SUMMARY

Small Entities Outreach Meeting

on the

Proposed Rule for 

Redefining Waters of the United States

under the Clean Water Act

Hosted by

US Environmental Protection Agency

October 15, 2014
Meeting Participants

Farming/Agriculture:

Ashley Macdonald

National Cattlemen's Beef Association

Kevin Menchey

National Cotton Council

Don Parrish

American Farm Bureau Federation

Construction and Development:

Scott Berry

The Associated General Contractors of America

Tom Farasy 

Terra Verde Associates

Abigail Jagoda

International Council of Shopping Centers

Owen McDonough

National Association of Home Builders

Jerry Passman

Louisiana Home Builders Association

Leah Pilconis

Associated General Contractors of America

Megan Prieto

Granite Commercial Real Estate

Ed Smariga

Buckeye Development, LLC

Manufacturing:

Chip Yost

National Association of Manufacturers

Small Government Entities:

Judy Bock

Carlsbad Soil and Water Conservation District

Stacy Wright

City of Farmers Branch

Mining:

Laura Skaer

American Exploration and Mining Association

Pamela Whitted

National Stone, Sand, and Gravel Association

Fertilizer and Pesticide Application:

Allison Donaghy

Responsible Industry for a Sound Environment

Laurie Flanagan

D.C. Legislative and Regulatory Services

Tom Simpson

Water Stewardship, Inc.

Power:

Dorothy Kellogg

The National Rural Electric Cooperative 

Association 

Theresa Pugh

American Public Power Association

Other:

Tom Delaney

Professional Landcare Network (PLANET)

Kia Dennis

SBA Advocacy

Robert Helland

Golf Course Superintendents

Government:

Laura Bachle

EPA/OW

Connie Bosma

EPA/OW/OWM

Tiffany Crawford

EPA/OW/OWOW

David Evans

EPA/OW

Erin Flannery-Keith

EPA/OW/OWM

Brian Frazer

EPA/OW/OWM

Russ Kaiser

EPA/OW/WD

Ken Kopocis

EPA/OW

Stuart Levenbach and Vlad Dorjets

OMB

Gregory Peck

EPA/OW/IO

Gautam Srinivasan

EPA/OGC

Jenny Thomas

EPA/OW/WD
3 

Introduction 

The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) have 

developed a proposed rule defining the scope of waters protected under the Clean Water Act (CWA), in 

light of the U.S. Supreme court cases, particularly decisions in Solid Waste Agency of Northern Cook 

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

v. United States (Rapanos). The agencies are undertaking this rulemaking with the goals of increasing 

CWA program predictability, timeliness, and consistency by increasing clarity regarding the scope of 

“waters of the United States” covered under the Act, and would enhance protection for the nation’s 

aquatic resources consistent with science and the law. 

Waters, including wetlands, found to be “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. Exhibit 1 identifies the CWA programs that rely on the definition of “waters of the U.S.”, 

along with the government entities that are responsible for administering the programs. The CWA 

establishes oil spill prevention programs (Section 311); requires permits for pollutant discharges (Section 

402); requires permits for the placement 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 will not 

violate state water quality standards (Section 401); and provide tools for the federal government, states, 

and communities to enforce the law. 

Exhibit 1. Clean Water Act Programs that rely on the Definition of “waters of the United States.”

CWA Programs

“Navigable” Waters: Waters of the U.S., 

including Territorial Seas

303

Water

Quality

Standard

& TMDLs

311

Oil 

Spill

Programs

401

State

Certifcation

402

Pollutant

Discharge

Permits

404

Dredge

and

Fill

Permits

States

Tribes

EPA

EPA

DHS

States

Tribes

EPA

States

EPA USACE

States

EPA

3
4

Recent court rulings and interpretations of water laws have sparked confusion and increased 

uncertainty regarding which waters are protected under the Clean Water Act, especially for headwater 

streams and wetlands. 

As requested by a diverse group of stakeholders including the agriculture community, 

environmental and conservation groups, and state and local governments, the EPA and the Corps are 

seeking to provide clarification via notice and comment rulemaking as to what waters are and are not 

jurisdictional and thus under the purview of the CWA. The agencies understand that case-specific 

decisions concerning whether or not a waterbody is subject to the CWA may affect small entities who 

may, as a result, need to determine whether or not authorization is necessary to discharge pollutants 

into waterways. The lack of clarity and case-by-case determinations made necessary by SWANCC and 

Rapanos have resulted in delays and confusion which the agencies are eager to address in their 

rulemaking to reduce impacts on the public, including small entities. Small entities also benefit from the 

functions provided by intermittent, ephemeral and headwater streams and wetlands, such as purifying 

water and reducing potential treatment costs, reducing flood flows, and assuring reliable and constant 

supplies of water.

The overall geographic scope of the proposed regulation is narrower than it was before SWANCC

and Rapanos, when the current rule was written. The agencies recognize and agree that the effect of the 

Supreme Court decisions was to narrow the geographic reach of the Act and the proposed rule reflects 

that. The scope of the regulations as proposed is narrower than the scope of the existing regulations. 

The agencies expect, however, that in clarifying the reach of waters under the Act, the proposed rule is 

likely to result in a slight increase in waters found jurisdictional compared to current practice under the 

2008 guidance. The agencies expect the increase to be small, if at all, and occur in the context of 

improving the process of making jurisdictional determinations more quickly, more predictably, and with 

greater national consistency. Overall, small entities (and other regulated groups) have emphasized to 

EPA the importance of clarity, predictability, and consistency for their businesses and for the American 

taxpayer. In addition, the proposed 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 Court 

precedent.

Additional background on CWA jurisdiction and relevant case law is included in Attachment 1.

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. After considering the economic 

impacts of this proposed rule on small entities, the agencies have certified that this proposed rule will 

not have a significant impact on a substantial number of small entities. 
5

EPA convened a meeting on October 15, 2014, to exchange information with small entities that 

may be interested in this action. The meeting was led by representatives from within EPA’s Office of 

Water and was not intended to serve as a small business advisory review panel as defined in Section 

609(b) of the RFA. This document includes a summary of comments made by meeting participants. The 

meeting agenda is included as Attachment 2.

Once completed, the final summary for this outreach meeting will be included in the rulemaking 

record. Meeting participants were also encouraged to provide specific written comments to EPA directly 

to ensure that their concerns are captured accurately. EPA is prepared to consider additional changes to 

the proposed rule in response to public comments, including any comments from small entities.

It is important to note that the findings and discussion in this summary are based on the 

information available at the time this summary was drafted. The EPA and the Corps are continuing to 

conduct analyses relevant to the proposed rule, and additional information may be developed or 

obtained during the remainder of the rulemaking process.

Opening Remarks by EPA

Ken Kopocis, Deputy Assistant Administrator EPA Office of Water (OW), welcomed participants 

and expressed how important it was to EPA and the Corps to get feedback on the proposed rule from 

small entity owners and representatives. He noted that EPA has conducted over 350 meetings with 

stakeholders, including many with small business owners and small entity representatives. He 

announced that the comment period was extended until November 14, 2014, in part, to allow 

interested parties to more fully review the report by the Science Advisory Board on the adequacy of 

scientific and technical basis for the Proposed Rule. He reiterated the Agency’s commitment to issuing a 

final rule in 2015. 

Following these opening remarks, Russell Kaiser, EPA Office of Water, provided some 

background information about the proposed rule and the associated court cases as described in 

Attachment 1. 

Summary of Comments from Small Entity Participants

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. Many commenters referred to that 

document as a reflection of the agencies’ likely policy choices and as a general baseline for comments.

There were no written materials provided by participants at the meeting.

Call for a SBREFA Panel

Several small entity participants suggested that EPA, the Corps, and small entities would benefit 

from convening a small business advisory review panel (SBREFA panel), regardless of the determination 

by EPA and the Corps that the proposed rule would not impact a significant number of small entities. 

Two participants noted that the October 15th meeting did not “meet the letter or spirit” of the SBREFA 
6

requirements and did not substitute for a SBREFA panel. It was recommended that EPA and the Corps 

follow the 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 jurisdictional 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 can 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 time 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 determinations, 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 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 jurisdictional. The more guidance and 

specificity EPA 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 or intermittent that had more than seasonal flow) it was considered jurisdictional. The 

new rule moves away from “seasonal” in defining jurisdictional waters and uses only the term 

“perennial” to assess flow. The “seasonal” terminology is also used in the 2008 Guidance, which adds to 

the confusion. 

While discussing ditches, participants also raised questions about exclusions 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. 
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Aggregated Water Bodies

Some participants expressed concern 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 was 

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 purchased 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 whether 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) if 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, there 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 period 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 the 

definition of tributary expands jurisdiction over current practice, 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 companies 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.

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 floodplain to no longer be considered 
8

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 that 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 described 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 guidance 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 the 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 impacted 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 become devalued 

because of new jurisdictional determinations. 

Businesses that require permits such as pesticide applicators 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 case 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. 

The golf industry expressed concern that the proposed rule could result in a “taking” under the 

Constitution because many of their properties would not be able to engage in their normal activities if 

the rule was made final as written. They therefore would face the real risk of going out of business. If 

the rule is not changed, water bodies that were previously not jurisdictional under the Clean Water Act 

would now become jurisdictional, affecting activities done, over or near those water bodies. There is no 
9

guarantee that a business can get a CWA permit, and the consequences for failing to have a permit can 

be severe.

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 question 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 jurisdictionality. 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 

determinations. Similarly, one participant expressed concern that small businesses would face (with 

increased frequency) the burden of proving on a case-by-case basis the application of certain exclusions 

from the “waters of the US” definition (e.g., water-filled depressions created incidental to 

construction). Old maps and aerial photos may be the only sources available to identify historic 

conditions in order to resolve alleged violations of federal CWA laws. Small business operators may not 

have the resources available to produce this type of information.

Several participants also noted that there is a broad network of organizations and individuals 

involved in implementing the proposed rule. EPA needs 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 entity’s permitted discharge. The change is being made as a 

result of evolving understanding of the definition of “waters of the U.S.” 
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Attachment 1: Background 

Clean Water Act programs are applicable to all “navigable waters” which are defined in the 

statute as the “waters of the United States, including the territorial seas.” The definition of “waters of

the United States” is used in the implementation of all CWA programs including Sections 303, 311, 401, 

402, and 404. The EPA is charged with overseeing implementation of all Clean Water Act programs, 

including Section 404. The Army Corps of Engineers administers the Section 404 program for discharges 

of dredged or fill material into jurisdictional waters, and makes the majority of jurisdictional 

determinations.1

After the Clean Water Act was amended in 1972, the EPA and the Corps promulgated regulatory 

definitions of “waters of the U.S.,” and by 1979 EPA’s definition looked substantially similar to what it is 

today. In 1982, the Corps adopted EPA’s definition. The regulations define “waters of the U.S.” as 

including waters that are:

 traditionally navigable

 interstate

 could affect interstate commerce if used, degraded, or destroyed

 territorial seas

 impoundments of jurisdictional waters

 tributaries of jurisdictional waters

 wetlands adjacent to jurisdictional waters.

The agencies’ regulatory definition of “waters of the U.S.” includes exclusions for waste treatment 

systems and prior converted cropland. 

The U.S. Supreme Court addressed the scope of waters of the United States protected by the 

CWA in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), which involved wetlands 

adjacent to a traditional navigable water in Michigan. In a unanimous opinion, the Court deferred to the 

Corps’ judgment that adjacent wetlands are “inseparably bound up” with the waters to which they are 

adjacent, and upheld the inclusion of adjacent wetlands in the regulatory definition of “waters of the 

United States.” The Court observed that the broad objective of the CWA to restore the integrity of the 

nation’s waters “... incorporated a broad, systemic view of the goal of maintaining and improving water 

quality .... Protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to 

control pollution, for ‘[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants 

be controlled at the source.’ In keeping with these views, Congress chose to define the waters covered 

by the Act broadly.” Id. at 133 (citing Senate Report 92-414).

The issue of CWA regulatory jurisdiction over “waters of the United States” was addressed again 

by the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 

531 U.S. 159 (2001) (SWANCC). In SWANCC, the Court (in a 5-4 opinion) held that the use of “isolated” 

nonnavigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of 

federal regulatory authority under the CWA. The Court noted that in the Riverside case it had “found 

that Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to 

regulate wetlands ‘inseparably bound up with the “waters” of the United States’” and that “[i]t was the 

 

1

States and tribes may be approved to administer the Clean Water Act Section 404 program. Michigan and New 

Jersey currently implement the 404 program.
11

significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA” in 

that case. Id. at 167, 167. SWANCC did not directly address other parts of the regulatory definition of 

“waters of the United States.”

Five years after SWANCC, the Court again addressed the CWA term “waters of the United 

States” in Rapanos v. United States, 547 U.S. 715 (2006). Rapanos involved two consolidated cases in 

which the CWA had been applied to wetlands adjacent to nonnavigable tributaries of traditional 

navigable waters. All Members of the Court agreed that the term “waters of the United States” 

encompasses some waters that are not navigable in the traditional sense. A four-Justice plurality in 

Rapanos interpreted the term “waters of the United States” as covering “relatively permanent, standing 

or continuously flowing bodies of water. . .” id. at 739, that are connected to traditional navigable 

waters, id. at 742, as well as wetlands with a continuous surface connection to such water bodies, id. 

The Rapanos plurality noted that its reference to “relatively permanent” waters did “not necessarily 

exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or 

“seasonal rivers, which contain continuous flow during some months of the year but no flow during dry 

months . . . .” Id. at 732 n.5. 

Justice Kennedy’s concurring opinion took a different approach than Justice Scalia’s. Justice 

Kennedy concluded that the term “waters of the United States” encompasses wetlands that “possess a 

‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id.

at 759 (Kennedy, J., concurring in the judgment) (quoting SWANCC, 531 U.S. at 167). He stated that 

wetlands possess the requisite significant nexus 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.’” 547 U.S. at 780. Kennedy’s opinion 

notes that such a relationship with navigable waters must be more than “speculative or insubstantial.” 

Id. The “significant nexus” test for CWA jurisdiction that Justice Kennedy’s opinion applied to adjacent 

wetlands also can and should be applied to other categories of water bodies (such as tributaries to 

traditional navigable waters or interstate waters, and to “other waters”) to determine whether they are 

subject to CWA jurisdiction, either by rule or on a case-specific basis. 

In Rapanos, the four dissenting Justices, who would have affirmed the court of appeals’ 

application of the pertinent regulatory provisions, concluded that the term “waters of the United 

States” encompasses, inter alia, all tributaries and wetlands that satisfy either the plurality’s standard or 

that of Justice Kennedy. Id. at 810 & n.14 (Stevens, J., dissenting). Neither the plurality nor the Kennedy 

opinion invalidated any of the regulatory provisions defining “waters of the United States.” When there 

is no majority opinion in a Supreme Court case, controlling legal principles may be derived from those 

principles espoused by five or more justices. Thus, regulatory jurisdiction under the CWA exists over a 

water if either the plurality's or Justice Kennedy's standard is satisfied.

The two Rapanos standards have been difficult to put into practice for both the regulated 

community who seek permits and for agency field staff. EPA and the Corps proposed draft guidance to 

provide clearer, more predictable guidelines for determining which water bodies are protected by the 

Act. Many comments received on the proposed guidance urged the Corps and EPA to update their 

regulation defining waters of the U.S. Supreme Court justices in the Rapanos decision similarly urged 

rulemaking. 
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Small Entities Meeting on the

Waters of the United States Proposed Rulemaking

AGENDA

October 15, 2014, 1:30 PM – 4:00 PM

US EPA Headquarters Room 3233 William Jefferson Clinton East

Call-in Number 1-866-299-3188 conference code: 2025662468

Objectives

• Provide invited small entity representatives with background and information about the Clean 

Water Act and the Waters of the United States Proposed Rule

• Review responses to comments from the 2011 small entity outreach engagement

• Solicit input from participants on their questions, concerns and suggestions regarding the 

Proposed Rule

Agenda

1:30 – 1:45 Welcome, Introductions and Meeting Guidelines (Facilitator)

1:45 – 2:30 Opening Remarks and Presentation by US EPA 

2:30 – 3:45 Open Discussion (Facilitator)

Participants will be invited to ask clarifying questions about the opening presentation 

and provide comments on the Proposed Rule. Participants will be encouraged to think 

about the following:

 What aspects of the Proposed Rule do you find particularly confusing or 

problematic? Why?

 What suggestions do you have for how the Proposed Rule could be clarified or 

improved?

 What impacts do you anticipate the proposed rule having on your business in 

terms of your need to file for a Clean Water Act permit?

 What benefits do you see that might result from the Proposed Rule as written?

3:45 – 4:00 Wrap-Up, Next Steps (Facilitator)