EPA Summary

of the

Discretionary Small Entity Outreach

for

Planned Proposed 

Revised Definition of 

“Waters of the United States”
Summary of the Discretionary Small Entity Outreach for Planned Proposed Revised Definition of “Waters of the United States”

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INTRODUCTION

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

currently developing 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

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.
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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.

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. 

In 2011, the EPA and the Corps of Engineers conducted an outreach meeting designed to 

exchange information with small entities that may be interested in this action. The outreach effort was led 

by representatives from EPA’s Office of Wetlands, Oceans, and Watersheds within EPA’s Office of Water; 

the Army Corps of Engineers Regulatory Program; the Office of Information and Regulatory Affairs within 

the Office of Management and Budget (OMB), and the Office of Advocacy of the Small Business 

Administration (SBA).

This summary includes the following:

• Background information on CWA jurisdiction and relevant case law;

• A summary of the outreach meeting; 

• The written comments of the small entity participants; and

• A discussion of the comments.

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

record. The agencies have developed the proposed rule in consideration of input received as a result of 

the small entity meeting. We are prepared to make additional changes in response to public comments 

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

during the remainder of the rule development process and from public comments on the proposed rule.

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 

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.”

 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.
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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 in 

May 2011 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. In September 2013, the agencies withdrew the draft guidance and submitted 

a rule to the Office of Management and Budget for interagency review.
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OUTREACH MEETING

The EPA, in collaboration with the Corps, OMB, and SBA, conducted an outreach meeting 

designed to exchange information with small entities on various potential jurisdictional policies. This 

outreach effort targeted small businesses, small governments, and small not-for-profit organizations 

(collectively referred to as small entities) classified using the following definitions:

• Small Business: Defined under Section 3 of the Small Business Act based on a firm’s category in 

the North American Industry Classification System (NAICS). For each industry classified in NAICS, 

SBA regulations specify whether an entity qualifies as “small” based on thresholds for the entity’s 

average annual receipts or number of employees. 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

• Small Not-for-Profit Organization: Any not-for-profit enterprise which is independently owned and 

operated and is not dominant in its field.

• Small Governmental Jurisdiction: Governments of cities, counties, towns, townships, villages, 

school districts, or special districts, with a population of less than 50,000.

The EPA 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 the Corps, the Office of Information and 

Regulatory Affairs within the Office of Management and Budget (OMB), and the Office of Advocacy of the 

Small Business Administration (SBA). At SBA’s request, a few additional participants were added to the 

list of invitees. A complete list of those invited appears below:

Industry Representatives:

Oil and Gas:

Name and Affiliation

Sally Allen, Vice President, Administration & 

Governmental Affairs

Gary Williams Energy Corporation

Don Johnson

Calcasieu Refining Company

Walton Gresham

Greshman Petroleum Company

Agriculture:

Name and Affiliation

Karen Scanlon

Conservation Technology Information Center

Tom Simpson

Water Stewardship, Inc.

Greg Herbruck

Herbrucks Poultry Ranch

Ridley Gardner, Chairman

Carlsbad Soil & Water Conservation District

Don Parrish

American Farm Bureau Federation

John Thorne

Crowell & Moring LLP, representing

National Agricultural Aviation Association

Construction and Development:

Name and Affiliation

Jerry Passman, Passman Homes

National Association of Home Builders State 

Representative for LA

Trey Pebley, Vice President 

McAllen Construction, Inc.

Associated General Contractors of America 

Representative

Larry Kilduff, The Kilduff Company

Shopping Centers Trade Association

Ed Smariga 

Buckeye Development, LLC

Tom Farasy 

Terra Verde Associates

R.L. “Bobby” Bowling IV 

Tropicana Building Corporation

Dan Brodeur

P.J. Keating Company

Matt Carnahan

Four Corners Materials
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Eric Stevenson

Brox Industries

Susan Asmus, Senior Vice President

National Association of Home Builders

Leah Pilconis, Senior Environmental Advisor to

Association of General Contractors

Manufacturing:

Name and Affiliation

Mahta Mahdavi

National Association of Manufacturers

Mining:

Name and Affiliation

Karl Meyers

Mineral Energy and Technology

Adam Whitman

Meridian Beartrack Company

Small Government Entities:

Municipal Separate Storm Sewer Systems or 

Publically Owned Treatment Works:

Name and Affiliation

Stacy Wright, Director of Environmental Health 

Services

City of Farmers Branch, Texas

Heidi Niggemeyer

California Stormwater Quality Association

Monterey Regional Stormwater Program

Randy Neprash

Minnesota League of Cities Stormwater 

Committee

Jon Klassen, President

Douglas County Water Resource Authority

Transportation:

Name and Affiliation

Pete Ringen, Director and County Engineer

Wahkiakum County Public Works

Mark Timmerman, Superintendent

Fillmore County Roads Dept

Small NGOs:

Name and Affiliation

Suzanne Pittenger-Slear, President

Environmental Concern

Jennifer McKay, Policy Specialist

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 12, 2011, and included representatives 

from the EPA, Corps, 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 EPA to consider as the rulemaking is further developed. 

The EPA invited participants to give their focused 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 EPA later 

extended to November 17, 2011. Issues discussed during the October 12 outreach meeting and written 

comments are summarized below. 
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SMALL ENTITY PARTICIPANTS

The small entity participants that participated in this outreach effort included the following:

Industry Representatives:

Oil and Gas:

Name and Affiliation

Sally Allen, Vice President, Administration & 

Governmental Affairs

Gary Williams Energy Corporation

Agriculture:

Name and Affiliation

Tom Simpson

Water Stewardship, Inc.

Don Parrish

American Farm Bureau Federation

Deidre Duncan

Hunton & Williams LLP, representing 

American Farm Bureau Federation

John Thorne

Crowell & Moring LLP, representing

National Agricultural Aviation Association

Construction and Development:

Name and Affiliation

Jerry Passman, Passman Homes

National Association of Home Builders State 

Representative for LA

Trey Pebley, Vice President 

McAllen Construction, Inc.

Associated General Contractors of America 

Representative

Ed Smariga 

Buckeye Development, LLC

Tom Farasy 

Terra Verde Associates

R.L. “Bobby” Bowling IV 

Tropicana Building Corporation

Matt Carnahan

Four Corners Materials

Glenn Roundtree

National Association of Home Builders

Jeff Augello

National Association of Home Builders

Leah Pilconis, Senior Environmental Advisor to

Association of General Contractors

Manufacturing:

Name and Affiliation

Mahta Mahdavi

National Association of Manufacturers

Sam Boxerman

Sidley Austin LLP, Representing

National Association of Manufacturers

Small Government Entities:

Municipal Separate Storm Sewer Systems or 

Publically Owned Treatment Works:

Name and Affiliation

Stacy Wright, Director of Environmental Health 

Services

City of Farmers Branch, Texas

Heidi Niggemeyer

California Stormwater Quality Association

Monterey Regional Stormwater Program

Randy Neprash

Minnesota League of Cities Stormwater 

Committee

Small NGOs:

Name and Affiliation

Jennifer McKay, Policy Specialist

Tip of the Mitt Watershed Council 
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SUMMARY OF COMMENTS FROM SMALL ENTITY PARTICIPANTS

At the time the outreach meeting was held, the most recent public statement of policies relating to 

defining “waters of the U.S.” was EPA’s draft guidance, so many commenters referred to that as a 

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

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 exempted from jurisdiction. The current approach of 

determining jurisdiction on a case-by-case basis can be very time and resource intensive. One 

participant 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.

Businesses 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.

To help provide jurisdictional clarity participants commonly requested concise definitions for terms 

that determine jurisdiction such as isolated, 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 suggested that EPA and 

the Corps 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 determine 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 removal 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 the Corps could use lateral 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 Ditches

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 ditches 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. 
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Implications for Low Impact Design (LID)

LID is being implemented around the country, commonly to control stormwater. Several 

participants raised concerns that ditches, swales, or other bioretention features may require CWA Section 

404 permits for their installation or maintenance. Swales may sometimes utilize wetland plants, which 

one participant believes 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 waters 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 participant 

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 Court has limited the EPA and the Corps’ 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 nonjurisdictional. 

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 impact 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 the 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.” would have direct effects on small entities as this change in jurisdiction may require additional 

small entities to comply with existing CWA programs.
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RECOMMENDATIONS AND RESPONSE TO COMMENTS FROM SMALL ENTITY PARTICIPANTS

The following response to comments represent recommendations for how best to address issues 

raised by small entities consistent with the law and science.

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 agencies' goal is to promulgate a rule which is clear and understandable and which protects 

the Nation's waters, consistent with the law and currently available science. The agencies believe 

continuity with the existing regulations, where possible, will reduce confusion and will reduce transaction 

costs for the regulated community and the agencies. To that same end, the agencies are also proposing, 

where consistent with the law and science, bright line categories of waters that are and are not 

jurisdictional. The agencies’ practice has been to consider certain categories of waters identified in earlier 

preambles as not subject to the Clean Water Act, and now this practice will be codified in a rule. This 

proposal would categorically identify as “waters of the US” traditional navigable waters, tributaries, 

adjacent waters, interstate waters, and impoundments of jurisdictional waters. As requested by many 

small entities at this meeting, the agencies are proposing definitions for some of the terms used in the 

proposed regulation, such as adjacent, tributary and significant nexus. Ordinary high water mark is 

already defined in regulations (see 33 C.F.R. § 328.3(e)). 

The agencies are also identifying categories of waters and wetlands that continue to require a 

case-by-case significant nexus evaluation 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 negative.

Actions to clarify the definition of “waters of the U.S.” should 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 does not change that longstanding statutory interpretation. Although groundwater may be 

relevant as a connection in a significant nexus determination, the current policies do not assert that the 

groundwater itself is a water of the US. To help clarify this point, the agencies have added language 

stating that shallow subsurface flows may be the basis for establishing a connection to waters of the 

United States without themselves becoming jurisdictional, and that groundwater is never a jurisdictional 

water. Indeed, the proposal specifically excludes groundwater, including groundwater drained through 

subsurface drainage systems, from the definition of “waters of the US.”

Jurisdictional Status of Ditches

Several entities expressed concern that policies identified in draft guidance 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. 

In keeping with long-standing policies, the proposal attempts to more clearly identify which 

ditches are jurisdictional and which are not. Some agricultural and roadside ditches will continue to be 

jurisdictional. Tidal ditches are jurisdictional by definition. Ditches excavated in waters of the US continue 

to be jurisdictional. Non-tidal ditches that meet the definition of tributary and meet certain criteria will be 
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considered tributaries for the purposes of this rule and will be evaluated as tributaries. Ditches that do not 

meet the criteria for tributaries specified in the proposal are not considered to be tributaries and therefore 

cannot be subject to Clean Water Act jurisdiction. Ditches that are excavated wholly in uplands or drain 

only uplands or non-jurisdictional waters and have less than perennial flow are specifically excluded from 

jurisdiction. Likewise, ditches that do not connect to the tributary system are explicitly excluded regardless 

of flow regime.

Impoundments

Impoundments of waters of the U.S. may be considered jurisdictional, but impoundments 

constructed wholly in uplands are generally not jurisdictional. The agencies do not propose to make any 

changes to the existing regulatory language with respect to impoundments, "[i]mpoundments of waters 

otherwise defined as waters of the United States under this definition." The Supreme Court has 

confirmed that damming or impounding a water of the United States does not make the water nonjurisdictional. See S. D. Warren Co. v. Maine Bd. of Envtl. Prot., 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."). 

However, for the first time by rule, the agencies are proposing to exclude some waters and 

features that the agencies have by longstanding practice generally considered not to be waters of the 

United States. Under the proposal, farm ponds for stock watering excavated wholly in uplands would be 

specifically excluded from jurisdiction. Specifically, the agencies are proposing that artificial lakes or 

ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock 

watering, irrigation, settling basins, or rice growing are not waters of the US. Likewise non-jurisdictional 

would be artificial reflecting pools or swimming pools created by excavating and/or diking dry land; small 

ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons; and 

water-filled depressions created incidental to construction activity.

One of the agencies' goals in this proposed rule is to provide clarity and certainty about the scope 

of waters of the United States. To that end, they are proposing not simply that these features and waters 

are "generally" not waters of the United States, but that they are expressly not waters of the United States 

by rule. Under this proposal, the agencies would not retain the authority to determine that one of these 

waters was a water of the United States by, for example, finding that the water had a significant nexus 

pursuant to the other waters provision at (a)(7). 

In cases where stock ponds or farm ponds have been excavated from already existing waters of 

the US, such an impoundment would continue to be a water of the US.

Implications for Low Impact Design (LID)

Several participants raised concerns that swales, or other bioretention features 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 considered potentially 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 waters 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 situated 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 interstate 

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

nexus standard. 

The rule establishes categories of waters that meet this standard, such as tributaries and 

adjacent wetlands. Case-by-case significant nexus determinations would be necessary only for “other 

waters,” and thus include only similarly situated “other waters” within a region. A significant nexus 

evaluation considers only waters, never uplands. The agencies will continue to make decisions on a 

case-by-case basis; however, previous determinations for similarly situated waters will have a bearing on 

the outcome.

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 and in written comments. Some participants believe the Supreme Court has limited 

the EPA and the Corps’ 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 nonjurisdictional. 

The agencies agree that decisions in SWANCC and Rapanos combined to reduce the historic 

scope of CWA jurisdiction, and the proposal reflects these decisions. The proposed rule does to a small 

degree assert CWA jurisdiction over some additional waters when compared to the previous SWANCC

and Rapanos guidances by providing clarification of the agencies’ interpretation of the Supreme Court 

decisions. The proposal does not, however, extend federal jurisdiction to any waters not historically 

protected under the Clean Water Act 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 Engineers, 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 

could 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 EPA found the rule would have a have 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 definition 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 proposed rule contemplated here 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. 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), which are not factors readily informed by the RFA. 

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 the 

Corps determined to seek early and wide input from representatives of small entities while formulating a 
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proposed definition of this term that reflects the intent of Congress consistent with the mandate of the 

Supreme Court’s decisions.

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 economy. This process has enabled the agencies 

to hear directly from these representatives, at a preliminary stage, about how they should approach this 

complex question of statutory interpretation.