May 2015

U.S. Environmental Protection Agency 

Department of the Army

Report on the Discretionary Consultation and 

Outreach to State, Local, and County Governments 

for the Clean Water Rule: Definition of “Waters of 

the United States” Under the Clean Water Act; 

Final Rule

 
Report of the Discretionary Consultation and Outreach to State, Local, and County Governments for the Clean Water Rule: Definition of “Waters of the 

United States” Under the Clean Water Act; Final Rule

Contents

Introduction................................................................................................................................................................2

The Clean Water Rule - Need for Regulation .............................................................................................................2

Role of States and Tribes Under the Clean Water Act ...............................................................................................3

Summary of Consultation and Outreach Meetings....................................................................................................4

Consultation and Outreach in 2011 .......................................................................................................................4

Summary of Comments from Meeting Participants ..............................................................................................5

Consultation and Outreach in 2014 .......................................................................................................................7

Summary of Comments from Meeting Participants ..............................................................................................8

Responses to Comments......................................................................................................................................... 10

Conclusion ............................................................................................................................................................... 11

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Report of the Discretionary Consultation and Outreach to State, Local, and County Governments for the Clean Water Rule: Definition of “Waters of the 

United States” Under the Clean Water Act; Final Rule

Introduction

The Environmental Protection Agency (EPA) and the Department of the Army (Army) are publishing a 

final rule defining the scope of waters protected under the Clean Water Act (CWA). The Clean Water 

Rule seeks to clarify the definition of the extent of CWA jurisdiction established by statute. State and 

local governments have well-defined and long-standing relationships in implementing affected CWA 

programs and these relationships will not be altered. As part of this rulemaking process, the agencies 

evaluated the potential impact the rule could have on state and local government authority under 

Executive Order (E.O.) 13132. This action will not have substantial direct effects on the states, on the 

relationship between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. Thus, E.O. 13132 does not apply to this action. 

Consistent with EPA and Army policy to promote communications between the agencies and state and 

local governments, and in recognition of the vital role states play in implementation of the CWA, the 

agencies voluntarily undertook federalism consultation for this effort and met the terms of E.O. 13132 

and EPA guidance for implementing the Order. For this rule State and local governments were 

consulted at the onset of rule development in 2011, and following the publication of the proposed rule 

in 2014. In addition to engaging key organizations under federalism, the agencies sought feedback on 

this rule from a broad audience of stakeholders through extensive outreach to numerous State and 

local government organizations.

This report provides a summary the Clean Water Rule, the consultation and outreach provided to State 

and local governments during the rulemaking process, the comments received, and how the comments 

were used to develop the final rule. 

The Clean Water Rule - Need for Regulation

In light of the U.S. Supreme 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), the agencies have revised their longstanding regulations defining the “waters of the United 

States.” 

In this final rule, EPA and Army clarify the scope of “waters of the United States” that are protected 

under the Clean Water Act (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 to 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 resources. 

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 

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Report of the Discretionary Consultation and Outreach to State, Local, and County Governments for the Clean Water Rule: Definition of “Waters of the 

United States” Under the Clean Water Act; Final Rule

of the CWA consistent with its purposes through clearer definitions and increased use of bright-line 

rules. 

In this final rule, the agencies define “waters of the United States” to include eight categories of 

jurisdictional waters. The rule 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 identifying 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-991-47-OW]. 

The final rule does not itself establish any specific regulatory requirements. With respect to the CWA, 

State, tribal, and local governments have well-defined and longstanding relationships with the Federal 

government in implementing CWA programs and these relationships are not altered by the final rule. 

Because the rule does not create any new categories of “waters of the United States,” and puts 

important qualifiers on some existing categories such as tributaries, the agencies do not anticipate the 

rule will cause an increase in regulatory responsibilities for states and tribes. Programs established by 

the CWA, such as the section 311 oil spill prevention and clean-up programs, 402 National Pollutant

Discharge Elimination System (NPDES) permit program, and the section 404 permit program for 

discharge of dredged or fill material, 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 or destruction.

Role of States and Tribes Under the Clean Water Act

States and tribes play a vital role in the implementation and enforcement of the CWA. Section 101(b) 

of the CWA states that it is Congressional policy to preserve the primary responsibilities and rights of 

states to prevent, reduce, and eliminate pollution, to plan the development and use of land and water 

resources, and to consult with the Administrator with respect to the exercise of the Administrator’s 

authority under the CWA. 

 

Of particular importance, EPA may authorize States and tribes to administer the permitting programs 

of CWA sections 402 and 404 in the field. Forty-six states and the U.S. Virgin Islands administer the 

NPDES program under section 402, while two states administer the section 404 program. Additional 

CWA programs that utilize the definition of “waters of the United States” and are of importance to the 

states and tribes include the section 311 oil spill prevention and response program, the water quality 

standards and total maximum daily load programs under section 303, and the section 401 state water 

quality certification process. 

States and tribes, consistent with the CWA, retain full authority to implement their own programs to 

more broadly or more fully protect the waters in their state. Under section 510 of the Act, unless 

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Report of the Discretionary Consultation and Outreach to State, Local, and County Governments for the Clean Water Rule: Definition of “Waters of the 

United States” Under the Clean Water Act; Final Rule

expressly stated in the CWA, nothing in the Act precludes or denies the right of any state or tribe to 

establish more protective standards or limits than the CWA. Nothing in this rule limits or impedes any 

existing or future state or tribal efforts to further protect their waters. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis.

This rule recognizes the unique role of states related to water quantity and as confirmed by section 

101(g) of the CWA. The rule is consistent with Congressional policy not to supersede, abrogate, or 

otherwise impair the authority of each state to allocate quantities of water within its jurisdiction, and 

neither does it affect the policy of Congress that nothing in the CWA shall be construed to supersede or 

abrogate rights to quantities of water which have been established by any state. 

Understanding the important role of States and tribes in implementation of this rule, the agencies 

sought technical input on this rule. Through voluntary consultation and outreach the agencies gathered 

extensive input from States and tribes that informed the rule throughout development process. The 

information received from voluntary consultation and outreach to States and tribes is summarized 

below. 

Summary of Consultation and Outreach Meetings 

For this rule, State and local governments were consulted at the onset of rule development in 2011, 

and following the publication of the proposed rule in 2014. In addition to engaging key organizations 

under federalism, the agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous State and local government organizations. This section will 

provide a brief summary of meetings held and comments received during the consultation and 

outreach conducted in 2011 and 2014.

Consultation and Outreach in 2011

EPA held a series of meetings and outreach calls with state and local governments and their 

representatives soliciting input on a potential rule to define waters of the US consistent with the CWA 

and Supreme Court decisions. The agencies voluntarily undertook federalism consultation for this 

effort under the terms of E.O. 13132 and EPA guidance for implementing the Order.1 

As part of this discretionary federalism consultation, early in the rulemaking process, the agencies held 

two in-person meetings and two phone calls in the fall and winter of 2011. Organizations involved 

include the National Governors Association, the National Conference of State Legislatures, the Council 

of State Governments, the National Association of Counties, the National League of Cities, the U.S. 

Conference of Mayors, the County Executives of America, the National Associations of Towns and 

1 EO 13132 requires meaningful and timely consultation with elected state and local officials or their representative 

national organizations early in the process of developing the proposed regulation; a federalism summary impact statement 

to be published in the preamble to the regulation; and, for the agency to provide to OMB copies of all written 

communications submitted by state and local officials to the Agency. 

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Townships, the International City/County Management Association, and the Environmental Council of 

the States. Additionally, the National Association of Clean Water Agencies (NACWA) and the 

Association of Clean Water Administrators (ACWA) were invited to participate. In response, twelve

counties, eight associations, and various state agencies and offices from five states (Alaska, Wyoming, 

Kansas, Tennessee, and Texas) submitted written comments to inform the development of a proposed 

rule. 

The agencies held many additional calls and meetings with state and local governments and their 

associations in preparation for the development of a proposed rule. While each call was targeted 

toward a particular audience, they all followed the same format. Each call or meeting was led by either 

Nancy Stoner, Acting Assistant Administrator for Water; Ellen Gilinsky, Sr. Policy Advisor in EPA’s Office 

of Water; or David Evans, Director of EPA’s Wetlands Division.2 Each meeting opened with a brief 

background of the issue and discussion of why EPA and Army were pursuing rulemaking. The overview 

included a summary of the public agency policy proposal and a request for participants to provide 

individual input on what should be contained in a proposed rule and what areas of the definition of 

“waters of the United States” needed additional clarity. The meetings were then opened for general 

input.

Combined, more than 400 people from a variety of state and local agencies and associations, including 

the Western Governors’ Association and the Association of State Wetland Managers, participated in 

various calls and meetings.

Summary of Comments from Meeting Participants

State and local governments and their representatives, including national associations, identified a 

number of issues, including: need for rulemaking; questions about the scope of “waters of the United 

States”; concerns about expanded jurisdiction; indicated that terms such as significant, relatively 

permanent, watershed, tributary, other waters, speculative and insubstantial, and similarly situated 

should be better defined or clarified; need for a definition and identification of adjacent wetlands; 

identification and regulation of other waters; definition and identification of tributaries; identification 

of non-jurisdictional waters; a need for clarity regarding ditches and how and when they are regulated; 

a need for discussion regarding how headwaters affect downstream waters; the elements of a 

significant nexus analysis and a definition of significant; and interest in the economic analysis. 

Participants stated that a lack of certainty regarding the extent of federal jurisdiction was problematic 

and expressed concern or uncertainty regarding how federal jurisdiction affected state powers. Some 

were concerned that any expansion of jurisdiction will hamper new growth and maintenance of 

existing projects. Some participants expressed concerns that policies would regulate all ditches, upland 

ephemeral swales, and agricultural lands. The agencies requested discussion regarding whether and 

how state programs changed as a result of court decisions (SWANCC, Rapanos). 

Participants raised questions regarding the identification of adjacent wetlands. Some participants saw 

discussion of subsurface connections as regulating groundwater, and were unclear what shallow 

2 All position titles noted in this document reflect the individual’s position at the time consultation occurred.

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Report of the Discretionary Consultation and Outreach to State, Local, and County Governments for the Clean Water Rule: Definition of “Waters of the 

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subsurface connections were and whether they too would be regulated. The agencies clarified that this 

type of hydrologic connection would not be jurisdictional itself. Some participants discussed 

methodologies for evaluating ecological connections, and some asked for additional discussion in a 

rule.

Some participants expressed concern that the draft guidance’s discussion of aggregation of waters in 

the watershed meant all waters would be jurisdictional and land use would be regulated. Several 

requested that the agencies clearly define “similarly situated,” “other waters,” and continue to exclude 

some waters from jurisdiction (e.g., manmade ponds, stock ponds, storm water retention ponds).

There was significant discussion regarding identifying tributaries. States, in particular, noted that 

tributary identification should be regionalized because distinguishing characteristics of tributaries 

(especially ephemeral streams, washes, and alluvial fans) vary by region. Discussion noted that 

sometimes it was difficult to distinguish between erosional features and tributaries, but that this was 

an important marker for federal policy. Likewise, discussion identified a desire for a rule to identify the 

upper reach of federal jurisdiction. There was general agreement that erosional features such as rills 

and washes should not be regulated.

Participants requested additional clarity on which ditches are and would be regulated. Counties, in 

particular, repeatedly stressed this point. Participants were uncertain of the jurisdictional status, under 

current practice, of ditches receiving water from agricultural return flows and storm water flows. Many 

called on us to keep current exemptions from CWA permit requirements.

Participants requested that a rule identify examples for determining how the biological, chemical or 

ecological effect will constitute a “significant nexus.” Participants requested additional clarification on 

the meaning of “significant,” especially whether there was a consistent threshold for identifying 

significance. Many expressed concerns that the proposed watershed concept would regulate 

everything, including land use, within a watershed. State and local governments asked whether any 

modeling showed the relevance of headwaters for significant nexus analyses.

During many calls, the merits of a point-of-entry approach to defining “in the region” were discussed as 

best matching Justice Kennedy’s opinion and the need to show connection to a traditional navigable 

water (TNW). Some participants expressed concern that in some cases this can result in an extremely 

large watershed, especially in the arid west. They asked the agencies to identify options to narrow this 

approach. 

Most participants asked the agencies to maintain all current exemptions, for agriculture, forestry, 

waste treatment, maintenance, and so on. Some asked for additional blanket exemptions (not 

regulating any roadside ditches, for example). Participants asked that in a rule the agencies be clear 

about how the exemptions are applied to promote national consistency.

State and local governments expressed concern that impacts on the regulated community and 

state/local governments were not adequately assessed in the economic analysis accompanying the 

draft guidance. They asked the agencies to address potential costs to non-404 programs. One 

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Report of the Discretionary Consultation and Outreach to State, Local, and County Governments for the Clean Water Rule: Definition of “Waters of the 

United States” Under the Clean Water Act; Final Rule

organization (the National Association of Counties) provided studies regarding likely costs of getting a 

permit. They also expressed a concern that a lack of available data will lead to underestimated costs. 

Local governments in particular expressed concern that any increase in jurisdiction could delay needed 

maintenance and repair work, putting homes and people at risk from flooding while counties wait for 

permits.

Some participants expressed the opinion that clarifying the scope of CWA jurisdiction is a task for 

Congress, not the agencies. States have expressed concern regarding jurisdictional consistency for 402 

and 404 permits, and have asked for clear coordination between state and federal agencies to ensure 

consistency on determinations. 

The agencies heard during the federalism consultation and outreach in 2011 that a rule should be 

proposed. On April 21, 2014, the agencies published a proposed rule defining the scope of waters 

protected under the CWA. 

Consultation and Outreach in 2014

Similarly to the outreach conducted prior to the development of the rule, the agencies committed 

themselves to providing a transparent, comprehensive, and effective process for taking public 

comment on the proposed rule. During the comment period of April – November 2014, the agencies 

strove to gather all the input possible from a broad range of stakeholders who have critical experience, 

scientific information, or business perspectives regarding implementation of CWA programs. To meet 

this goal, 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. 

As part of this discretionary federalism consultation, EPA held a meeting on May 13, 2014, to seek 

technical input on the proposed rule from the largest national representative organizations for State 

and local governments. Organizations included the National Governors Association, the National 

Conference of State Legislatures, the Council of State Governments, the National Association of 

Counties, the National League of Cities, the U.S. Conference of Mayors, the County Executives of 

America, the National Associations of Towns and Townships, the International City/County 

Management Association, and the Environmental Council of the States (ECOS). 

During this process EPA also extended its outreach to include a series of meetings with the Local 

Government Advisory Committee (LGAC), and ECOS in conjunction with the Association of Clean Water 

Administrators (ACWA) and the Association of State Wetland Managers (ASWM). 

In April 2014 LGAC formed a workgroup to help coordinate intergovernmental strategies, planning, and 

promote an exchange of information from the local level. The workgroup also provided 

recommendations to LGAC on advice to give EPA and Army on issues related to the proposed rule. The 

agencies hosted four joint meeting with LGAC committee members to provide direct feedback to 

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questions on the proposed rule. The LGAC submitted a compilation of the comments provided during 

these meetings to the agencies during the public comment period for further consideration.

In September 2014 the agencies agreed to participate in a series of meetings hosted by 

ECOS/ACWA/ASWM where participants from the EPA and Army would provide requested clarification 

on the proposed rule and understand state feedback and recommendations for the final rule. 

Comments provided during these meetings were compiled and submitted to the agencies during the 

public comment period for further consideration.

The agencies held many additional calls and meetings with state and local governments and their 

associations, prior to finalizing this rule. While each call was targeted toward a particular audience, 

they all followed the same format. Each call or meeting was led by either Kenneth J. Kopocis, EPA 

Deputy Assistant Administrator for Water; Ellen Gilinsky, Senior Policy Advisor in EPA’s Office of Water; 

or John Goodin, Acting Director of EPA’s Wetlands Division. Each meeting opened with a brief 

background of the issue and discussion of why EPA and Army were pursuing rulemaking. The overview 

included a summary of the public agency policy proposal and a request for participants to provide 

individual input on what should be contained in the final rule and what areas of the definition of 

“waters of the US” needed additional clarity. The meetings were then opened for general input. 

Summary of Comments from Meeting Participants

Some State and local government representatives expressed support for the proposed rule and the 

agencies’ oversight, for programs that require federal guidance. These participants viewed the rule as 

consistent with current practice, and believed that the proposed rule provided clarification of where 

404 permits are needed and thus where 401 certification is needed. 

State and local governments and their representatives, including national associations, identified a 

number of issues, including: reasonable regulations for states; concerns about expanded jurisdiction;

the impact on agriculture; the impact on electricity transmission; potential mission creep and its 

unintended consequences; the invasion of property rights; case-by-case determinations; the treatment 

of manmade and man-altered structures; treatment of ephemeral streams; definition of riparian area; 

definition of floodplain; definition of significant nexus; definition of reoccurrence levels; and how to 

educate of the public.

Some participants requested clear categories that identify which waters are considered jurisdictional, 

and more diagrams to define all terms included in the rule.

Participants raised concerns about significant nexus determinations and the potential delays caused by 

the interpretation of significant nexus in the proposed rule. Some recommended EPA and Army work 

with States to predetermine those areas that are waters of the U.S. through mapping, planning tools, 

etc.

Some participants saw discussion of subsurface connections as regulating groundwater, and were 

unclear what shallow subsurface connections were and whether they too would be regulated.

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Participants expressed mixed opinions on tributaries. Some supported the proposed definition, while 

others considered the inclusion of perennial, intermittent, ephemeral flows, and manmade ditches as 

an expansion of jurisdictional scope. 

Participants asked for additional clarity regarding ditches -- specifically, when a ditch becomes a 

tributary, and when a ditch is exempt. Many participants recommended a definition of “ditch” be 

included in the rule, as well as the clarification of terms like “uplands” and “does not contribute to 

flow.” Some expressed concern with the impact downstream connections could have on current 

practices used for ditch maintenance. Others requested clarification on the jurisdiction of ditches 

across state lines, as well as roadside ditches with low flow. 

Participants requested clarification on “other waters” that can be enforced consistently across all 

regions. Some expressed concern with the legal interpretation of the definition, and others questioned 

if ditches not clearly excavated were included in the category. Several participants, noted that making 

jurisdictional determinations for other waters based on significant nexus leaves room for 

interpretation and possible inconsistencies in implementation of the regulation as these water would 

be subject to case-by-case determinations.

State and local governments expressed mixed opinions on the EPA’s draft Connectivity Report

(Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence). Some participants stated support for the rule and its scientific underpinning. Others raised 

concern with the contents of the report and the sequencing with the publication of the proposed rule. 

Some participants recommended the rule be re-published if the final Connectivity Report caused any 

change to the proposed rule. 

Participants requested clarification in the exclusions section. Many asked the agencies to be explicit 

about the exclusions provided by the rule to ensure consistent interpretation. Some also asked the 

agencies to clarify in the rule that maintenance of local streets, gutters, and ditches are excluded. 

Other requested wastewater treatment systems, specifically MS4s and features like stormwater 

retention ponds, and green infrastructure used to reduce stormwater impacts, be explicitly excluded

by the rule.

State and local government representatives expressed concern with implementation of the proposed 

rule. Participants stated that costs are likely to be higher than the estimates included in the economic 

analysis. Some stated the need to focus resources on waters States can afford to address. Participants 

raised questions regarding the burden on permitting, and of delays. States asked the agencies to clarify 

their responsibility in implementing the rule. 

The agencies also received written comments from the following State and local government 

organizations whose responses can be found in the response to comment document, available in the 

docket for this final rule (Docket Id No EPA-HQ-OW-2011-0880): Association of State Drinking Water 

Administrators, Association of Clean Water Administrators, American Association of State Highway and 

Transportation Officials (AASHTO), Environmental Council of the States, Groundwater Protection 

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Council, National Association of Counties, National Association of State Departments of Agriculture, 

National Association of State Foresters, National Governors Association, Western Governors’

Association, Joint Local Governments Association, U.S. Conference of Mayors, National League of 

Cities, National Association of Counties, National Association of Regional Councils, National Association 

of County Engineers, American Public Works Association, and National Association of Flood and 

Stormwater Management Agencies. The agencies also received the final recommendations of the LGAC 

workgroup.

Responses to Comments

The agencies committed themselves to providing a transparent, comprehensive, and effective process 

for taking public comment on the proposed rule. In addition to the focused consultation and outreach 

meetings discussed 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.

The comments received from consultation and outreach for federalism identified a number of areas 

where the proposed rule could be more effective in protecting clean water, could be clearer and easier

to understand, and more responsive to the needs of states and local governments. Below are some of 

the major comments the agencies heard during the consultation and outreach meetings and 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 with 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 community.

• 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.

The agencies listened carefully, and this input is reflected in a number of key revisions of the rule:

• Protect Tributaries 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 waters 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.

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• 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 similarly 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 ephemeral 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 have 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 structures 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.

Conclusion

Executive Order 13132, “Federalism”, was issued by President Clinton to guarantee the Constitution's 

division of governmental responsibilities between the federal government and the states (64 FR 43255, 

August 10, 1999). This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and responsibilities 

among the various levels of government. Recognizing the significant role of State and local 

governments in implementing affected CWA programs, the agencies voluntarily consulted with state 

and local officials throughout the process and solicited their comments on the proposed action and on 

the development of the rule. 

The feedback received from State and local governments informed the development of a rule that is 

not only based on sound peer-reviewed science and the law, but also 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 continue 

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 over one million public comments. 

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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, and 

ensures the agricultural community has clarity needed to continue to produce the food, fuel, and fiber 

upon which we rely. 

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