eventually may flow into trad itional navigable waters. The deference owed to the Corps’ interpretation of the stat ute does not extend so far.” 101

Elsewhere, Justice Kennedy suggests that it may be appropriate to assert jurisdiction over all tributaries with an ordinary high-water mark. Justice Kennedy described the Corps’ standard for as serting jurisdiction over tributaries: “[T]he “ the Corps deems a water a tributary if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark

. . . .” 102 Justice Kennedy concluded that this standard “presumably provides a rough measure of the volume and regularity of

flow.” 103 In addition, if it is applied reasonably consistently, the Corps’ existing standard for tributaries “may well provide a reasona ble measure of whether specific minor

tributaries bear a sufficient nexus with other regulated waters to constitute ‘navigable

waters’ under the Act.” 104 Thus, Justice Kennedy’s opinion may reasonably be read as allowing the agencies to determine that a case -specific significant nexus determination is not necessary for tributaries possessing an ordinary high water mark, though it also

indicates that he considers the presence of a significant ne xus to be the appropriate

test. not overturning the existing agency regulations for tributaries.

The However, the agencies have decided that, given Justice Kennedy’s indication that significant nexus is still th e guiding standard, it is appropriate to address per se jurisdiction over tribut aries through the rulema king process and for purposes of this guidance to assert jurisdiction over tributaries utilizing the same standard Justice Kennedy articulated for adjacent wetlands. In establishing the significant nexus standard, Justice Kennedy recognized that upstream adjacent wetlands ca n have significant effects on the physical, chemical a nd biological integrity of downstream waters covered waters under the CWA. As a scientific matter, trib utaries can, of course, have similar effects

and it is reasonable to utilize the same standard for determining whether tributaries have a significant nexus to downstream covered waters. Through rule making, the agencies will

further consider whether the ex istence of an ordinary high-water mark alone is sufficient

v 547 U. 126 S. Ct

. at 770. 224 3 (emphasis added). First, Justice Kennedy note s that the term “waters” can

mean “‘flood “flood or inundation,’” inundation,” according to the Webster’s Second definition, and that these events are “impermanent by definition.” Id. Second, even looking to the plurality’s preferred dictionary definition of “waters,” i.e., “‘water “water “[a]s as found in streams and bodies forming geographical features such as oceans, rivers, [ and ] lakes,” ’” Justice Kennedy notes that “intermittent flow

can constitute a stream.” Id

. (alteration in original). And finally, Justice Kennedy notes that the plurality’s reference to the statement by the Riverside Bayview Court comparing “ wetlands to ‘rivers, “rivers, streams, and other hydrographic features more conventionally identifiable as “waters”’ . . . . ‘waters’ ... could just as

well refer to intermittent streams.” Id

. at 771 (citations omitted).***E.O. 12866 Review

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December 2010 Page 44 to establish a significant nexus to downstream traditional na vigable or interstate waters, without requiring a site-sp ecific analysis, as Justice Kennedy invites in his opinion.

As noted in Section 3, it is reasonable to c onsider all tributaries in a watershed to be “similarly situated” for purposes of a significant nexus analysis because they

contribute flow to the downstream traditiona l navigable water or interstate water and provide similar functions to those downstream waters. Further, Section 3 demonstrated

that it is reasonable to consider the region for significant nexu s analysis to be a watershed defined by the area draining into the nearest point at which a tributary syste m first enters a traditional navigable water or interstate water through a single point of entry.

.

The agencies’ identification of the presence of an ordinary high water mark as one of the factors for considering a water to be a tributary for purposes of this guidance is consistent with Justice Kennedy’s observation that an ordinary high water mark may be a reasonable measure of whether a tributary pos sesses a significant nexus with a traditional navigable water or interstate water. This observation, in turn, is supported by both the agencies’ scientific judgment in the past and the scientific literature of the present. As the Corps stated in promulgating the definiti on of “waters of the U.S.” in 1977 to include tributaries, “[t]he regulation of activities th at cause water pollution cannot rely on . . . artificial lines, however , but must focus on all waters that together form the entire aquatic ecosystem. Water moves in hydrologic cycles, and the pollution of

. . . ... part of the aquatic ecosystem

. . . ... will affect the water quality of the other waters within that aquatic ecosystem.” 105 For In fact, t he agencies made the assessment of the nexus

between tributaries and tradi tional navigable waters envi sioned by Justice Kennedy: for more than 30 years, EPA and the Corps have interpreted the CWA to protect “the many tributary streams that feed into the tidal and commercially navigable waters

. . . ... since the destruction and/or degradation of the phys ical, chemical, and biological integrity of each of these waters is threatened by th e unregulated discharge of dredged or fill

material.” 106 As Congress and the Supreme Court have recognized, “‘[w]ater “[w]ater moves in hydrologic cycles and it is essential th at discharge of polluta nts be controlled at

the source.’” 107 source.” 108

A large volume of scientific literature documents the important functions that

tributaries , including headwater streams, provide to downstream waters. w Headwater streams, which may include perennial,

, intermittent, and ephemeral streams

, are the most

common stream s types in the United States. Collectively, they determine the chemical, physical, and biological integr ity of downstream waters, a nd provide many of the same

functions as non-headwater and perennial streams. 109 Headwater , intermittent, and ephemeral streams and their associated riparian areas reduce the amount of sediment delivered to downstream waters by trapping stabilizing stream banks to reduce bank

w For purposes of applying the current body of scien tific literature to the questions created by the Rapanos Supreme Court decision, traditional navigable waters can be considered analogous to downstream waters. This is because the vast majority of traditiona l navigable waters are downstream of headwater , intermittent, and ephemeral streams.***E.O. 12866 Review

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December 2010 Page 45 erosion and filtering sediment from water and runoff. 110 Headwater The smallest streams are responsible for most nutrient cycling and removal, and thus transforming and changing the amount of nutrients de livered to downstream waters. 111 A close connection exists between the water quality of these streams and the water quality of downstream

water bodies. 112 Activities such as discharging a poll utant into one part of the tributary system are well-documented to affect other pa rts of the system, even when the point of discharge is far upstream from the navigable water that experiences the effect of the discharge. 113 These streams provide habitat and protection for amphibians, fish, and other aquatic or semi-aquatic species living in and near the stream that may use the downstream waters, including trad itional navigable waters, for other portions of their life

stages. 114 They also serve as migratory corridors for fish. Tributaries These areas can improve or maintain biological integrity and control water temperatures in the

downstream waters. Headwater streams serve as a source of food materials such as insects, larvae, and organic matter to nourish the fish, mammals, amphibians, and other organisms in downstream streams, rivers, and lakes. 115 Disruptions in these biological processes affect the ecological functi ons of the entire downstream system. 116 Headwater

, intermittent, and ephemeral streams help to maintain base flow in the larger rivers downstream, which is particularly important in times of drought. At the same time, the

network of headwater these small streams can regulate the flow of water into downstream waters, mitigating low flow and high flow extremes, reducing local and downstream flooding, and preventing excess erosion caused by flooding. 117

Section 5: Adjacent Wetlands

The agencies will asse rt Clean Water Act jurisdiction over adjacent wetlands that meet either the plurality standa rd or the Kennedy standard under Rapanos

.

Wetlands Covered Under the Rapanos Plurality Standard

EPA and the Corps will assert jurisdiction over “wetlands with a c ontinuous surface connection to” “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters. 118

The plurality opinion in Rapanos created a standard for finding jurisdiction under

the CWA for wetland s, which is related to the presen ce of a physical connection between the wetland and the relatively perman ent tributary to which it is adjacent. Under the plurality standard, wetlands with a continuous surface connec tion to relatively permanent

waters are jurisdictional without the legal obligati on to make a significant nexus finding.

Under the plurality standard, an adjacent we tland is jurisdictional when it satisfies the following characteristics:

(1) (2) The wetland is adjacent to a relatively permanent, non

- navigable tributary,

that is connected to a downstream traditional navigable water, and***E.O. 12866 Review

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December 2010 Page 46 (2) A continuous sur face connection exists between the wetland and a relatively permanent tributary where the wetland directly abuts the tributary (e.g., they are not s eparated by uplands, a berm, dike, or similar feature)

. A “continuous surface connection” refers to a physical

connection between the wetland and the jurisdictional wate r, but does not require the presence of water between the wetland and the jurisdiction al

water.

Wetlands Covered Under the Rapanos Kennedy Standard

The agencies will assert Clean Water Act jurisdiction over wetlands x adjacent to

another water of the U.S. where such wetlands have a significant nexus with downstream traditional navigable or interstate waters. y Adjacent wetlands will be considered to have a significant nexus if they, alone or in combination with similar ly situated wetlands, have an effect on the chemical, physical, or biologic al integrity of tradit ional navigable waters or interstate waters that is more than “speculative or insubstantial.” As a general matter, “similarly situated” adjacent wetlands incl ude al l adjacent wetlands located in the region

. Wetlands adjacent to traditional navigable waters or interstate waters are per se jurisdictional and do not require a showing of significant nexus.

Thus, an adjacent wetland is jurisdictional where such we tland meets the definition of “adjacent” as that term is define d in the agencies’ regu lations and is either:

(1) Adjacent to a traditional navigable water or interstate water; or ( 2 ) Adjacent to a tributary, lake, reservoir, or other jurisdictional water (except another wetland) and either alone or in combinati on with other adjacent wetlands in the watershed has a significant nexus to the nearest downstream traditional navigable or in terstate water.

The regulations define “ adjacent ” as follows: “ [t]he term adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man

- made dikes or barriers, natural river berms, beach dunes and the

like are ‘ adjacent wetlands

. ’” 119 Under this definition, a wetland does not need to meet all criteria to be considered adjacent. T he agencies consider wetlands to be bordering, contiguous, or neighboring, and therefore “ adjacent ” if at least one of fol lowi ng three

criteria is satisfied:

x Under normal circumstances, a w etland will meet all three parame ters of hydrology, hydrophytic vegetation, and hydric soils, a s required by agency regulations, and described in the Corps of Engineers

Wetlands Delineation Manual (1987) or appropriate Regional Supplement. The regulatory definition of waters of the U.S. includes “wetlands adj acent to waters (other than waters that a re themselves wetlands) identified [as jurisdictional].” 33 CFR § 328.3(a)(7); 40 CFR § 230.3(s)(7).

y The plurality standard in Rapanos may provide an alternative basis for asserting jurisdiction, see Section

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December 2010 Page 47 (2) T here is an unbroken surface or shallow sub

- surface hydrologic connection

between the wetland and jurisdictional waters ; or (3) The wetlands are physically separated from jurisdictional waters by “ man

made dikes or barriers, natural river berms, beach dunes, and the like ;” or (4) Where a wetland’s physical proximity to a jurisdictional water is reasonably close, that wetland is “neighboring” and thus adjacent. For example, wetlands located within the riparian area or flo odplain of a jurisd ictional water will generally be considered neighboring, and thus adjacent. One test for whether a wetland is sufficiently proximate to be considered “neighboring” is whether there is a demonstrable ecologi cal interconnection between the wetland and the jurisdicti onal waterbody. For example, if resident aquatic species (e.g., amphibians, reptiles, fish, mammals, or waterfowl) rely on both the wetland and the jurisdictional waterbody for all or part of their life cycles (e.g., nesting, rea ring, feeding, etc.), that may demonstrate that the wetland is neighboring and thus adjacent. The agen cies recognize that as the distance between the wetland and jurisdictional water increases, the potential ecological interconnection between the waters i s likely to decrease.

A n unbroken surface or shallow sub

- surface hydrologic connection to jurisdictional waters may be established by a physical featur e or discrete conveyance that

supports periodic flow between the wetland and a jurisdictional water. Water does not have to be continuously pres ent in this hydrologic connect ion and the flow between the wetland and the jurisdictional water may m ove in either or both directions. The hydrologic connection need not itself be a water of the U.S. A shallow s ubsurface hydrologic connection is lateral water flow through a shallow subsurface layer, such as may be found in steeply sloping forested areas with shallow soils, soils with a restrictive horizon, or in karst systems. 120 Shallow subsurface connections may be found below the ordinary root zone (below 12 inches), wh ere other wetland delineation parameters may not be present. A combination of physical factors may reflect the presence of a shallow subsurface connection, including close proximity, position in t he landscape (for example, on a slope directing flow from wetland to ju risdictional waters), stream hydrograph, and soil surveys (for example, exhibiting indi cators of high transmissivity over an impermeable layer). 121 Indicators such as these may support an inference of a shallow subsurface connection without requiring a case

- specific field verification.

If uplands separating a wetland from ju risdictional water can reasonably be

characterized as “ man

- made dikes or barriers, natural river berms, beach dune s, and the

like ,” then, under the agencies’ regulations, the wetlands are adjacent even if no apparent hydrologic connection exists. It is important to note that natural river berms are formed by sediment deposits accumulating at or near the stream bank d uring flood events. Such berms vary in height from inches to feet, and also can be quite wide. 122 Similarly, multiple beach dunes may exist between a wetland and jurisdictional water (including***E.O. 12866 Review

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December 2010 Page 48 primary and secondary dunes), since beach dunes typically cons ist and function as an interdunal system (particula rly on barrier islands).

The link between physical proximity a nd an ecological connection is well documented in the scientific literature. A wetland within the riparian area 123 or floodplain 124 typically has suc h an ecological interconnection. For example, adjacent wetlands typically help to store floodwate rs, pollutants, and sediments that could otherwise reach a jurisdictional water. 125 Adjacent wetlands often provide important

sources of stored water tha t augment stream flow during low

- flow periods. 126 S pecies, such as amphibians

, certain reptiles (e.g., watersnakes), waterfowl, invertebrates, and fish (including anadromous and catadromous fish ) , move between an adjacent wetland and a jurisdictional water for spawning , nesting, feeding, refuge, and other life stage requirements. 127 Species that move between an adjacent wetland and a jurisdictional water are distinguishable from migratory sp ecies, which use the we tland during a journey

to a different area 128 and are not to be used as a scientific basis for demonstrating an ecological interconnection for adjacency. The agencies recognize that as the distance between the wetland and jurisdictional wate r increases, the potential ecological

interconnection between t he waters is likely to decrease. As a result, field staff should generally increase the record support and technical basis for demonstrating that an ecological interconnection is present as the distance between waters increases.

Under Justice Kennedy’ s standard, the following lega l test for Clean Water Act jurisdiction applies: If a wetland is adjacen t to a traditional navigable water or a non

wetland interstate water, a finding of adj acency is sufficient in and of itself to

demonstrate that wetland is subject to Clean Water Act jurisdiction. On the other hand, a finding that a particular wetland is adjacent to a jurisdictional waterbody other than a traditional navigable water or non

- wetland interstate water is not sufficient in and of itself

to establ ish Clean Water Act jurisdiction over that wetland. For the latter category of adjacent wetlands, in order to establish Clean Water Act jurisdiction, field staff , on a

case

- by

- case basis, must determine whether the particular adjacent wetland, alone or in combination with similarly situated wetlands in that watershed, has a significant nexus with traditional navigable waters or non

- wetland interstate waters (see discussion below). A determination of adjacency is based on an evaluation of the relationship b etween a wetland and the nearest jurisdictional water, which may include considerations of an ecological connection between those waterbod ies. In contrast, a determination of significant nexus is a different inquiry, which is based on evaluating whether th ere is a significant nexus between that adjacent wetland (in combination with similarly situated adjacent wetlands in the watershed) with a traditional navigable water or a non

- wetland

interstate water.

All wetlands within a wetla nd mosaic should generall y be considered collectively when determining adjacency or jurisdiction. Wetlands present in such systems act generally as a single ecological unit. A wetland mosaic refers to a landscape where

wetland and non

- wetland components are too numerous and close ly associated to be***E.O. 12866 Review

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December 2010 Page 49 appropriately delineated or mapped separa tely. These areas often have complex microtopogr a phy, with repeated small changes in elevation occurring over short

distances. Tops of ridges and hummocks are often non

- wetland but are interspe rsed with wetlands having hydrophytic vegetati on, hydric soils, and wetland hydrology. Section 5: Adjacent Wetlands Examples of wetland mosaics include ridge

- and

- swale topography in large floodplains, coastal flatwoods and savannas containing numerous sha llow depressions, and coastal dune and swale systems. 129

As discussed in Section 3, an adjacent wetland is a jurisdictional water when,

either alone or in combination with ot her similarly situated waters in the region , such wetland has a significant nexus with the nearest downstream traditional navigable or interstate water. In addition, as discu ssed in Section 3, the agencies consider all wetlands

within the relevant watershed area that meet the regulatory definition of adjacency to be “similarly situated.” Adjacent wetlands will be considered to be “in the region” if they

fall within the same watershed. As discussed in Section 3, for the purposes of this analysis, the watershed is de fined by the area draining into the nearest traditional navigable water or inters tate water. However, there may be circumstances in which field staff may utilize a smaller area for a significant nexus analysis. When identifying other adjacent wetlands in the watershed to be considered in combination for a significant nexus analysis, field staff may use resources such as direct ob servation or U.S. Geological Survey maps, aerial photogra phy, or other reliable remote sensing

information. Field staff are not required to identify or evaluat e every adjacent wetland located within a particular watershed being assessed. Using available maps and other appropriate information, staff should include in the evaluation as many adjacent wetlands as is necessary to support and document the presence or absence of a significant nexus.

To determine whether adjacent wetlands in the watershed have the requisite significant nexus, field staff should first evaluate the tributaries as described in Section 4. Field staff will then evaluate whether the adja cent wetlands, in combination with similarly situated wetlands in the watershed , have the requisite si gnificant nexus, taking into consideration the integral role of the tributary system in li nking the wetlands to the

downstream traditional navigable water or interstate water. When evaluating adjacent wetlands, field staff should consider the many functions of waters such as sediment trapping, nutrient recycl ing, pollutant trapping and filtering

, retention or attenuation of

flood waters , runoff storage

, an d provision of habitat

. When documenting the significant nexus of adjacent wetlands, field staff s hould consider the physical, hydrological and ecological relationship s between the tributaries and their adjacent wetlands and their closely linked role in p rotecting the chemical, physical or biological integrity of the nearest downstream traditional navigable water or interstate water. Adjacent wetlands and their tributaries function as an integr ated hydrologic system, and as a unit they affect

the amount o f pollutants and floodwaters that reac h the downstream traditional navigable

waters or interstate waters. Furthermore, a hydrologic conne ction is not necessary to establish a significant nexus, si nce in some cases the lack of hydrologic connection would

be a sign of the water’s functi on in relationship to the traditional navigable water or***E.O. 12866 Review

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December 2010 Page 50 interstate water , such as retention of flood waters or pollutants that w ould otherwise flow

downstream to the traditional navi gable water or interstate water

.

Legal and Scientific Basis

Adjacent Wetlands Covered under the Rapanos Plurality Standard

Under the plurality standard, wetlands th at have a continuous surface connection with a relatively permanent, non-navigable tr ibutary are jurisdictional without the need for a significant nexus finding. The plurality opinion indicates that “continuous surface connection” is a “physical connection requirement.” 130 A continuous surface connection does not, however, require surface water to be continuously present between the wetland and the tributary.

Adjacent Wetlands Covered under the Rapanos Kennedy Standard

Because the question in Rapanos was whether particular adjacent wetlands were “waters of the U.S.,” Justice Kennedy’s opini on focused on the standard for determining

whether wetlands have the requisite nexus:

With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other waters—functions such as pollutant trapping, flood control, and runoff storage. 33 CFR § 320.4(b)(2). Accordingly, wetlands possess the requisi te nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated la nds in the region, si gnificantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable .” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.” 131

With respect to wetlands adjacent to trad itional navigable wa ters, Justice Kennedy concluded that the agencies’ regulation “res ts upon a reasonable inference of ecologic interconnection, and the asserti on of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone.” 132 The agencies will apply Justice Kennedy’s reasoning to conclude wetlands adjacent to non-wetland interstate waters are similarly jurisdictional without th e need of demonstrating a significant nexus.

For wetlands adjacent to tributaries that have a significant nexus to a traditional navigable water or interstate water, other covered waters, however, absent more specific regulations, the agencies must establish that the wetland alone or in combination with other adjacent wetland s in the watershed has a significant nexus to a traditional navigable***E.O. 12866 Review

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December 2010 Page 51 water or interstate water. Justice Kennedy provided some guidance as to the analysis necessary to conclude that a water has a sufficient nexus. Justice Kennedy’s concern was that neither the Corps nor the reviewing c ourts applied the proper legal standard. z Although evidence Ev idence was presented in one of the consolidated cases that the wetlands were providing habitat, sediment trapping, nutrient recycling, flood peak diminution and reduction, and flow water augmentation, the Corps did not marshall this

evidence to conclude that the wetlands had a significant nexus to downstream traditional navigable waters. 133 augmentation

. 134 The administrative record in one of the other

case consolidated cases noted the wetland’s connection to wildlife habitat and water quality and “ also noted that the project would have a major, long-term detrimental effect on wetlands, flood retention, recreati on and conservation and overall ecology.” 135

ecol ogy. 136 Justice Kennedy did not indicate that this eviden ce was irrelevant, in fact, he

concluded that “[m]uch m uch the same evidence ” previously analyzed by the Corps could

establish should permit the establishment of a significant nexus with traditional navigable waters, particularly with additional if supplemented by further evidence about the

connection between the wetlands and the navigable water. 137

A hydrologic connection is neither determ inative of nor required to show a significant nexus. Justice Kennedy noted that a “ mere hydrologic connection

should w ould not suffice in all cases; the connecti on may be too insubstantial for the hydrologic linkage to establish the required nexu s with navigable wate rs as traditionally

understood.” 138 understood. 139 On the other hand, Justice Kennedy was also clear that a hydrologic connection between a wetland and a tr ibutary is not required to establish a significant nexus: “Given the role wetlands pl ay in pollutant filtering, flood control, and runoff storage, it may well be the absence of hydrologic connecti on (in the sense of interchange of waters) that shows the we tlands’ significance for the aquatic system.” 140

Section 6: Other Waters

The “other waters” or “(a)(3) wate rs” provision of EPA’s and the Corps regulations includes:

“ All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands , sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, de gradation or destruction of which could affect interstate or foreign commerce ... ”

z z Id. at 2251. Justice Kennedy thought that in both the consol idated cases before the Supreme Court, “the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above. Thus the end result in these cases and many others to be considered by the Corps may be the same as that suggested by the dissent, namely, th at the Corps' assertion of jurisdiction is valid.” 547

U.S.Id

. at 783. 2250.***E.O. 12866 Review

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December 2010 Page 52 The agencies recognize that Supreme Court decisions in SWANCC and Rapanos

have identified limitations on the Section 6: Other Waters geographic scope of (a)(3) waters that may be determined to be jurisdic tional. The agencies intend to address, in greater det ail in future notice

- and

- comment rulemaking, the full extent that Clean Water Act jurisdiction may reach over (a)(3) waters. In the meantime, the agencies will make

case

- by

- case, fact

- specific determinations of jurisdic tion under (a)(3) of whether waters or particular types of other waters, alone or in combination with similarly situated other waters in the region, significan tly affect the chemical, physica l, or biological integrity of traditional navigable waters or interstate waters.

The agencies bel ieve that the fewer of a particular water type in a watershed, the less likely there is to be a fact specific basis for concluding that those waters in combination have a significant nexus to a downstream traditional navigable water or

interstate water. B y contrast, the agencies believe that non

- wetland waters that are adjacent to jurisdictional tributaries or to trad itional navigable waters or interstate waters will usually be determined on a case

- by

- case basis to have a significant nexus to the

tradition al navigable water or interstate water (f or example, an oxbow lake which, because of its close proximity to a jurisdicti onal tributary, contributes significantly to the chemical, physical, or biological integrity of a traditional navigable water, or prairi e potholes that, together in the same wate rshed, significantly reduce flooding of an interstate water). While as a scientific matter a geographically isolated other water may have a significant nexus to a traditional navigable water or interstate water, a s a practical matter in the field, it may be difficult to de monstrate that water has a significant nexus, individually or in combination with similarly situated other waters.

Examples of the nature of effects th at support a significant nexus finding are t he

same as those considerations identified under Section 3 above. In conducting the significant nexus analysis, fiel d staff should specifically co nsider the distance between the other water and the nearest traditional navigable water or interstate water, and the impact of proximity on potential chemical, physi cal, or biological eff ects. Consideration of use by migratory species is not releva nt to the significant nexus determination.

Legal and Scientific Basis

Other waters are those The starting point for which any assertion of jurisdiction was previously asserted under sectio n (a)(3) of remains the Corps’ EPA and Corps regulations , which defining the term “waters of the United States.” As noted above, those regulations provide for CWA jurisdiction over “[a]ll “all other waters

. . . ... the use, degradation, or destruction of which could affect interstate or foreign commerce. . . .” These include isolated, non-na vigable intrastate waters. commerce...” 141 This provision of the regulations was the focus of the SWANCC decision. In that case, the Court was considering the validity of the Corps’ asse rtion of jurisdiction over ponds and mudflats under (a)(3)

. of the Corps’ regulations. In rejecting the asserti on of jurisdiction in that case, the Court held that “[i]t it “ was the significant nexus between the wetlands and***E.O. 12866 Review

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December 2010 Page 53 ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview

Homes .” 142 Justice Kennedy further explained the SWANCC decision – and his understanding of when EPA and the Corps coul d assert jurisdiction over “other waters” – in his concurring opinion in Rapanos : “In Solid Waste Agency of No rthern Cook Cty. v. Army Corps of Engineers , 531 U.S. 159 (2001) ( SWANCC ), the Court held, under the circumstances presented there, that to constitu te ‘navigable waters’ under the Act, a water or wetland must possess a ‘signifi cant nexus’ to waters that ar e or were navigable in fact or that could reasonably be so made.” 143 Because Since the Court in SWANCC was considering the validity of the Corps’ asse rtion of jurisdiction over ponds and mudflats under (a)(3) of the Corp s’ regulations, it is reasonable to conclude clear that Justice Kennedy intends forhis significant nexus standard to a pply to the “other waters” of this regulation.

An “other water” is jurisdictional only if it both has a sign ificant nexus to a traditional navigable water or interstate wate r and meets the regulatory definition. One of the ways of demonstrating that a water is one “the use, degradation or destruction of

which could affect intersta te or foreign commerce” under (a)(3) of the regulations is through demonstration that the water has a significant nexus to a traditional navigable

water or interstate water. If a A water that meets Justice Kennedy’s significant nexus

standard

, means that the degradation or destruction of that water could harm the

downstream traditional navigable water or interstate water and therefore could affect interstate or foreign commerce.

For purposes of the significant nexus eval uation, similarly situ ated waters means those waters of a similar type having like physical and ecological characteristics and performing similar functions in the same wa tershed. For example, similarly situated

wa ters may include all oxbow lakes, prairie potholes, all lakes a nd ponds, or all vernal pools in the same watershed. Both the position of the waters in the landscape (headwaters, riparian, flood plain) and the type of water (Cowardin class, wetlands

defined by hydrogeomorphic classification type, or other classifications based on functions and values) are factors in de termining similarly situated waters. When conducting a significant nexus analysis for a pond or lake, for example, which is not directly conne cted to the tributary system and theref ore falls under (a)(3) of the agencies’ regulations, field staff should ev aluate the effects of the lake or pond in combination with

the effects of all other non

- tributary lakes and ponds w ithin the same watershed.

S imilarly, the effects of a non

- adjacent wetland together with the effects of all other non

adjacent wetlands of the same type (for ex ample, prairie potholes, vernal pools, etc.)

within the same watershed should be assessed in making a significant nexus

det ermination for a particular non

- adjacent wetland.

While all adjacent wetlands are reasonably proximate to a jurisdictional water by regulation and, therefore, “similarly situat ed,” the other wate rs provision of the regulations encompasses a wide-range of wa ters. For purposes of this guidance, the agencies have decided that it is more scientifically appropriate to divide assess significant***E.O. 12866 Review

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December 2010 Page 54 nexus for other waters in to two classes, those combination with waters of a similar type rather than, for example, a ggregating all other waters that are physically proximate

to were located approximately the same distance in the watershed from a traditional navigable water or interstate water s or their tributaries, and those that are not. For the first group, it is reasonable to treat these in much the same manner as adjacent wetlands, since they stand in the same re lationship to and serve many of because the types of

waters identified in the same regulation can provide quite different functions as such wetlands with respect to the aqua tic systems that they are near.

. For instance, physically proximate waters can prairie potholes function to retain floodwaters, recharge groundwater, provide habitat for waterfowl a nd other species, and process and retain nutrients and pollutants that ma y otherwise enter tributaries; they may even be oxbow

lakes are connected to a the river during high floods and provide a protected habitat for eggs and young of many fish species, as we ll as provide refuge for spawning for some species. 144

For the reasons articulated in Section 3 of this guidance, the agencies will interpret “in the region” for such proximate other waters to be the watershed boundary defined by the geographic area that drains through a single point of entry to the nearest downstream traditional navigable or interstate water through a single point of entry.

.

In applying Finally, the agencies will need to identify a significant chemical, physical or biological nexus standard to such waters, it . It is important to note that Justice Kennedy concluded that a water may ha ve a significant nexus even if it does not have a hydrologic connection to the downstreamtraditional navigable water or interstate water: “Given the role wetlands play in pollutant filtering, flood control, and runoff storage, it may well be the absence of a hydrologic connection (in the sense of interchange of waters) that shows the we tlands’ significance for the aquatic system.” 145
This statement applies equally to proximate other waters. Thus, effects that should be

considered include circumstances where proximate “ other waters ” trap pollutants such as nutrients or sediment, for ex ample, or where they hold pr ecipitation or snow melt, thereby reducing contamination or flooding of traditional navi gable or interstate waters. Surface flow in streams draining mountain head water areas in the arid west is commonly physically isolated from downstream playa lake s, wetlands, or larger streams and rivers by stream reaches that are dry much of the time. Such physical isolation may be broken for brief periods after rainfall. Despite th e physical isolation of surface flow in these streams, they are an integral part of the hydrologic system in arid regions. 146 There are

often strong biological connections : many aquatic and semi

- aquatic animals move

between land

- locked waters , adjacent wetlands, and stream channels. Some wetlands that are not adjacent may be hydrologically isolated most of the time but connected to the

stream network during rare high

- flow events. Geographically remote prairie potholes, for example, may be able to store significant amounts of runoff, thus reducing flooding as well as nutrient and soil po llution in downstream waters. 147 F illing wetlands reduces

wa ter storage capacity in the landscape and cau ses runoff from rainstorms to overwhelm the remaining available water conveyance system. 148 Wetlands improve water quality by***E.O. 12866 Review

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December 2010 Page 55 accumulating nutrients, trapping sediments, a nd transforming a variety of substances. 149
In many watersheds, wetlands have a di sproportionate effect on water quality because they receive dissolved and suspended com pounds and materials from large areas
, releasing higher quality water

. 150 For an individual wetland, this is most pronounced

where it lies immediately upstream of a dr inking water intake, for example. 151 But in the aggregate, such wetlands may have significant effects on the quality of water many miles

away. 152

Section 7: Waters Generally Not Jurisdictional

The scope of “ waters of the United States ” does not include all waters

. EPA and the Corps previously have described in preamble s to CWA regulations waters that the agencies generally do not consider to be waters of the U

. S. 153 The agencies ’ position regarding these waters is unchange d. The categories of waters generally not “ waters of

the U

. S .” include:

• Wet areas that are not tributaries or open waters and do not m eet the regulatory

definition of wetlands. 154

• Waterbodies excluded from coverage under the CWA by existing regulations

• W aters that lack a significant nexus when one is required for jurisdiction

.

• A rtificially irrigated areas which would re vert to upland if the irrigation ceased

.

• A rtificial lakes or ponds created by excavat ing and/or diking dr y land to collect

and retain water and which are used exclusiv ely for such purposes as stock watering, irrigation, settling basins, or rice growing

.

• A rtificial reflecting pools or swimming pools excavated in uplands.

• Small ornamental bodies of wate r created by excavating and/or diking dry land to retain water for primarily aesthetic reasons.

• Water

- filled depressions created in dry land in cidental to construction activity and pits excavated in dry land for the purpo se of obtaining fill, sand, or gravel, unless

and until the const ruction or excavation operation is ab andoned and the resulting body of water meets the definition of waters of the United States. aa

aa Ditches should be evaluated consistent with Sectio n 4 to determine whether they are tributari es, and then should further be considered under Section 4 to determine if they are waters of the U.S.***E.O. 12866 Review

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December 2010 Page 56 • Groundwater drained through subsurface drain age systems bb are not "waters of the United States." While groundwater associated with such subsurface drainage systems are not waters of the U.S., construction and the associated maintenance of

a subsurface drain age system built in waters of the U.S. (e.g. wetlands) may require a CWA Section 404 permit.

Section 8 : Documentation

EPA and Corps field staff should documen t in the administrative record the available information supporting a jurisdictiona l determination. In addition to location and other descriptive information regarding the water at issue, the record should include a clear explanation of the rationale for th e jurisdictional conclu sion, and include, as appropriate:

• Information leading to a conclusion th at a water falls within a category

considered in this memorandum to be jurisd ictional without the need to demonstrate a significant nexus;

• Information used to conclude a water has a significant nexus when one is required for jurisdiction;

• Information supporting a conclusion that a water lacks a signifi cant nexus, when one is required for jurisdiction; or

• Information supporting a conclusion that a water falls within one of the categories of geographic featur es generally considered non

- jurisdictional.

In short, both affirmative and negative jurisdiction al determinations should be

well

- documented, to ensure both public transp arency and defensibility should a jurisdictional conclusi on be challenged. The level of documentation may be greater for jurisdictional determinations associated with complex project s.

Other sections of this guidance discu ss the findings necessary for particular categories of waters to be considered jurisd ictional and/or to have a significant nexus. Information relevant to these findings can come from many sources, including but not limited to maps, aerial photogr aphy, soil surveys, watershed studies, local development plans, literature citations, and references fr om studies pertinent to the parameters being

reviewed. Such information need not always involve the specific water wh ose jurisdictional status is being evaluated; regional and national studies of the same type of water or similarly situated waters can help to inform a jurisdictional analysis.

Information that is often an important part of a jurisdictional analysis is t he location and type of water under consideration, so as to readil y determine if jurisdictional

bb A subsurface drainage system is an agricultural practice designed to drain subsurface water through a below ground pipe system in order to maintain the groundwater table below the root zone to facilitate crop production.***E.O. 12866 Review

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December 2010 Page 57 status of similarly situated waters has been previously determined. If so, the jurisdictional conclu sion, rationale, and supporting information for a similarly situated water may be directly relevant. As Justice Kennedy noted in Rapanos , where a significant nexus has been established for a par ticular wetland, “it may be permissible, as

a matter of administrative convenience or necessity, to presume covered stat us for other comparable wetlands in the region.” 155***E.O. 12866 Review

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December 2010 Page 58 In contrast, applying the si gnificant nexus standard to geographically isolated other waters is more challenging. Jus tice Kennedy recognized th at physical proximity can be an important factor in the analysis of significant nexus. cc In light of the challenges in applying the significant nexus standard to geographically isolat ed other waters, the agencies have identified physical proximity as an important factor when conducting a significant nexus analysis for such waters.

The agencies believe that the significant ne xus test articulated by Justice Kennedy is the right theoretical approach fo r assessing all other waters, isolated and proximate, but because of the greater practical difficulty of applying this standard to geographically isolated other waters, we are directing field staff to continue for now the current practice of referring determinations for non-physically pr oximate other waters to their respective Headquarters and obtaining formal project-speci fic approval before asserting or denying jurisdiction. Because such wa ters are often geographically dispersed and isolated from each other, as well as from other jurisdictional waters, it is also not clear at this time how such waters should be grouped for purposes of considering them “s imilarly situated” and “in the region.” For this reas on, until the agencies are able to further consider this issue through rule making, significant nexus determin ation will generally evaluate such waters individually, unless there is a compelling scie ntific basis for treating a group of such waters as similarly situated wa ters in the same region. In accordance with the decision in

SWANCC , consideration of use by migratory specie s is not relevant to the significant

nexus determination for such waters.

cc " Through regulations or adjudication, the Corps may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetla nds adjacent to them are lik ely, in the majority of cases, to perform important functions for an aquatic sy stem incorporating navigable waters.” 547 U.S. at

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December 2010 Page 59 ENDNOTES

1 The Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816. The 1972 legislation extensively amended the Federa l Water Pollution Control Act (FWPCA), which was originally enacted in 1948. Further amendments to the FWPCA enacted in 1977 changed the popular name

of the statute to the “Clean Water Act.” See Pub. L. No. 95-217, 91 Stat. 1566; 33 U.S.C. 1251 note. The current FWPCA is codified at 33 U.S.C. §§ 1251-1 387. This guidance will refer to provisions of the current act by relevant “CWA section.”

2 531 U.S. 159 (2001).

3 Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6 th Cir. 2004); United States v. Rapanos, 376 F.3d 629 (6 th Cir. 2004). After certiorari wa s granted, these cases were consolidated, and the resulting opinion

cited as Rapanos v. United States, 547 U.S. 715 (2006).

4 Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6 th Cir. 2004), United States v. Rapanos, 376 F.3d 629 (6 t h Cir. 2004). After certior ari was granted, these cases were c onsolidated, and the resulting opinion

cited as Rapanos v. United States, 547 U.S. 715 (2006).

5 CWA section 101(a). 5 33 U.S.C. §1251(a).

6 Specifically, this memorandum supersedes the “Joint M emorandum” providing clarifying guidance on
SWANCC, dated Jan. 15, 2003 (68 FR 1991, 1995), and “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, ” dated December 2,

2008.

7 While section Section 311 uses the phrase "navigable waters of the United States," EPA has interpreted it to have the same breadth as the phrase "navigable waters" used elsewhere in section Section 311, and in

other sections of the CWA. See

, United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1324-25 (6th Cir. 1974). In 2002, EPA revised its regulatory definition of “ waters of the United States ” in 40 C.F.R. part 112 to ensure that the actual language of the rule was consistent with th e regulatory language of other CWA programs. Oil Pollution & Response; Non –Transportation-Related Onshore & Offshore Facilities , 67 Fed. Reg. 47,042 (July 17, 2002). A district court vacated the rule for failure to comply with the Administrative Procedure Act, and reinstated the prior regulatory language. American Petroleum Ins. Institute v. Johnson, 541 F.Supp. 2d

165 No. 02

- 2247, 2008 U.S. Dist. LEXIS 25859 (D.D.C. Mar. 31, 2008). However, EPA interprets "navigable waters of the United States" in CWA section Section 311(b), in the pre-2002 regulations, and in

the 2002 rule to have the same mean ing as "navigable waters" in CWA section Section 502(7).

7 For example, the CWA Section 402 program regul ates discharges of point sources to waters of the United States, whether these pollutants reach jurisd ictional waters directly or indirectly. The plurality opinion in Rapanos noted that “... there is no reason to suppose th at our construction today significantly affects the enforcement of §1342 ... The Act does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition o f any pollutant to navigable waters.’” (emphasis in original) 126 S. Ct. 2208, 2227. Section 311(b)( 1) provides that: "[ I] t is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable wat ers of the

United States (or) adjoining shorelines . . . . or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States. " (emphasis added).

8 8 For example, the CWA section Section 402 program regulates discharges of pollutants from “ point

sources ” to waters of the United States , whether these pollutants reach jurisdictional waters directly or
indirectly. The plurality opinion in Rapanos noted that “ “... there is no reason to suppose that our
construction today significantly a ffects the enfor cement of §1342

. . . . ... The Act does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of
any pollutant to navigable waters.’” 547 U. (emphasis in original) 126 S. at 743. Clean Water Act

section Ct. 2208, 2227. Section 311(b)(1) provides : that: "[I]t is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United

States [or] (or) adjoining shorelines

. . . . or which may affect natural resources belonging to, appertaining***E.O. 12866 Review

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December 2010 Page 60 to, or under the exclusive management authority of the United States." (Emphasis (emphasis added.) added). "Discharge" is broadly defined in CWA section § 311(a)(2) to include "any spilling, leaking, pumping, pouring, emitting, emptying or dumping," with certain enumerated exceptions, and is not limited to point source discharges.

9 33 C.F.R. § 328.3(a)(8); 40 C.F.R. § 230.3(s); 40 C.F.R. § 122.2 (“waters of the U.S.”).

10 CWA section § 404(f); 40 C.F.R. § 232.3; 33 C.F.R. § 323.4. 323.3.

11 CWA section 402(l)(1) ("The Administrator shall not require a permit under this section for
discharges composed entirely of return flows from irrigated agriculture. . . .”); CWA section ); 502(14)("[The] 502(14)("The term [ point source ] does not include agricultu ral stormwater discharges

and return flows from irri gated agriculture."); 40 C.F.R. § CFR 122.3(f) (return ( Return flows from
irrigated agriculture are excluded from the NPDES program); 40 C.F.R. § CFR 122.2 (The term "point source" "does not include return flows from irrigate d agriculture or agricultural storm water runoff.").

12 See

, e.g. , 33 C.F.R. § 328.3(a)(1); 40 C.F.R. § 230.3(s)(1); 40 C.F.R. § 122.2 (“ waters of the U.S.”(a)); US (a), 40 C.F.R. § 110.1 (“navigable waters” (a)). 110(a)

. 13 Rivers and Harbors Appropriation Act of 1899, § 10, 33 U.S.C. § 403.

14 See

, e.g. , 33 C.F.R. § 328.3(a)(2); 40 C.F.R. § 230.3(s)(2); 40 C.F.R. § 122.2 (“waters of the U.S.”(b)), 40 C.F.R. §110.1 (“navigable waters” (b)).

15 Water Pollution Control Act of 1948, § 10(e), 62 Stat. 1155, 1161.

16 Field staff generally should use the Strahler method. In Strahler’s method, a first-order stream has no tributaries, a second-order stream is formed by the join ing of any two first-order streams, and a third order stream is formed by the junction of any two second -order streams. Arthur N. Strahler, "Quantitative Analysis of Watershed Geomorphology," American Geophysical Union Transactions 38 (1957): 913-920.

17 33 C.F.R. § 328.3(a)(5); 40 C.F.R. § 230.3(s)(5) ; 40 C.F.R. § 122.2 (“waters of the U.S.”(e)).

18 33 C.F.R. § 328.3(a)(7); 40 C.F.R. § 230.3(s)(7) ; 40 C.F.R. § 122.2 (“waters of the U.S.”(e)).

19 547 U.S. at 759.

20 James M. Omernik, “The Misuse of Hydrologic Unit Maps for Extrapolation, Reporting and Ecosystem Management,” Journal of the American Water Resources Association 39.3 (2003): 563-73.

21 The country is divided and subdivided into successively smaller watersheds, and the U.S. Geological Survey has developed a standardized watershed classification system--the Hydrologic Unit System--to organize watershed boundaries in a nested hierarchy by size. A unique hydrologic unit code (HUC) consisting of two to twelve digits (based on the le vel of classification) identifies each watershed in the country. The system divides the country into 21 regions, and progressively smaller sub-regions, accounting units, cataloging units, watersheds, and sub-watersheds , with the Natural Resources Conservation Service delineating the boundaries for the smallest two levels. The 10-digit HUC, for instance, is the "watershed" level in the classification system. See United States, Department of Agriculture, Natural Resources Conservation Service, "Overview and History of Hydrologic Units and the Watershed Boundary Dataset,"

Natural Resource Conservation Service . Web. 25 Jan. 2011.; United States, United States Geological Survey, USGS Water-Supply Paper 2294 , Hydrologic Unit Maps (Washington, D.C.: U.S. Government Printing Office, Paul R. Seaber, F. Paul Kapinos, and George L. Knapp, 1987).

22 33 C.F.R. § 328.3(e).

23 Luna B. Leopold, M. Gordon Wolman, and John P. Miller, Fluvial Processes in Geomorphology (San Francisco: W.H. Freeman and Company, 1964).

24 Nyle C. Brady and Ray R. Weil, The Nature and Properties of Soils , 13 th Edition (Upper Saddle River, NJ: Prentice Hall).

25 Luna B. Leopold, L.B., A View of the River (Cambridge: , (Harvard University Press,, 1994) p. 3.

26 United States, U.S. Environmental Protection Agency, EPA/600/R-06/126: Field Operations Manual for Assessing the Hydrologic Permanence and Ecological Condition of Headwater Streams (Washington D.C.: U.S. Environmental Protection Agency, Ken M. Fritz, Brent R. Johnson, and David M. Walters, 2006) 5.

27 See

, e.g. , 33 C.F.R. § 328.3(a)(2), (5); 40 C.F.R. § 230.3(s)(2)(5).***E.O. 12866 Review

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December 2010 Page 61 28 Richard B. Alexander, et al. , “The Role of Headwater Streams in Downstream Water Quality,” Journal of the American Water Resource Association 43.1 (2007): 41-59; Stephen R. Carpenter, et al. , “Nonpoint

Pollution of Surface Waters with Phosphorous and Nitrogen,” Ecological Applications 8.3 (1998): 559-68; Dana W. Kolpin, et al. , “Pharmaceuticals, Hormones an d Other Organic Wastewater Contaminants in U.S. Streams: 1999-2000: A National Reconnaissance,” Environmental Science and Technology 36.6 (2002):

1202-1211.

29 United States, U.S. Army Engineer Research an d Development Center, Cold Regions Research and Engineering Laboratory, ERDC TR-04-1: Review of Ordinary High Water Mark Indicators for Delineating

Arid Streams in the Southwestern United States (Hanover, NH: U.S. Army Engineer Research and Development Center, Robert W. Lichvar and James S. Wakeley, 2004).

30 Generally, only the very large streams and rivers in the U.S. are monitored with stream gages for flow and the U.S. Geological Service ma intains a network of only 7500 stream gages. United States, USGS, Fact Sheet 2009-3020, National Stream Flow Information Program Implementation Status Report (March 2009). Smaller streams often do not have gages located on them, and not only would it be costly to

monitor flow at sites like small headwater streams th at are not currently gaged (Ken M. Fritz, Brent R. Johnson, and David M. Walters, "Physical Indicators of Hydrologic Permanence in Forested Headwater

Streams." Journal of the North American Benthological Society 27.3 (2008): 690-704), monitoring studies can take one to two years (United St ates, U.S. EPA, EPA 600/R-06/126, Field Operations Manual for Assessing the Hydrologic Permanence and Ecological Condition of Headwater Streams (Cincinnati, Ohio: U.S. EPA Office of Research and Development, National Exposure Research Laboratory, Fritz et al

., 2006)).

31 Joan L. Florsheim, Jeffery F. Mount, and Anne Chin, “Bank Erosion as a Desirable Attribute of Rivers,”

Bioscience 58 (2008): 519-29.

32 Takashi Gomi, RoyT., R. C. Sidle, and JohnJ. S. Richardson, “Understanding Processes and Downstream Linkages of Headwater Systems,” BioScience 52 (2002): 905-16 (Gomi, et al. ).:905-916 at 911 (2002).

33 Louis A. Kaplan, Richard A. Larson, and Thomas L. Bott, “Patterns of Dissolved Organic Carbon in Transport,” Limnology and Oceanography 25 (1980): 1034-43; Robin L. Vannote, et al. , “The River Continuum Concept,” Canadian Journal of Fisheries and Aquatic Sciences 37 (1980): 130-37; J. Bruce Wallace, Sue L. Eggert, Judith L. Meyer, and Jackson R. Webster, “Multiple Trophic Levels of a Stream Linked to Terrestrial Litter Inputs,” Science 277 (1997): 102-04; Mark S. Wipfli and David P. Gregovich, “Export of Invertebrates and Detritus from Fishle ss Headwater Streams in Southeastern Alaska: Implications for Downstream Salmonid Production,” Freshwater Biology 47.5 (2002): 957-69.

34 Id. 34 State of Ohio Environmental Protection Agency, “The Importance and Benefits of Primary Headwater Streams,” <http://www.e pa.state.oh.us/dsw/wqs/headwa ters/HWH_import_jan2003.pdf> (2003a).; State of Ohio Environmental Protection Ag ency, “Clean Rivers Spring from Their Source: The Importance & Management of Headwater Streams,” <http://www.epa.state.oh.us/d sw/wqs/headwaters/fact_sheet10_final.pdf> (2001).

35 547 U.S. at 779-80.

36 Id. at 780.

37 33 CFR § 328.3(c); 40 CFR § 230.3(b).

38 Kevin J. Devito, Alan R. Hill, and Nigel Roulet, “Groundwater-Surface Water In teractions in Headwater Forested Wetlands of the Canadian Shield,” Journal of Hydrology 181 (1996): 127-47; Michael A. O’Driscoll and Richard R. Parizek, “The Hydrologic Catchment Area of a Chain of Karst Wetlands in Central Pennsylvania, USA,” Wetlands 23 (2003): 171-79; Bradley J. Cook and F. Richard Hauer, “Effects of Hydrologic Connectivity on Water Chemistry, Soils, and Vegetation Structure and Function in an Intermontane Depressional Wetland Landscape,” Wetlands 27 (2007): 719-38.

39 Charles H. Wharton, Wiley M. Kitchens, and Timothy W. Sipe, The Ecology of Bottomland Hardwood Swamps of the Southeast: A Community Profile (Washington, D.C.: U.S. Fish and Wildlife Service, FWS/OBS-81/37, 1982) 9.

40 As defined by the National Research Council, “ripar ian areas” are “transitional between terrestrial and aquatic ecosystems and are distinguished by gradients in biophysical conditions, ecological processes, and***E.O. 12866 Review

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December 2010 Page 62 biota. They are areas through which surface and subs urface hydrology connect waterbodies with their adjacent uplands. They in clude those portions of terrestrial eco systems that significantly influence exchanges of energy and matter with aquatic ecosystem s (i.e., a zone of influence). Riparian areas are adjacent to perennial, intermittent, and ephemeral stream s, lakes, and estuarine-marine shorelines.” United States, National Research Council, Riparian Areas: Functions and Strategies for Management (Washington, D.C. : National Academy Press, 2002) 33.

41 A “flood plain” is the relatively broad and smooth valley floor that is constructed by an active river and periodically covered with floodwater from that river during intervals of overbank flow. See also Theodore H. Schmudde, “Floodplain,” The Encyclopedia of Geomorphology, ed. Rhodes W. Fairbridge (New York: Reinhold, 1968) 359-62.

42 William J. Mitsch, W.J., and James J.G. Gosselink, “The Value of Wetlands: Importance of Scale and Landscape Setting,” Ecological Economics 35.200 (2000): 35(200):25-33; Curtis J. (2000); Richardson, C.J., “Ecological Functions and Human Values in Wetlands: A Framework for Assessing Forestry Impacts,” Wetlands 14.1 (1994): 14(1):1-9. (1994).

43 Arid West Water Quality Research Project, Habitat Characterization Study Final Report (Phoenix:. URS Corporation, Phoenix, AZ. (2002); William J. Mitsch, W.J. and James J.G. Gosselink, Wetlands , 4 th ed. Ed., (Hoboken, NJ: John Wiley & Sons, Inc., Inc.) (2007), p.347.

44 Robin L. Wellcomme, R.L., Fisheries Ecology of Floodplain Rivers (London: Longman,, (Longman: London, UK, 1979); Virginia Carter, V., “Wetland Hydr ology, Water Quality, and Associated Functions,” in J.D. Fretwell, J.S. Willia ms, and P.J. Redman (eds.), National Water Summary on Wetland Resources

, eds. Judy D. Fretwell, John S. Williams, and Phillip J. Redman (Washington, D.C.: U.S. Department of the Interior, U.S. Geological Survey, USGS Water-Supply Paper 2425, (Washington, DC, 1996), pp. 35-48; Alexander D. Huryn, A.D., and K. ElizabethE. Gibbs, “Riparian Sedge Meadows in Maine: Aa Macroinvertebrate Community Structured by River-Floodpl ain Interaction,” in D. Batzer, R.B. Rader, and S.A. Wissinger (eds.), Invertebrates in Freshwater Wetlands of North America: Ecology and Management

, eds. Darold Batzer, Russell B. Rader, and Scott A. Wissinger (New York: (John Wiley & and Sons, New York, NY, 1999), 363-82; Victor S.pp. 363-382; Lamoureux, V.S., and Dale D.M. Madison, “Overwintering Habitats of Radio-Implanted Green Frogs, Rana clamitans ,” Journal of Herpetology 33:430-435 (1999): 430-35; Leonard A.(1999); Smock, L.A., “Riverine Floodplain Forests of the Southeastern United States: Invertebrates in an Aquatic terrestrial Ecotone,” in: D. Batzer, R.B. Rader, and S.A. Wissinger (eds.), Invertebrates in Freshwater Wetlands of North America: Ecology and Management

, eds. Darold Batzer, Russe ll B. Rader, and Scott A. Wissinger (New York: (John Wiley & and Sons, New York, NY, 1999) 137-65; James H.pp. 137-165; Harding, J.H., Amphibians and Reptiles of the Great Lakes Region , (Ann Arbor, MI: University of Michigan Press, 2000); Ted R. Sommer, Louise T.R., L. Conrad, GavinG. O’Leary, FrederickF. Feyr er, and William W.C. Harrell, “Spa wning and Rearing of Splittail in a Model Floodplain Wetland,” Transactions of the American Fisheries Society 131:966-974 (2002): 966-74; Daniel D.(2002); Magoulick, D.D., and Robert R.M. Kobza, “The Role of Refugia for Fishes During Drought: A Review And Synthesis,” Freshwater Biology 48:1186-1198 (2003): 1186-98; Joseph L.(2003); Ebersole, et al. ,J.L., P.J. Wigington, J.P. Baker, M.A. Cairns , M.R. Church, B.P. Hansen, B.A. Miller, H.R. LaVigne, J.E. Compton, and S.G. Leibowitz, “Juvenile Coho Salmon Growth and Survival Across Stream Network Seasonal Habitats,” Transactions of the American Fisheries Society 135 (2006): 681-1697. (2006).

45 United States, U.S. Fish and Wildlife Service, Semipalmated Sandpiper Habitat Model (Washington,

D.C.: U.S. Fish and W ildlife Service, 2001). (<http://www.fws.gov/r5gomp/gom/habitatstudy/metadata/semipalmated_sandpiper_model.htm>.)

46 33 C.F.R. § 328.3(a)(3); 40 C.F.R. § 230.3(s)(3); see also 40 C.F.R. § 122.2 (“waters of the U.S.” (c)).

47 51 Fed. Reg. at 41,217; 41206, 41217 (November 13, 1986), 53 Fed. Reg. at 20,765.20764, 20765 (June 6, 1988).

48 33 C.F.R. §328.3(b); 40 C,F.R. § CFR §230.3(t), 40 C.F.R. § 122.2 (“waters of the U.S.”US (b)).(b).

49 547 U. Rapanos , 126 S.Ct. at 782.

50 Id. at 739.

51 Id. at 742.***E.O. 12866 Review

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December 2010 Page 63 52 United States v. Appalachian Elec. Power Co., 311 U.S. 377, 406 (1940).

53 FPL Energy Marine Hydro L.L.C. LLC v. FERC , 287 F.3d at 1151, 1157 (internal quotation omitted). (D.C. Cir. 2002).

54 Id . at 1157-59. 1158

- 59.

55 Id. at 1157.

56 Alaska v. Ahtna, Inc., 891 F.2d 1404 (9th Cir. 1989).

57 Alaska v. Ahtna, Inc., 891 F.2d 1401, 1405 (9th Cir. 1989). 57 Id . at 1405.

58 Id. at 1404.

59 Id . at 1404.

60 Id . at 1402-03.

61 33 C.F.R. § 328.3(a)( 2); 40 C.F.R. § 230.3(s)(2); 40 C.F.R. § 122.2 waters of the US (b), 40 C.F.R. §112.2.

62 33 C.F.R. § 328.3(a)( 7); 40 C.F.R. § 230.3(s)(7).

63 126 S.Ct. at 2248.

64 The term "waters “waters of the United States" is defined by regulation to include "all States” includes “all interstate waters including interstate wetlands." 33 C.F.R. § 328.3(a)(2), (5); wetlands.” 40 C.F.R. §

230 .3(s)(2)(5). .3(s)(2), 33 C.F.R. 328.3(a)(2).

65 See

, id

. In discussing the significant nexus standard, Justice Kennedy stated: “The required nexus must be assessed in terms of the statute’s goals and purp oses. Congress enacted the [CWA] to ‘restore and maintain the chemical, physical, and biological integrit y of the Nation’s waters’ . . .” 126 S.Ct. at 2248. Consistent with Justice Kennedy’s instruction, EPA and the Corps will apply the significant nexus standard in a manner that restores and maintains any of these three attributes of traditional navigable waters and

interstate waters.

66 See Omernik, J.M., “The Misuse of Hydrologic Unit Maps for Extrapolation, Reporting, and Ecosystem Management.” Journal of the American Water Resources Association 39(3):563

- 573 (2003).

67 See, e.g., Merriam

- Webster On line Dictionary, 2010.

68 Id . at 779.

69 Rapanos , 126 S.Ct. at 2248.

70 Id. at 780

. 71 Id

. 72 See, e.g., United States, EPA 841-B-08-002: U.S. Environmental Protection Agency, " Handbook for Developing Watershed Plans to Restore and Protect Our Waters: Planning & Implementation Steps

, U.S. Environmental Protection Agency, EPA 841

- B

- 08

- 002 (Washington D.C.: U.S. EPA, , DC, March 2008);

James M. Omernik , J.M., and Robert R. G. Bailey, “Distinguishing Betwee n Watersheds and Ecoregions,” Journal of the American Wa ter Resources Association

, 33.5 33(5):935

- 949 at 939, 940 (1997): 939-40;

David R. (1997); Montgomery, D

. R

., “Process Domains and th e River Continuum,” Journal of the

American Water Resources Association 35 (1999): : 397-410 ; Thomas C. (1999) ; Winter ,“

, T.C., The Concept concept of Hydrologic Landscapes,” hydrologic landscapes. Journal of the American Water

Resources Association 37 : 335

- 349 (2001): 335-49; Jill S. (2001) ; Baron, et al

., J

. S

. , N.L. Poff, P.L. Angermeier, C.N. Dahm, P.H. Gleick, N.G. Hairston, R.B. Jackson, C.A. Johnston, B.D. Richter, and A.D. Steinman, “Meeting Ecological and Soci etal Needs for Freshwater,” Ecological Applications 12 : 1247

- 1260 (2002): 1247-60; J. David (2002) ; Allan, J

. D

., “Landscapes and Riverscapes: The Influence of Land Use on Stream Ecosystems,” Annual Review of Ecology Evolution and Systematics 35 (2004): 257-84. : 257

- 284 (2004). United States, U.S. EPA and USDA/ARS Southwest Watershed Research Center, EPA/600/R-08/134,

ARS/2330462008: 73 Levick et. al., The Ecological and Hydrological Significance of Ephemeral and

Intermittent Streams in the Arid and Semi-arid American Southwest (Washington, D.C.:

, U.S. EPA and USDA/ARS Southwest Watershed Research Center, Levick et al.

, EPA/600/R

- 08/134, ARS/2330462008, 102pp ( 2008) (Levick, et. al. ).

. 74 Peter E. Black, “Watershed Functions,” Journal of the American Water Resources Association 33.1 (1997): 1-11.***E.O. 12866 Review

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December 2010 Page 64 75 Black, P.E., “Watershed Functions,” Journal of the American Water Resources Association , 33(1):1

- 11 (1997).

76 547 U.S. at 775, 779-80.

77 Id. at 775.

78 Id. at 780.

79 33 C.F.R. § 328.3 (e).

80 Leopold L

. B

. , M

. G

. Wolman , and J.P. Miller, Fluvial Processes in Geomorphology , 522 pp (Dover, 1964).

81 Luna B. Leopold, L.B., A View of the River (Cambridge: , (Harvard University Press, , 1994) p. 3.

82 33 C.F.R. § 328.3(a) (2), ( 7); 40 C.F.R. § 230.3(s)(2)(7).

83 Alexander, R.B., E.W. Boyer, R.A. Smith, G.E. Schwarz and R.B. Moore. (2007) The role of headwater streams in downstream water quality. Journal of the American Water Resources Association, 43(1): 41

- 59. Carpenter, S.R., N.F. Caraco, D.L. Correll, R.W. Howarth, A.N. Sharpley and V.H. Smith. (1998). Nonpoint pollution of surface waters with phosphorus and nitrogen. Ecological Applications, 8(3): 559

- 568. Kolpin DW, Furlong ET, Meyer MT, Thurman EM, Zaugg SD, Barber LB, Buxton HT. 2002. Pharmaceuticals, hormones, and other organic wa stewater contaminants in US streams, 1999

- 2000: A national reconnaissance. Environmental Science and Technolog y 36(6): 1202

- 121

84 Florsheim, JL, JF Mount, and Anne Chin. “Bank Erosion as a Desirable Attribute of Rivers,” Bioscience

58:519

- 529 (2008).

85 Takashi Gomi, Roy T., R. C. Sidle, and John J. S. Richardson, “Understanding Processes and Downstream Linkages of Headwater Systems,” BioScience 52 (2002): 905

- 16 (Gomi, et al. ). :905

- 916 at 911 (2002).

86 Kaplan, L.A., R.A. Larson, T.L Bott, “Patterns of Dissolved Organic Carbon in Transport,” Limnology and Oceanography 25:1034

- 1043 (1980); Vannote, R.L., Minshall, W.G., Cummins, K.W., Sedell, J.R., and Cushing, C.E., “The River Continuum Concept,” Canadian Journal of Fisheries and Aquatic Sciences

37:130

- 137 (1980); Wallace, J.B., S.L. Eggert, J.L. Meyer, and J.R. Webster, “Multiple Trophic Levels of a Stream Linked to Terrestrial Litter Inputs,” Science 277:102

- 104 (1997); Wipfli, M.S., and D.P. Gregovich, “Export of Invertebrates and Detritus from Fish less Headwater Streams in Southeastern Alaska: Implications for Downstream Salmonid Produc tion,” Freshwater Biology 47(5):957

- 969(13) (2002).

87 State of Ohio Environmental Protection Agency, “ The Importance and Benefits of Primary H eadwater

S treams ,” <http://www.epa.state.oh.us/dsw/wqs/h eadwaters/HWH_import_jan2003.pdf> (2003a)

. ; State of

Ohio Environmental Protection Agency, “ Clean R ivers S pring from T heir S ource: The Importance & Management of Headwater S treams ,” <http://www.epa.state.oh.us/dsw/wqs/h eadwaters/fact_sheet10_final.pdf> (2001).

88 Id. 88 State of Ohio Environmental Prot ection Agency, “ The Importance and Benefits of Primary

H eadwater S treams ,” <http://www.epa.state.oh.us/dsw/wqs/h eadwaters/HWH_import_jan2003.pdf> (2003a)

. ; State of Ohio Environmental Protection Agency, “ Clean R ivers S pring from T heir S ource: The Importance & Management of Headwater S treams ,” <http://www.epa.state.oh.us/dsw/wqs/h eadwaters/fact_sheet10_final.pdf> (2001).

89 547 U.S. Rapanos , 126.S.Ct. at 739. 2241.

90 Id. at 742. 2226.

91 Id. at 732-33 n.5 (alteration in original). 2221.

92 Fritz, K.M, B.R. Johnson, and D.M. Walters, Field Operations Manual for Assessing the Hydrologic Permanence and Ecological Condition of Headwater Streams , U.S. Environmental Protection Agency,

EPA/600/R

- 06/126, < http://www.epa.gov/eerd/manual/HISSmanual_full.pdf > (Washington, DC, 2006), p.

5.

93 United States, U.S. Environmental Protection Agency, “ EPA, Memorandum to Assert Jurisdiction for NWP-2007-945 (Marks Creek)” (Washington D. C.: U.S. Environmental Protection Agency, Creek), 01/ 23 January 2008). /2008.

94 United States, U.S. Army Engineer Research an d Development Center, Cold Regions Research and Engineering Laboratory, ERDC TR-04-1: 94 Lichvar, R.W., and J.S. Wakeley, “ Review of Ordinary High Water Mark Indicators for Delineating Arid Streams in the Southw estern United States (Hanover, NH: ,” U.***E.O. 12866 Review

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December 2010 Page 65 S. Army Engineer Research and Development Center, Robert W. Lichvar Cold Regions Research and James S. Wakeley, Engineering Laboratory, ERDC TR

- 04

- 1 , ( Hanover, NH, 2004); Lisa Ely, L. Ely, L., “Response of Extreme Floods in the Southwestern United States to Climatic Variations in Holocene,” Holocence,” Geomorphology 19 (1997): : 175-201

. (1997).

95 Ian Reid , I., and Lynne L. E. Frostick, “Channel Form, Flow flow and Sediments in Deserts,” in D.S.G. Thomas (ed.), Arid Zone Geomorphology: Process, Form and Change in Drylands

, 2nd Edition , ed. David S.G. Thomas (Chichester, Ed., ( Chicester, England: John Wiley & Sons, 1977) 205-29; William L. pp. 205

– 229 ; Graf, W.L.

, “Definition of Floodplains Along Arid-Region Rivers,” Flood Geomorphology , ed. Victor

in V. R. Baker, R. Craig C. Kochel, and Peter P. C. Patton ( ed s

. ), Flood Geomorphology

, (New York: Springer-Verlag, 1988) 231-242

. 96 Levick

, et al. (2008), pp. 14-15. (See endnote 60.)

97 “ U.S. EPA, Memorandum to Assert Jurisdiction for NWP-2007-945 (Marks Creek).” (See endnote 69.) Creek), 01/23/2008.

98 N. Leroy Poff , N.L., and James J. V. Ward, “Implications of Streamflow Variability and Predictability for Lotic Community Structure: a Regional Analysis of Streamflow Patterns,” Canadian Journal of Fisheries and Aquatic Science 46 (1989): 1805-18, :1805

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99 Matthew J. Czikowsky , M.J., and David D. R. Fitzjarrald, “Evidence of Seasonal Changes in Evapotranspiration in Eastern U.S. Hydrological Records,” Journal of Hydrometeorology 5 (2004): 974-

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101 Id . at 778-79. 2246.

102 Id . at 781. 2248

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103 Id

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105 42 Fed. Reg. 37,122, 37,128 (July 19, 1977). at 37128.

106 Id. at 37,123. 106 42 Fed. Reg. 37121, 37122 (Jul. 19, 1977).

107 474 U.S. at 133 (quoting S.Rep.No. 414, 92d. Cong., 1st Sess., at 77 (1972)).

108 Riverside Bayview , 474 U.S. at 133 (quoting S.Rep.No. 414, 92nd. Cong., 1st Sess. 77 (1971)).

109 Gomi, et al. ; Tracie L. (2002); Nadeau , T.

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110 Martin Dieterich , M. and Norman N. H. Anderson, “Dynamics of Abiotic Parameters, Solute Removal and Sediment Retention in Summer-Dry Headwater Stream of Western Oregon,” Hydrobiologia 379 (1998): : 1-15 ; (1998); State of Ohio Envir onmental Protection Agency

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Contribution contribution of Stream Headwaters stream headwaters to Ecological Integrity at Regional Scales,” ecologica l integrity at regional scales,” Journal of the American Water Resources Association 43.1 (2007): 43(1): 5-14 . (See endnote 31). (2007).

113 United States,See, e.g., National Research Council, Committ ee on the U.S. Geological Survey, Watershed Research in the U.S. Geological Survey (Washington, D.C.: DC: National Academy Press, 1997) p. 4; Frank M. Dunnivant

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114 Judith L Meyer, et al

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116 Kaplan

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117 State of Ohio Environmental Protection Agency (2003a); State of Ohio Environmental Protection Agency (2001); Levick, et al. . (See endnote 31.) (2008).

118 The agencies will not assert jurisdiction over such waters under the plurality standard within the Eleventh Circuit, i.e. waters in the states of Florida, Georgia and Alabama. See United States v. Robison

, 505 F.3d 1208 (11th Cir. 2007); reh’g en banc denied , 521 F.3d 1319 (11th Cir.), cert. denied sub nom. United States v. McWane, Inc. , 129 S. Ct. 630 (2008).

119 33 CFR §328.3(c); 40 CFR § 230.3(b).

120 Devito K

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121 Brinson M

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, W.L. Nutter, R.D. Rheinhardt, R.D. Smith, and D. Whigam

, A Guidebook for Application of Hydrogeomorphic Assessments to Riverine Wetlands

, US Army Corps of Engineers Waterways Experiment Station

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., “ Wetland Definitions and Class ifications in the United States,” in J.D. Fretwell, J .S. Williams, and

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122 Wharton, C.H., W.M. Kitchens, and T.W. Sipe , “ The E cology of B ottomland H ardwood S wamps of the

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123 As defined by the National Research Council, riparian areas are “...transitional between terrestrial and aquatic ecosystems and are distinguished by gradients in biophysical conditions, ecological processes, and biota. They are areas through which surface and subsurface hydrology connect waterbodies with their adjacent uplands. They in clude those portions of terrestrial eco systems that significantly influence exchanges of energy and matter with aquatic ecosy stems (i.e., a zone of influence). Riparian areas are***E.O. 12866 Review

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124 A flood plain is the relatively broad and smooth valley floor that is constructed by an active river and periodically covered with floodwater from that river during intervals of overbank flow. See also

, Schmudde, T.H. "Floodplain" in R.W. Fairbridge, The Encyclopedia of Geomorphology (New York: Reinhold, 1968), pp. 359

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C.J.

, “ Ecological Functions and Human Values in Wetlands: A Framework for Assessing Forestry Impacts ,” Wetlands 14.1 (1994): 14(1):1

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, Habitat Characterization Study Final Report (Phoenix:

. URS Corporation, Phoenix, AZ. ( 2002 ); William J. Mitsch, W.J. and James J.G. Gosselink, Wetlands , 4 th

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127 Robin L. Wellcomme, R.L., Fisheries Ecology of Floodplain Rivers (London : Longman, , ( Longman: London, UK , 1979); Virginia Carter, V., “ Wetland Hydrology, Water Quality, and Associated Functions,”

in J.D. Fretwell, J .S. Williams, and P. J . Redman (eds.)

, National Water Summary on Wetland Resources

, eds. Judy D. Fretwell, John S. Williams, and Phillip J. Redman (Washington, D.C.: U.S. Department of the Interior, U.S. Geologi cal Survey, USGS Water

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Alexander D. Huryn

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“ Overwintering H abitats of R adio

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Southeastern United States: I nvertebrates in an A quaticterrestrial Ecotone,” in : D. Batzer, R.B. Rader, and S.A. Wissinger (eds.)

, Inv ertebrates in Freshwater Wetlands of North America: Ecology and Management

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, ( Ann Arbor, MI : University of Michigan Press, 2000) ; Ted R. Sommer, Louise T

. R

. , L. Conrad

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, and William W.C. Harrell, “Spawning an d Rearing of Splittail in a Model Floodplain Wetland, ” Transactions of the American Fisheries Society 131: 966

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Daniel D. (2002) ; Magoulick

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, B.P. Hansen

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128 U.S. Fish and Wildlife Service, Semipalmated Sandpiper Habitat Model, (2001)

< http://www.fws.gov/r5gomp/gom/habitatstudy/metadata/semipalmated_sandpiper_model.htm >.

129 U.S. Army Corps of Engineers, Engineer Research and Development Center, Interim Regional Supplement for the Atlantic and Gulf Coastal Plain Region

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131 Id. Ra panos , 126 S.Ct. at 779-80. 2248.

132 Id. at 780

133 Id . at 783.

134 Id

. 135 Id. at 785.

136 Id . at 2251.***E.O. 12866 Review

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138 Id. at 784-85.

139 Id . at 2250

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140 Id . at 786. 2251.

141 33 C.F.R

. § 328.3(a)( 3); 40 C.F.R. § 230.3(s)(3); 40 C.F.R. § 122.2..

142 531 U.S. SWANCC , Slip Op. at 167. 6.

143 547 U.S.Id. at 759. 1.

144 See, e.g., Ralph W. Tiner, R.W., “Geographically Isolated Wetlands of the United States,” Wetlands 23.3(2003): 23(3): 494-516 ; Dennis F. (2003); Whigham , D.F., and Thomas T. E. Jordan, “Isolated Wetlands and Water Quality,” Wetlands 23.3 23(3):541

- 549 (2003): 541-49; Charles R. (2003); Goldman

, C.R., and Alexander A. J. Horne, Limnology

, (New York: York, NY: McGraw-Hill, Inc., 1983); Paul H. Zedler, P.H., “Vernal Pools and the Concep t of ‘Isolated Wetlands,’” Wetlands 23.3 (2003): 23(3): 597-607 ; Ellen T. (2003); Bauder, Andrew E.T., A. J. Bohonak, Barry B. Hecht, Marie M. A. Simovich, David D. Shaw, David D. G. Jenkins, and Mark M. Rains, A Draft Regional Guidebook for Applying the Hydrogeomorphic Approach to Assessing Wetland Functions of Vernal Pool Depressional Wetlands in Southern California

, (San Diego, CA: San Diego State University, 2009).

145 547 U. Rapanos , 126 S. Ct at 786. 2251.

146 Izbicki, J

. A.

, “Physical and Temporal I solation of Mountain H eadwater Streams in the Western Mojave Desert, Southern California

, ” Journal of the American Wa ter Resources Association 43(1):26

- 40 ( 2007).

147 Hubbard, D.E., and R.L. Linder, “Spring Runo ff Retention in Prairie Pothole Wetlands,” Journal of Soil

and Water Conservation 41(2):122

- 125 (1997).

148 See e.g

. Moscrip, A.L. and D.R. Montgomery, “ Urbanization, Flood Frequency, and Salmon Abundance in Puget Lowland Streams,” Journal of the American Water Resources Association 33:1289

- 1297 (1997); Beck, N.E., V.J.Brady, D.L. Taylor, V.M. Snarski

, and S.L. Batterman, “Relationship of Stream Flow Regime in the Western Lake Superior Basin to Watershed Type Characteristics,” Journal of Hydrology 309(1

- 4): 258

- 276 (2005); Detenbeck and Galatowich ( 1999 ) ; Johns on et al

. ( 1990 )

. 149 National Research Council, Wetlands: Characteristics and Boundaries , (Washington, DC: National Academy Press, 1995) p. 38.

150 Id.

151 Johnson et al . 1990.

152 See, e.g., Jansson A

. , C. Folke

, and S. Langaas, “ Quantifying the N itrogen R etention C apacity of

N atural W etlands in the Large

- Scale Drainage B asin of the Baltic Sea ,” Landscape Ecology 13: 249

- 262 (1998); Mitsch, W.J., J.W. Day, Jr., J.W. Gilliam, P.M. Groffman, D.L. Hey, G.W. Randall, and N. Wang, “Reducing Nitrogen Loading to th e Gulf of Mexico from the Mississippi River Basin: Strategies to Counter a Persistent Ecological Prob lem,” BioScience 51(5): 373

- 388 (2001).

153 51 Fed. Reg. at 41,217; 41206, 41217 (November 13, 1986), 53 Fed. Reg. at 20,765. 20764, 20765 (June 6, 1988).

154 33 C.F.R. §328.3(b); 40 C,F.R. § CFR §230.3(t), 40 C.F.R. § 122.2 (“ waters of the U.S.” US (b)). (b).

155 547 U. Rapanos , 126 S.Ct. at 782.