# Final Report of the Discretionary Small Entity Outreach for
the Clean Water Rule: Definition of “Waters of the United States ; ”
Final Rule

U.S. Environmental Protection Agency Department of the Army

June 2015Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 1 of 23 

# Contents

Introduction

..................................................................................................................... 2

Background on CWA Jurisdiction

..................................................................................... 3

Summary of the Final Clean Water Rule

........................................................................... 3

Summary of Economic Analysis

........................................................................................ 4

Key Elements of the Analysis

......................................................................................... 5

Evaluation of Jurisdictional Determinations

.................................................................. 5

Costs and Benefits

......................................................................................................... 6

Identifying Small Entities

.................................................................................................. 6

Summary of Outreach to Small Entities

............................................................................ 7

Summary of Outreach in 2011

...................................................................................... 7

Summary of Comments from Small Entity Participants

................................................. 8

Summary of Outreach in 2014

.................................................................................... 11

Summary of Comments from Small Entity Participants

............................................... 12

Recommendations and Responses to Comments from Small Entity Participants

........... 15

Conclusion

..................................................................................................................... 21Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 2 of 23 

## Introduction

The Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) are publish ing a final rule defining the scope of waters protected under the Clean Water Act (CWA), in light of the U.S. Supreme C ourt cases, particularly dec isions in U.S. v. Riverside Bayview Homes

, Solid Waste Agency of Northern Cook County v. U

. S

. Army Corps of Engineers ( SWANCC ); and Rapanos v.
United States and Carabell v. United States (Rapanos)

. The Clean Water Rule seeks to clarify the
extent of CWA jurisdiction established by statute.

Waters, including wetlands that meet the definition of “waters of the U.S.” under the Act and
relevant case law are subject to CWA requirements. Waters that do not meet this definition are not subject to CWA provisions. The CWA establishes oil spill prevention programs (Section 311); requires permits for pollutant discharges (Section 402); requires permits for the discharge of dredged or fill material in waters of the United States (Section 404); calls for states to set standards for meeting water quality goals and develop plans to restore polluted waters (Section 303); establishes state roles in certifying that federal permits or licenses will not violate state water quality standards (Section 401); and pro vide tools for the federal government, states, and

communities to enforce the law.

Supreme C ourt decisions have sparked confusion and increased uncertainty regarding which waters are protected under the Clean Water Act.

As requested by a diverse group o f stakeholders including the agriculture community, environmental and conservation groups, state and local governments, and small entities

, EPA and Army are seeking to provide clarification as to what waters are and are not jurisdictional and thus
protecte d by the CWA.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice

- and

- comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

Today’s rule is not desig ned to “subject” any entities of any size to any specific regulatory burden. Rather, it is designed to clarify the statutory scope of “the waters of the United States, including the territorial seas” (33 U.S.C. 1362(7)), consistent with Supreme Court prec edent. This question of CWA jurisdiction is informed by the tools of statutory construction and the geographical and hydrological
factors identified in Rapanos v. United States, 547 U.S. 715 (2006).

Nevertheless, the scope of the term “waters of the Unite d States” is a question that has continued to generate substantial interest, particularly within the small business community, because permits must be obtained for many discharges of pollutants into those waters. In light of this interest, EPA and Army
de termined to seek wide input from representatives of small entities while formulating the proposed and final definition of this term that reflects the intent of Congress consistent with the SupremeFinal Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 3 of 23 Court’s decisions. Such outreach, although voluntary, is al so consistent with the President’s January 18,

2011

, Memorandum on Regulatory Flexibility, Small Business, and Job Creation, which emphasizes the important role small businesses play in the American economy. This process has enabled the agencies
to hear di rectly from these representatives, throughout the rule development process , about how the

a gencies should approach this complex quest i on of statutory interpretation.

The agencies conducted outreach meetings in 2011 and 2014 designed to exchange information with
small entities interested in this action. This report provides a summary of the following:

• Background information on CWA jurisdiction

• S ummary of the final rule

• S ummary of potential economic impact

• S ummary of the 2011 and 2014 outreach me etings; and

• A discussion of the comments.



## Background on CWA Jurisdiction

Congress enacted the amendments to the Federal Water Pollution Control Act, or CWA, in 1972 to address pollution entering the nation’s waters and to complement statutes such as the Ri vers and Harbors Act that protect the navigability of waters. As a pollution prevention statute, the CWA extends beyond waters that are navigable in fact to include the headwater streams, lakes, and wetlands that require protection to meet its stated publ ic health, environmental, and water quality goals.

For almost 40 years, the legal test applied in determining the geographic scope of waters protected under the CWA was based on the authority given the Federal government under the Commerce Clause
of the United States Constitution. The courts, including the Supreme Court, have consistently agreed that the geographic scope of the CWA should reach beyond waters that are navigable in fact. As a result, the CWA has consistently protected rivers, streams, cree ks, wetlands, lakes, the territorial seas, and other water bodies on which Americans rely for clean, healthy, and abundant sources of water. The CWA serves as the nation’s single most important statute for protecting America’s clean water.

In light of Su preme Court cases in U.S. v . Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v . United States (Rapanos) regarding the scope of “waters of the United States,” the agencies are revising their longstanding regulations defining the “waters of the United States.”



## Summary of the Final Clean Water Rule

In this final rule, EPA and Army clarify the scope of “waters of the United States” that are protected
under the CWA, using the text of the statute, Supreme Court decisions, the best available peer

reviewed science, public input, and the agencies’ technical expertise and experience in implementing
the statute . This rule makes the process of identifying waters protected under the CWA easier toFinal Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 4 of 23 understand, more predictable, and consistent with the law and peer

- reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water res ources.

This final rule interprets the CWA to cover those waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas. This interpretation is based not only on legal precedent and the best available peer

- reviewed science, but also on the agencies’ technical expertise and extensive experience in implementing the CWA over the past four decades. The rule will clarify and simplify implementation of the CWA consistent with its purposes through clearer definitions and increased use of bright

- line
rules.

In this final rule, t he agencies define “waters of the United States” to include eight categories of jurisdictional waters. The ru le maintains existing exclusions for certain categories of waters, and adds additional categorical exclusions that are regularly applied in practice. The rule reflects the agencies’ goal of providing simpler, clearer, and more consistent approaches for id entifying the geographic scope of the CWA. The rule establishes jurisdiction in three basic categories: waters that are jurisdictional in all instances, waters that are jurisdictional but only if they meet specific definitions in the rule, and a
narrowed category of waters subject to case

- specific analysis.

For more information on the rule, see Clean Water Rule: Definition of “Waters of the United States” in
the Federal Register [EPA

- HQ

- 2011

- 0880; FRL

- 9927

- 20

- OW].

For this rule, the agencies also prepar ed an economic analysis that is summarized below.



## Summary of Economic Analysis

The final rule includes eight categories of jurisdictional waters, maintains existing exemptions for certain categories of activities and waters, and adds additional exclusions for categories of waters that
are never covered under the Act. I t is a definitional rule that clarifies the scope of “w aters of the United
States.”

Programs established by the CWA, such as the section 402 National Pollut ant Discharge Elimination System (NPDES) permit program, the section 404 permit program for discharge of dredged or fill material, and the section 311 oi l spill prevention and clean

- up programs, all rely on the definition of “waters of the United States.” Entities currently are, and will continue to be, regulated under these programs that protect “waters of the United States” from pollution and destructio n.

The agencies prepared an economic analysis to better understand the incremental costs and benefits that may resul t from any change in the number of positive jurisdictional determinations 1 associated

1 A “positive jurisdictional determination” is a decision to assert CWA jurisdiction over a particular water. The alternative is a “negative jurisdictional determination” which is a decision not to assert CWA jurisdiction over aFinal Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 5 of 23 with CWA programs relying on the definition of “water s of the United States.” This summary describes the overall approach and presents the key results from the economic analysis. For more detailed information on these analyses, please see Economic Analysis of the EPA

- Army Clean Water Rule ( Docket No. EPA

- HQ

- 2011

- 0880 ) in the docket for this rule.



## Key Elements of the Analysis
When determining which waters are covered by the CWA today, the agencies make jurisdictional determinations consistent with the law, existing regulations and policy, and the Supreme Court rulings in 2001 ( SWANCC ) and 2006 ( Rapanos ). This scope of waters currently covered by the CWA is considerably smaller than the scope of waters historically covered prior to the SWANCC and Rapanos Supreme Court decisions. Based on the reduc tion in the scope of CWA jurisdiction, the agencies conclude that the new rule would impose no additional costs when compared to historic application of the regulation it replaces.

For purposes of this economic analysis, the agencies evaluated costs and benefits associated with the difference in jurisdictional determinations between the new rule and recent field practice, which is
based on the 2008 EPA and Army jurisdiction guidance. This policy guidance has been implemented by the agencies since 2008 an d reflects the Supreme Court decisions that limited assertion of CWA jurisdiction for some types of waters . Because of the limited amount of national level dat a and modeling capability, the agencies are following OMB circular A

- 4 guidance by conducting a scenario analysis. In the analysis was conducted using three alternate scenarios that illustrate how determinations might be affected and the resultant range of impa cts. In one scenario, the agencies combined a series of “high end” assumptions, including that twice as many jurisdictional
determinations will be made for “other waters” as indicated in recent U.S. Army Corps of Engineers (Corps) data. The second scenar io followed an approach similar to that used in the economic analysis accompanying the proposal. The final scenario assumes the number of “other waters” determinations will be the same as indicated in the recent Corps data. The percentage increase in pos itive jurisdictional determinations annually under the scenarios ranged from 2.84 to 4.65. Compared to the “recent field practice” 2008 guidance baseline the agencies anticipate the new rule will result in an increase in the number of positive jurisdictio nal determinations and an associated increase in both costs and benefits that derive from the implementation of CWA programs. Overall, the analysis indicates that for all scenarios of costs and benefits associated with the future implementation of the
rule through CWA programs, the indirect incremental benefits exceed indirect incremental costs.



## Evaluation of Jurisdictional Determinations

To calculate costs and benefits to CWA programs , the agencies first estimated the potential changes to jurisdictional d eterminations due to the final rule. The agencies reviewed a sample of negative jurisdictional determinations (JDs) (i.e., determinations of no jurisdiction) completed by the Corps in

particular water. It is im portant to note that the purpose of the economic analysis is not to estimate the change in the numbers of waters subject to jurisdiction.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 6 of 23 fiscal years 2013 and 2014 to assess whether or not the JD would change under the final rule. 2 The agencies relied upon JDs covering three categories of waters

– streams, wetlands, and other waters as the basis for analysis. Conservative assumptions were applied that have the effect of consistently increasing the number of po sitive JDs that results from the new rule.

As a result of these the estimates derived for all three categories of JDs in the FY13 and FY14 data, the agencies estimate that there will be an increase in positive jurisdictional determinations annually due

to the new rule when compared with recent field practice.



## Costs and Benefits
The agencies made the conservative assumption that the final rule could affect entities regulated under CWA programs in direct proportion to this percentage change in positive jurisdictional determinations. To estimate annual costs and benefits, the agencies uniformly applied the 4.65 percent increment in jurisdiction to the total costs and benefits for the Sections 311, 401, 402 (stormwater, pesticide general permit, Con centrat ed Animal Feeding Operation permits) and 404 programs to account for an estimated increase in permitting and activities that would result . The agencies relied on existing annual administrative and compliance cost information, and updated cost figures to 20 14 dollars.

Overall, the agencies’ analysis indicates that for all scenarios of indirect costs and benefits associated with the future implementation of the rule through CWA programs, the indirect incremental benefits exceed indirect incremental costs by a ratio of up to 2:1. The greatest potential for changes in jurisdictional determinations will likely be seen in case

- specific determinations of similarly situated and adjacent waters, previously defined as “other waters

. ” Lastly, indirect costs and ben efits may be over

estimated because each newly jurisdictional water will not be affected by all CWA programs simultaneously, and a particular activity affecting a water may be exempt from permitting under the
Clean Water Act.



## Identifying Small Entities

F or purposes of assessing the impacts of the Clean Water Rule on small entities, “small entity” is defined as: (1) a small business that is a small industrial entity as defined in the U.S. Small Business
Administration ’s (SBA) size standards (see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not

- for

- profit ent erprise that is independently owned and operated and is not dominant in its field.

More information about what constitutes a “small business” is available at the Small Business
Administration’s website: http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf

2 The information available in the Corps’ ORM2 database does not allow the agencies to evaluate the percent of

waters currently found to be jurisdictional that will not be under the final rule.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 7 of 23 

## Summary of Outreach to Small Entities

For this rule the agencies sought technical input from small entities at the onset of rule development in 2011, and following the publication of the proposed rule in 2014. In addition to engaging small entities in person during key milestones in the rulem aking process

, t he agencies sought feedback on this rule from a broad audience of stakeholders through extensive outreach in 2014. This section will provide a brief summary of the outreach meetings held in 2011 and 201 4 and comments received

.


## Summary of Outreach in 2011

In 2011 the agencies

, in collaboration with the Office of Management and Budget ( OMB ) , and SBA, conducted an outreach meeting designed to exchange information with small entities on various potential jurisdictional policies.

The agencie s developed an initial list of potential participants, identifying small entities to invite
from small entity outreach efforts conducted for previous rulemakings and from public comments
submitted to the docket for the draft jurisdictional guidance released in May 2011 (Docket EPA

- HQ

OW

- 2011

- 0409). This initial draft of potential participants was shared with Army

, OMB’s Office of
Information and Regulatory Affairs, and SBA’s Office of Advocacy. At the SBA’s request, a few additional participants were added to the list of invitees. A complete list of those organizations invited appears below:

Oil and Gas Industries Gary Williams Energy Corporation Farming/Agriculture Water Stewardship, Inc.
American Farm Bureau Federation National Agricultural Aviation Association Construction and Development National Association of Home Builders State Representative of LA McAllen Construction, Inc., representing the Associated General
Contractors of America Buckeye Development, LLC
Terra Verde Associates Tropicana Building Corporation
Four Corners Materials
National Association of Home Builders
Association of General Contractors Manufacturing
National Association of Manufacturers Municipal Separate Storm Sewer Systems or Publicly Owned

Treatment Works City of Farmers Branch, TexasFinal Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 8 of 23 California Stormwater Quality Association, Monterey Regional Stormwater Program Minnesota League of Cities Stormwater Committee
Small Non

- governmental Organizations Tip of the Mitt Watershed Council

All invited small entity participants were provided with documents outlining the history of CWA jurisdictional policy and potential jurisdictional policies for various aquatic resources in advance
of the meeting.

The meeting took place in Washington, DC, on October 1 2, 2011, and included representatives from EPA, Army , SBA, OMB, as well as the small entity participants listed below. At the meeting attendees participating in person and via conference call were briefed on the background of the rulemaking and given the opportunity to provide input on the implications of jurisdiction of various aquatic resources for the agencies to consider as the rulemaking is further developed.

At the time the outreach meeting was held, the most recent public statement of policies
rela ting to defining “waters of the U.S.” was the agencies’ draft guidance, so many
commenters referred to that as a reflection of the agencies’ likely policy choices and as a general baseline for comments.

The agencies invited participants to give their focu sed feedback on concerns that they may have regarding a potential change in jurisdiction during the meeting and also accepted written

comments following the meeting. Written comments were requested by October 26, 2011, which
the agencies later extended to November 17, 2011. Issues discussed during the October 12 outreach meeting and written comments are summarized below.



## Summary of Comments from Small Entity Participants

General Need for Jurisdictional Clarity The primary concern raised repeatedly by all participants was the need for clarity as to which aquatic resources are jurisdictional and which are ex cluded from jurisdiction. The current approach
of determining jurisdiction on a case

- by

- case basis can be very time

- and resource

- intensive. One particip ant noted that when pricing projects where there is jurisdictional uncertainty

, this ambiguity is included in the price quote as well. By providing a clearer definition of what is jurisdictional

, these time and resource investments could be avoided.

Busin esses and property owners may also find themselves in violation of the CWA as they may be
unaware that a water they are discharging into is considered jurisdictional. Violators of the CWA are at risk for civil and criminal penalties and providing additional clarity as to which waters are jurisdictional can help companies and landowners minimize their risk.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 9 of 23 To help provide jurisdictional clarity participants commonly requested concise definitions for terms that determine jurisdiction such as isolat ed, adjacent, tributary, and ordinary high water mark. One participant also noted that an erosional feature and an ephemeral stream can have similar
characteristics and it is important to have a sharp distinction between the two. Participants also
suggeste d that EPA and Army maintain a list of Traditionally Navigable Waters (TNWs) that are considered jurisdictional to help businesses and landowners determine if an aquatic resource is likely to be jurisdictional.

Participants recommended that the agencies d etermine general categories of jurisdictional waters, eliminating the need for case

- by

- case determinations. The list of features identified as generally not jurisdictional should also be very clear and exhaustive; participants advocated strongly for remova l
of the term “generally” as it creates unnecessary ambiguity.



### Jurisdictional Status of Groundwater The draft jurisdictional guidance released in May 2011 indicated that when determining if a water could be considered “adjacent

, ” EPA and Army could use la teral water flow through a shallow subsurface layer to establish a hydrologic connection to a jurisdictional water. Participants raised concerns that this could be interpreted to mean that groundwater would be considered jurisdictional under the CWA. Several attendees had many concerns as to the implications of groundwater being considered jurisdictional under the CWA as it would impact many of their operations and expose contractors and others to additional CWA liability.



### Jurisdictional Status of Dit ches The potential jurisdiction of ditches was of concern to several attendees. In the draft guidance released in 2011 the agencies noted that “ditches that are not tributaries or wetlands” were
excluded from jurisdiction. Several entities expressed concern that this policy appears to be a departure from current practice and would significantly expand jurisdiction over ditches, and could make agricultural and roadside ditches jurisdictional. If jurisdiction were to be asserted over these types of ditc hes there would be significant cost and liability implications.



### Impoundments Impoundments of waters of the U.S. may be considered jurisdictional, but impoundments constructed wholly in uplands are generally not jurisdictional. For example, farm ponds for stock watering constructed wholly in uplands and fed by groundwater would generally not be jurisdictional. Several participants found the discussion in the 2011 draft guidance regarding the jurisdiction of impoundments to be confusing, specifically when it relates to the jurisdiction of farm ponds. One participant suggested that in order to provide as much clarity as possible

, all preamble language related to impoundments should be housed together.



### Implications for Low Impact Design (LID) LID is being impl emented around the country, commonly to control stormwater. Several participants raised concerns that ditches, swales, or other bioretention features may require CWAFinal Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 10 of 23 Section 404 permits for their installation or maintenance. Swales may sometimes utilize we tland plants, which one participant believe d makes them more likely to be found jurisdictional, especially over time as they take on more wetland characteristics. The need for multiple permits for the
installation and maintenance of LID devices could have significant resource implications for cities and may be a disincentive for their use.



### Similarly Situated Waters Approach The 2011 draft guidance indicated that similarly situated waters are physically proximate other waters (non

- wetland waters that would satisfy the definition of “adjacent”) in the same point

- of

entry watershed and these waters should be evaluated together to determine whether they satisfy
the significant nexus standard. A point

- of

- entry watershed is all waters upstream of and which
drain to a TNW or interstate water through a single point of entry. One participant noted that this
could be interpreted to mean that once a jurisdictional determination is completed for one water in a watershed, it could be interpreted to apply to all of the wa ters in that watershed. The participant noted significant legal concerns with this policy as, in his opinion, other landowners in the area
would not be offered the opportunity for due process. If the agencies used such an approach during rulemaking, the pa rticipant recommended that the agencies reach out to other landowners in the watershed when completing a jurisdictional determination.



### Interpretation of Supreme Court Cases Many participants hold strong views regarding how to properly interpret the SWANCC and Rapanos Supreme Court cases that affect the scope of CWA jurisdiction. There was much discussion during the meeting on this issue and the written comments submitted by participants present their views in detail. Many participants believe the Supreme C ourt has limited the EPA and Army’s ability to assert jurisdiction over waters as tributaries based on the presence of an ordinary high water mark (OHWM) or any hydrologic connection to navigable waters. Additionally, many participants believe
that the decisions in SWANCC and Rapanos limit the jurisdiction of wetlands that are adjacent to
tributaries and render isolated, intrastate waters non

- jurisdictional.



### Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice

- and

- comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not
have a significant economic imp act on a substantial number of small entities (SISNOSE). The national industry associations in attendance feel strongly that the EPA should complete a regulatory flexibility analysis, and complete a formal Small Business Advocacy Review (SBAR) Panel, if th e EPA found the
rule would have a SISNOSE. In the opinion of the associations, this rule would have a SISNOSE and
thus a SBAR Panel should be convened. The associations also believe that a rule to revise the
definition of the term “waters of the U.S.” woul d have direct effects on small entities as this change in jurisdiction may require additional small entities to comply with existing CWA programs.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 11 of 23 

## Summary of Outreach in 2014
Similarly, in 2014 the EPA and Army solicited participation from small entities in a follow up meeting on October 22, 2014. At the time of the meeting, the most recent public statement of policies relating to defining “waters of the U.S.” was the proposed rule dated April 21, 2014. A compl ete list of those invited appears below:

Farming/Agriculture

National Cattlemen’s Beef Association
National Cotton Council

American Farm Bureau Federation

Construction and Development The Associated General Contractors of America (2 reps)

Terra Verd e Associates International Council of Shopping Centers

National Association of Home Builders
Louisiana Home Builders Association
Granite Commercial Real Estate Buckeye Development, LLC Manufacturing
National Association of Manufacturers Municipal Separate Storm and Sewer Systems or Publically Owned
Treatment Works City of Farmers Branch, Texas
Carlsbad Soil and Water Conservation District Mining National Stone, Sand, and Gravel Association American Exploration and Mining Association Fertilizer and Pesticide Application Water Stewardship, Inc. Responsible Industry for a Sound Environment D.C. Legislative and Regulatory Services

Power
American Public Power Association The National Rural Electric Cooperative Association
Other Inte rests Groups Golf Course Superintendents
Professional Landcare Network
Small Business Administration, Office of Advocacy

The participants were asked to provide early feedback and recommendations on the proposed rule prior to the close of the public comment period on November 14, 2014. The i ssues discussed during the outreach meeting on October 22, 2014, and written comments are summarized below.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 12 of 23 

## Summary of Comments from Small Entity Participants

Call for a SBREFA Panel Several small entity participants suggested that EPA, Army , and small entities would benefit from convening a small business advisory review panel (SBREFA panel), regardless of the determination by
EPA and Army that the proposed rule would not impact a sig nificant number of small entities. Two participants asserted that the meeting held on October 22 , 2014, did not “meet the letter or spirit” of the SBREFA requirements and did not substitute for a SBREFA panel. It was recommended that EPA
and Army follow th e recommendations of the Small Business Advocacy office on this matter.



### General Need for Jurisdictional Clarity The primary concerns raised by small entity participants were related to the need for more clarity in determining which bodies of water are ju risdictional and which are exempted from jurisdiction under the proposed rule. Participants cited several examples of why jurisdictional clarity is important for small entities, including the following:

• Lack of clarity can lead to “legal loopholes” that ca n be used by some individuals or organizations to stop development or other business activities.

• Land purchasers often have limited time and access to conduct land analyses, so they may not be able to adequately make jurisdictional determinations in the ti me available. This can make it difficult to decide on whether to make land purchases and to determine the appropriate land price.

• For some businesses (e.g., gravel excavation), there is a perception that all of their work may be subject to case

- by

- case de terminations, which will add time and expense to projects.

• Uncertainty serves as a deterrent to development, because it adds to potential risk. This will serve to slow down the pace of economic recovery. (States like New Hampshire that rely on
property taxes will be particularly hard hit.)

The lack of clarity largely stemmed from definitions and applications of key terms such as tributaries, ditches, adjacency, and aggregated or similarly situated (aggregated) waters. Participants
recommended that EPA a nd Army provide more clear and concise definitions of key terms. They also noted that it would be helpful to have a field

- specific guide. The guide could include a list of different aquatic resources as well as pictures to illustrate what is and is not jur isdictional. The more guidance and specificity EPA and Army can provide, the easier it will be to avoid jurisdictional questions and

issues.



### Jurisdictional Status of Ditches A few participants raised questions about the potential jurisdiction of ditches. In particular, participants asked about the concept of seasonal flow. Previously, if a ditch had met the Scalia test (if it was a perennial well or intermittent more than seasonal) it was automatically considered jurisdictional. The new rule moves away fr om “seasonal” in defining jurisdictional waters and uses the term “perennial” instead. The “seasonal” terminology is also used in the 2008 Guidance, which adds to the
confusion.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 13 of 23 While discussing ditches, participants also raised questions about exclusion s in the context of duration
and connection to non

- excluded waters. It is unclear whether a ditch that is excluded is always excluded or whether it can become jurisdictional at some point in the life of a project (e.g., a ditch that
later becomes a wetland because it is no longer maintained and takes on more natural characteristics). It is also not clear whether an excluded ditch could become jurisdictional if it connects other jurisdictional waters.



### Aggregated Water Bodies Some participants expressed con cern about the impact of aggregated water bodies on different industries. One participant asked about how the concept of aggregated water bodies or common landscapes applies to linear projects that have several crossings of individual water bodies. There w as concern about whether or not utilities would still be able to operate under a general permit if these waters are aggregated. In particular, there is a perception that individual water bodies would be combined and considered a single water body.

Other participants were concerned about how this concept might impact development projects. If a developer is buying a property, it is unclear how a developer would know if there are jurisdictional issues associated with other parcels that may impact the purchas ed property if it is part of an aggregated feature. This is of particular concern for projects that incorporate new stormwater techniques that lack maintenance and could eventually turn into jurisdictional waters. In addition, developers may not know wheth er a property that they are developing is part of an aggregated feature even though they may conduct their due diligence.

Finally, one participant asked whose responsibility it is to notify a property owner (who may have owned their land for many years) i f a water body on their property is now part of some aggregated
feature.

Participants provided the following suggestions in response to the concerns raised about this topic:

• When a jurisdictional determination is made based on similarly situated waters, t here should be a communication that goes out to notify those who may be impacted by that determination.

• EPA should develop a Question & Answer document or guidance for specific industry sectors
when the final rule is issued.

• There should be a transition p eriod in the enforcement schedule to allow time for affected industries to understand the requirements and move towards full compliance.



### Definition of Tributary Participants were interested in how EPA defined tributaries. There were concerns that as the definition of tributary expands, it will increasingly affect how people use their land. They see the new rule as expanding the definition, which would create problems especially for small business owners who do not have as many resources as larger companie s do. Even if the EPA and a regulated entity are in agreement that a body of water is not jurisdictional, vagueness in defining the term could make room for third parties to find reasons to argue that it is indeed jurisdictional.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 14 of 23 

### Adjacency

Several participants had questions regarding what waters adjacent to a floodplain would be jurisdictional. The rule is currently not clear, and there is no additional definition of an adjacent water or any limit to how far a water resource must be from a floodplai n to no longer be considered jurisdictional. Placing limits on the jurisdictional area adjacent to a floodplain or mapping them would clarify exactly which waters would be jurisdictional based on adjacency.



### Rule Seen as Expansionary

While EPA has held tha t the rule would increase exemptions and free bodies of water from jurisdiction, meeting participants felt that the rule would do exactly the opposite. This perspective is based largely on the definitions of key terms. For example:

• The term water is descri bed in a footnote of the proposed rule in a way that seems broader than in the past. The reference to biological connection in particular could make many more waters jurisdictional.

• The concept of adjacency is not well articulated, and it is unclear what adjacent waters would be jurisdictional under the new rule (e.g., an entire riparian area or just a portion).

• The reference to “shallow subsurface water connection” is also unclear and could force some companies to seek case

- by

- case jurisdictional guidanc e on all of their projects.

The conflicting viewpoints could be remedied if the rule was made more specific so everyone can easily determine which waters are jurisdictional and how many new aquatic resources will fall under government jurisdiction after t he new rule is in effect.



### Lack of Clarity Related to Municipal Separate Storm Sewer Systems (MS4s) One participant emphasized that there was significant confusion about what is or is not regulated under an MS4 permit. Small entities are particularly impac ted by this. It was recommended that MS4s be included in the waste treatment exemption.



### Possible Effects on Development & Small Businesses One participant described the proposed rule as “business unfriendly,” and many participants expressed
concerns about the potential negative impacts on business and development. For example, jurisdictional waters tend to devalue land. This means that developers and business owners may be hesitant to purchase land or build on land because of the risk that property may bec ome devalued because of new jurisdictional determinations.

Businesses that require permits may be reluctant to do their work because of fear and uncertainty related to the proposed rule. Until they get more clarity, they may be reluctant to act. In the c ase of pesticide applications, this may result in public health impacts if pesticide applicators are reluctant to spray for disease

- bearing insects out of concerns over whether or not they are in compliance or
concerns about citizen action suits.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 15 of 23 There m ay also be issues with small businesses not being able to secure permits in a timely manner. There is no guarantee that a business can get a CWA permit, and the consequences for failing to have a permit can be severe. For example, golf courses need permits for a variety of activities (e.g., water use, stormwater conveyance, pesticide application, etc.). If a golf course, which usually fits the definition of a small business, cannot procure a permit for these activities, it cannot operate. Because of all of the uncertainties associated with the new rule, small businesses could view the new rule as a “taking” under the Constitution and many properties may go out of business.



### How the Rule will be Implemented Meeting participants raised concerns regarding whether or not bodies of water would be grandfathered. For example, a water body could have been determined to be non

- jurisdictional and then become subject to jurisdiction when the rule is released. The quest ion is whether the jurisdiction will change or if the jurisdictional determination will apply to the life of the determination.

Participants were concerned that this rule would lead to an increase in case

- by

- case determinations of jurisdiction. This will require some companies to hire consultants and engineers to make these determinations, but many smaller businesses do not have the necessary resources to acquire these services. This means that small operators may not have the capacity to make these deter minations.

Several participants also noted that there is a broad network of organizations and individuals involved in implementing the proposed rule. EPA and Army need to not only make sure it has the resources to implement the rule, but it also needs to provide its state and local partners with the resources they need to understand it and implement it consistently. This is already playing out in one state that has decided to change the point of compliance for one e ntity’s permitted discharge. The change is being made as a result of evolving understanding of the definition of “waters of the U.S.”



## Recommendations and Responses to Comments from Small Entity Participants

During the outreach meetings in 2011 and 2014 E PA and Army provided an opportunity for the meeting participants to provide verbal and written comments on th e draft documents under review.

As noted above

, similar recommendations were provided by the small entity participants during both meetings. The a gencies have developed the following response s to the comments received
from small entities to address issues raised

, and provide feedback on how these recommendations were considered in the development of the final rule.



### General Need for Jurisdictional Clarity The primary concern raised by all participants was the need for clarity as to which aquatic resources are or are not jurisdictional. The final rule interprets the CWA to cover those waters that require protection in order to restore and maintain th e chemical, physical, or biological integrity of traditionalFinal Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 16 of 23 navigable waters, interstate waters, and the territorial seas. This interpretation is based not only on legal precedent and the best available peer

- reviewed science, but also on the agencies’ te chnical expertise and extensive experience in implementing the CWA over the past four decades

. The agencies believe continuity with the existing regulations, where possible, will reduce confusion and will reduce transaction costs for the regulated communit y and the agencies. To that same end, the agencies have included, where consistent with the law and science, bright line categories of waters that are and are not jurisdictional. This rule categorically identifies as “waters of the U.S.” traditional navig able waters, tributaries, adjacent waters, interstate waters, and impoundments of jurisdictional waters. As requested by many small entities during the outreach meetings, the agencies have clarified some of
the terms use , such as adjacent, tributary and s ignificant nexus , in the final regulation . Ordinary high water mark is already defined in regulations (see 33 C.F.R. § 328.3(e)).

The agencies also identified categories of waters and wetlands that continue to require a case

- by

- case significant nexus eva luation to determine whether they are “waters of the United States” and protected by the Clean Water Act. In these cases, current scientific evidence regarding these waters does not provide a basis for a categorical determination, either positive or negat ive.

Actions to clarify the definition of “waters of the U.S.” will increase predictability and minimize the
need for case

- by

- case determinations and are in line with requests from the regulated community, including many small entities.



### Jurisdictional Status of Groundwater Current practice under the 2008 Rapanos guidance is that the presence of an unbroken shallow
subsurface connection between a water of the United States and a wetland indicates that the
wetland is “adjacent.” Participants at the small entity meeting raised concerns that this could be interpreted to mean that groundwater would be considered jurisdictional under the CWA.

The agencies emphasize that groundwater is not subject to regulation under the CWA, and the proposal did not change th at longstanding statutory interpretation. This rule clarifies that groundwater is not jurisdictional regardless of its relationship to the floodplain.



### Jurisdictional Status of Ditches Several entities expressed concern that policies identified in draft gu idance of 2011 and the proposed rule of 2014 would significantly expand jurisdiction over ditches and could make agricultural and roadside ditches jurisdictional. They noted that if jurisdiction were to be asserted over these types of ditches, there would be significant cost and liability implications.

The rule continues the current policy of regulating ditches that are constructed in tributaries or are relocated tributaries, or that science clearly demonstrates are functioning as a tributary. These waters affect the chemical, physical, and biological integrity of downstream waters. The rule further reduces existing confusion and inconsistency regarding the regulation of ditches by explicitly excluding certain categories of ditches, such as ditches t hat flow only after precipitation.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 17 of 23 

### Impoundments

The final clarifies that i mpoundments of jurisdictional waters are jurisdictional by rule in all cases. The existing regulatory language with respect to impoundments, "[i]mpoundments of waters
otherwise defi ned as waters of the United States under this definition " , remains unchanged. The Supreme Court has confirmed that damming or impounding a water of the United States does not
make the water non

- jurisdictional. See S. D. Warren Co. v. Maine Bd. of Envtl. P rot. , 547 U.S. 370, 379 n.5 (2006) ("[N]or can we agree that one can denationalize national waters by exerting private control over them.").



### Implications for Low Impact Design (LID) Several participants raised concerns that swales, or other bioretention f eatures called for by LID may require CWA Section 404 permits for their installation or maintenance. The agencies support
the use of LID features. Despite concerns, most LID features, such as rain gardens, are not designed
to hold water and would not be co nsidered jurisdictional waters or wetlands.



### Similarly Situated Waters Approach One participant expressed concern that once a jurisdictional determination is completed for one water in a watershed, it could be interpreted to apply to all of the waters in that watershed, and thus deny other landowners in the area the opportunity for due process. It was recommended that the agencies reach out to other landowners in the watershed when completing a jurisdictional determination using the similarly situated wate rs approach.

The agencies’ policy for similarly situated waters is based on its interpretation of Justice Kennedy’s opinion in Rapanos , which states that a significant nexus exists where a water, either individually or in combination with similarly situat ed waters in the region, has a more than speculative or insubstantial effect on downstream traditional navigable waters. The rule defines the “in the region” as the “point of entry watershed,” that is, the topographic area draining to the nearest

TNW or in terstate water through a single point of entry. The agencies believe that the point of entry watershed is an appropriate interpretation of “in the region” for the purposes of applying Justice Kennedy’s significant nexus standard.

In the rule, the agencies also establish that defined sets of additional waters may be determined to have a significant nexus on a case

- specific basis: (1) five types of waters that the agencies conclude are “similarly situated” and therefore must be analyzed “in combination” in t he watershed that drains to the nearest traditional navigable water, interstate water, or the territorial seas when making a case

specific significant nexus analysis; and (2) waters within 4,000 feet of the high tide line or ordinary high
water mark of tra ditional navigable waters, interstate waters, the territorial seas, impoundments or covered tributaries. The rule establishes a definition of significant nexus, based on Supreme Court opinions and the science, to use when making these case

- specific determ inations.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 18 of 23 

### Interpretation of Supreme Court Cases Many participants hold strong views regarding how to properly interpret the SWANCC and Rapanos Supreme Court cases that affect the scope of CWA jurisdiction. There was much discussion during the meetings and in written comments. Some participants believe the Supreme Court has limited the EPA
and Army’s ability to assert jurisdiction over waters as t ributaries based on the presence of an OHWM or any hydrologic connection to navigable waters. Additionally, many participants believe that the
decisions in SWANCC and Rapanos limit the jurisdiction of wetlands that are adjacent to tributaries and
render is olated, intrastate waters nonjurisdictional.

The agencies agree that decisions in SWANCC and Rapanos combined to reduce the historic scope of CWA jurisdiction, and the final rule reflects a narrower interpretation of the CWA’s scope than did the previous rule. The agencies expect, however, that in practice under the final rule the agencies will assert CWA jurisdiction over some additional waters when compared to the practice under the previous rule as interpreted by the agencies’ 2008 guidance in respons e to SWANCC and Rapanos . This is because the final rule is able to provide better clarification of the agencies’ interpretation of the Supreme Court decisions. The final rule does not, however, extend federal jurisdiction to any waters not historically protected under the CWA and is fully consistent with the law, including decisions of the Supreme Court.

Justice Kennedy explained the SWANCC decision in his concurring opinion in Rapanos : “In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engi neers , 531 U.S. 159 (2001) ( SWANCC ), the Court held, under the circumstances presented there, that to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that

c ould reasonably be so made.” The agencies’ application of the significant nexus standard avoids Commerce Clause and federalism concerns because the standard is derived from Justice Kennedy’s opinion, which explicitly addressed such concerns.



### Regulatory Flexibility Act The national industry associations in attendance felt strongly that the EPA should complete a regulatory flexibility analysis, and complete a formal Small Business Advocacy Review (SBAR) Panel,
if the agencies found the rule would have a ha ve a significant economic impact on a substantial
number of small entities (SISNOSE). In the opinion of the associations, this rule would have a
SISNOSE and thus a SBAR Panel should be convened. The associations also believe that a rule to
revise the defin ition of the term “waters of the U.S.” would have direct effects on small entities as this change in jurisdiction may require additional small entities to comply with existing CWA

programs.

The agencies disagree with this interpretation. The final rule is not designed to “subject” any entities of any size to any specific regulatory burden. Rather, it is designed to clarify the statutory scope of “the waters of the United States, including the territorial seas” (33 U.S.C. 1362(7)), consistent with Supreme C ourt precedent. This question of CWA jurisdiction will be informed by the tools of statutory construction and the geographical and hydrological factors identified in Rapanos v. United

States , 547 U.S. 715 (2006). OMB concurred with the agencies’ determina tion.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 19 of 23 Nevertheless, the scope of the term “waters of the United States” is a question that has continued to generate substantial interest, particularly within the small business community, because permits

must be obtained for many discharges of pollutants into those waters. In light of this interest, EPA
and Army determined to seek early and wide input from representatives of small entities while formulating the proposed definition of this term that reflects the intent of Congress consistent with
the mandate of the Supreme Court’s decisions.

EPA and Army worked with SBA and other key agencies to discuss whether or not SBREFA would be triggered and determined that it would not be. Given the vital role small entities play in implementation of the CWA, the a gencies decided to solicit technical input through outreach. Such outreach, although voluntary, is also consistent with the President’s January 18, 2011

, Memorandum on Regulatory Flexibility, Small Business, and Job Creation, which emphasizes the important role small businesses play in the American econo my. This process has enabled the agencies to hear directly from these representatives, at a preliminary stage, about how the agencies should approach this complex question of statutory interpretation.

The public comments identified a number of areas where the rule could be more effective in protecting clean water, could be clear er and eas ier to understand, could help to reduce potential burdens on farmers and small businesses, and could be more responsive to the needs of states and local governments. Below are some of the major comments the agencies heard during meetings with
stakeholders an d in public comments submitted to the agencies:

• Protect and enhance the key role given to states and tribes under the statute to implement CWA programs.

• Understand potential indirect effects on cities, counties, and other municipalities

, that must comply w ith the requirements of the CWA.

• Define the scope of CWA jurisdiction consistent with decisions of the Supreme Court.

• Recognize the role of farmers in conserving the nation’s vital aquatic resources.

• Address potential burdens on the small business communit y.

• Ensure the CWA remains effective in protecting the clean water on which the nation depends for our health, the economy, and the environment.

• Make the rule less complicated, easier to understand, and more predictable to implement.

These and other commen ts received were considered in the development of the final rule.



### Adjacency Representatives from the agencies agree that not placing a limit on floodplain adjacency would be problematic

. The final rule establishes a definition of “neighboring” for purpo ses of determining adjacency. In the rule, the agencies identify three circumstances under which waters would be “neighboring” and therefore “waters of the United States”: (1) Waters located in whole or in part within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment of a jurisdictional water, or a tributary.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 20 of 23 (2) Waters located in whole or in part in the 100

- year floodplain that are within 1,500 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment, or a tributary (“floodplain waters ”). (3) Waters located in whole or in part within 1,500 feet of the high tide line or the ordinary high water mark of a tidally

- influenced traditional navigable water, including the Great Lakes, or
territorial sea.

The agencies emphasize that the rule covers as adjacent waters only those waters that currently available science demonstrates possess the requisite connection to downstream wate rs and function as a system to protect the chemical, physical

, or biological integrity of those waters. The agencies recognize that the establishment of “bright line” thresholds in the rule for adjacency does not in any way restrict states from considering state

- specific information and concerns, as well as emerging

science

, to evaluate the need to more broadly protect their waters under state law. The CWA establishes both national and state roles to ensure that states specific

- circumstances are properly considered to complement and reinforce actions taken at the national level.



### Aggregated Bodies of Water The concept of aggregation is not about aggregating impacts. Rather, this concept is about looking at water features to determine if they can be treated similarly. This is intended to help streamline determinations, because water bodies that exhibit common features will either be jurisdictional or not. Even if a body of water is determined to be jurisdictional as part of an aggregate, it will be regulated individually.



### Rule Seen as Expansionary EPA reiterated that the rule is not meant to expand waters co vered by the Clean Water Act, but rather was meant to clarify how EPA defines “waters of the U.S.” The scope of regulatory jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as “waters of the

Unite d States” under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.



### Effect on Development & Small Businesses From a legal standpoint, t he scope of regulatory jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as “waters of the United States” under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries. Consequently, this action will not affect small entities to a greater degree than the existing regulations.

The Clean Water Rule does not directly establish any specific regulatory requirements . Instead, it is a
definitional rule that clarifies the scope of “waters of the United States” that are protected under the CWA, using the text of the statute, Supreme Court decisions, the best available peer

- reviewed science, public input, and the agenci es’ technical expertise and experience in implementing the statute

.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 21 of 23 

### How the Rule will be Implemented Under existing Corps' regulations and guidance, approved jurisdictional determinations generally are valid for five years. The agencies will not reopen e xisting approved jurisdictional determinations unless requested to do so by the applicant or, consistent with existing Corps’ guidance, unless new information warrants revision of the determination before the expiration period. Similarly, consistent
with existing regulations and guidance, approved jurisdictional determinations associated with issued permits and authorizations are valid until the expiration date of the permit or authorization.

In addition to the feedback received from the outreach meetings summarized above, the agencies convened over 400 meetings nationwide with states, small businesses, farmers, academics, miners, energy companies, counties, municipalities, environmental organizations, other federal agencies, and many others to provide an enhanced opportunity to provide input on the proposal. The agencies also received over one million public comments that informed this rule. For information on the written comments received on RFA during the public comment period for the proposed rule, a detailed response to comments document was prepared by the agencies and is available in the public docket for this rulemaking ( Docket EPA

- HQ

- OW

- 2011

- 0 880 ).



## Conclusion

The comments received from outreach with small entities identified a number of areas where the proposed rule could be more effective in responding to the concerns raised by small entities . Below are some of the major comments the agencies heard during the outreach meetings and in the written comments submitted to the agencies:

• Address pot ential burdens on the small business community.

• Protect and enhance the key role given to states and tribes under the statute to implement CWA programs.

• Understand potential indirect effects on cities, counties, and other municipalities that must comply wi th the requirements of the CWA.

• Define the scope of CWA jurisdiction consistent with decisions of the Supreme Court.

• Recognize the role of farmers in conserving the nation’s vital aquatic resources.

• Make the rule less complicated, easier to understand, and more predictable to implement.

The agencies listened carefully to recommendations provided by small entities through the rulemaking process, and what the public had to say and their input is reflected in a number of key revisions of the
rule:

• Protect Tri butaries and their Adjacent Waters: Science clearly demonstrates that tributaries and their adjacent waters, as defined in the rule, must be protected from pollution and destruction under the CWA. The nation’s streams, creeks, rivers, and their adjacent wa ters are not just connected to downstream traditional navigable waters,
interstate waters and the territorial seas ; they are integral to protecting the chemical, physical, and biological integrity of these downstream waters.Final Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 22 of 23 • Provide More Bright Lines: Science shows that certain additional wetlands contribute to downstream waters by holding flood waters, filtering pollutants, and trapping sediments. The rule identifies the places where these wetlands are found and where appropriate establishes them as si milarly situated for conducting case

- specific determinations of whether they are “waters of the United States.”

• Simplify Definitions : The final rule establishes that only those waters that have the physical indicators of sufficient flow

– bed and banks and an ordinary high water mark

– are protected tributaries. Some commenters also raised concerns that the definition of “neighboring” was unnecessarily complicated and confusing. The agencies revised the rule by removing some terms that caused confusion and providing clearer lines identifying protected waters.

• Reduce Potential Burdens on Farmers: The rule makes clear that current farming practice remains unchanged. Features such as tile drain systems; grassed waterways on farms; ditches with either epheme ral flow through dry land or those that do not connect to the tributary system; gullies and erosional channels; and features on farm land including non

- wetland swales, farm and stock ponds that are built on dry land, as well as
all features that do not hav e the physical indicators of protected tributaries; and prior converted cropland

– are not protected under the CWA.

• Exclude Many Stormwater Control and Water Recycling/Reuse Structures: The rule makes clear that many municipal separate storm sewer system s tructures and water recycling structures including retention and detention basins, infiltration structures, curbs and gutters, and water delivery systems constructed on dry land are not protected
under the CWA.

The agencies’ final rule is based on sound p eer

- reviewed science and the law, and is easier to understand and implement. In addition, it protects jobs dependent on clean water, saves time and money for the regulated community and agencies implementing the CWA, and ensures that the nation
will conti nue to have abundant and safe supplies of clean water for businesses, farming, communities, fishing and swimming, and drinking water. The rule reflects important improvements identified in hundreds of meetings with stakeholders and hundreds of thousands o f public comments.

The final rule does not itself establish any specific regulatory requirements. Instead, it is a definitional rule that clarifies the scope of “waters of the United States” consistent with the CWA, Supreme Court precedent, and science. Programs established by the CWA, such as the section 311 oil spill prevention
and clean

- up programs, the section 402 NPDES permit program, and the section 404 permit program for discharge of dredged or fill mater ial, all rely on the definition of “waters of the United States.”

Entities currently are, and will continue to be, regulated under these programs that protect “waters of the United States” from pollution and destruction.

America thrives on clean water. The rule is vital for the success of the nation’s businesses, agriculture, energy development, and the health of our communities. The agencies have defined the scope of the CWA in a regulation that protects clean water and public health, promotes jobs and the economy, andFinal Report of the Discretionary Small Entity Outreach for the Clean Water Rule: Definition of “Waters of the United States ; ” Final Rule

Page 23 of 23 ensures the agricultural community has clarity needed to continue to produce the food, fuel, and fiber we rely upon.