Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Clean Water Rule Comment Compendium

Topic 7: Features and Waters Not Jurisdictional

The Response to Comments Document, together with the preamble to the final Clean Water 

Rule, presents the responses of the Environmental Protection Agency (EPA) and the Department 

of the Army (collectively “the agencies”) to the more than one million public comments received 

on the proposed rule (79 FR 22188 (Apr. 21, 2014)). The agencies have addressed all significant 

issues raised in the public comments.

As a result of changes made to the preamble and final rule prior to signature, and due to the 

volume of comments received, some responses in the Response to Comments Document may not 

reflect the language in the preamble and final rule in every respect. Where the response is in 

conflict with the preamble or the final rule, the language in the final preamble and rule controls 

and should be used for purposes of understanding the scope, requirements, and basis of the final 

rule. In addition, due to the large number of comments that addressed similar issues, as well as 

the volume of the comments received, the Response to Comments Document does not always 

cross-reference each response to the commenter(s) who raised the particular issue involved. The 

responses presented in this document are intended to augment the responses to comments that 

appear in the preamble to the final rule or to address comments not discussed in that preamble. 

Although portions of the preamble to the final rule are paraphrased in this document where 

useful to add clarity to responses, the preamble itself remains the definitive statement of the 

rationale for the revisions adopted in the final rule. In many instances, particular responses 

presented in the Response to Comments Document include cross references to responses on 

related issues that are located either in the preamble to the Clean Water Rule, the Technical 

Support Document, or elsewhere in the Response to Comments Document. All issues on which 

the agencies are taking final action in the Clean Water Rule are addressed in the Clean Water 

Rule rulemaking record.

Accordingly, the Response to Comments Document, together with the preamble to the Clean 

Water Rule and the information contained in the Technical Support Document, the Science 

Report, and the rest of the administrative record should be considered collectively as the 

agencies’ response to all of the significant comments submitted on the proposed rule. The 

Response to Comments Document incorporates directly or by reference the significant public 

comments addressed in the preamble to the Clean Water Rule as well as other significant public 

comments that were submitted on the proposed rule.

This compendium, as part of the Response to Comments Document, provides a compendium of 

the technical comments about Features and Waters Not Jurisdictional submitted by commenters. 

Comments have been copied into this document “as is” with no editing or summarizing. 

Footnotes in regular font are taken directly from the comments.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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TOPIC 7. FEATURES AND WATERS NOT JURISDICTIONAL....................................................... 23

SUMMARY RESPONSE................................................................................................... 23

SPECIFIC COMMENTS ................................................................................................... 26

Gila River Indian Community (Doc. #13619)...................................................... 26

Texas Commission on Environmental Quality (Doc. #14279.1).......................... 26

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)........... 27

State of Oklahoma (Doc. #14625) ........................................................................ 27

Tennessee Department of Environment and Conservation (Doc. #15135) .......... 27

Southern Ute Indian Tribe Growth Fund (Doc. #15386)...................................... 28

Pike Peak Area Council of Governments, Colorado (Doc. #9732)...................... 28

Northwest Florida Utility Managers Council (Doc. #14573)............................... 29

Broward County, Florida (Doc. #15395).............................................................. 30

Public Works, Ramsey County, Minnesota (Doc. #16665).................................. 30

Board of Supervisors, Amador County, California (Doc. #17450)...................... 31

Colorado Clean Water Coalition (Doc. #3533) .................................................... 31

Great Lakes Indian Fish and Wildlife Commission (Doc. #15454) ..................... 31

League of California Cities (Doc. #16442.1)........................................................ 32

Federal StormWater Association (Doc. #15161).................................................. 32

Idaho Association of Commerce & Industry (Doc. #15461)................................ 32

Association of Nebraska Ethanol Producers (Doc. #15512) ................................ 32

FMC Corporation (Doc. #15533) ......................................................................... 33

Federal Water Quality Coalition (Doc. #15822.1)................................................ 34

Water Advocacy Coalition (Doc. #17921.1) ........................................................ 35

FMC Corporation (Doc. #16505) ......................................................................... 36

Kentucky Oil and Gas Association (Doc. #16527)............................................... 36

Vulcan Materials Company (Doc. #16566).......................................................... 36

Irvine Ranch Water District (Doc. #14774).......................................................... 37

Missouri Soybean Association (Doc. #14986) ..................................................... 37

Utah Farm Bureau Federation (Doc. #16542.1) ................................................... 38

Florida Crystals Corporation (Doc. #16652) ........................................................ 38

Union Pacific Railroad Company (Doc. #15254)................................................. 39

West Bay Sanitary District, Novato Sanitary District, West County Wastewater 

District, Union Sanitary District and West Valley Sanitation District, California 

(Doc. #16610) ....................................................................................................... 39

Western States Water Council (Doc. #9842)........................................................ 39

Duke Energy (Doc. #13029)................................................................................. 40

The Clean Energy Group Waters Initiative (Doc. #14616).................................. 40

Santa Clara Valley Water District (Doc. #14776) ................................................ 40

Utility Water Act Group (Doc. #15016)............................................................... 41

Colorado River Water Conservation District (Doc. #15070) ............................... 41

Michigan Manufacturers Association (Doc. #15170)........................................... 41

Tri-State Generation and Transmission Association, Inc. (Doc. #16392)............ 42

National Wildlife Federation (Doc. #15020)........................................................ 42

Center for Biological Diversity, Center for Food Safety, and Turtle Island 

Restoration Network (Doc. #15233)..................................................................... 42

Pacific Legal Foundation (Doc. #14081).............................................................. 43
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Trout Unlimited (Doc. #18015)............................................................................ 44

Earthjustice (Doc. #14564)................................................................................... 44

Nebraska Wildlife Federation (Doc. #15034)....................................................... 45

Neuse Riverkeeper Foundation (Doc. #15095) .................................................... 45

Texas Agricultural Land Trust (Doc. #15188.2) .................................................. 46

Hackensack Riverkeeper, Hudson Riverkeeper, Milwaukee Riverkeeper, NY/NJ 

Baykeeper and Raritan Riverkeeper (Doc. #15360)............................................. 46

Louisiana Environmental Action Network (Doc. #15377)................................... 46

Delaware Riverkeeper Network (Doc. #15383) ................................................... 48

Wisconsin Wetlands Association (Doc. #15629) ................................................. 48

AES-US Services (Doc. #3242)............................................................................ 49

The Property Which Water Occupies (Doc. #8610)............................................. 49

7.1. WASTE TREATMENT SYSTEM (WTSE)............................................................................. 51

SUMMARY RESPONSE................................................................................................... 51

SPECIFIC COMMENTS ................................................................................................... 52

Quapaw Tribe of Oklahoma (the O-Gah-Pah) (Doc. #7980) ............................... 52

Navajo Nation Environmental Protection Agency (Doc. #10117) ....................... 52

Texas Department of Transportation (Doc. #12757)............................................ 53

Earthworks et al. (Doc. #15173)........................................................................... 53

California State Water Resources Control Board (Doc. #15213)......................... 53

National Tribal Water Council (Doc. # 18922) .................................................... 54

Allen Boone Humphries Robinson, LLP (Doc. # 19614)..................................... 56

Bard of Douglas County Commissioners, Colorado (Doc. #8145) ...................... 56

City of Palo Alto, California (Doc. #12714)......................................................... 57

Waters of the United States Coalition (Doc. #14589) .......................................... 57

National Association of Counties (Doc. #15081)................................................. 58

City of Stockton, California (Doc. #15125).......................................................... 59

City of Beaverton, Oregon (Doc. #16466)............................................................ 59

Las Vegas Valley Watershed Advisory Committee (Doc. #16504)..................... 59

Department of Public Works, County of San Diego, California (Doc. #17920).. 60

Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. 

#19619) ................................................................................................................. 61

Rural County Representatives of California (Doc. #5537)................................... 61

California State Association of Counties (Doc. #9692)........................................ 61

California Association of Sanitation Agencies (Doc. #12832)............................. 62

Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613) 62

Virginia Association of Counties (Doc. #16796) ................................................. 62

Iowa League of Cities (Doc. #18823)................................................................... 63

U.S. Chamber of Commerce (Doc. #14115)......................................................... 63

Indiana Farm Bureau et al. (Doc. #14119) ........................................................... 64

Pennsylvania Chamber of Commerce and Industry (Doc. #14401) ..................... 64

South Carolina Chamber of Commerce (Doc. #14535)........................................ 65

Institute of Scrap Recycling Industries, Inc. (Doc. #15041)................................. 66

American Council of Engineering Companies (Doc. #15534)............................. 67

Federal Water Quality Coalition (Doc. #15822.1)................................................ 67

Water Advocacy Coalition (Doc. #17921.1) ........................................................ 67
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Virginia Manufacturers Association (Doc. #18821)............................................. 69

National Association of Home Builders (Doc. #19540)....................................... 69

Vulcan Materials Company (Doc. #14642).......................................................... 70

Texas Mining and Reclamation Association (Doc. #10750)................................ 70

Pennsylvania Coal Alliance (Doc. #13074).......................................................... 76

Newmont Mining Corporation (Doc. #13596) ..................................................... 77

American Exploration & Mining Association (Doc. #13616).............................. 78

Wyoming Mining Association (Doc. #14460)...................................................... 79

American Petroleum Institute (Doc. #15115)....................................................... 80

Sinclair Oil Corporation (Doc. #15142) ............................................................... 81

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ................................................................................................................. 83

Alpha Natural Resources, Inc. (Doc. #15624)...................................................... 84

Dominion Resources Services, Inc. (Doc. #16338).............................................. 85

Barrick Gold of North America (Doc. #16914).................................................... 85

Halliburton Energy Services, Inc. (Doc. #19458)................................................. 86

Alameda County Cattlewomen (Doc. #8674)....................................................... 87

North American Meat Association and American Meat Institute (Doc. #13071) 88

Minnesota Agricultural Water Resource Center (Doc. #14284) .......................... 89

Irvine Ranch Water District (Doc. #14774).......................................................... 89

Georgia Paper & Forest Products Association (Doc. #14924) ............................. 91

Missouri Soybean Association (Doc. #14986) ..................................................... 92

North Carolina Farm Bureau Federation (Doc. #15078)...................................... 92

Packaging Corporation of America (Doc. #15515).............................................. 92

Association of American Railroads (Doc. #15018.1)........................................... 93

County of San Diego, California (Doc. #14782).................................................. 94

Arizona Public Service Company (Doc. #15162)................................................. 95

National Association of Clean Water Agencies (Doc. #15505) ........................... 95

Orange County Sanitation District, California (Doc. #16335.1) .......................... 96

Duke Energy (Doc. #13029)................................................................................. 97

Ameren Corporation (Doc. #13608)................................................................... 100

Florida Power & Light Company (Doc. #13615)............................................... 100

Murray Energy Corporation (Doc. #13954) ....................................................... 103

The Florida Electric Power Coordinating Group, Inc. (Doc. #13993) ............... 103

NRG Energy, Inc. (Doc. #13995)....................................................................... 105

Southern Company (Doc. #14134) ..................................................................... 106

Southern Illinois Power Cooperative (Doc. #14402).......................................... 106

Golden Spread Electric Cooperative, Inc. (Doc. #14422) .................................. 107

National Lime Association (Doc. #14428.1)...................................................... 107

Synagro Technologies, Inc. (Doc. #14565) ........................................................ 108

National Rural Water Association (Doc. #14623).............................................. 109

Berkshire Hathaway Energy Company (Doc. #14650) ...................................... 109

American Public Power Association (Doc. #15008).......................................... 110

Utility Water Act Group (Doc. #15016)............................................................. 110

Edison Electric Institute (Doc. #15032).............................................................. 117

Colorado River Water Conservation District (Doc. #15070) ............................. 119
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Cleco Corporation (Doc. #15077)....................................................................... 119

NiSource Inc. (Doc. #15112).............................................................................. 121

Michigan Manufacturers Association (Doc. #15170)......................................... 121

Ohio Utility Group (Doc. #15246)...................................................................... 121

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407).. 122

SCANA Services, Inc. (Doc. #15660)................................................................ 123

Lower Colorado River Authority (Doc. #16332) ............................................... 123

Seminole Electric Cooperative, Inc. (Doc. #16363)........................................... 124

Tri-State Generation and Transmission Association, Inc. (Doc. #16392).......... 124

Xcel Energy (Doc. #18023)................................................................................ 126

Alliant Energy Corporate Services, Inc. (Doc. #18971)..................................... 126

South Carolina Public Service Authority (Doc. #18860) ................................... 127

Center for Biological Diversity, Center for Food Safety, and Turtle Island 

Restoration Network (Doc. #15233)................................................................... 128

Natural Resources Defense Council et al. (Doc. #15437) .................................. 128

Waterkeeper Alliance et al. (Doc. #16413) ........................................................ 130

Association of State Floodplain Managers, Inc. (Doc. #19452)......................... 132

The Association of State Wetland Managers (Doc. #14131) ............................. 132

Caloosahatchee River Citizen’s Association (Doc. #4711.2)............................. 133

Earthjustice (Doc. #14564)................................................................................. 134

Tulane Environmental Law Clinic, Tennessee Clean Water Network, et al. (Doc. 

#15123) ............................................................................................................... 137

Columbia Riverkeeper (Doc. #15210)................................................................ 138

Louisiana Environmental Action Network (Doc. #15377)................................. 139

Delaware Riverkeeper Network (Doc. #15383) ................................................. 140

Tennessee Clean Water Network et al. (Doc. #16537)....................................... 141

Midwest Environmental Advocates (Doc. #16645)............................................ 142

WaterLegacy (Doc. #18017)............................................................................... 144

Clark Fork Coalition (Doc. #19539)................................................................... 144

Water Environment Federation (Doc. #16584) .................................................. 144

Robert J. Goldstein & Associates (Doc. #16577)............................................... 145

7.2. PRIOR CONVERTED CROPLAND (PCC)........................................................................... 145

SUMMARY RESPONSE................................................................................................. 145

SPECIFIC COMMENTS ................................................................................................. 147

New Mexico Department of Agriculture (Doc. #13024).................................... 147

Gila River Indian Community (Doc. #13619).................................................... 149

North Carolina Forest Service, North Carolina Department of Agriculture (Doc. 

#14122) ............................................................................................................... 150

Board of Supervisors, Pocahontas County, Iowa (Doc. #13666) ....................... 151

Board of Supervisors, Sutter County, California (Doc. #19657)........................ 151

Virginia Association of Counties (Doc. #15175) ............................................... 152

Michigan Association of Conservation Districts (Doc. # 16583)....................... 152

Kerr Environmental Services Corp. (Doc. #7937.1)........................................... 153

Montana Wool Growers Association (Doc. #5843.1) ........................................ 153

National Farmers Union (Doc. #6249) ............................................................... 154

Michigan Farm Bureau (Doc. #10196)............................................................... 154
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Minnesota Agricultural Water Resource Center (Doc. #14284) ........................ 154

California Association of Winegrape Growers (Doc. #14593) .......................... 154

American Soybean Association (Doc. #14610).................................................. 155

Great Plains Canola Association (Doc. #14725) ................................................ 156

National Pork Producers Council (Doc. #15023) ............................................... 156

North Carolina Farm Bureau Federation (Doc. #15078).................................... 156

US Dry Bean Council (Doc. #15256)................................................................. 156

Minnesota Soybean Growers Association (Doc. #15542).................................. 157

National Barley Growers Association (Doc. #15627)........................................ 157

US Canola Association (Doc. #16361)............................................................... 157

Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1) .... 157

Caloosahatchee River Citizen’s Association (Doc. #4711.2)............................. 158

Citizens Committee to Complete the Refuge (Doc. #14738) ............................. 159

Stormwater Management Commission, Lake County, Illinois (Doc. #15381) .. 164

Wetland Science Applications, Inc. (Doc. #4958).............................................. 165

7.3. ADDITIONAL PROPOSED EXCLUSIONS ............................................................................ 165

SUMMARY RESPONSE................................................................................................. 165

SPECIFIC COMMENTS ................................................................................................. 166

Virginia Department of Transportation (Doc. #12756)...................................... 166

Ohio Department of Natural Resources et al. (Doc. #15421)............................. 166

Scott County Soil and Water Conservation District, Illinois (Doc. #8410)........ 166

Ames Construction, Inc. (Doc. #17045)............................................................. 167

Richland Communities (Doc. #18793) ............................................................... 167

Water Law (Doc. #13053) .................................................................................. 170

Coalition of Renewable Energy Landowner Associations (Doc. #14626)......... 170

Pennsylvania Independent Oil and Gas Association (Doc. #15167).................. 170

Ducks Unlimited (Doc. #11014)......................................................................... 171

Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394) .. 172

Delaware Riverkeeper Network (Doc. #15383) ................................................. 172

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935) ................ 173

Water Environment Federation (Doc. #16584) .................................................. 173

7.3.1 Artificially Irrigated Areas that would Revert to Upland should Application of 

Irrigation Water to that Area Cease....................................................................................... 174

SUMMARY RESPONSE................................................................................................. 174

SPECIFIC COMMENTS ................................................................................................. 175

Office of the Governor, State of Montana (Doc. # 16694)................................. 175

California Department of Transportation, Division of Environmental Analysis 

(Doc. #19538) ..................................................................................................... 176

Board of Supervisors, Sutter County, California (Doc. #19657)........................ 176

Earthjustice (Doc. #14564)................................................................................. 177

7.3.2. 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

178

SUMMARY RESPONSE................................................................................................. 178

SPECIFIC COMMENTS ................................................................................................. 179
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Oak Ridge National Laboratory (Doc. #14463) ................................................. 179

Tennessee Department of Environment and Conservation (Doc. #15135) ........ 179

Arizona Game and Fish Department (Doc. #15197) .......................................... 179

Southern Ute Indian Tribe Growth Fund (Doc. #15386).................................... 180

West Virginia Department of Environmental Protection (Doc. #15415) ........... 180

Allen Boone Humphries Robinson, LLP (Doc. # 19614)................................... 180

Board of Supervisors, County of Nevada, California (Doc. #6856)................... 181

Central Valley Soil and Water Conservation District and Penasco Soil and Water 

Conservation District, Artesia, Maryland (Doc. #14943)................................... 181

City of Glendale, Arizona (Doc. #15054)........................................................... 181

Board of Supervisors, Nevada County, California (Doc. #18894)..................... 182

Board of Supervisors, Sutter County, California (Doc. #19657)........................ 182

Washington State Water Resources Association (Doc. #16543)........................ 182

U.S. Chamber of Commerce (Doc. #14115)....................................................... 183

South Carolina Chamber of Commerce (Doc. #14535)...................................... 183

Dow Chemical Company (Doc. #15408)............................................................ 184

Federal Water Quality Coalition (Doc. #15822.1).............................................. 184

NAIOP Commercial Real Estate Development Association (Doc. #14621)...... 184

Staker Parson Companies (Doc. #15618)........................................................... 185

Texas Mining and Reclamation Association (Doc. #10750).............................. 185

Pennsylvania Coal Alliance (Doc. #13074)........................................................ 186

Newmont Mining Corporation (Doc. #13596) ................................................... 187

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 190

Barrick Gold of North America (Doc. #16914).................................................. 190

Montana Wool Growers Association (Doc. #5843.1) ........................................ 191

Alameda County Cattlewomen (Doc. #8674)..................................................... 191

California Agricultural Commissioners and Sealer Association (Doc. #9670).. 192

Montana Farm Bureau Federation (Doc. #12715).............................................. 192

Bayless and Berkalew Co. (Doc. #12967).......................................................... 193

North American Meat Association and American Meat Institute (Doc. #13071)

............................................................................................................................. 193

USA Rice Federation (Doc. #13998).................................................................. 194

Kansas Agriculture Alliance (Doc. #14424)....................................................... 194

Missouri Soybean Association (Doc. #14986) ................................................... 194

Colorado Cattlemen's Association (Doc. #15068).............................................. 195

North Carolina Farm Bureau Federation (Doc. #15078).................................... 195

Jensen Livestock and Land LLC (Doc. #15540) ................................................ 195

National Barley Growers Association (Doc. #15627)........................................ 196

Florida Crystals Corporation (Doc. #16652) ...................................................... 197

Richland Communities (Doc. #18793) ............................................................... 197

Water Law (Doc. #13053) .................................................................................. 198

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 198

Oglethorpe Power Corporation (Doc. #14618)................................................... 198

Santa Clara Valley Water District (Doc. #14776) .............................................. 199

Tri-State Generation and Transmission Association, Inc. (Doc. #16392).......... 199
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Xcel Energy (Doc. #18023)................................................................................ 200

Ducks Unlimited (Doc. #11014)......................................................................... 200

Southern Environmental Law Center et al. (Doc. #13610) ................................ 201

Center for Biological Diversity, Center for Food Safety, and Turtle Island 

Restoration Network (Doc. #15233)................................................................... 201

Patrick E. Murphy, Member of Congress, House of Representatives (Doc. 

#15371.1) ............................................................................................................ 201

Robert J. Goldstein & Associates (Doc. #16577)............................................... 202

7.3.3. Artificial Reflecting Pools or Swimming Pools Created by Excavating and/or Diking 

Dry Land................................................................................................................................. 202

SPECIFIC COMMENTS ................................................................................................. 202

Federal Water Quality Coalition (Doc. #15822.1).............................................. 202

Water Law (Doc. #13053) .................................................................................. 203

Berkshire Hathaway Energy Company (Doc. #14650) ...................................... 203

Southern Environmental Law Center et al. (Doc. #13610) ................................ 203

7.3.4. Small Ornamental Waters Created by Excavating and/or Diking Dry Land for 

Primarily Aesthetic Reasons .................................................................................................. 203

SUMMARY RESPONSE................................................................................................. 203

SPECIFIC COMMENTS ................................................................................................. 204

City of Glendale, Arizona (Doc. #15054)........................................................... 204

Rubber Manufacturers Association (Doc. #15419) ............................................ 204

Federal Water Quality Coalition (Doc. #15822.1).............................................. 204

Northern Arizona Municipal Waters Users Association (Doc. #9730) .............. 205

Water Law (Doc. #13053) .................................................................................. 205

Southern Environmental Law Center et al. (Doc. #13610) ................................ 205

7.3.5. Water-filled Depressions Created Incidental to Construction Activity .................... 205

SUMMARY RESPONSE................................................................................................. 205

SPECIFIC COMMENTS ................................................................................................. 206

Pennsylvania Fish and Boat Commission (Doc. #4826) .................................... 206

North Carolina Forest Service, North Carolina Department of Agriculture (Doc. 

#14122) ............................................................................................................... 207

North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

............................................................................................................................. 207

Wisconsin Department of Natural Resource (Doc. #15141) .............................. 207

California State Water Resources Control Board (Doc. #15213)....................... 208

Ohio Department of Natural Resources et al. (Doc. #15421)............................. 208

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)......... 209

North Carolina Soil and Water Conservation Commission (Doc. #14790)........ 209

Minnesota Chamber of Commerce (Doc. #16473)............................................. 210

Washington State Water Resources Association (Doc. #16543)........................ 210

U.S. Chamber of Commerce (Doc. #14115)....................................................... 210

South Carolina Chamber of Commerce (Doc. #14535)...................................... 211

Federal Water Quality Coalition (Doc. #15822.1).............................................. 212

Lydig Construction Inc. (Doc. #14147).............................................................. 212

Associated General Contractors of America (Doc. #14602) .............................. 212

NAIOP Commercial Real Estate Development Association (Doc. #14621)...... 214
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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O'Neil LLP (Doc. #14651).................................................................................. 214

Reclamation and Abandoned Mine Lands Divisions, Public Service Commission, 

North Dakota (Doc. # ............................................................................................12857) 215

National Stone, Sand and Gravel Association (Doc. #14412)............................ 215

Lyman-Richey Corporation (Doc. #14420)........................................................ 216

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. 

#14619) ............................................................................................................... 218

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 218

Valero Companies (Doc. #15363) ...................................................................... 219

North Carolina Farm Bureau Federation (Doc. #15078).................................... 220

Oglethorpe Power Corporation (Doc. #14618)................................................... 220

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

............................................................................................................................. 220

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 221

Southern Environmental Law Center et al. (Doc. #13610) ................................ 221

Stormwater Management Commission, Lake County, Illinois (Doc. #15381) .. 222

WaterLegacy (Doc. #18017)............................................................................... 222

O'Neil LLP (Doc. #16559).................................................................................. 222

Robert J. Goldstein & Associates (Doc. #16577)............................................... 223

7.3.6. Groundwater, including Groundwater Drained through Subsurface Drainage Systems

223

SUMMARY RESPONSE................................................................................................. 223

SPECIFIC COMMENTS ................................................................................................. 225

Region 10 Tribal Caucus (Doc. #14927)............................................................ 225

U.S. House of Representatives Committee on Science, Space and Technology 

(Doc. #16386) ..................................................................................................... 225

State of Idaho (Doc. #9834)................................................................................ 226

State of Oklahoma (Doc. #14625) ...................................................................... 226

North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

............................................................................................................................. 227

Wisconsin Department of Natural Resource (Doc. #15141) .............................. 227

Los Angeles Department of Water and Power (Doc. #15238)........................... 227

New Mexico Environment Department (Doc. # 16552)..................................... 228

State of Oklahoma, et al. (Doc. # 16560) ........................................................... 228

State of Idaho (Doc. # 16597)............................................................................. 229

Office of the Governor, State of Montana (Doc. # 16694)................................. 230

State of Nevada, Department of Conservation, et al. (Doc. # 16932) ................ 230

State of Alaska (Doc. # 19465)........................................................................... 230

California Department of Transportation, Division of Environmental Analysis 

(Doc. #19538) ..................................................................................................... 231

City of Pompano Beach, Florida (Doc. #16438) ................................................ 232

Maui County, Hawaii (Doc. #19593) ................................................................. 232

Association of Drinking Water Administrators (Doc. #15530).......................... 232

Western States Water Council (Doc. #9842)...................................................... 233

Groundwater Protection Council (Doc. #13055)................................................ 234
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Federal Water Quality Coalition (Doc. #15822.1).............................................. 234

Minnesota Chamber of Commerce (Doc. #16473)............................................. 235

Alameda County Cattlewomen (Doc. #8674)..................................................... 236

Colorado Cattlemen's Association (Doc. #15068).............................................. 236

North Carolina Farm Bureau Federation (Doc. #15078).................................... 237

Irrigation Association (Doc. #15217) ................................................................. 237

National Barley Growers Association (Doc. #15627)........................................ 237

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)............................. 238

Upper Niobrara White Natural Resources District, Chadron, Nebraska (Doc. 

#13562) ............................................................................................................... 238

Southern Nevada Water Authority (Doc. #14580) ............................................. 238

Berkshire Hathaway Energy Company (Doc. #14650) ...................................... 238

Eagle River Water & Sanitation District, Vail, Colorado (Doc. #15116) .......... 239

Wyoming State Engineer Office (Doc. #15496)................................................. 240

San Luis & Delta-Mendota Water Authority, Los Banos, California (Doc. 

#15645) ............................................................................................................... 240

Northern California Association (Doc. #17444)................................................. 241

Center for Small Business and the Environment (Doc. #6981).......................... 241

Ducks Unlimited (Doc. #11014)......................................................................... 242

Southern Environmental Law Center et al. (Doc. #13610) ................................ 242

National Wildlife Federation (Doc. #15020)...................................................... 243

Center for Biological Diversity, Center for Food Safety, and Turtle Island 

Restoration Network (Doc. #15233)................................................................... 243

Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394) .. 243

Waterkeeper Alliance et al. (Doc. #16413) ........................................................ 246

Western Resource Advocates (Doc. #16460)..................................................... 247

Indiana Karst Conservancy (Doc. #6993)........................................................... 247

Earthjustice (Doc. #14564)................................................................................. 248

Columbia Riverkeeper (Doc. #15210)................................................................ 250

Raritan Riverkeeper (Doc. #15360).................................................................... 250

Delaware Riverkeeper Network (Doc. #15383) ................................................. 250

Center for Environmental Law & Policy (Doc. #15431).................................... 251

The River Alliance of Wisconsin (Doc. #16344) ............................................... 263

Water Watch of Oregon (Doc. #16568).............................................................. 263

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935) ................ 263

WaterLegacy (Doc. #18017)............................................................................... 266

National Association of Flood & Stormwater Management Agencies (Doc. 

#19599) ............................................................................................................... 267

Environmental Technology Consultants (Doc. #2597) ...................................... 267

Wetland Science Applications, Inc. (Doc. #4958).............................................. 267

Robert J. Goldstein & Associates (Doc. #16577)............................................... 267

7.3.7. Gullies and Rills and Non-Wetland Swales.............................................................. 268

AGENCY SUMMARY RESPONSE.................................................................................. 268

SPECIFIC COMMENTS ................................................................................................. 269

U.S. House of Representatives Committee on Science, Space and Technology 

(Doc. #16386) ..................................................................................................... 269
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

11

New Mexico Department of Agriculture (Doc. #13024).................................... 270

Tennessee Department of Environment and Conservation (Doc. #15135) ........ 270

West Virginia Department of Environmental Protection (Doc. #15415) ........... 271

Department of Public Health and the Environment, State of Colorado (Doc. # 

16342) ................................................................................................................. 271

Board of County Commissioners, Delta County, Colorado (Doc. #14405) ....... 272

Southern California Water Committee (Doc. #16170)....................................... 272

San Bernardino County, California (Doc. #16489) ............................................ 272

City of Oceanside, California (Doc. #16509)..................................................... 273

Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. 

#19450) ............................................................................................................... 273

National Association of Flood & Stormwater Management Agencies (Doc. 

#13613) ............................................................................................................... 273

Indiana Farm Bureau et al. (Doc. #14119) ......................................................... 274

Southpace Properties, Inc. (Doc. #6989.1) ......................................................... 274

Kerr Environmental Services Corp. (Doc. #7937.1)........................................... 275

NAIOP Commercial Real Estate Development Association (Doc. #14621)...... 275

Vulcan Materials Company (Doc. #14642)........................................................ 276

Newmont Mining Corporation (Doc. #13596) ................................................... 276

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 277

Alameda County Cattlewomen (Doc. #8674)..................................................... 277

Hancock County Farm Bureau, Indiana (Doc. #11980) ..................................... 278

Bayless and Berkalew Co. (Doc. #12967).......................................................... 278

Indiana Farm Bureau, Inc. (Doc. #14124).......................................................... 279

Kansas Agriculture Alliance (Doc. #14424)....................................................... 279

LeValley Ranch, LTD (Doc. #14540) ................................................................ 280

Colorado Cattlemen’s Association (Doc. #15068)............................................. 280

North Carolina Farm Bureau Federation (Doc. #15078).................................... 280

Weyerhaeuser Company (Doc. #15392)............................................................. 280

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)............................. 281

Duke Energy (Doc. #13029)............................................................................... 281

Southern Company (Doc. #14134) ..................................................................... 282

National Lime Association (Doc. #14428.1)...................................................... 282

Salt River Project Agricultural and Power District and the Salt River Valley 

Water Users Association (Doc. #14928) ............................................................ 283

Luminant (Doc. #15100)..................................................................................... 283

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407).. 283

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

............................................................................................................................. 284

Ducks Unlimited (Doc. #11014)......................................................................... 285

Clean Water Action (Doc. #15015) .................................................................... 285

American Rivers (Doc. #15372)......................................................................... 286

Western Resource Advocates (Doc. #16460)..................................................... 288

Earthjustice (Doc. #14564)................................................................................. 289

Columbia Riverkeeper (Doc. #15210)................................................................ 289
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

12

National Association of Flood & Stormwater Management Agencies (Doc. 

#19599) ............................................................................................................... 289

Environmental Technology Consultants (Doc. #2597) ...................................... 290

Wetland Science Applications, Inc. (Doc. #4958).............................................. 290

Kirk Mantay, PWS, Wetland Ecologist (Doc. #15192.1)................................... 290

Robert J. Goldstein & Associates (Doc. #16577)............................................... 291

7.4. SUGGESTED NEW EXCLUSIONS/LANGUAGE BY COMMENTERS ..................................... 291

SUMMARY RESPONSE................................................................................................. 291

SPECIFIC COMMENTS ................................................................................................. 295

Waters of the United States Coalition (Doc. #14589) ........................................ 295

Peltzer & Richardson, LC (Doc. #16360)........................................................... 296

Coachella Valley Water District (Doc. #16926)................................................. 297

7.4.1. Stormwater Ponds not Adjacent................................................................................ 297

SUMMARY RESPONSE................................................................................................. 297

SPECIFIC COMMENTS ................................................................................................. 298

City of Glendale, Arizona (Doc. #15054)........................................................... 298

Boulder County and the City of Boulder, Colorado (Doc. #15495)................... 298

County of Los Angeles and Los Angeles County Flood Control District, 

California (Doc. #15620).................................................................................... 298

City of Pompano Beach, Florida (Doc. #16438) ................................................ 299

Tennessee Department of Transportation (Doc. # 16470).................................. 300

Rubber Manufacturers Association (Doc. #15419) ............................................ 301

Indiana Manufacturers Association (Doc. #15704)............................................ 301

National Association of Home Builders (Doc. #19540)..................................... 301

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)..... 304

7.4.2. Groundwater Recharge Ponds.................................................................................. 305

SUMMARY RESPONSE................................................................................................. 305

SPECIFIC COMMENTS ................................................................................................. 306

Board of County Commissioners, White Pine County, Nevada (Doc. #9975)... 306

Flood Control and Water Conservation District, Riverside County, California 

(Doc. #14581) ..................................................................................................... 306

City of Glendale, Arizona (Doc. #15054)........................................................... 307

County of Los Angeles and Los Angeles County Flood Control District, 

California (Doc. #15620).................................................................................... 308

Southeast Florida Utility Council (Doc. #11879)............................................... 309

San Gabriel Basin Water Quality Authority, California (Doc. #17049)............. 310

Center for Water Advocacy et al. (Doc. #15225) ............................................... 310

7.4.3. Agricultural............................................................................................................... 311

SUMMARY RESPONSE................................................................................................. 311

SPECIFIC COMMENTS ................................................................................................. 313

Gila River Indian Community (Doc. #13619).................................................... 313

North Carolina Forestry Advisory Council (Doc. #14123) ................................ 315

North Dakota Office of the Governor, et al (Doc. #15365)................................ 315

Department of Public Health and the Environment, State of Colorado (Doc. # 

16342) ................................................................................................................. 316
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

13

State of Idaho (Doc. # 16597)............................................................................. 316

Pyramid Lake Paiute Tribe (Doc. # 17472)........................................................ 317

Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)....... 317

Land Improvement Contractors of America (Doc. #8541)................................. 317

Annette Schafer (Doc. #2743) ............................................................................ 318

Grower-Shipper Association of Central California (Doc. #4710.2)................... 318

Adams Ranch, Inc. (Doc. #4978.2)..................................................................... 318

National Farmers Union (Doc. #6249) ............................................................... 318

Minnesota Agricultural Water Resource Center (Doc. #14284) ........................ 319

Peltzer & Richardson, LC (Doc. #16360)........................................................... 319

Glenn-Colusa Irrigation District (Doc. #16635)................................................. 319

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

............................................................................................................................. 320

Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061) .............. 321

Kansas Natural Resource Council (Doc. #14599).............................................. 321

7.4.4. MS4s and other stormwater management features................................................... 322

SUMMARY RESPONSE................................................................................................. 322

SPECIFIC COMMENTS ................................................................................................. 329

State of Hawaii Department of Transportation (Doc. #10184)........................... 329

Pyramid Lake Paiute Tribe (Doc. #17472)......................................................... 330

State of Alaska (Doc. #19465)............................................................................ 330

California Department of Transportation, Division of Environmental Analysis 

(Doc. #19538) ..................................................................................................... 330

Florida Department of Transportation (Doc. #18824)........................................ 330

Lee County, Florida (Doc. #1346.1)................................................................... 331

Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)....... 331

New Hanover County, North Carolina (Doc. #5609)......................................... 332

Carroll County Department of Land Use, Planning & Development, Maryland 

(Doc. #6266.1) .................................................................................................... 332

City of Westminster, Colorado (Doc. #7327.2).................................................. 333

Transportation and Storm Water Department, City of San Diego, California (Doc. 

#7950.1 and #7950.2) ......................................................................................... 333

Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986) .... 334

Board of Douglas County Commissioners, Colorado (Doc. #8145) .................. 335

Aurora Water (Doc. #8409)................................................................................ 335

Alameda Countywide Clean Water Program, California (Doc. #8417) ............. 336

Southern California Association of Governments, et al (Doc. #8534.1)............ 337

Anne Arundel County, Maryland (Doc. #8574)................................................. 337

City of Portland, Maine (Doc. #8659) ................................................................ 338

Carroll County Board of Commissioners, Maryland (Doc. #8667).................... 338

City of Chesapeake, Virginia (Doc. #9615)........................................................ 338

Pasco County, Florida (Doc. #9697)................................................................... 340

Board of County Commissioners, White Pine County, Nevada (Doc. #9975)... 340

Board of Supervisors, Imperial County, California (Doc. #10259).................... 340

Board of Supervisors, Imperial County, California (Doc. #10259).................... 341

Kendall County Board, Illinois (Doc. #10965)................................................... 341
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

14

City of Escondido, California (Doc. #11116)..................................................... 342

Urban Drainage and Flood Control District, Denver, Colorado (Doc. #12263). 342

Board of County Commissioners, Mesa County, Colorado (Doc. #12713)....... 342

City of Palo Alto, California (Doc. #12714)....................................................... 343

Vermont League of Cities and Towns (Doc. #13075)........................................ 343

MS4 NPDES Steering Committee, Palm Beach County, Florida (Doc. #13218)

............................................................................................................................. 343

Natural Resources Division, Public Works Department, Pinellas County, Florida 

(Doc. #14426.1) .................................................................................................. 344

Bangor Area Storm Water Group, Hampden, Maine (Doc. #14543.1).............. 344

City of Buckeye, Arizona (Doc. #14591)........................................................... 344

Public Works, City Golden, Colorado (Doc. #14617)........................................ 346

Board of County Commissioners, Larimer County, Colorado (Doc. #14741)... 346

Board of County Commissioners, Marion County, Florida (Doc. #14979) ....... 346

City of Glendale, Arizona (Doc. #15054)........................................................... 347

National Association of Counties (Doc. #15081)............................................... 347

Attorney’s Office, Harris County, Texas (Doc. #15097).................................... 349

City of Stockton, California (Doc. #15125)........................................................ 350

City of Arvada, Colorado (Doc. #15153) ........................................................... 350

Board of Commissioners, Carroll County, Maryland (Doc. #15190)................. 351

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)......... 351

Utilities Department, City of Santa Maria, California (Doc. #15487)................ 351

Boulder County and the City of Boulder, Colorado (Doc. #15495)................... 352

Anderson County, South Carolina (Doc. #15514).............................................. 352

County of Los Angeles and Los Angeles County Flood Control District, 

California (Doc. #15620).................................................................................... 353

Public Works Department, Contra Costa County, California, et al. (Doc. #15634)

............................................................................................................................. 355

Village of Wellington, Florida (Doc. #15654).................................................... 355

Town of Shady Shores, Texas (Doc. #15709).................................................... 355

Southern California Water Committee (Doc. #16170)....................................... 356

Department of Environmental Services, Clark County, Washington (Doc. #16455)

............................................................................................................................. 359

City of Beaverton, Oregon (Doc. #16466).......................................................... 359

City of Oceanside, California (Doc. #16509)..................................................... 360

Palm Beach County, Florida (Doc. #16647)....................................................... 361

City of Portland, Bureau of Environmental Services (Doc. #16662) ................. 363

Board of Supervisors, Lassen County, California (Doc. #17461) ...................... 363

Board of Supervisors, Amador County, California (Doc. #17450).................... 364

Department of Public Works, County of San Diego, California (Doc. #17920) 365

Board of County Commissioners, Marion County, Florida (Doc. #18868) ....... 366

Stormwater Advisory Committee, DeSoto County, Mississippi (Doc. #19473) 366

Maui County, Hawaii (Doc. #19593) ................................................................. 367

Board of Supervisors, Navajo County, Arizona (Doc. #19569)......................... 367

Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. 

#19619) ............................................................................................................... 368
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

15

Association County Commissioners of Georgia (Doc. #5912) .......................... 368

California State Association of Counties (Doc. #9692)...................................... 369

Association of California Water Agencies (Doc. #12978)................................. 369

Colorado Stormwater Council (Doc. #12981).................................................... 370

National Association of Flood & Stormwater Management Agencies (Doc. 

#13613) ............................................................................................................... 371

Western Coalition of Arid States (Doc. #14407)................................................ 371

Georgia Municipal Association (Doc. #14527.1)............................................... 372

Florida Rural Water Association (Doc. #14897)................................................ 372

Kentucky League of Cities (Doc. #15227) ......................................................... 372

NC League of Municipalities (Doc. #15358) ..................................................... 373

South Carolina Association of Counties (Doc. #15573)..................................... 373

The United States Conference of Mayors et al. (Doc. #15784).......................... 373

League of Oregon Cities (Doc. #16546)............................................................. 374

Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613)

............................................................................................................................. 375

Maine Municipal Association (MMA) (Doc. #16630)....................................... 375

NC League of Municipalities (NCLM) (Doc. #17443) ...................................... 376

Iowa League of Cities (Doc. #18823)................................................................. 376

Virginia Municipal Stormwater Association (VAMSA) (Doc. #19517)............ 377

Pennsylvania Chamber of Commerce and Industry (Doc. #14401) ................... 378

California Building Industry Association et al. (Doc. #14523).......................... 378

South Carolina Chamber of Commerce (Doc. #14535)...................................... 379

Greater Houston Partnership (Doc. #14726) ...................................................... 380

Institute of Scrap Recycling Industries, Inc. (Doc. #15041)............................... 380

Federal StormWater Association (Doc. #15161)................................................ 381

National Association of Home Builders (Doc. #19540)..................................... 385

Federal Water Quality Coalition (Doc. #15822.1).............................................. 385

American Society of Civil Engineers (Doc. #19572)......................................... 386

Coalition of Real Estate Associations (Doc. #5058.2) ....................................... 387

Southpace Properties, Inc. (Doc. #6989.1) ......................................................... 393

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. 

#7938.1) .............................................................................................................. 394

Lydig Construction Inc. (Doc. #14147).............................................................. 394

Associated General Contractors of America (Doc. #14602) .............................. 394

NAIOP Commercial Real Estate Development Association (Doc. #14621)...... 400

Vulcan Materials Company (Doc. #14642)........................................................ 400

Maryland Chapters of NAIOP (Doc. #15837).................................................... 401

Ames Construction, Inc. (Doc. #17045)............................................................. 401

National Association of Home Builders (Doc. #19540)..................................... 401

North American Meat Association and American Meat Institute (Doc. #13071)

............................................................................................................................. 405

The Mosiac Company (Doc. #14640)................................................................. 405

Packaging Corporation of America (Doc. #15515)............................................ 406

Hampton Roads Planning District Commission, Virginia (Doc. #9612) ........... 406

Division of Transportation, Kane County, St. Charles, Illinois (Doc. #9831) ... 407
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

16

Roads and Drainage Department, DeKalb County, Georgia (Doc. #13572)...... 407

Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072) .... 407

Lake County Division of Transportation, Lake County, Illinois (Doc. #14743) 408

National Association of County Engineers (Doc. #14981) ................................ 408

Union Pacific Railroad Company (Doc. #16370)............................................... 408

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)............................. 409

Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1) .... 409

Beaufort County Stormwater Utility (Doc. #7326.1) ......................................... 410

Gateway Water Management Authority, Los Angeles Gateway Region (Doc. 

#10032) ............................................................................................................... 411

Department of Public Works, Snohomish County, Washington (Doc. #10749) 411

Minnesota Cities Stormwater Coalition (Doc. #14647) ..................................... 413

County of San Diego, California (Doc. #14782)................................................ 416

Southeast Metro Stormwater Authority, Centennial, Colorado (Doc. #14935) . 417

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)..... 418

Public Works, Orange County, California (Doc. #14994).................................. 418

SD1 (Doc. #15140)............................................................................................. 419

Albuquerque Metropolitan Arroyo Flood Control Authority (Doc. #15221)..... 420

Louisville and Jefferson County Metropolitan Sewer District (Doc. #15413)... 422

Central Massachusetts Regional Stormwater Coalition (Doc. #15443.1) .......... 422

City of Albuquerque, New Mexico (Doc. #15456) ............................................ 423

National Association of Clean Water Agencies (Doc. #15505) ......................... 423

West Bay Sanitary District, Novato Sanitary District, West County Wastewater 

District, Union Sanitary District and West Valley Sanitation District, California 

(Doc. #16610) ..................................................................................................... 424

Sacramento Stormwater Quality Partnership (Doc. #17005) ............................. 424

Ventura County Watershed Protection District (Doc. #18762).......................... 426

Northern Arizona Municipal Waters Users Association (Doc. #9730) .............. 427

Northwest Colorado Council of Governments Water Quality/ Quantity Committee 

(Doc. #10187) ..................................................................................................... 427

Duke Energy (Doc. #13029)............................................................................... 427

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 430

EcoSynthesis Scientific & Regulatory Services (Doc. #14586)......................... 430

National Rural Water Association (Doc. #14623).............................................. 430

Tarrant Water Regional Water District, Fort Worth, Texas (Doc. #14643)....... 431

Santa Clara Valley Water District (Doc. #14776) .............................................. 431

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

............................................................................................................................. 431

Kentucky Stormwater Association (Doc. #18912)............................................. 431

National Association of Flood & Stormwater Management Agencies (Doc. 

#19599) ............................................................................................................... 432

American Rivers (Doc. #15372)......................................................................... 432

Association of State Floodplain Managers, Inc. (Doc. #19452)......................... 433

Florida Stormwater Association (Doc. #14613)................................................. 433

Iowa Stormwater Education Program MS-4 (Doc. #14511) .............................. 434

Water Environment Federation (Doc. #16584) .................................................. 437
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

17

California Stormwater Quality Association (Doc. #16606) ............................... 438

National Association of Flood & Stormwater Management Agencies (Doc. 

#19599) ............................................................................................................... 439

Honorable Congressman Ed Perlmutter and Honorable Congressman Mike 

Coffman (Doc. #17456)...................................................................................... 440

Honorable Representative Frankel, Honorable Representative Napolitano and 

Honorable Representative Dina Titus (Doc. #17458)......................................... 440

7.4.5. Other......................................................................................................................... 440

SUMMARY RESPONSE................................................................................................. 440

SPECIFIC COMMENTS ................................................................................................. 440

Oak Ridge National Laboratory (Doc. #14463) ................................................. 440

U.S. House of Representatives Committee on Science, Space and Technology 

(Doc. #16386) ..................................................................................................... 441

Alaska State Legislature, Alaska Senate Leadership (Doc. #7494.1)................. 442

Office of Water Management, Pennsylvania Department of Environmental 

Protection (Doc. #7985)...................................................................................... 443

State of Idaho (Doc. #9834)................................................................................ 443

State of Hawaii Department of Transportation (Doc. #10184)........................... 444

New Mexico Department of Agriculture (Doc. #13024).................................... 444

Division of Aviation, North Carolina Department of Transportation (Doc. 

#14766) ............................................................................................................... 445

Florida Department of Environmental Protection (Doc. #15080) ...................... 447

Tennessee Department of Environment and Conservation (Doc. #15135) ........ 449

North Carolina Department of Transportation (Doc. #15179) ........................... 450

Arizona Game and Fish Department (Doc. #15197) .......................................... 450

California Department of Water Resources (Doc. #15245)................................ 450

Sealaska Corporation (Doc. #15356).................................................................. 451

West Virginia Department of Environmental Protection (Doc. #15415) ........... 452

Ohio Department of Natural Resources et al. (Doc. #15421)............................. 453

San Gabriel Basin Water Quality Authority (Doc. #15642)............................... 453

Environmental Protection Division, Georgia Department of Natural Resources 

(Doc. #16348) ..................................................................................................... 454

Pyramid Lake Paiute Tribe (Doc. #17472)......................................................... 454

Lee County, Florida (Doc. #1346.1)................................................................... 454

Board of County Commissioners, Sweetwater County, Wyoming (Doc. #6863)

............................................................................................................................. 455

City of Thornton, Colorado (Doc. #7328.1) ....................................................... 455

Transportation and Storm Water Department, City of San Diego, California (Doc. 

#7950.2) .............................................................................................................. 456

Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986) .... 457

Aurora Water (Doc. #8409)................................................................................ 457

Board of Supervisors, Imperial County, California (Doc. #10259).................... 459

Mecklenburg County Government, North Carolina (Doc. #10946)................... 459

City of Escondido, California (Doc. #11116)..................................................... 460

City of Palo Alto, California (Doc. #12714)....................................................... 460

Charlotte County, Florida (Doc. #13061)........................................................... 461
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

18

Waters of the United States Coalition (Doc. #14589) ........................................ 461

Valley Center Municipal District, California (Doc. #14752) ............................. 464

Washington County Commission, Utah (Doc. #14991)..................................... 464

City of Glendale, Arizona (Doc. #15054)........................................................... 465

New York City Law Department (Doc. #15065)................................................ 466

Flood Control and Water Conservation, Alameda County, California (Doc. 

#15074) ............................................................................................................... 467

National Association of Counties (Doc. #15081)............................................... 467

Painesville Township, Ohio (Doc. #15183)........................................................ 468

Los Angeles Department of Water and Power (Doc. #15238)........................... 468

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)......... 471

District of Columbia Water and Sewer Authority (Doc. #15379)~.................... 472

County of Los Angeles and Los Angeles County Flood Control District, 

California (Doc. #15620).................................................................................... 473

City of Riverside, California (Doc. #15824) ...................................................... 475

Colorado Springs Utilities (Doc. #16351.1) ....................................................... 475

South Kansas Groundwater Management District No. 3 (Doc. #16465) ........... 476

City of Beaverton, Oregon (Doc. #16466).......................................................... 476

Brady Township Supervisors, Clearfield County, Pennsylvania (Doc. #16480) 477

Palm Beach County, Florida (Doc. #16647)....................................................... 478

City of Portland, Bureau of Environmental Services (Doc. #16662) ................. 480

Office of the Mayor and City Council, City of Palo Alto, California (Doc. 

#16799) ............................................................................................................... 480

Board of Supervisors, Amador County, California (Doc. #17450).................... 482

Board of Supervisors, Lassen County, California (Doc. #17461) ...................... 483

Board of County Commissioners, Pitkin County, Colorado (Doc. #18921) ...... 483

California State Association of Counties (Doc. #9692)...................................... 484

Association of California Water Agencies (Doc. #12978)................................. 486

California Association of Sanitation Agencies (Doc. #12832)........................... 487

Colorado Stormwater Council (Doc. #12981).................................................... 490

Association of Clean Water Administrators (Doc. #13069)............................... 491

National Association of Flood & Stormwater Management Agencies (Doc. 

#13613) ............................................................................................................... 492

Western Coalition of Arid States (Doc. #14407)................................................ 492

Florida Rural Water Association (Doc. #14897)................................................ 493

Western Urban Water Coalition (Doc. #15178) ................................................. 494

Pennsylvania Municipal Authorities Association (Doc. #15374)....................... 495

The United States Conference of Mayors et al. (Doc. #15784).......................... 495

Washington State Water Resources Association (Doc. #16543)........................ 497

Iowa League of Cities (Doc. #18823)................................................................. 500

Board of County Commissioners, Pitkin County, Colorado (Doc. #18921) ...... 501

Golf Course Superintendents Association of America et al. (Doc. #14902)...... 501

American Chemistry Council (Doc. #15186)..................................................... 502

Aluminum Association (Doc. # 15388).............................................................. 506

Dow Chemical Company (Doc. #15408)............................................................ 508

Rubber Manufacturers Association (Doc. #15419) ............................................ 510
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

19

Texas Chemical Council (Doc. #15433)............................................................. 512

CLUB 20 (Doc. #15519)..................................................................................... 513

Federal Water Quality Coalition (Doc. #15822.1).............................................. 513

Minnesota Chamber of Commerce (Doc. #16473)............................................. 516

American Society of Civil Engineers (Doc. #19572)......................................... 517

Pinnacle Construction & Development Corp. (Doc. #1807).............................. 518

Kingsport Horizontal Property Regime and Kingsport Homeowners Association, 

et al. (Doc. #4847) .............................................................................................. 518

Kerr Environmental Services Corp. (Doc. #7937.1)........................................... 519

Vulcan Materials Company (Doc. #14642)........................................................ 520

West Valley Planned Communities (Doc. #18906)............................................ 520

National Association of Home Builders (Doc. #19540)..................................... 522

Texas Mining and Reclamation Association (Doc. #10750).............................. 524

Wyoming Mining Association (Doc. #14460).................................................... 526

CONSOL Energy, Inc. (Doc. #14614)................................................................ 527

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. 

#14619) ............................................................................................................... 527

National Mining Association (Doc. #15059)...................................................... 528

American Petroleum Institute (Doc. #15115)..................................................... 531

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 532

Coeur Mining, Inc. (Doc. #16162)...................................................................... 534

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. 

#18016) ............................................................................................................... 535

Alameda County Cattlewomen (Doc. #8674)..................................................... 536

Illinois Corn Growers Association (Doc. #13996) ............................................. 538

USA Rice Federation (Doc. #13998).................................................................. 539

The Mosiac Company (Doc. #14640)................................................................. 540

Irvine Ranch Water District (Doc. #14774)........................................................ 541

Browns Valley Irrigation District, California (Doc. #14908)............................. 542

Georgia Paper & Forest Products Association (Doc. #14924) ........................... 543

Klamath Water Users Association (Doc. #15063).............................................. 543

Beet Sugar Development Foundation (Doc. #15368)......................................... 544

Weyerhaeuser Company (Doc. #15392)............................................................. 544

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)..................... 546

American Forest & Paper Association (Doc. #15420) ....................................... 546

Packaging Corporation of America (Doc. #15515)............................................ 549

Dairy Cares (Doc. #16471)................................................................................. 550

Anderson-Cottonwood Irrigation District (Doc. #17085) .................................. 550

Hampton Roads Planning District Commission, Virginia (Doc. #9612) ........... 551

Lake County Division of Transportation, Lake County, Illinois (Doc. #14743) 551

Airlines For America (Doc. #15439).................................................................. 551

WateReuse Association (Doc. #1349.1)............................................................. 553

City of Omaha, Nebraska (Doc. #9733) ............................................................. 554

Las Virgenes - Triunfo Joint Powers Authority, California (Doc. #13847)....... 554

County of San Diego, California (Doc. #14782)................................................ 554
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

20

Public Works, Orange County, California (Doc. #14994).................................. 555

National Association of Clean Water Agencies (Doc. #15505) ......................... 556

South Orange County Wastewater Authority, California (Doc. #15619)........... 557

Orange County Sanitation District, California (Doc. #16335.1) ........................ 558

Sacramento Stormwater Quality Partnership (Doc. #17005) ............................. 562

Central Arizona Project (Doc. #3267) ................................................................ 563

Clearwater Watershed District et al (Doc. #9560.1)........................................... 563

Northwest Colorado Council of Governments Water Quality/ Quantity Committee 

(Doc. #10187) ..................................................................................................... 564

Southeast Florida Utility Council (Doc. #11879)............................................... 564

Duke Energy (Doc. #13029)............................................................................... 565

Florida Power & Light Company (Doc. #13615)............................................... 565

Calleguas Municipal Water District, Thousand Oaks, California (Doc. #13959)

............................................................................................................................. 566

Southern Company (Doc. #14134) ..................................................................... 567

Southern Nevada Water Authority (Doc. #14580) ............................................. 568

Central Arizona Water Conservation District (Doc. #14585) ............................ 569

The Clean Energy Group Waters Initiative (Doc. #14616)................................ 569

Metropolitan Water District of Southern California (Doc. #14637)................... 570

Santa Clara Valley Water District (Doc. #14776) .............................................. 571

The Fertilizer Institute (Doc. #14915) ................................................................ 572

Salt River Project Agricultural and Power District and the Salt River Valley 

Water Users Association (Doc. #14928) ............................................................ 573

Nucor Corp. (Doc. #14963) ................................................................................ 574

American Public Power Association (Doc. #15008).......................................... 575

Utility Water Act Group (Doc. #15016)............................................................. 576

Edison Electric Institute (Doc. #15032).............................................................. 577

Chino Basin Watermaster (Doc. #15046)........................................................... 578

San Diego County Water Authority, California (Doc. #15089)......................... 579

Luminant (Doc. #15100)..................................................................................... 582

Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. 

#15114) ............................................................................................................... 583

Bella Vista Water District, Redding, California (Doc. #15149)......................... 583

Association of Metropolitan Water Agencies et al. (Doc. #15157).................... 584

Alameda County Flood Control and Water Conservation District, Zone 7, 

California (Doc. #15259).................................................................................... 585

Beaver Water District, Lowell, Arkansas (Doc. #15405)................................... 586

Eastern Municipal Water District, Perris, California (Doc. #15409) ................. 586

Grand Valley Water Users Association et al. (Doc. #15467)............................. 588

Aqua America, Inc. (Doc. #15529)..................................................................... 588

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

............................................................................................................................. 589

San Luis & Delta-Mendota Water Authority, Los Banos, California (Doc. 

#15645) ............................................................................................................... 591

SCANA Services, Inc. (Doc. #15660)................................................................ 592

Association of Electronic Companies of Texas, Inc. (Doc. #16433).................. 592
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

21

Inland Empire Utilities Agency, California (Doc. #16520)................................ 593

ARIPPA (Doc. #16545.1)................................................................................... 594

Cucamonga Valley Water District, California (Doc. #16556) ........................... 595

Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061) .............. 596

Cloud Peak Energy (Doc. #18010)..................................................................... 597

Xcel Energy (Doc. #18023)................................................................................ 597

WateReuse Association (WateReuse) (Doc. #12758) ........................................ 597

Eastern Municipal Water District, Perris California (Doc. #15544) .................. 598

George Washington University Regulatory Studies Center (Doc. #13563)....... 601

Water Environment Federation (Doc. #16584) .................................................. 602

7.5. SUPPLEMENTAL COMMENTS ON FEATURES AND WATERS NOT JURISDICTIONAL....... 605

SUMMARY RESPONSE................................................................................................. 605

SPECIFIC COMMENTS ................................................................................................. 605

Anonymous (Doc. #2893).................................................................................. 605

Department of Public Works, City of Harrisonville, Missouri (Doc. #4038.2). 605

William P. Minervini (Doc. #4040.2)................................................................ 606

Town of Carolina Beach, North Carolina (Doc. #5618).................................... 608

Black Hills Corporation (Doc. #6248)................................................................ 608

Amber Earnhardt (Doc. #6761) ......................................................................... 608

Sunny Washburn (Doc. #7368).......................................................................... 615

City of Pittsfield (Doc. #7629)........................................................................... 615

Merrill Hewson Smith (Doc. #8323) ................................................................. 616

Franconia Township (Doc. #8661) .................................................................... 623

Paul Wetzel (Doc. #9219).................................................................................. 623

Floyd County Farm Bureau, Inc. (Doc. #9673)................................................. 624

Minnesota Association of County Agricultural Inspectors (Doc. #10970) ....... 625

Weld County (Doc. #12343).............................................................................. 625

North Carolina Water Quality Association (Doc. #12361) ............................... 626

Florida Water Environment Association (Doc. #12856)................................... 627

Family Farm Alliance (Doc. #12983)................................................................ 628

Ground Water Protection Council (Doc. #13055)............................................. 629

Tamara Choat (Doc. #13701) ............................................................................ 629

Board of County Commissioners, Lewis and Clark County (Doc. #14065) ..... 629

A. Romberg (Doc. #14096) ............................................................................... 630

El Dorado Holdings, Inc. (Doc. #14285)........................................................... 630

Westlands Water District (Doc. #14414)........................................................... 630

Union for Reform Judaism (Doc. #14560) ........................................................ 632

State of Oklahoma (Doc. #14625) ...................................................................... 632

State of Oklahoma (Doc. #14773) ...................................................................... 633

Santa Clara Valley Water District (Doc. #14776) ............................................. 633

Region 10 Tribal Caucus (Doc. #14927)........................................................... 634

City of Minneapolis Water Resources (Doc. #14975.1).................................... 634

Clean Water Action (Doc. #15015) ................................................................... 639

San Joaquin County Board of Supervisors (Doc. #15017.1)............................. 639

Idaho Conservation League (Doc. #15053)....................................................... 640

Lea Soil and Conservation District Board of Supervisors (Doc. #15144.1)...... 646
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

22

Destin Water Users, Inc. (Doc. #15357)............................................................. 647

Steel Manufacturers Association and Specialty Steel Industry of North America 

(Doc. #15416) ..................................................................................................... 647

Massachusetts Water Resources Authority (Doc. #15546) ................................ 648

City of Portland, Maine (Doc. #15582) .............................................................. 649

Countrymark Cooperative Holding Corporation, LLC; Countrymark Refining and 

Logistics, LLC (Doc. #15656)............................................................................ 649

Pennsylvania Grade Crude Oil Coalition (Doc. #15773) ................................... 651

Indiana Department of Environmental Management (Doc. #16440) ................ 651

Pershing County Water Conservation District (Doc. #16519) .......................... 651

Kaweah and Tule Water Managers (Doc. #16544) ........................................... 652

Judy Petersen (Doc. #16580)............................................................................. 653

Kentucky Waterways Alliance (Doc. #16581) .................................................. 654

Lake County Stormwater Management Commission (Doc. #16893)................. 655

D. Gillham (Doc. #16906) ................................................................................. 655

Arizona Rock Products Association (Doc. #17055).......................................... 655

D. Solem (Doc. #17627)..................................................................................... 656

Anonymous (Doc. #18770)................................................................................ 657

Alliant Energy Corporate Services, Inc. (Doc. #18791)..................................... 657

Anonymous (Doc. #18801)................................................................................ 658

Valley County (Doc. #18918)............................................................................. 658

Anonymous (Doc. #18943)................................................................................ 659

Anonymous (Doc. #18955)................................................................................ 659

City of Olathe Kansas (Doc. #18982)................................................................ 660

Kevin and Nicole Keegan (Doc. #19128).......................................................... 660

Western States Water Council (Doc. #19349)................................................... 660

Coachella Valley Water District, Riverside County, California (Doc. #19455) 661

Maui County (Doc. #19543).............................................................................. 661

Las Vegas Valley Watershed Advisory Committee (Doc. #19570).................. 663

Chicken & Egg Association of Minnesota (Doc. #19584) ................................ 663

San Luis Water District (SLWD), Los Banos, California (Doc. #20488) ......... 663

Alpine County Board of Supervisors, County of Alpine, California (Doc. 

#20492) ............................................................................................................... 664

Highlands Ranch Metropolitan District, Highlands Ranch, Colorado (Doc. 

#20499) ............................................................................................................... 664

Atascadero Mutual Water Company (Doc. #20508) ......................................... 664

ATTACHMENTS AND REFERENCES............................................................................................. 665

SUPPLEMENTAL REFERENCES:.................................................................................................. 680
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

23

Topic 7. FEATURES AND WATERS NOT JURISDICTIONAL

Summary Response

In the final rule, the agencies have provided clarified information regarding features that are not 

considered “waters of the United States”, even where those features would otherwise meet the 

criteria for jurisdiction under paragraphs (a)(4) though (a)(8). Collectively referred to as 

“exclusions”, this portion of the rule reflects the agencies’ long-standing practice and technical 

judgment that certain waters and features are not subject to the CWA. The exclusions are an 

important aspect of the agencies’ policy goal of providing clarity and certainty. Just as the 

categorical assertions of jurisdiction over tributaries and adjacent waters, as defined, simplify the 

jurisdiction issue, the categorical exclusions will likewise simplify the process, and they reflect 

the agencies’ determinations of the lines of jurisdiction based on science, the case law and the 

agencies’ experience and expertise.

The agencies received numerous comments on the exclusions contained in the proposed rule 

from the public, potentially regulated entities, and the Science Advisory Board. Many 

commenters felt that the proposed language regarding exclusions was not specific enough or did 

not define important terms used. In response to these comments, the agencies have broadened the 

preamble discussion of this section and expanded the number of exclusions listed in order to 

increase clarity regarding the agencies’ intent. Some commenters stated the exclusions should 

not apply where a water has a significant nexus or meets one of the categories in paragraph (a). 

The agencies disagree with these suggestions and believe it is a reasonable approach for the rule 

to clearly identify what waters are and are not jurisdictional. The Science Advisory Board and 

several other commenters stated that the proposed exclusions did not reflect the scientific record 

or lacked adequate scientific justification. The agencies’ determination that certain features are 

not “waters of the United States” is not solely a scientific conclusion. Although guided by the 

available scientific information, exclusions are also guided by Supreme Court cases, statutory 

language and regulatory policies, and the agencies’ technical expertise and experience. Thus, just 

as a significant nexus determination is not a purely scientific inquiry, the exclusions reflect a 

determination by the agencies that the features detailed should not be considered “waters of the 

United States,” based on an evaluation of the law, science, and functions provided by these 

features. The agencies believe the exclusions contained in the final rule provide a balance 

between protection and clarity that is reasonable and consistent with the statute’s goals and 

objectives.

It is important to note the difference between features not considered to be “waters of the United 

States” (exclusions) and activities covered under CWA section 404(f), also known as 

“exemptions.” Recognizing the vital role of farmers in providing the nation with food and fiber, 

the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal farming 

activities such as seeding, harvesting, cultivating, planting, soil and water conservation practices, 

and other activities from the Section 404 permitting requirement. “Normal” farming, silviculture, 

and ranching is clarified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to 

mean established and ongoing activities to distinguish from activities needed to convert an area 

to farming, silviculture, or ranching and activities that convert a water to a non-water. While
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

24

waters subject to normal farming, silviculture, or ranching practices may be determined to 

significantly affect the chemical, physical, or biological integrity of downstream navigable 

waters, the agencies believe that such determination should be made based on a case-specific 

basis instead of by rule. The agencies also recognize that waters subject to normal farming, 

silviculture, or ranching practices are often associated with modifications and alterations 

including drainage, changes to vegetation, and other disturbances the agencies believe should be 

specifically considered in making a significant nexus determination. Nothing in this rule changes 

the exemptions covered in 404(f) or current agency implementation of the exemptions.

In the final rule all existing exclusions from the definition of “waters of the United States” are 

retained, and several exclusions reflecting longstanding agency practice are added to the 

regulation for the first time. Prior converted cropland and waste treatment systems have been 

excluded from the definition of “waters of the United States” definition since 1992 and 1979 

respectively, and only ministerial changes are made. These two exclusions remain substantively 

and operationally unchanged. The agencies add exclusions for waters and features previously 

identified as generally exempt in preamble language from Federal Register notices by the Corps 

on November 13, 1986, and by EPA on June 6, 1988. This is the first time these exclusions have 

been established by rule. The agencies for the first time also establish by rule that certain ditches 

are excluded from jurisdiction. The agencies add exclusions for groundwater and erosional 

features, as well as exclusions for some waters that were identified in public comments as 

possibly being found jurisdictional under proposed rule language where this was never the 

agencies’ intent, such as stormwater control features constructed to convey, treat, or store 

stormwater, and cooling ponds that are created in dry land. Artificial lakes and ponds subject to 

this exclusion are created in dry land to hold or store water for uses where isolation from 

downstream waters for the duration of the associated activity is essential. Conveyances created 

in dry land that are physically connected to and are a part of these artificial lakes and ponds 

created in dry land are also excluded from jurisdiction under this provision. These artificial 

features work together as a system, and it is appropriate to treat them as one functional unit. 

These exclusions reflect current agencies’ practice, and their inclusion in the rule as specifically 

excluded furthers the agencies’ goal of providing greater clarity over what waters are and are not 

protected under the CWA. Waters and features that are excluded under paragraph (b) of the final 

rule cannot be determined to be jurisdictional under paragraphs (a)(4) through (a)(8).

Many commenters stated that all “man-made” facilities and features should be added to the list 

of exclusions. The agencies do not feel that this addition would be appropriate, as the term “manmade” would potentially apply to a large number of aquatic features, without regard to the 

potential for significant nexus to traditional navigable waters, interstate waters, or territorial seas. 

Given the extensive human modification of watercourses and hydrologic systems throughout the 

country, it is often difficult to distinguish between natural watercourses and watercourses that are 

wholly or partly modified or constructed. Many features that potentially convey waters and/or 

pollutants to (a)(1)-(a)(3) waters have been historically created or altered, such as channelized 

streams and impounded areas, and to add a broad exclusion for these waters to the list of 

excluded features would not improve regulatory clarity, nor be consistent with the goals of the 

statute. The agencies believe the expanded exclusions for cooling ponds, stormwater control 

features, and wastewater recycling structures created in dry land, as well as certain types of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

25

ditches, provide clarity regarding many of the features that prompted these comments, as well as 

the necessary environmental safeguards. 

Overall the agencies received many comments related to the jurisdictional status of ditches. In 

response to comments, the agencies have revised the exclusions for ditches to more effectively 

reflect the agencies’ intent and provide greater clarity and consistency. The agencies’ approach 

to ditches in the final rule balances the protection of ditches that replace or function as 

tributaries with the exclusion of ditches that provide minimal, if any, tributary function and have 

not been historically regulated in practice. Thus, the treatment of ditches in the final rule is 

based on the science, the discretion provided by the statute, the direction provided by case law, 

and the overwhelming stakeholder desire for more effective and understandable rules to reduce 

the need for case-by-case jurisdictional determinations. The revised ditch language excludes:

“(A) ephemeral ditches that are not a relocated tributary or excavated in a tributary;

(B) intermittent ditches that are not a relocated tributary or excavated in a tributary or 

drain wetlands; 

(C) Ditches that do not flow, either directly or through another water, into a water 

identified in paragraphs (a)(1) through (a)(3) of this [rule].”

A ditch that meets any one of these three conditions is not a water of the United States. These 

exclusions apply independently, so a ditch is excluded if it meets just one of these exclusions and 

even if it doesn’t meet any of the others. Compendium 6 of this RTC focuses on “Ditches,” and 

section 6.2 of that compendium is specifically centered on the exclusions for ditches in the final 

rule.

For more information on the exclusion specific to waste treatment systems, see the summary 

response included in the section titled “Waste Treatment System (WTSE)” below. For more 

information on the exclusion specific to prior converted cropland, see the summary response 

included in the section titled “Prior Converted Cropland (PCC)” below. For information 

regarding Municipal Separate Storm Sewer Systems (MS4) and other stormwater control 

features, see the summary response included in the section titled “MS4s and other stormwater 

management features” below. The essays and individual responses throughout this compendium 

further respond to the individual issues raised in this section.

Several commenters also expressed concerns that features listed in the exclusions as not 

considered “waters of the United States” could serve as a jurisdictional connection for other 

waters under the proposed rule. The science overwhelmingly supports the conclusion that waters 

can remain strongly connected even where the connection is through a non-jurisdictional feature. 

See Technical Support Document Sections II and IX. There is no basis in the statute or caselaw 

to ignore the significant effects a water has on downstream waters simply because the connection 

exists through a non-jurisdictional feature. In response to these and other comments, however, 

the agencies have made several clarifications in the final rule. For tributaries, some excluded 

features, such as waste treatment systems or lawfully constructed grassed waterways, may occur 

within a covered tributary segment; while the water above and below the excluded feature is 

jurisdictional if it meets the definition of tributary, the excluded feature does not become 

jurisdictional. In the same way, the excluded feature does not render the upstream portion of the
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

26

covered tributary excluded, recognizing that the upstream portion retains its significant nexus to

downstream waters. For purposes of determining adjacent waters, the agencies are defining 

limits for “neighboring” primarily based on the reliance of a 100-year floodplain, as 

recommended by the public and based on science. By establishing a distance-based threshold for 

adjacency, the agencies have removed the possibility that a water could be determined to be 

categorically jurisdictional solely because of the presence of a hydrologic connection through an 

excluded feature. For waters considered under (a)(7) or (a)(8), the presence of a hydrologic 

connection from an excluded feature may be an important factor in evaluating a case-specific 

significant nexus, but does not on its own demonstrate that a significant nexus is present.

In addition, it is important to note that the features discussed under exclusions may function as 

“point sources” under CWA section 502(14)), such that discharges of pollutants to waters 

through these features would be subject to other CWA regulations (e.g., CWA section 402).

Specific Comments

Gila River Indian Community (Doc. #13619)

7.1 One area of the Proposed Rule that the Community supports is the Agencies’ decision to 

promulgate, in a formal regulation, waterways that the Corps had been excluding from 

jurisdiction as a matter of policy. It has been the Agencies’ policy not to extend 

jurisdiction over certain waterways and water features identified in the Proposed Rule, 

but the Corps had reserved the right to assert jurisdiction over them on a case-by-case 

basis. The Agencies clearly intend that these categorical exemptions add clarity for 

landowners. While this should be the case, it is important that the Final Rule address 

some of the related ambiguities included in the Proposed Rule. For example, what is a 

“ditch excavated in a wholly upland region?” Moreover, while these categorical 

exemptions might provide some regulatory relief, the Proposed Rule does not make clear 

who has the burden of proving that an exemption applies.

As another example, would a series of detention basins within a drainage channel that 

slowly release storm water downstream into a waterway that eventually flows into a 

jurisdictional water qualify as non-jurisdictional “artificial ponds”? Categorical 

exemptions should be clearly defined and clarified, especially in light of the proposed 

elimination of the Wetlands Delineation Manual, which provided guidance to the 

regulated community. (p. 7-8)

Agency Response: See summary response above and the summary response at 

7.4.4. It is the Government’s burden to demonstrate that a water is a “water of the 

United States.”

Texas Commission on Environmental Quality (Doc. #14279.1)

7.2 Additional categories should be added to provide more examples of waters that will never 

be identified as jurisdictional waters. In 33 CRF §328.3(b), various categories of water 

bodies are listed as non jurisdictional. This new section is potentially helpful, but 

additional categories should be added to help address the uncertainty that is currently 

associated with the proposed provision for "other waters" in 38 CFR §328.3(a)(7). (p. 8)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

27

Agency Response: See summary response above.

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)

7.3 The proposed rule as drafted creates more confusion than it clarifies. PDA is disappointed 

in the proposed rule's lack of clarity due to ambiguous or undefined terms and phrases. 

Terms and phrases throughout the proposal are left undefined, or the definition is left so 

ambiguous that farmers will be left wondering, with no possible way of determining, 

whether waters on their property will be jurisdictional or not. The proposed rule only 

increases confusion...

allowing for exempted features, such as groundwater, gullies, and rills to serve as 

connections that can render a feature jurisdictional "adjacent water" or "other water." (p. 

4)

Agency Response: See summary response above.

State of Oklahoma (Doc. #14625)

7.4 III. Exemptions Further Clarified or Removed Altogether

While the Agencies' efforts to exempt certain water features and activities from CWA 

jurisdiction are noble, in many cases it has arguably led to erosion of exemptions we 

believe were already well established prior to this proposal. Though embodied in a 

separate document outside this proposed rule to define WOTUS, the Agencies' proposed 

Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)

("Interpretive Rule") provides an excellent example of such unintended consequences. 

The effect of the proposed Interpretive Rule is to narrow the scope of agricultural 

activities exempt from CWA jurisdiction despite the Agencies' stated intent otherwise. 

We reiterate our request to withdraw the proposed Interpretive Rule and suggest that the 

exemptions for ditches and some other features proposed within the WOTUS rule suffer 

from the same unintended consequences without significant clarification. (p. 4)

Agency Response: See summary response above. While not relevant to the this 

rule, the Interpretive Rule Regarding the Applicability of Clean Water Act Section 

404(f)(1)(A) was withdrawn on January 29, 2015. 

Tennessee Department of Environment and Conservation (Doc. #15135)

7.5 The CWA exclusions of groundwater and certain other exclusions listed in the proposed 

rule and the current regulation do not have scientific justification. The available science 

shows that groundwater connections, particularly via shallow flow paths in confined 

aquifers, can be critical in supporting the hydrology and biogeochemical functions of 

wetlands and other waters. (p. 12)

Agency Response: See summary response above and summary response at 7.3.6. 

The agencies include an exclusion for groundwater, including groundwater drained 

through subsurface drainage systems. As discussed in the preamble to the proposed 

rule, the agencies have never interpreted “waters of the United States” to include 

groundwater. The exclusion does not apply to surface expressions of groundwater, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

28

as some commenters requested, such as where groundwater emerges on the surface 

and becomes baseflow in streams or spring fed ponds.

7.6 The proposed rule includes exclusions not justified by science. There is a lack of 

scientific knowledge to determine if ditches should be categorically excluded. Although 

gullies, rills, and non-wetland swales are excluded, these features can be important 

conduits for moving water between jurisdictional waters, making them important with 

respect to hydrological and other forms of connectivity. Although excluded from 

jurisdiction, artificial lakes or ponds, or reflections pools, created by excavation, diking 

or construction can be directly connected to jurisdictional waters by groundwater, which 

may be shallow as well as deep groundwater in unconfined aquifers. (p. 13)

Agency Response: See summary response above.

Southern Ute Indian Tribe Growth Fund (Doc. #15386)

7.7 9. Comments on the exclusion of manmade structures

With respect to the exclusion in the Proposed Rule of several manmade structures, i.e., 

artificial lakes or ponds, artificial reflecting pools or swimming pools, and small 

ornamental waters which are “created by excavating and/or diking dry land” from 

jurisdictional status, it is recommended that a definition is provided for “dry land.”

Recommendations:

A definition for dry land should be provided in the Proposed Rule... (p. 9)

Agency Response: As stated in the preamble, the phrase “dry land” appears in 

the 1986 and 1988 preambles, and the agencies believe the term is well understood 

based on the more than 30 years of practice and implementation. But in keeping 

with the goal of providing greater clarity, the agencies clarify that “dry land” refers 

to areas of the geographic landscape that are not water features such as streams, 

rivers, wetlands, lakes, ponds and the like. However, it is important to note that a 

“water of the United States” is not considered “dry land” if it lacks water at a given 

time. Similarly, an area remains “dry land” even if it is wet after a rainfall event.

Pike Peak Area Council of Governments, Colorado (Doc. #9732)

7.8 The proposed language is so broadly drafted that without modifications it will most likely 

encompass, and subject to further permit scrutiny, what can be characterized as 

"beneficial" infrastructure activities. These activities include: (1) the construction and 

operation of ponds and lagoons associated with water" delivery/treatment systems (there 

is a "wastewater" system exemption, but no comparable water system exemption); (2) the 

construction and operation of recharge and reuse facilities being employed in response to 

climate variability; and (3) the construction and maintenance of stormwater control 

facilities, including "green infrastructure" projects. To unnecessarily erect additional 

barriers to the completion of such activities is unwarranted. (p. 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

29

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. 

The exclusion also covers water distributary structures that are built in dry land for 

water recycling. These features often connect or carry flow to other water recycling 

structures, for example a channel or canal that carries water to a percolation pond. 

The agencies have not considered these water distributary systems jurisdictional 

where they do not have surface connections back into, and contribute flow to, 

“waters of the United States.” In contrast, the agencies have consistently regulated 

aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land. The exclusion in paragraph (b)(7) codifies longstanding agency practice and encourages water management practices that the 

Agencies agree are important and beneficial.

Northwest Florida Utility Managers Council (Doc. #14573)

7.9 In their proposed rule, EPA provides numerous exclusions. But the exclusions are just as 

confusing as the rest of the rule. For instance wastewater treatment plants are excluded 

but what happens if it discharges to a non-jurisdictional water that is suddenly rendered 

jurisdictional? In addition groundwater is excluded but what happens if that groundwater 

discharges to a traditional jurisdictional water and that groundwater contains a high level 

of nitrogen or phosphorus. EPA will most certainly want to take action if they find the 

source of the N/P comes from a farm or a treatment facility or any number of sources of 

those nutrients. (p. 2)

Agency Response: With respect to what happens with NPDES permits when 

jurisdictional status changes as a result of the final rule, please see summary 

responses at 7.4.4 and 12.3. Nothing in the final rule changes the legal requirements 

regarding discharges of pollutants which require a permit. As the preamble notes, 

the exclusion for groundwater does not apply to surface expressions of groundwater, 

such as where groundwater emerges on the surface and becomes baseflow in 

streams or spring fed ponds, or where groundwater is pumped and discharged into 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

30

surface waters of the United States. The final rule does not change existing statutory 

exemptions, such as for discharges of agricultural stormwater.

Broward County, Florida (Doc. #15395)

7.10 The Board...supports legislation that:

Clarifies that CWA jurisdiction does not include isolated, intrastate, or non-navigable 

waters such as isolated ponds, ditches, and other channels containing intermittent or 

ephemeral water flows occurring during less than three months of the year as “navigable 

waters” or “waters of the United States. Broward County finds that the proposed rule 

specifically excludes from jurisdiction waste treatment ponds and artificial ponds; upland 

ditches with less than perennial flow; and ditches that do not contribute flow to a 

recognized water of the US. In addition, the proposed rule clarifies jurisdiction further by 

adding a definition for “tributaries” (undefined in the current regulations) which excludes 

intermittent and ephemeral streams that do not contribute flow to a recognized water of 

the US. (p. 2)

Agency Response: See summary response above. The agencies have modified the 

definition of tributary in the final rule, see preamble sections IV.F and G and 

Technical Support Document sections VII and VIII for more information on 

tributaries and adjacent waters.

Public Works, Ramsey County, Minnesota (Doc. #16665)

7.11 Comments related to explicit exclusions - Ramsey County supports the LGAC report 

recommendation that man-made components of a MS4 permitted stormwater conveyance 

system be excluded from WOTUS including manmade green infrastructure and manmade 

conveyance components such as manmade gutters, manmade ditches, manmade drains, 

and manmade ponds. Natural conveyance components should be included in WOTUS 

including natural wetlands and modifications to natural wetlands. Similarly, MCSG 

proposes a specific exclusion from WOTUS for fully-constructed stormwater control 

measures Including constructed stormwater ponds, constructed stormwater wetlands, rain 

gardens, infiltration devices and structures, swales, Low Impact Development structures 

and BMPs, pipes, streets, curbs, gutters, roadside ditches, man-made ditches, man-made 

channels, storm drains, and other constructed stormwater control and conveyance 

structures, devices, and features. MCSC [Minnesota Cities Stormwater Coalition] 

identifies three specific exceptions to the exclusion for fully-constructed stormwater 

control measures. These exceptions are included in WOTUS and include 1) stormwater 

control measures constructed at the approximate location of similar types of natural 

waters; 2) natural water resources with stormwater conveyance pipes discharging to them 

and with constructed outlets; and 3) stormwater control measures subject to the ebb and 

flow of the tide. The LGAC report recommends the EPA Identify regional areas where 

regional jurisdictional determination as WOTUS could be problematic In terms of sea 

level rise and fall, or where groundwater and surface water flow are intermixed. For these 

areas, the EPA should develop region-specific criteria for determining WOTUS 

jurisdiction. The rule should explicitly specify when ditches are WOTUS jurisdictional. 

Ramsey County supports recommended language by Alabama DOT to exclude roadside 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

31

ditches from WOTUS, defined as "excavated channels adjacent to roadways with less 

than perennial flow constructed for transportation and stormwater conveyance". (p. 1-2)

Agency Response: See summary response above. The final rule applies 

nationwide; any case-specific evaluation of jurisdiction could consider site-specific 

and region-specific information. 

Board of Supervisors, Amador County, California (Doc. #17450)

7.12 We concur that categorizing waters that will "never" be subject to CWA jurisdiction will 

be helpful. We encourage the agencies to define the category...clarifying water bodies 

that will always be subject to the CWA jurisdiction. We note in particular that "interstate 

waters, all other waters that could affect interstate or foreign commerce, impoundments 

of waters of the United States, tributaries, and adjacent wetlands" as currently defined in 

the regulations do not appear anywhere in the CWA. We urge the agencies to incorporate 

those interstate waters, all other waters, impoundments of waters, tributaries and adjacent 

wetlands in the category of "never subject to the CWA", where a significant nexus to 

"navigable waters" as explained above is unlikely...we urge the agencies to explicitly 

classify the following as waters that will never be subject to the CWA jurisdiction.

 Waters from water reuse facilities

 Roadside ditches designed as part of the road drainage structure

 Ditches used to convey municipal storm water discharge under the Municipal 

Separate Storm Water Sewer System (MS4) program

 Water conveyance systems for flood control purposes (p. 3)

Agency Response: See summary response above and Technical Support 

Document. With respect to water reuse facilities, please see summary responses at 

7.4 and 7.4.2; with regard to ditches, flood control structures, and MS4s, also see the 

compendium on ditches (topic 6) and the summary response at 7.4.4, respectively.

Colorado Clean Water Coalition (Doc. #3533)

7.13 We appreciate the outline list of exclusions identified in the proposed rule such as 

artificial lakes, ponds created by excavating, water filled depressions created incidental to 

construction activity, and ditches; however, we are concerned with the inconsistency of 

language when referring to "All Tributaries" and "Nexus" as these examples listed in the 

proposal could clearly be considered tributary waters. Industry education is a very 

important aspect of successful regulation and such language not considered industry 

standard or scientific in nature will cause confusion regarding implementation of the new 

regulation. (p. 2)

Agency Response: The agencies believe the final provides clarity on waters that 

are and are not jurisdictional but agree industry education is important.

Great Lakes Indian Fish and Wildlife Commission (Doc. #15454)

7.14 Staff also understand that certain waters are not “waters of the US.” However, if some of 

these features are abandoned, they may over time acquire the characteristics of a water of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

32

the US. While clarity in regulation is desirable, it may be important to leave some 

flexibility in the rule so that certain of these features could become a water of the US 

under appropriate circumstances. For example, rice paddies that have been long 

abandoned should be considered waters of the US if they meet the criteria identified in 

the proposed rule. (p. 2)

Agency Response: See summary response above.

League of California Cities (Doc. #16442.1)

7.15 Exemptions to the proposed rule are important. The proposed rule needs to provide 

greater understanding of what is and what is not a Water of the United States. Manmade 

stormwater and flood control infrastructure such as ditches, drains, culverts, and green 

infrastructure should be clearly exempted from the proposed rule. (p. 1)

Agency Response: See summary responses above and at 7.4.4.

Federal StormWater Association (Doc. #15161)

7.16 The proposed rule includes exemptions from the existing regulations and exemptions that 

are based on clarifications of the scope of federal jurisdiction in those prior rulemaking 

preambles. But these exemptions are related to different underlying rules and are not 

always directly applicable to the proposed rule, making those exemptions and how they 

apply to the proposed expanded jurisdiction equally confusing... (p. 5)

Agency Response: The example provided in the comment relates to ditches and 

the definition of “tributary.” That definition has been modified in the final rule; see 

summary response above and Sections IV.F and IV.I of the preamble.

Idaho Association of Commerce & Industry (Doc. #15461)

7.17 Notwithstanding the foregoing, any proposed rule must recognize that not all water

bodies are subject to the jurisdiction of the CWA. In addition, any proposed rule should 

provide specific examples of water body features that are not within the scope of the 

CWA regulation. We acknowledge and appreciate the exempted waters in the proposed 

rule but they fall short of specifically exempting various waters that should not be 

jurisdictional waters. The limited exemptions provided in the proposed rule appear to be 

another effort to circumvent the current language of the law as well as the intent that has 

twice been upheld by the U.S. Supreme Court. (p. 3)

Agency Response: The agencies disagree, and believe the final rule, and 

exclusions contained within, provide a balance between protection and clarity that is 

reasonable with the statute’s goals and objectives. With regard to the Supreme 

Court decisions, see the Technical Support Document, section I.

Association of Nebraska Ethanol Producers (Doc. #15512)

7.18 One of the more significant changes advanced by the proposed definition is the inclusion

of several listed exemptions for coverage under WOTUS at 40 CFR 230.3(t). While 

listing those waters not designated as WOTUS is a step in the right direction, the specific 

language of the current rulemaking proposal appears to suggest that only those waters 

covered by one or more of the listed exemptions are in fact exempt from coverage as 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

33

jurisdictional waters. Any waters that do not meet one or more of the specific exemptions 

listed could in fact become WOTUS under the USEPA proposed definition as written. 

USEPA guidance clearly indicates that the exemptions listed in Paragraph (t) are intended 

to be examples of the types of waters that are expected to be non-jurisdictional. However, 

USEPA's proposed regulatory language falls short of carrying those concepts clearly into 

the rulemaking and could result in intermittent streams, run-on from low-lying 

agricultural areas, and water discharges from similar lands being reclassified as 

jurisdictional.

Assuming that the WOTUS rulemaking goes forward, we would recommend adding

specific language in the rule that the exemption list in 40 CFR 230.3(t) is intended to

represent examples of non-jurisdictional waters, but does not in fact represent an allinclusive list of exempt waters. In addition, the final rule could be improved by adding a 

"catch-all" category under Paragraph (t) that would otherwise exempt all waters not 

otherwise qualifying as WOTUS because they do not otherwise drain or connect to 

jurisdictional waters. These changes would help ensure that any rulemaking clearly 

implements the concepts USEPA says that it is trying to advance through the WOTUS 

rulemaking. (p. 2-3)

Agency Response: The agencies do not believe it is necessary to add a “catch-all” 

exclusion for all waters not determined to be jurisdictional, and do not agree that it 

would provide clarity regarding the categories of waters that are covered. The final 

rule interprets the CWA to covers those waters that require protection in order to 

restore and maintain the chemical, physical, and biological integrity of traditional 

navigable waters, interstate waters, and the territorial seas. The final rule clarifies 

categories of waters that are jurisdiction by rule, a limited subset of waters that may 

be jurisdictional based on a case-specific analysis, and categories of waters not 

considered “waters of the United States.” See summary response above.

The agencies disagree that intermittent streams are currently not considered 

jurisdictional. See Section IV.F of the preamble for a discussion of stream flow 

regime. The agencies are unclear what the commenter is referring to in the 

statement “...run-on from low-lying agricultural areas, and water discharges from 

similar lands being reclassified as jurisdictional.” See summary response and list of 

exclusions.

FMC Corporation (Doc. #15533)

7.19 Definition of Waters of the United States: We agree with the language in the proposed 

rule that excludes waste treatment systems and groundwater, including groundwater 

drained through subsurface drainage systems, However, we are concerned that EPA, 

through other language in the proposed rule would on a "case-by-case basis" determine 

whether a significant nexus exists and use this authority to circumvent these exemptions,

groundwater protection systems and permitting rules already in place would be 

confounded by any attempt to add additional layers of permitting. We urge EPA to 

recognize that exiting waste treatment systems, and other ponds and water storage 

facilities are excluded from any implementation of a significant nexus test. (p. 2)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

34

Agency Response: The final rule clarifies that the exclusions listed are not “waters 

of the United States” even where they otherwise meet the terms of paragraphs (a)(4) 

though (8).

Federal Water Quality Coalition (Doc. #15822.1)

7.20 The agencies have proposed to recodify exemptions from the current regulations and to 

codify additional exemptions drawn from language in the preambles of prior 

rulemakings. However, whether the exemptions were stated previously in rule language 

or preamble language, they are now exemptions from a new underlying rule that is vastly 

different from the current regulatory definitions of waters of the U.S. This fact has led to 

confusion regarding what waters are covered by the exemptions.

For example, the proposed exemptions drawn from prior rulemaking preambles describe 

features that the prior definitions of waters of the U.S. did not reach, because the features 

did not qualify as jurisdictional water under the terms of the prior definitions. However, 

but for an exemption, the proposed rule would regulate most water features. Thus, the 

proposed exemptions likely will be interpreted narrowly and will apply only to the 

features described in each exemption. Further, no explanation for the exemptions is 

provided other than “longstanding practice” and the observation in the plurality opinion 

in Rapanos that there were certain features that were not primarily the focus of the CWA 

(citing 547 U.S. at 734). 79 Fed. Reg. at 22218. Unfortunately, the explanations from the 

preambles of prior rules may no longer be relevant because the agencies have changed 

the underlying definition of waters of the U.S. We agree that there are many waters that 

are not the primary focus of the CWA. The agencies should articulate a clear rationale for 

distinguishing between waters that are federally regulated and waters that are left to state 

jurisdiction and expand the exemptions based on that rationale. Their failure to do so has 

led to significant uncertainty. (p. 17-18)

Agency Response: The agencies have expanded and clarified the discussion of 

features not considered to be “waters of the United States” in the final rule. See the 

summary response above and Section IV.I of the preamble.

7.21 Based on their understanding of connectivity, some members of the Panel who reviewed 

the proposed rule recommended against the exclusions for groundwater, ditches, rills, 

gullies, nonwetland swales, and artificial lakes and ponds.1

Others Panel members observed that the agencies did not provide a rationale for the 

exclusions, creating confusion:

Panel members commented that the manner in which decisions would be made 

about excluding other manmade features was not clearly explained in the 

preamble of the proposed rule. Members noted, for example, that it was not clear 

whether the proposed rule would exclude: artificial lakes and ponds that have 

connections to downstream waters, underground stormwater drainage, natural 

versus artificial swales, roadside ditches, stormwater quality basins, bioswales, 

detention basins, industrial water processing and/or treatment facilities, 

 

1 Rodewald Memorandum, at 6-8.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

35

desalination brine storage basins, cooling systems, oil and gas tank basins, fish 

farms, and rice paddies.2(p. 53)

Agency Response: See summary response above.

Water Advocacy Coalition (Doc. #17921.1)

7.22 The Proposed Exclusions from the Waters of the United States Definition Are 

Ambiguous and Wholly Inadequate.

Although we support the agencies’ listing of types of waters that are categorically not 

jurisdictional and the clarification that these excluded waters cannot be recaptured if they 

satisfy the rule’s other provisions, the exclusions contained in the proposed rule are 

unclear and wholly inadequate. We support the proposal to maintain the exclusions for 

waste treatment systems and prior converted croplands, but it is disappointing that the 

agencies have not taken this opportunity to provide some much needed clarity on the 

applicability of those exclusions. Of the new exclusions, some are so narrow as to be 

nearly impossible to satisfy. Others are not defined or are unclear. Moreover, the 

exclusion of these waters rings somewhat hollow when the preamble asserts that these 

excluded features can serve as links that can render connected features jurisdictional 

under the “adjacent waters” or “other waters” categories of the proposed “waters of the 

United States” definition. Notably, the suggestion that non-jurisdictional waters can 

provide the nexus from a pollutant discharge to a jurisdictional water is directly opposed 

to Justice Kennedy’s Rapanos concurrence. There, he provided the admonition that a 

seasonal drainage is not transformed into a “water of the United States” merely because it 

provides an intermittent or ephemeral hydrologic connection to TNWs. See Rapanos, 547 

U.S. at 778-79 (Kennedy, J., concurring). Practically speaking, these exclusions provide 

little relief from the broad reach of the proposed rule’s (a)(1) through (7) categories. (p. 

70)

Agency Response: See summary response above and Technical Support 

Document.

7.23 The agencies must revisit these exclusions to provide clarification.

In sum, although we support the listing of certain waters that are categorically excluded 

from the “waters of the United States” definition, the agencies must revisit these 

exclusions and provide more clarity on their applicability and fewer qualifiers on their 

application. Waters and features that are categorically excluded from jurisdiction should 

not be used to establish jurisdiction over connected waters as “adjacent waters” or “other 

waters.” (p. 74)

Agency Response: See summary response above and Technical Support 

Document.

 

2

cite
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

36

FMC Corporation (Doc. #16505)

7.24 Definition of Waters of the United States: We agree with the language in the proposed 

rule that excludes waste treatment systems and groundwater, including groundwater 

drained through subsurface drainage systems. However, we are concerned that EPA, 

through other language in the proposed rule would on a "case-by-case basis" determine 

whether a significant nexus exists and use this authority to circumvent these exemptions. 

Groundwater protection systems and permitting rules already in place would be 

confounded by any attempt to add additional layers of permitting. We urge EPA to 

recognize that exiting waste treatment systems, and other ponds and water storage 

facilities are excluded from any implementation of a significant nexus test. (p. 2)

Agency Response: The final rule clarifies that the exclusions listed are not “waters 

of the United States” even where they otherwise meet the terms of paragraphs (a)(4) 

though (8).

Kentucky Oil and Gas Association (Doc. #16527)

7.25 The breadth and lack of definition is further illustrated by the agencies belief that they 

must explicitly exclude manmade features. The rule states, “Those waters and features 

that would not be ‘waters of the United States’ are: ... artificial reflecting pools or 

swimming pools ... small ornamental waters ....”(p. 22193) It should be clear and require 

no explanation that manmade features used for recreation or decoration are not under the 

jurisdiction of the federal government for Clean Water Act purposes. The necessity to 

include these exclusions points to the significant overreach and lack of clarity in the 

overall policy. (p. 3)

Agency Response: These additions are intended to codify longstanding agencies 

practices and provide clarity to the public. To that end, the agencies propose 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.

Vulcan Materials Company (Doc. #16566)

7.26 The proposed rule’s inclusion of man-altered, or man-made water and ponds, 

impoundments, canals and ditches as tributaries is problematical. This inclusion raises the 

potential for water management systems employed by facilities to be subject to full CWA 

jurisdiction. These engineered systems manage stormwater runoff, collect and treat water 

prior to discharge, and provide a means for water re-use and recycling thereby 

minimizing the consumption of surface and groundwater resources. As previously stated, 

the management of stormwater and process water at aggregate mining operations is 

already subject to regulation under the NPDES program or federally authorized and 

equivalent state or local programs and additional regulation under the CWA is therefore 

not necessary. (p. 2)

Agency Response: The definition of tributary has been modified in the final rule. 

With respect to the jurisdictional status of stormwater control features as “waters of 

the U.S., please see summary response at 7.4.4. The rule does not impose any 

regulatory requirements.

7.27 Recommendations Regarding Future Actions
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

37

In the event rulemaking proceeds, the proposed rule should be revised as follows to 

address concerns and issues included in these comments:

c. The exemptions from CWA jurisdiction currently provided by the USEPA and 

USCOE under the CWA should be listed in the proposed rule, specifically the 

exemption for excavations and pits at aggregate mining operations, and the water 

treatment system exemption. The scope of these exemptions needs to be clearly 

stated and consistent with the historic use and application of the exemptions. 

h. Remove the inclusion of impoundments, ponds, and ditches located in upland 

areas from consideration as jurisdictional. 

i. ...water management systems associated with zero discharge facilities should 

be clearly exempted from jurisdictional status. (p. 3, 4, 5)

Agency Response: The agencies have expanded and clarified the features not 

considered to be “waters of the United States” under the Clean Water Act. See 

summary response above.

Irvine Ranch Water District (Doc. #14774)

7.28 For those categories of waters that would be absolutely excluded as WOTUS, the draft 

rule states that these features may function as point sources under CWA Section 402. 

This statement should be removed. If Section 402 applies to any features, it should be 

defined in that code section. (p. 6)

Agency Response: The rule does not affect the requirements of the Section 402 

permit program. The statement reflects the agencies’ longstanding view that a 

water feature may be a “point source” that discharges pollutants (whether dredged 

or fill material under Section 404 or others pollutants under Section 402) and thus 

requires a CWA permit. The statement does not change how the Agencies have 

interpreted the CWA and was intended to describe how features are regulated 

under the CWA. See Technical Support Document section I.

Missouri Soybean Association (Doc. #14986)

7.29 General Concern #3 - The proposed does not provide farmers any clarity or certainty.

EPA has routinely claimed their primary goal with this rule is to bring clarity to the 

regulatory process and to reduce uncertainty on the farm. While this is a shared goal we 

support, this rule is far from hitting that mark. The proposed rule has delivered farmers 

far more questions than answers creating uncertainties and real-world questions in farm 

fields whether literally millions of features on farms are now under federal jurisdiction. In 

the rule, EPA has left many important terms undefined as well as used ambiguous and 

subjective terminology and phrases. In addition, the rule overreaches by narrowing the 

intent of the exemptions to the point that we are unsure how they would ever apply in a 

meaningful way, rendering them nearly useless in the real world. It is our position that 

the exemptions should apply broadly to agriculture, without exceptions or strings 

attached to them. (p. 5)

Agency Response: See summary response above.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

38

Utah Farm Bureau Federation (Doc. #16542.1)

7.30 For farmers and ranchers, uncertainty is increased through overly broad or nebulas terms 

in the proposed rule including:

 allowing for exempted features, such as groundwater, gullies, and rills to serve as 

connections that can render a feature a jurisdictional “adjacent water” or “other 

water.” (p. 7)

Agency Response: See summary response above.

Florida Crystals Corporation (Doc. #16652)

7.31 The exclusions in the Proposed Rule will exclude few such waters in Florida from CWA 

jurisdiction. The exclusion for "[a]rtificial 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," likely will apply only to the few lakes and ponds which 

weredoes not excavated from wetlands (either pre-CWA or pursuant to a CWA permit). 

As shown in Figure 1, vast areaschange any of agricultural and urban land in South 

Florida are located on converted wetlands, which indicates that this exception apparently 

will not apply. Even if it did apply in those areas, this exception will only exclude lakes 

and ponds which are used in four specific ways. Similarly, the exclusions for 

"[a]rtificia1reflecting pools or swimming pools crated by excavating and/or diking dry 

land" and "[s]mall ornamental waters created by excavating and/or diking dry land for 

primarily aesthetic reasons," will not apply to ponds excavated from wetlands.

(p. 2, 6)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

39

Agency Response: In the final rule’s exclusion for artificial lakes or ponds, the 

agencies have changed “exclusively” to “primarily” in describing the uses, and the 

list of uses is illustrative. See summary response above.

Union Pacific Railroad Company (Doc. #15254)

7.32 The narrow exclusions under the Proposed Rule are not likely to provide relief from 

CWA the permitting requirements for ditch, culvert, bridge, causeway, and other rail 

infrastructure maintenance, alteration and construction activities, given the breadth of the 

definition of “perennial flow,” the bed, bank and OHWM criteria, and the potential for 

adjacent waters, shallow subsurface groundwater migration and “other waters.” The 

availability of Nationwide Permits for certain maintenance activities under Section 

exemptions listed in 404 provides little relief since they do not cover all rail-related 

operations and, where they do apply, coverage is strictly limited in acreage and linear 

feet.3(p. 23)(f).

Agency Response: See summary response above.

West Bay Sanitary District, Novato Sanitary District, West County Wastewater District, Union 

Sanitary District and West Valley Sanitation District, California (Doc. #16610)

7.33 The Rule Contains Arbitrarily Narrow Exclusions that should be More Comprehensive.

The most specific example of the proposed rule's arbitrarily narrow exclusions is for 

"small ornamental waters created by excavating and/or diking dry land." No explanation 

exists why this exclusion should be included for only "small" ornamental waters. Does 

this mean that all large ornamental waters are de facto WOTUS? What is the definition of 

small? Is there a certain dimension or gallon value to define what waters would be small? 

Without such definitions, the fountains outside the Bellagio Hotel in Las Vegas would be 

deemed to be WOTUS even though created by excavating land in the middle of a desert.

The fact that these types of exclusions are necessary confirms the unreasonable 

overbreadth of the proposed WOTUS definition. If swimming pools need to be excluded 

from waters that might be deemed a federal waterway, then the definition is far too 

expansive. (p. 9)

Agency Response: See summary response above. These additions are intended to 

codify longstanding agencies practices and provide clarity to the public. To that end, 

the agencies propose 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. 

Western States Water Council (Doc. #9842)

7.34 WSWC Policy #369 sets forth the unanimous, consensus position of the western states 

regarding federal efforts to clarify or redefine CWA jurisdiction. The WSWC urges EPA 

and the Corps to review this policy carefully and to incorporate its recommendations. 

Specifically, the WSWC urges EPA and the Corps to ensure that the rule:

 

3

See Nationwide Permits 3 and 14, 77 CFR at 10,269-10,273.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

40

...E. Specifically excludes water and features generally considered to be outside the 

scope of CWA jurisdiction, including: 

1. Groundwater; 

2. Farm ponds, stock ponds, irrigation ditches, and the maintenance of drainage ditches, 

as currently excluded under the CWA's agricultural exemption; 

3. Man-made dugouts and ponds used for stockwatering or irrigation in upland areas 

that are not connected to surface waters; 

4. Dip ponds that are excavated on a temporary, emergency basis to combat wildfires 

and address dust abatement; and 

5. Prairie potholes and playa lakes. (p. 2)

Agency Response: See summary response above for points 1 – 4; also see 

summary response at 7.3.2, with regard to fire control ponds. See Section IV.H of 

the preamble regarding coverage of prairie potholes and playa lakes; also see

Sections II and IX of the Technical Support Document.

Duke Energy (Doc. #13029)

7.35 One...concern relates to the proposed rule’s provisions that certain “excluded” water 

features, such as groundwater or erosional features (assuming these could be 

distinguished from tributaries), can still be used to establish a connection to another water 

feature for the purposes of determining adjacency. If these features are beyond the scope 

of the CWA, then it seems illogical that they be used to establish jurisdiction. (p. 37)

Agency Response: See summary response above.

The Clean Energy Group Waters Initiative (Doc. #14616)

7.36 Clarification of Exemptions from WOTUS Provided by the Rule

We are also concerned that the regulatory text may cause some confusion as to whether 

the intended exemptions from WOTUS are negated in the proposed definitions. The 

preamble states that “[w]aters and features that are determined to be excluded under 

section (b) of the proposed rule will not be jurisdictional under any of the categories in 

the proposed rule under section (a)(2) and thus there should be no recapture of any 

excluded waters or features as a result of the new defined terms. However, we 

recommend that EPA further clarify the nature of the exclusions relative to the proposed 

definitions in the regulatory text for “adjacent,” “neighboring,” “riparian area,” 

“floodplain,” “tributary,” “wetlands,” and “significant nexus” in order to avoid confusion 

concerning WOTUS jurisdiction relative to the exempt waters and features. (p. 3)

Agency Response: See summary response above. The final rule clarifies that the 

exclusions listed are not “waters of the United States” even where they otherwise 

meet the terms of paragraphs (a)(4) though (8).

Santa Clara Valley Water District (Doc. #14776)

7.37 The Definitions In Paragraph (c) Of The Proposed Rule Should Clarify That They Do 

Not Include Waters Excluded From The Proposed Rule By Paragraph (b)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

41

The definitions in paragraph (c) of the Proposed Rule are broad enough to include waters 

that would be excluded from the Proposed Rule by paragraph (b). For example, 

groundwater would be excluded by paragraph (b)(5)(vi), but waters with a "shallow 

subsurface hydrologic connection" to a water of the United States is included within the 

definition of a "neighboring" water by paragraph (c)(2). Yet some groundwater does have 

a shallow subsurface hydrologic connection to waters of the United States. While 

paragraph (b) would except certain waters from the definition of waters of the United 

States, "notwithstanding whether they meet the terms of paragraphs (a)(1) through (7)" 

(79 Fed. Reg. 22263), this point could stand to be clarified in paragraph (c).

Paragraph (c) should be amended as follows to add the underlined language: "(c) 

Definitions. The following definitions apply, except that they do not apply to waters that 

meet the terms of any of the subparagraphs of paragraph (b) of this section-" (p. 8-9)

Agency Response: See summary response above. The final rule clarifies that the 

exclusions listed are not “waters of the United States” even where they otherwise 

meet the terms of paragraphs (a)(4) though (8). As explained in the final rule, the 

agencies have removed shallow subsurface connection from the definition of 

“neighboring.” See also the compendium on adjacency (topic 3).

Utility Water Act Group (Doc. #15016)

7.38 Before proceeding further, the Agencies must evaluate the potential impact of the 

Proposed Rule on industrial water features and ensure that all such features are clearly 

excluded from the definition of waters of the United States. (p. 20)

Agency Response: The agencies disagree that all industrial water features should 

be excluded from jurisdiction. The agencies believe the exclusions contained in the 

final rule provide a balance between protection and clarity that is reasonable with 

the statute’s goals and objectives. See summary response above.

Colorado River Water Conservation District (Doc. #15070)

7.39 Strong, declarative statements and a list of exclusions, both those waters and wetlands 

that are currently excluded as well as new exclusions, if any, under the proposed rule, 

would help stem some of concern about the arguable expansion of federal jurisdiction. (p. 

3)

Agency Response: See summary response above. The agencies agree listing 

features not considered “waters of the United States” will increase clarity regarding 

the scope of jurisdiction.

Michigan Manufacturers Association (Doc. #15170)

7.40 ...uncertainty is created by:

 allowing for exempted features, such as groundwater, gullies, and rills to serve as 

connections that can render a feature a jurisdictional “adjacent water” or “other 

water.” (p. 3)

Agency Response: See summary response above.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

42

Tri-State Generation and Transmission Association, Inc. (Doc. #16392)

7.41 Tri-State strongly supports the provisions in the proposed rule that identify categories of 

waters that are per se excluded from the definition of WOTUS and the "no recapture" 

clause in the regulatory text that makes it clear that an exclusion controls even if the 

waters might otherwise meet the rule's definition of WOTUS.4Tri-State also strongly 

supports the Agencies' exclusion of groundwater from CWA jurisdiction. As noted 

below, however, Tri-State urges the Agencies to revise certain proposed exclusions to 

ensure that on-site water management features at power generation facilities, 

transmission facilities, mines, and agricultural sites that are currently non-jurisdictional 

remain excluded from the definition of "waters of the United States." As currently 

drafted, the exclusions are not sufficiently clear to effectuate that result. (p. 6)

Agency Response: See summary response above.

National Wildlife Federation (Doc. #15020)

7.42 In addition, we support the overall decision to include a new section (b) excluding 

specific waters from the definition of “waters of the United States.” Importantly, we do 

have concerns with the breadth and vagueness of both the waste treatment system 

exclusion and the prior converted cropland exclusion. Both of these exclusions have 

created significant loopholes leading to inconsistencies in application and the destruction 

of ecologically important water bodies. However, it is our view that revisions to these 

two existing exclusions warrant special attention is separate rulemakings. (p. 24)

Agency Response: See summary response at 7.2 regarding prior converted 

cropland and summary response at 7.1 regarding the waste treatment system 

exclusion. 

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network 

(Doc. #15233)

7.43 Unfortunately, while the draft rule recognizes this fundamental principle it fails to fully 

stand on science and instead attempts “to draw lines” and conclude categorically “that 

certain waters and features are not subject to the jurisdiction of the Clean Water Act,” 79 

Fed. Reg. 22218. In these instances, the draft rule departs from the Act’s clear mandate 

“to restore and maintain the chemical, physical, and biological integrity of the Nation’s 

waters.” 33 U.S.C. 1251(a). As the Supreme Court has recognized, protection of aquatic 

ecosystems requires “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’.” United States v. Riverside Bayview Homes, 474 U.S. 121, 133 (1985) (citing to 

S. Rep. No. 92-414, p. 77 (1972), U.S. Code Cong. & Admin. News 1972, pp. 3668, 

3742).

Accordingly, and for reasons that we further delineate below, it is essential that you 

revise your rule so as not to foreclose CWA jurisdiction with respect to entire categories 

of water bodies to which the unpermitted discharge of pollutants may, either alone or in 

 

4

79 Federal Register (FR) 22263 and 22217.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

43

combination with other water bodies in the region, “significantly affect the chemical, 

physical and biological integrity of other covered waters. . . .” Rapanos, 126 S. Ct. at 

2248 (Kennedy concurrence). 

We believe this central recommendation is fully in accord with advice that you have 

already received from EPA’s Science Advisory Board (hereinafter, “SAB”). See 

Rodewald, Comments to the chartered SAB on the Adequacy of the Scientific and 

Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the United States’ 

Under the Clean Water Act (September 2, 2014) (hereinafter, SAB Sept. 2) and David 

Allen et al., Science Advisory Board (SAB) Consideration of the Adequacy of the 

Scientific and Technical Basis of the EPA’s proposed rule titled Definition of Waters of 

the United States Under the Clean Water Act (Draft of September 17, 2014) (hereinafter, 

SAB Sept. 17).

The science is consistent with the Clean Water Act’s overall intent. It was the intent of 

Congress to give the Act’s jurisdictional scope “the broadest possible constitutional 

interpretation unencumbered by agency determinations which have been made or may be 

made for administrative purposes.” S. Conf. Rep. No. 92-1236, p.144 (1972), reprinted in

1972 U.S.C.C.A.N. 3668, 3776, 3822, 118 Cong. Rec. 33756-33757 (1972) (statement of 

Rep. Dingell); see also Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 

525-526 (1941) (construing the Flood Control Act of 1938; flood control is now covered 

in 33 U.S.C. § 1252(a)). (p. 1-2)

Agency Response: See summary response above and the Technical Support 

Document Section II with regard to the significant nexus analysis.

Pacific Legal Foundation (Doc. #14081)

7.44 Aside from this improbable ditch exclusion, the rule proposes excluding certain 

artificially irrigated uplands, ponds, pools and ornamental waters so long as they were 

excavated or diked on dry land. Id. This is hardly a concession because it implies that 

virtually all other waters are covered by the Act.

...the proposed rule would exclude “water-filled depressions created incidental to 

construction activity” and “groundwater, including groundwater drained through 

subsurface drainage systems” and “gullies and rills and non-wetland swales.” Id. But here 

again, the message is mixed, even schizophrenic, because the Corps and EPA would 

regulate “adjacent waters” with “shallow subsurface connections” to other covered 

waters. See 79 Fed. Reg. 22207. So, is groundwater covered or not?

Strangely, the Corps and EPA could not bring themselves to expressly exclude “puddles” 

claiming the term is too ambiguous. But that didn’t stop the agencies from relying on 

even more ambiguous terms such as “adjacent,” “wetland,” “riparian,” “floodplain,” 

“significant nexus,” “neighboring,” “perennial,” “ephemeral,” “impoundment,” “nonwetland swale,” “high water mark,” etc. The exclusions are, therefore, too narrow or too 

uncertain to provide any meaningful limitation on federal authority. 

It is also difficult for the public to rely on these exclusions given the agencies’ hostility 

towards the other exemptions under the Act. For example, the Corps and EPA have 

routinely limited the section 4(f) farm exemption to those ordinary farming practices 

employed on a particular farm rather than those farming practices common to the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

44

industry, as a plain reading of the Act requires. And, the agencies have attempted to limit 

the “prior converted cropland” exemption (which covers approximately 53 million acres)5

through “internal policy changes,” like the so-called Stockton Rules, that the courts have 

invalidated. See New Hope Power Company v. Corps of Engineers, 746 F. Supp. 2d. 

1272 (SD Florida, 2010) (Holding change in policy constituted new legislative and 

substantive rules but are improper because they were not subject to notice and comment). 

Limiting exemptions and exclusions is standard practice for these agencies, making the 

exclusions contained in the proposed rule of little value. (p. 14-15)

Agency Response: See summary response above.

Trout Unlimited (Doc. #18015)

7.45 TU supports language in the proposal to clarify what waters are NOT covered. The 

proposal also seeks to clarify what waters are not jurisdictional. The proposed rule and 

preamble reiterates all existing exemptions from Clean Water Act jurisdiction, including 

many farming, ranching, \ and forestry activities. These exemptions include activities 

associated with irrigation and drainage ditches, as well as sediment basins on 

construction sites. Moreover, for the first time, the proposed rule codifies specific exempt 

waters, including many upland drainage ditches, artificial lakes and stock watering ponds, 

and water filled areas created by construction activity. As highlighted above, TU works 

with farmers, ranchers, and other landowners across the nation to protect and restore trout 

and salmon habitat. We have a keen interest in ensuring that the proposal works well for 

landowners on the ground. (p. 3)

Agency Response: See summary response above. The agencies have further 

clarified the exclusions in the final rule.

Earthjustice (Doc. #14564)

7.46 EARTHJUSTICE OBJECTS TO EPA’S PROPOSAL TO CATEGORICALLY 

EXCLUDE CERTAIN WATERS FROM THE PROTECTIONS OF THE CLEAN 

WATER ACT.

Earthjustice objects to EPA’s proposal to exclude whole categories of water from 

receiving Clean Water Act protections. Such a result is not dictated by Supreme Court 

case law nor the language of the Clean Water Act. While some members of the Supreme 

Court expressed concern over ensuring that certain waters, specifically wetlands, had a 

connection to waters of the U.S., at no time has the Court addressed wholesale exclusion 

of certain types of waters. While EPA may desire to categorically exclude some waters 

for the sake of convenience, such a result is not driven by case law. Because it is also 

contrary to the intent and purpose of the Clean Water Act, categorically excluding certain 

types of waters on the basis of administrative convenience would fail both tests under

Chevron: it would violate clearly expressed congressional intent under Step One, and it is 

an unreasonable and impermissible interpretation of the Act under Step Two. Moreover, 

 

5 U.S. Department of Agriculture, Natural Resources Conservation Service, RCA Issue Brief #8, “Wetlands 

Programs and Partnerships” (Jan. 1996).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

45

such an exclusion would not constitute reasoned decision making supported by the 

record. (p. 10-11)

Agency Response: See summary response above and the Technical Support 

Document Section I regarding the legal basis for the rule.

7.47 Earthjustice supports a broad, science-based definition of the waters of the U.S. and urges 

EPA to heed the advice and comments of the SAB to strengthen the rule to ensure full 

protection of the nation’s waters. Further, Earthjustice requests that the EPA revise the 

rule to remove most of the categorical exclusions, most especially the exclusion of 

groundwater, from the definition of waters of the U.S., preserving the ability to more 

fully protect our nation’s waters, again consistent with the advice and counsel of the 

SAB. (p. 17)

Agency Response: See summary response above.

Nebraska Wildlife Federation (Doc. #15034)

7.48 We recognize that the proposed rule would preserve longstanding Clean Water Act 

exemptions for farmers and foresters that encourage wise stewardship of land and water 

resources. It would also, for the first time, explicitly exclude many upland water features 

important for farming and forestry, such as

 upland drainage ditches with no more than ephemeral water flows;

 artificially irrigated areas that would revert to upland should irrigation cease;

 artificial lakes or ponds used for purposes such as stock watering;

 artificial ornamental waters created for primarily aesthetic reasons; and

 water-filled depressions created as a result of construction activity

We support these existing and new exemptions, and believe they should make the rules 

very workable for most farmers and ranchers. (p. 2-3)

Agency Response: See summary response. The agencies have further clarified the 

exclusions in the final rule.

Neuse Riverkeeper Foundation (Doc. #15095)

7.49 ...we are greatly concerned by, among other things,...the additional of new categorical 

exclusions for waters that have been covered historically and can have a significant 

impact on downstream water quality.

The EPA should ensure that the new rule:

NOT INCLUDE A CATEGORICAL EXCLUSION FOR GROUNDWATER AND 

WASTE TREAMENT SYSTEMS. Categorical exclusion of groundwater will lead to 

regulatory confusion and is not supported by sound science as described by numerous 

members of the SAB. Further, EPA lacks the authority to exempt waste treatment system 

impoundments that are otherwise waters of the U.S. from coverage under the CWA and 

EPA is doing so in violation of the Administrative Procedures Act. (p. 2, 3)

Agency Response: See summary response above.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

46

Texas Agricultural Land Trust (Doc. #15188.2)

7.50 ... Farm ponds should not be jurisdictional. Dry washes, dry streambeds, and ephemeral 

streams should not be jurisdictional. Such far-reaching jurisdiction over features far from 

navigable waters and carrying only minor volumes of flow was not what Congress 

intended and goes far beyond even the broadest interpretation of recent Supreme Court 

decisions. (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs, 

531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006). (p. 1)

Agency Response: See summary response above. Also see the Technical Support 

Document Sections I.C and VII with regard to the Supreme Court decisions and 

rationale for asserting jurisdiction over tributaries.

Hackensack Riverkeeper, Hudson Riverkeeper, Milwaukee Riverkeeper, NY/NJ Baykeeper and 

Raritan Riverkeeper (Doc. #15360)

7.51 Subsection (2) Must be Rewritten to Ensure Jurisdictional Waters are Not Needlessly 

Excluded

We recognize that there are parts of the United States that are not and should not be 

definitional Waters of the United States. No one believes that swimming pools or public 

fountains are Waters of the United States - though they may be point sources under 

certain circumstances. We therefore support the some of the exclusions under subsection 

(2), but we are concerned that, as written, as written, other exclusions may remove 

jurisdiction from waters that should clearly be deemed jurisdictional.

First, the Agencies should strike "notwithstanding whether they meet the terms" of the 

definition of included Waters of the United States at §401.11(2) and replace it with 

"unless they meet the terms" of the definition of included Waters of the United States. If 

a groundwater feature, wastewater pool or impoundment, or ditch meets the definition of 

a Water of the United States [as defined, Waters (i) to (vii)], it should be covered by the 

Clean Water Act as a Water of the United States... (p. 14-15)

Agency Response: See summary response above

Louisiana Environmental Action Network (Doc. #15377)

7.52 However, Proposed Rule may not categorically exclude waters when those waters may 

have a significant nexus. Given Congress’ broad intent, the Agencies have no authority to 

narrow the application of Clean Water Act. See Chevron, U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the 

end of the matter; for the court, as well as the agency, must give effect to the 

unambiguously expressed intent of Congress.”). Accordingly, the Agencies must revise 

several changes in the Proposed Rule that may have an unsupportable narrowing effect 

on the scope of the Act’s jurisdiction. For examples, the Proposed Rule:

 categorically removes from jurisdiction certain ditches and other waters that the 

Clean Water Act now expressly includes as “waters of the United States” when 

there is a significant nexus – a connection the Proposed Rule recognizes may be 

present for such waters. See infra § (3).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

47

 precludes any opportunity to recapture waters that are or become excluded from 

the definition of “waters of the United States,” regardless of whether qualification 

in the exclude category is temporary. See infra § (4).

 categorically removes “groundwater, including groundwater drained through 

subsurface drainage systems” from Clean Water Act jurisdiction – a preclusion 

not included in current law and contrary to evidence of a significant nexus cited in 

the Proposed Rule. See, e.g., 79 Fed. Reg. at 22196-97 (summary of significant 

nexus conclusions); id. at 22209 ("While they may provide the connection 

establishing jurisdiction, these shallow subsurface flows are not “waters of the 

United States.”); id. at 22224 ("The ability of streams to keep flowing even during 

dry periods typically depends on the delayed (lagged) release of local 

groundwater, also referred to as shallow groundwater . . . .").

 fails to reinstate, or even address, suspended language clarifying the narrow 

application of the waste treatment system exemption. See infra § (2). (p. 2-3)

Agency Response: See summary response above and the Technical Support 

Document Section II with regard to significant nexus analysis.

7.53 The Proposed Rule Must Provide an Opportunity for Waters Excluded from the 

Definition of “water of the United States” to Become or Revert to “waters of the 

United States.”

The Proposed Rule’s absolute no re-capture of excluded waters is unsupported by 

science, contrary to the purpose and intent of the Clean Water Act, and outside the 

Agencies’ authority. Although the Agencies state “there is no recapture provision for 

these excluded waters in the proposal," they fail to support the permanency of these 

exclusions with science. See 79 Fed. Reg. at 22189. While the Agencies state that the 

exclusions are for "certain waters and features over which the agencies have as a policy 

matter generally not asserted CWA jurisdiction," they do not provide factual support that 

these are "longstanding practices." Id. Moreover, the statement that jurisdiction is 

"generally not asserted" does not support a categorical exclusion with "no recapture 

provision." On the contrary, because the term "generally" indicates exceptions to the 

policy, the Agencies' position can only support, at most, categorical exclusions when 

there is a recapture provision.

Moreover, changing landscapes and the law support providing for recapture of waters 

into the Act's jurisdiction in the final rule. For example, the Proposed Rule states 

"Absolutely no .uplands located in 'riparian areas' and 'flood plains' can ever be 'waters of 

the United States' subject to jurisdiction of the CWA." 79 Fed. Reg. at 22207. But such 

uplands may erode naturally and become wetlands that would otherwise be jurisdictional 

wetlands. In another example, the current exception to the limited scope of the 

wastewater treatment systems exclusion, see supra § (2), is only supportable (if at all) 

based on its temporary nature. See Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 

556 F.3d 177,215 (4th Cir. 2009) (noting the waste water treatment system exclusion may 

apply to natural streams when the Corps "exercises its § 404 authority. .. [and] allowed 

the temporary removal of these waters from the definition of 'waters of the United States' 

. . .") (emphasis added).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

48

In short, while LEAN appreciates the Agencies' effort towards simplicity, the Proposed 

Rule's failure to include a recapture provision for waters excluded from the definition of 

"waters of the United States" under subsection (b) is arbitrary and capricious, without 

support of evidence, an abuse of discretion, contrary to the purpose and broad 

jurisdictional intent of the Clean Water Act, and outside the Agencies' authority. (p. 6)

Agency Response: See summary response above.

Delaware Riverkeeper Network (Doc. #15383)

7.54 While we generally support EPA’s attempt to clarify which waters are subject to 

jurisdiction under the CWA, science does not support some of the listed exclusions and 

the exclusion of some water bodies because they do not fall under the proposed 

definitions. (p. 2)

Agency Response: See summary response above.

7.55 Comment 8: Exclusions: Section 328.3(b)

The exclusions listed in the proposed rule have weak scientific justification and reflect 

profit-driven stakeholder concerns that have little or no relationship to protecting water 

quality. The following exclusions should not be included in the finalized rule since all of 

these will promote pollution of the hydrologic cycle and thus the science-based waters of 

the United States. (p. 4)

Agency Response: See summary response above.

7.56 ...when determining whether water bodies should be excluded from the definition of 

Waters of the United States, the Agencies should bear in mind the Clean Water Act’s 

goals of restoring and maintaining the chemical, physical, and biological integrity of the 

Nation’s waters. When considering these goals the Agencies will see that the proposed 

rule in its current format is inadequate for restoring and maintaining the integrity of our 

Nation’s waters. (p. 5)

Agency Response: See summary response above.

Wisconsin Wetlands Association (Doc. #15629)

7.57 The science does not support excluding groups of “other waters” or subcategories 

thereof.

Any decisions related to the categorical exclusion of other waters must withstand the 

same level of scientific review as waters considered for categorical inclusion. This means 

that the effects on downstream waters must be thoroughly investigated based on the 

potential for hydrologic exchange, and on the consideration of downstream effects related 

to isolation (i.e., reducing the erosive force of floods). Evidence weighed must be based 

on direct or applied peer reviewed science.

Given that scientific understanding of watershed dynamics is continually evolving, we 

oppose categorically excluding other waters under this rule unless there is definitive

science to support it. (p. 5)

Agency Response: See summary response above.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

49

AES-US Services (Doc. #3242)

7.58 Please clarify if the following are excluded from the definition of “waters of the US” 

based on the proposed rule if located in 1.) floodplain/riparian area, or 2.) nonfloodplain/riparian area, and/or 3.) contiguous/adjacent to jurisdictional waters and/or 

defined as a tributary:

Puddles;

Wastewater treatment system seeps;

Surface Impoundments seeps;

Stormwater retention ponds;

Stormwater detention ponds used for settling/treatment;

General facility Stormwater conveyance systems such as ditches, swales

that are not jurisdictional wetlands;

Ditches transferring wastewater between treatment systems;

Discharge canals that receive water from a tributary;

Pipe trenching (trenches located underneath;

Sheet flow;

Secondary containment devices such as above-ground tank containment

structures;

Cooling tower basins;

Non-wetland strip pits;

Roadside ditches which do not meet proposed exemptions;

Ponds which serve as part of facility’s wastewater treatment system;

Temporary Stormwater construction ponds;

Pond rills, gullies, non-wetland swales;

Trenches associated with wastewater treatment systems; and

Standing water in industrial activity areas such as coal piles. (p. 1)

Agency Response: See summary response above and Section IV.I of the preamble. 

The final rule and preamble also discuss several changes the agencies made to 

“adjacency.” See also compendium on adjacent waters (topic 3).

The Property Which Water Occupies (Doc. #8610)

7.59 The Exemptions Prove the Rules are in Excess of Authority

The overreach of such broadly purported jurisdiction becomes evident in the extensive 

list of ‘exceptions’ to these proposed Rules. The need to list mud puddles or basic 

farming practices as exceptions to the Rules, indicate the Rules themselves exceed the 

scope of statutory authority- the stated purpose of the CWA was never agricultural and 

drainage oversight. The interpretation of such broad authority beyond navigable waters 

expands the domain of Federal Agencies and therefore is a clear abuse of agency 

discretion.6

 

6 Decker v. Northwestern Defense Ctr. 133 S. Ct. 1326, 1341 (2013) (“there is surely no congressional implication 

that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of 

separation of powers — that the power to write a law and the power to interpret it cannot rest in the same hands.”)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

50

Exemptions for particular land-use activities, which would otherwise invoke CWA 

jurisdiction would be illegal if such exemptions were short of statutory obligations. (i.e. 

potentially pose any threat to navigable waters). The EPA cannot propose Rules which 

exempt potential violations of the CWA, else they fall short of their statutory obligation. 

Therefore the land-use exemptions -defined by the Rules- would only be legal if the 

jurisdictional scope defined by these same Rules was in excess of statutory authority as 

delegated by Congress. Federal Agencies are not given discretion to exempt activities 

that would otherwise result in a Clean Waters Act violation as outlined by Congress.7

These arbitrary exemptions for ‘favored’ activities could as easily be revoked by the 

agency, or through a judicial challenge. The exemptions appear to be added to quell 

objections to the expansive jurisdiction claimed under the Rules...

...The proposed Rules fail to recognize that CWA jurisdiction over private land is limited 

to the protection of the water quality for downstream public waters. Federal agencies do 

not have the authority to exempt activities which would otherwise fall under their 

statutory obligation to enforce the CWA. Such Rules ignores congressional intent in 

violation of law. 5 USC 706. The extensive list of exemptions to the Rules simply 

highlight an error in the Rules interpretation of CWA jurisdiction beyond navigable 

waters. Jurisdiction under the Clean Waters Act must be based on threats to the quality of 

public waters and not the existence of water molecules. The Act is not a land zoning 

instrument to be arbitrarily invoked under the auspice of protecting water. (p. 11, 12)

Agency Response: See summary response above. The additional exclusions are 

intended to codify longstanding agencies practices and provide clarity to the public. 

To that end, the agencies propose 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.

7.60 ...actions which threaten water quality, rather then exemptions to the Rules, should be 

listed by the Rules in order to prevent the Rules from being in excess of authority and not 

be short of any statutory obligations. Maintaining a catch-all phrase in the Rules like: 

“the EPA maintains the discretionary authority to invoke the CWA when actions on 

private property present a real and significant threat to the navigable waters.” Will allow 

for the protection of clean water whenever necessary and evidence is provided. Where 

jurisdiction of the CWA ends is not a choice between drinking Clean Water, or green 

glowing citizens as portrayed by misguided advocates for this expansion of the CWA. 

Because jurisdiction beyond navigable waters can only pertain to water quality, the scope 

of CWA jurisdiction can only be invoked when a tangible threat to water quality exists. 

Jurisdiction cannot be invoked simply because rain which falls onto private land must 

then drain based on the laws of gravity. (p. 16-17)

Agency Response: See summary response above and section I of the Technical 

Support Document.

 

7 Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

51

7.1. WASTE TREATMENT SYSTEM (WTSE)

Summary Response

This response addresses comments regarding the waste treatment system exclusion, regardless of 

where such comments appear in the Response to Comments document. 

Summary of Comments and Response

The Agencies’ Clean Water Rule makes no changes to the waste treatment system exclusion. 

The definition of “waters of the United States” has excluded waste treatment systems since 1979, 

and only ministerial changes are made in the proposed and final rules; it remains substantively 

and operationally unchanged. While the Agencies received over 200 comments on the waste 

treatment system exclusion, the comments are beyond the scope of the rulemaking. In some 

instances, the agencies have provided information that maybe useful to a commenter, but this 

does not alter the scope of the rulemaking. In addition, some issues that commenters raised are 

related to other exclusions identified under paragraph (b), and commenters should see those 

essays and responses for more detail.

The existing waste treatment system exclusion moves to paragraph (b)(1) of the final rule with 

no substantive changes. The existing waste treatment system exclusion reads, “Waste treatment 

systems, including treatment ponds or lagoons designed to meet the requirements of the Act 

(other than cooling ponds as defined in 40 C.F.R. 423.11(m) which also meet the criteria of this 

definition) are not waters of the United States.” The Agencies made a ministerial change to 

delete the parenthetical cross-reference to 40 C.F.R. 423.11(m), an EPA regulation that no longer 

exists. Because the agencies are not addressing the substance of the exclusion, the agencies do 

not make conforming changes to ensure that each of the existing definitions of the “waters of the 

United States” for the various CWA programs have the exact same language with respect to the 

waste treatment system exclusion, with the exception of deleting the cross-reference. 

In the proposed rule, the waste treatment system exclusion read, “Waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Act are not 

waters of the United States.” Many commenters expressed concern about whether the agencies’ 

insertion of a comma after the word “lagoons” in the course of making ministerial changes 

unintentionally narrowed the exclusion such that all excluded waste treatment systems must be 

designed to meet the requirements of the Clean Water Act. The agencies have deleted this 

comma in response to comments. Continuing current practice, any waste treatment system would 

need to comply with the Clean Water Act by obtaining a section 404 permit if constructed in 

waters of the United States, and a section 402 permit for discharges from the waste treatment 

system into waters of the United States. 

The agencies received comments on whether certain stormwater conveyances could be excluded 

from the definition of waters of the United States because they are waste treatment systems. For 

clarity, the agencies have added an exclusion for certain stormwater control features in paragraph 

(b)(6) of the final rule. See response sections on stormwater for further clarification. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

52

Many comments offered suggestions on the kinds of structures and processes that should be 

considered excluded from definition of waters of the United States as waste treatment systems, 

and asked the agencies to clarify the jurisdictional status of features that are no longer 

functioning as waste treatment systems. Some commenters expressed concern that the waste 

treatment system exclusion should not exist as a tool to take waters out of CWA jurisdiction, and 

that waters of the United States should not be used for waste treatment. Conversely, some 

commenters stated that providing the exclusion is providing a way to discharge mine tailings and 

other wastes into waters of the United States without a permit, and that the agencies should 

revise the waste treatment system exclusion and the definitions of “fill material” and “discharge 

of fill material.” Because the agencies are not making any substantive changes to the waste 

treatment system and these comments are outside the scope of the proposed rule, the final rule 

does not reflect changes made in public comments. Comments on the definitions of “fill 

material” and “discharge of fill material” are also outside the scope of the proposed rule and the 

final rule does not reflect any changes made in response to these comments. 

Specific Comments

Quapaw Tribe of Oklahoma (the O-Gah-Pah) (Doc. #7980)

7.61 4. Excluded Waste Treatment Facilities. Waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of the Clean Water Act, are not 

Waters of the U.S. Language in the 2012 Nationwide Permits clarifies that stormwater 

management facilities that are determined to be waste treatment systems under current 

regulations are not Waters of the U.S. The proposed rule does not significantly change 

the language regarding the excluded waste treatment facilities. Additional clarification is 

required to identify types of facilities that qualify for this exclusion. Any facility designed 

and operated to treat stormwater runoff to meet the requirements of the Clean Water Act 

should be included in this exclusion. (p. 3)

Agency Response: See summary responses at 7.1 and 7.4.4. 

Navajo Nation Environmental Protection Agency (Doc. #10117)

7.62 The Navajo Nation EPA Water Quality Program generally agrees with the proposal to 

retain the existing regulatory exclusions and longstanding permitting exemptions. 

However, we are concerned that by codifying the exemption for waste treatment systems, 

the rule may inadvertently be excluding from the definition of "waters of the United 

States" impoundments of headwater streams used for draining runoff from surface coal 

mining. The rule should clarify that these sediment pond impoundments are not 

considered "waste treatment systems" that are excluded from the definition. (p. 2)

Agency Response: See summary response at 7.1. The agencies are not changing 

current practice related to implementation of the waste treatment system exclusion. 

Under current practice and under the proposed rule, where appropriate permits are 

received, such impoundments may be considered excluded as waste treatment 

systems.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

53

Texas Department of Transportation (Doc. #12757)

7.63 We are concerned that if a "natural feature that is constructed to receive and treat 

stormwater run-off is itself treated as a jurisdictional water, State DOTs (and other public 

agencies) would be in the paradoxical position of needing to obtain Section 404 permits 

to discharge stormwater into facilities constructed to satisfy stormwater permit 

requirements under Section 402 of the Clean Water Act."

Recommendation: We recommend that the final rule "should clarify the circumstances 

under which the exclusion for waste treatment systems, including treatment ponds or 

lagoons applies to storm water treatment systems constructed as part of transportation 

facilities." We would also request that if a ditch is regulated as a water of the U.S., it 

should not also be regulated as a point source discharge under Section 402 of the CWA. 

(p. 4)

Agency Response: The agencies have clarified the circumstances under which a 

stormwater conveyance feature would be non-jurisdictional. See summary 

responses at 7.1 and 7.4.4.

Earthworks et al. (Doc. #15173)

7.64 While we appreciate that if finalized in its current form, this new policy will restore 

protections to most streams, regardless of size or frequency of flow, and to all wetlands 

inside of floodplains. But, some waters will still be at risk because of two loopholes in the 

Clean Water Act that allow mining waste to be dumped directly into streams, rivers and 

lakes. We respectfully ask that you expand this rule to close the “fill” loophole to clarify 

that mining waste cannot be used to fill in waters of the United States, and the “waste 

treatment system” loophole that simply allows mining companies to rename water a 

“waste treatment system” to escape Clean Water Act regulations. The drafters of the 

Clean Water Act intended for all waters to be protected, even those impacted by mining 

operations. (p. 2)

Agency Response: See summary response at 7.1. Comments on the definition of 

“fill material” are outside the scope of the proposed and final rule. 

California State Water Resources Control Board (Doc. #15213)

7.65 The following specific comments are provided by the California State Water Resources 

Control Board and the nine California regional water quality control boards (collectively, 

the "Water Boards ") staff regarding the proposed "Definition of 'Waters of the United 

States' Under the Clean Water Act" (Proposed Rule) for 40 CFR 230.3. Specific 

recommended changes to the proposed regulations are shown in strikeout/underline

format. Additional comments are presented as endnotes [footnotes here].

(1) Waste treatment systems, including treatment ponds, or lagoons, and storm 

water detention basins,

8

designed and used9to meet the requirements of the Clean 

Water Act and not constructed in a waters of the United States.

10 (p. 5)

 

8

Stormwater detention basins and other constructed water -dependent stormwater treatment systems should also 

qualify for this exclusion.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

54

Agency Response: The agencies have clarified the circumstances under which a 

stormwater conveyance feature would be non-jurisdictional. See summary 

responses at 7.1 and 7.4.4.

National Tribal Water Council (Doc. # 18922)

7.66 On May 19, 1980, the Environmental Protection Agency (EPA) revised its regulations 

defining waters of the United States, providing an exclusion for “waste treatment 

systems” as follows:

Waste treatment systems, including treatment ponds or lagoons designed to meet 

the requirements of the Act (other than cooling ponds as defined in 40 CFR 

123.11(m) which also meet the criteria of this definition) are not waters of the 

United States. This exclusion applies only to manmade bodies of water which 

neither were originally created in waters of the United States (such as a disposal 

area in wetlands) nor resulted from the impoundment of waters of the United 

States.

According to EPA, the intent of the final sentence of the exclusion was to “ensure that 

dischargers did not escape treatment requirements by impounding waters of the United 

States and claiming the impoundment was a “waste treatment system”, or by discharging 

wastes into wetlands. This clarification of the waste treatment system (WTS) exclusion 

was later suspended by EPA without public notice or comment. 45 Fed. Reg. 48620 (July 

21, 1980). The Corps adopted the WTS exclusion without the explicit manmade waters 

limitation in 1986. 33 C.F.R.§ 328.3(a)(8). 

When legally challenged in the late 1980’s by the West Virginia coal mining industry, 

EPA maintained that “under current EPA regulations, discharges into these instream 

impoundments continue to be discharges into waters of the U.S., and, therefore, NPDES 

permit limitations must be met prior to treatment in the impoundment, rather than after. 

EPA then proposed an “alternative approach” in which the Corps would review 

impoundments of waters pursuant to section 404, and EPA would revise its regulations so 

that “where such a review has been conducted and section 404 criteria have been met, a 

402 permit will only be required for discharges from the instream impoundment, not into 

it. 

In 1992, EPA adopted this alternative approach, specifically for the AJ and Kensington 

gold mines in Alaska which had proposed impounding wetlands and streams behind 

earthen dams for purposes of tailings disposal. EPA and the Corps agreed that as long as 

the Corps approved the construction of the tailings impoundment under section 404, the 

waters within the impoundment would no longer be considered waters of the United 

States, and tailings discharges would not require either a section 402 or 404 permit. EPA 

 

9

If a waste treatment system is abandoned or otherwise ceases to serve the treatment function it was designed for, it 

should not continue to qualify for the exclusion.

10 Generally, waste treatment systems that are constructed within a water of the United States should not qualify for 

this exclusion. There may be some existing waste treatment systems that were constructed within a water of the 

United States that the Agencies affirmatively determined ceased to be a water of the United States; those 

determinations should remain in effect.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

55

and the Corps subsequently relied on a similar rationale to authorize tailings disposal for 

the Fort Knox open pit gold mine near Fairbanks, other Alaska hard rock mines, and 

ferrous mines in Minnesota’s Mesabi Iron Range. 

Regarding the second ‘loophole’, under the Clean Water Act, a person who discharges 

“fill material” into waters of the U.S. must obtain a section 404 permit from the Corps. 

Anyone who wants to discharge other pollutants must obtain a section 402 permit from 

the EPA or a state that has been delegated authority to issue such permits. In 1982, EPA 

adopted a zero discharge standard under section 402 for new copper and gold mines using 

froth-flotation, cyanidation, and similar processes. EPA found that mines operating in the 

early 1980s were already achieving zero discharge and that it was therefore practicable 

for new mines to operate without discharging untreated waste into natural waters. 

Prior to 2002, EPA and the Corps had different definitions for this type of pollutant. The 

Corps, defined fill as “any material used for the primary purpose of replacing an aquatic 

area with dry land or of changing the bottom elevation of a water body. The term does 

not include any pollutant discharged into the water primarily to dispose of waste, as that 

activity is regulated under section 402 of the Clean Water Act. Under this definition, 

tailings and other mining wastes were not fill material because they were not used for the 

primary purpose of replacing an aquatic area with dry land. Pollutants discharged into 

waters primarily as a form of waste disposal were explicitly regulated under the more 

rigorous section 402 program. All this changed in 2002 when EPA and the Corps adopted 

identical definitions of fill material to include discharges that have the effect of either 

replacing any portion of a water body with dry land or changing the bottom elevation of 

any portion of a water. The regulatory examples included overburden from mining.

The new fill definition was the subject of a U.S. Supreme Court decision finding that 

EPA and the Corps had acted lawfully in authorizing the Kensington mine in southeast 

Alaska to use Lower Slate Lake as a tailings reservoir in which it could discharge slurry 

and other wastes. Relying upon the 2002 regulation redefining fill material, the agencies 

concluded that these discharges should be treated as fill under section 404, rather than 

waste under section 402, because they would change the bottom elevation of Lower Slate 

Lake. The decision means that as long as the current definition of fill material is in effect, 

mine wastes discharged into waters of the U.S. are regulated under section 404 where 

permits are approved more than 99% of the time instead of under section 402 with its 

strict pollution standards. 

Hardrock mining would be a far less destructive industry if section 402’s discharge 

limitations were strictly applied. Mines produce huge quantities of chemically-treated 

wastes, and the cheapest places to store these wastes are valleys and other low-lying areas 

near the mine sites. But these are also the places where the wetlands, rivers, and lakes 

protected by the CWA are found. As a result of a change in the definition of fill material, 

mining companies are currently able to avoid complying with section 402’s rigorous 

pollution limitations and use waters of the U.S. as industrial waste dumps.

As we are all well aware, mining impacts in Indian Country and throughout the United 

States have had a profound negative effect on water quality. Proportionally, native 

villages and Indian Tribes bear the brunt of these impacts because many mines are 

located within tribal homelands and Tribal members rely, to a greater degree, on using 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

56

natural resources for their subsistence. Although this is true, it does not discount the fact 

that the general population as a whole is also subjected to mining pollution. The NTWC 

recognizes that many of the problems we currently face are the result of “legacy” mining 

pollution and were done in a time when technology was far less refined, scientific 

understanding of ecosystem function and the effects of mining wastes were unknown, 

and regulations were absent. These legacy impacts will continue to plague our nation and 

will need to be addressed for decades, if not centuries. EPA is well aware of this, since a 

large part of their Superfund program is devoted to remediation at such sites.

These two loopholes have allowed mining companies to continue to directly discharge 

pollution into our nation’s waters as they have been doing for over a century. To redefine 

a lake or a river as a “waste treatment system” is shameful, an abomination of the natural 

order of things, and a giant step back in time. The NTWC believes that these loopholes 

have resulted from industry politics and a lack of oversight by EPA in the protection of 

our nation’s waters. Therefore, the NTWC urges EPA to reconsider their position and 

explicitly limit the waste treatment system exclusion to only manmade waters and to 

revise the 2002 definition of “fill” to exclude waste disposal. (p. 1-3)

Agency Response: See summary response at 7.1. Comments on the definition of 

“fill material” are outside the scope of the proposed and final rule. 

Allen Boone Humphries Robinson, LLP (Doc. # 19614)

7.67 "Waste Treatment Systems"

The Proposed Rule also excludes "waste treatment systems," including treatment ponds 

or lagoons, designed to meet the requirements of the Clean Water Act. What is unclear is 

whether the exclusion would include multiple-use impoundments. Industrial facility 

impoundments frequently are utilized for important health and safety projects, such as 

storm water treatment, and water supply for dust suppression, firefighting, irrigation, etc. 

This exclusion is vague, and creates needless ambiguity. For example, it is unclear 

whether the exclusion will apply to treatment ponds that have infrequent discharges, or 

treatment ponds that were originally designed to meet CWA requirements but later 

converted to other uses. Likewise, many treatment systems include both retention 

features and conveyance features, and the Proposed Rule provides no clarity on whether 

these systems would be excluded. (p. 9)

Agency Response: See summary response at 7.1. Also see summary response at 

7.3.2. 

Bard of Douglas County Commissioners, Colorado (Doc. #8145)

7.68 Codify and Clarify the Waste Treatment Exclusion

The existing regulations include exclusions for waste treatment facilities that are 

constructed to meet CWA requirements and are constructed in uplands. Currently, this 

exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff at 

the national offices and regional regulatory field offices level. Clearly, additional 

language is necessary to restore the intent of this exclusion. Douglas County requests that 

language be included in the Proposed Rule to state that treatment of stormwater runoff 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

57

from rural and urban settings conforms to the exclusion and that the exclusion applies to 

all necessary and constructed components of the waste treatment system. (p. 16)

Agency Response: See summary response at 7.1. 

City of Palo Alto, California (Doc. #12714)

7.69 The wastewater treatment exemption has a history of legal challenge. Its application to 

water reuse facilities and storm water features must be clearly defined. (p. 5)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4 regarding new exclusions for certain stormwater and wastewater recycling 

features. 

Waters of the United States Coalition (Doc. #14589)

7.70 Treatment wetlands provide a substantial benefit to the environment. They improve water 

quality and provide habitat for a range of wildlife. Indeed, (as cited throughout the 

preamble to the Proposed Rule) the Supreme Court has noted the beneficial role that 

wetlands can play by treating water before it enters traditional navigable waters or 

preventing it from getting there in the first place. (Rapanos at 786) Public agencies look 

to treatment wetlands to attain compliance with their own Clean Water Act National 

Pollutant Discharge Elimination System (“NPDES”) requirements and to benefit the 

environment as a whole.

Public agencies build treatment wetlands in several instances. The first is when a project 

will impact or take existing wetlands and new ones are constructed as mitigation. The 

second instance is when an existing storm drain or other stormwater point source 

discharges into a traditional navigable water. The agency may consider constructing a 

wetland at the point of discharge (but outside of the waters of the United States) or 

upstream in the storm drain to provide treatment to dry weather and other flows before 

they discharge into the traditional navigable waters.

The third instance involves wetlands created as green infrastructure upstream of a 

traditional navigable water to reduce pollutant discharges from areas of new construction. 

These swales and other wetlands serve a treatment purpose in precisely the same manner 

as a constructed wetland at the point of discharge. They trap sediment, hydrocarbons, 

metals and other pollutants before they reach the storm drain system and long before they 

enter a traditional navigable water. EPA and most state water quality agencies have been 

encouraging this type of infrastructure for over a decade.

Lastly, water purveyor and waste treatment operators have played crucial roles creating 

wetlands to provide additional treatment for their POTW discharges. This includes 

constructing wetlands and other ponds as part of the treatment system. While there is 

currently an exemption for wetlands that are deemed part of the treatment system, that 

exemption needs to be clarified and reiterated to ensure that constructed wetlands that are 

part of a treatment system are not capture by the Proposed Rule. Coalition members 

therefore request that the EPA and ACOE provide an explanation in the preamble to the 

Proposed Rule clarifying the scope of the waste treatment exclusion. (p. 11-12)

Agency Response: See summary response at 7.1. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

58

7.71 Treatment works with ponds in close proximity to a tributary or traditional navigable 

water could be classified as “adjacent.” Waste treatment systems frequently rely on 

percolation ponds and basins as a critical part of the sewage treatment process. Many 

waste treatment systems are developing wetland type treatment systems to reduce 

nutrient and other pollutant levels in the final effluent discharged from the system. These 

ponds and wetlands are almost always connected to traditional navigable waters or their 

tributaries because the effluent needs somewhere to go. In many cases the effluent must 

be returned to a surface stream so that it can contribute to overall stream flow and be used 

by downstream water rights holders.

By nature of their location and function these ponds could be classified as waters of the 

United States under the Proposed Rule. The Proposed Rule needs to very clearly exempt 

all aspects of the waste treatment system, including “back end” ponds and treatment 

wetlands to ensure that the existing exemption is carried forward and to avoid infringing 

on operation of this critical infrastructure. (p. 40)

Agency Response: See summary response at 7.1. See also Adjacent Waters, 

compendium 3. 

7.72 Because federal regulations prohibit “waste treatment” to be a designated use for the 

purposes of water quality standards, reclassification of a water body under the Proposed 

Rule will hinder many projects that would benefit the environment. This is because many 

states including California will not allow waters of the United States to be converted into 

treatment systems even if it would be beneficial to the water body as a whole. Similarly, 

reclassification of existing facilities will prevent them from being used for their intended 

purpose. (p. 43)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

National Association of Counties (Doc. #15081)

7.73 “Waste Treatment Systems”—Water treatment refers to the process of taking waste water 

and making it suitable to discharge back to the environment. The term “waste treatment” 

can be confusing because it is often linked to wastewater or sewage treatment. However, 

this can also include water runoff from landscape irrigation, flushing hydrants, 

stormwater runoff from roads, parking lots and rooftops.

The proposal states that “waste treatment systems,”—including treatment ponds or 

lagoons, designed to meet the requirements of the CWA—are exempt.43 In recent years, 

local governments and other entities have moved toward a holistic approach in treating 

stormwater by using ponds, swales and wetlands. Traditionally, such systems have been 

exempt from CWA, but due to the broad nature of the proposed rule, we believe the 

agencies should also exempt other constructed wetland and treatment facilities which 

may be included under the proposed rule. This would include, but not be limited to, water 

and water reuse, recycling, treatment lagoons, setting basins, ponds, artificially

constructed wetlands (i.e. green infrastructure) and artificially constructed groundwater 

recharge basins.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

59

It is important that all constructed features built for the purpose of water quality treatment 

or runoff control be exempt, whether or not it was built for CWA compliance. Otherwise, 

this sets off a chain reaction and discourages further investment which will ultimately 

hurt the goals of the CWA.

Recommendations:

 The proposed rule should expand the exemption for waste treatment systems 

if they are designed to meet any water quality requirements, not just the 

requirements of the CWA. (p. 14)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, wastewater 

recycling features, groundwater recharge basins, and stormwater control features. 

City of Stockton, California (Doc. #15125)

7.74 The wastewater treatment exemption has a history of legal challenge. Its application to 

water reuse facilities and storm water features must be clearly defined. (p. 3)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4 regarding new exclusions for certain stormwater and wastewater recycling 

features.

City of Beaverton, Oregon (Doc. #16466)

7.75 We recognize that EPA and the Corps may claim these outcomes are unanticipated. 

However, there is so much gray area in the proposed rule that the rise of third-party 

citizen suits are likely to define all these described waters as WOTUS. The agency's socalled intent will not matter, because where there is gray, there will be a lawyer to file a 

lawsuit. Ultimately, the aggressive reach of this rule and its ambiguous provisions and 

terminology introduces uncertainty, requires more agency analysis and intervention, and 

will create increased litigation.

With that in mind, the rule must include the following provisions that are priority 

concerns for local governments:

...

 Wastewater treatment systems and all associated infrastructure shall not be 

considered waters of the U.S. (p. 2-3)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

Las Vegas Valley Watershed Advisory Committee (Doc. #16504)

7.76 The EPA and Corps did not propose any changes to the existing exclusion from 

jurisdiction for waste treatment systems designed consistent with the requirements of the 

CWA. However, the LVVWAC is concerned that the broad definition of "tributaries" 

under the Proposed Rule would result in man-made ditches, canals, and off-river storage 

ponds that are located on water and wastewater facility sites, but may not formally be part 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

60

of waste treatment systems, to be subject to regulation as WOUS. This additional 

regulation would be unnecessarily burdensome, and affect LVVWAC members' ability to 

conduct timely maintenance of those features.

The EPA and Corps specifically excluded certain waters from its definition of WOUS 

under the Proposed Rule. The LVVWAC supports the intent of these exclusions, and 

requests that a clear exemption also be provided for all water management features that 

are located within water and wastewater facility sites. The LVVWAC requests the 

following exclusion be added to the Proposed Rule:

 Ditches, canals, ponds, and other man-made features used in the operation of 

water or wastewater treatment and supply systems. (p. 2)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

Department of Public Works, County of San Diego, California (Doc. #17920)

7.77 The existing exemption language for "waste treatment systems" must be strengthened. 

The Federal Register posting asserts that there will be no change to the exclusion for 

waste treatment systems. The rule should be expanded to specifically exempt facilities 

that are designed and installed to meet any water quality requirements, including 

individual state or local water quality regulatory requirements (for example, the PorterCologne Act in California). CFR Part 328.3 (7) states that waste treatment systems, 

including treatment ponds or lagoons designed to meet the requirements of CWA are not 

waters of the United States. Although the agencies specifically state that they are not 

seeking comment on this section, the County strongly urges the agencies to strengthen 

and expand this vaguely written exemption, or otherwise explicitly exempt all water 

quality treatment facilities. Currently, the regulations (“a” and “b” below) appear to only 

vaguely exempt "waste treatment systems" (which presumably apply to permanent BMPs 

such as: detention basins, retention basins, bioswales, etc.) that are designed to meet the 

requirements of the CWA:

a. Nationwide Permit (NWP) 43 has language that states: "Note that stormwater 

management facilities that are determined to be waste treatment systems under 33 

CFR 328.3(a)(8) are not waters of the United States, and maintenance of these 

waste treatment systems generally does not require a section 404 permit."

b. Then 33 CFR 328.3(a)(8) states the following : 'Waste treatment systems, 

including treatment ponds or lagoons designed to meet the requirements of CWA 

(other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the 

criteria of this definition) are not waters of the United States."

EXAMPLE: Regulators could potentially allow use of the above NWP 43 or the language 

in 33 CFR 328.3(a)(8) to exempt maintenance of water quality treatment systems from 

requiring section 401 and 404 perm its. However, since NWPs are renewed every five 

years they are not guaranteed to be in existence. In addition, the language in 33 CFR 

328.3(a)(8) is vague and does not specifically exempt water quality treatment so 

individual regulators may not apply this exemption uniformly to water quality treatment 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

61

facilities . Therefore, the rule should be clarified to specifically exempt maintenance of 

these water quality treatment facilities. (p. 4-5)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. #19619)

7.78 Certain categories of waters need to be specifically excluded from WOTUS status:

 Constructed wetlands (constructed in uplands) are a waste treatment facility and 

should not be considered WOTUS. (p. 2)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

Rural County Representatives of California (Doc. #5537)

7.79 ...even though your agencies have maintained that there is no intent to impact water 

reuse facilities, the rule does not clearly address reuse facilities associated with 

wastewater treatment systems. Reuse facilities were constructed to augment water supply 

for irrigation and sometimes drinking water, and were not designed with the objective to 

meet the parameters of the CWA. The rule needs to clearly state your agencies’ intent for 

water reuse facilities. (p. 2)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.3 regarding the agencies’ creation of exclusions for certain wastewater 

recycling features.

California State Association of Counties (Doc. #9692)

7.80 Waste Treatment Systems: The proposed rule should expand the exemption for waste 

treatment systems if they are designed to meet any water quality requirements, not just 

the requirements of the CWA. This exemption should also apply to individual state or 

local water quality regulatory requirements (for example, the Porter-Cologne Act in 

California). CFR Part 328.3 (7) states that waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of CWA are not waters of the United 

States. CEAC strongly urges the agencies to strengthen and expand this vaguely written 

exemption, or otherwise explicitly exempt all water quality treatment facilities. Current 

federal regulations (see "a" and "b" below) appear to only vaguely exempt "waste 

treatment systems" (which presumably apply to permanent BMPs such as: detention 

basins, retention basins, bioswales, etc.) that are designed to meet the requirements of 

only the CWA:

a. Nationwide Permit (NWP) 43 has language that states: "Note that stormwater 

management facilities that are determined to be waste treatment systems under 

33 CFR 328.3(a)(8) are not waters of the United States, and maintenance of 

these waste treatment systems generally does not require a section 404 

permit."
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

62

b. Then 33 CFR 328.3(a)(8) states the following : "Waste treatment systems, l 

including treatment ponds or lagoons designed to meet the requirements of 

CWA 1 (other than cooling ponds as defined in 40 CFR 423 .11(m) which 

also meet the criteria of this definition) are not waters of the United States."

As an example, NWPs are renewed every five years and their continued existence or 

continuation of their conditions are not guaranteed. The rule should therefore be clarified 

to exempt maintenance of these facilities. CSAC believes such exemptions are consistent 

with the agencies' past approach of not inhibiting, and in fact encouraging state and local 

entities' efforts to further protect the environment. (p. 7)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

California Association of Sanitation Agencies (Doc. #12832)

7.81 As the proposed rule and existing practice acknowledge, waste treatment systems 

designed to meet the requirements of the Clean Water Act are not waters of the U.S., and 

CASA wants to ensure that as part of these proposed amendments spreading 

grounds/basins, treatment ponds/lagoons, and constructed treatment wetlands used as part 

of the wastewater process are subject to the same exemption. Since these facilities are 

clearly part of the treatment process, providing additional treatment, residence and 

settling prior to discharge, these facilities should be expressly recognized in the rule as 

falling under the Waste Treatment Exception. (p. 3)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613)

7.82 Beneficial reuse projects and treatment wetlands should be encouraged.

Another concern is that the proposed rule does not address recycled water projects or 

innovative treatment technologies. Oregon is a leader in utilizing treatment wetlands to 

provide additional treatment and cool wastewater treatment plant discharges. These 

beneficial treatment wetlands are permitted through the NPDES program and serve as 

part of the wastewater treatment plant operations. The proposed rule expressly excludes 

wastewater treatment systems "designed to meet the requirements of the Clean Water 

Act." These treatment wetlands and other recycled water projects may be intended to fall 

under this exclusion, but the final rule should specifically state that intent. (p. 2)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.2 and 7.4.4 regarding the agencies’ creation of an exclusion for certain 

wastewater recycling features.

Virginia Association of Counties (Doc. #16796)

7.83 Recommendation: For purposes of clarification, VACo proposes that the language under 

(t)(1) be amended as follows: "Waste treatment systems, including treatment ponds, or 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

63

lagoons, or alternative onsite sewage treatment systems designed to meet the 

requirements of the Clean Water Act." (p. 2)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of an exclusion for certain 

wastewater recycling features.

Iowa League of Cities (Doc. #18823)

7.84 The League is also concerned about any potential impact to wastewater systems and the 

NPDES permitting related to these systems. Because of the exclusion language, the 

Agency did not seem to analyze the impact to wastewater systems but some cities have 

raised questions whether some part of combined sewer systems or other aspects of a 

wastewater treatment systems would be considered within the jurisdiction of the EPA 

based upon the proposed rule.

We also have a current issue in Iowa where several cities are having some difficulty 

getting approval of certain components of a wastewater treatment system from the 

engineers at IDNR. Some cities are concerned that this situation could lead to a portion of 

a system that has not been approved by IDNR being considered a "water of the U.S." 

under the proposed rule. Even though the activities fall within the permit, cities are 

concerned that not getting sign off from engineers at IDNR would move those portions 

outside of the exemption. Request for EPA Response: Does the EPA anticipate that 

wastewater systems could be impacted by this rule?

Request for EPA Response: Would a project, such as an equalization basin, be 

exempted or included as a "water of the United States" if a state agency that operates 

their NPDES permitting has not signed off on this portion of a system as being part of the 

design of the wastewater treatment plant? (p. 6-7)

Agency Response: See summary response at 7.1. 

U.S. Chamber of Commerce (Doc. #14115)

7.85 The proposed rule excludes “waste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act.”11 The agencies state 

that they do not propose any substantive changes to the exclusion for waste treatment 

systems,12 but the proposed exclusion includes a punctuation change (the insertion of a 

comma after “lagoons”) that could be interpreted—or misinterpreted—as narrowing the 

scope of the exclusion. Equally important, the Agencies have missed an opportunity to 

delete long-suspended language included only in the NPDES version of the exclusion, 

and bring greater clarity and certainty to the interpretation and application of the 

exclusion.

 

11 79 Fed. Reg. at 22,263.

12 Id. at 22,217. The Agencies propose to make one ministerial change to delete a cross-reference to an EPA 

regulation for cooling ponds that is no longer in the Code of Federal Regulations. The undersigned groups support 

this ministerial change, for the reasons the Agencies have acknowledged and explained.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

64

First, although the exclusion itself is fairly straightforward, it has not always been applied 

consistently. As a result, the same type of feature may be treated as an excluded “waste 

treatment system” in one instance, but treated as a jurisdictional “water of the U.S.” in 

another instance.

Second, by adding a comma after the word “lagoons,” the proposed rule could be read to 

narrow the scope of the exclusion by requiring that all “waste treatment systems,” not just 

“treatment ponds or lagoons,” as under the current rules, be “designed to meet the 

requirements of the CWA” to qualify for the exclusion. This could be interpreted to 

mean, for instance, that features that were constructed for waste treatment prior to the 

CWA’s enactment in 1972 do not qualify for the waste treatment exclusion. This creates 

new interpretive issues, as “designed to meet the requirements of the CWA” can be 

construed narrowly or broadly. For example, features that were constructed for waste 

treatment prior to the CWA’s amendment in 1972 could not have been designed with 

CWA compliance in mind. Yet these features often play an important role in achieving 

compliance with current CWA requirements, and are now commonly excluded from 

regulation by virtue of the waste treatment system exclusion. The Agencies should avoid 

this interpretative minefield by deleting the new comma. If they decline to do so, they 

must acknowledge the change, explain their intentions, and provide public notice and an 

opportunity for comment.

Third, the agencies retain, in 40 C.F.R. § 122.2, “suspended” language limiting the 

applicability of the exclusion. Although the suspended language has no legal effect, 

retaining this language simply adds confusion rather than the certainty the Agencies say 

is their overarching goal.

In sum, despite the Agencies’ assurances that the waste treatment exclusion is unaffected 

by the proposal, the proposed punctuation change, in combination with a lengthy history 

of inconsistent application, would create significant new confusion and uncertainty for 

the regulated community. (p. 33-34)

Agency Response: See summary response at 7.1.

Indiana Farm Bureau et al. (Doc. #14119)

7.86 This proposed regulation excludes “waste treatment systems, including treatment ponds 

or lagoons, designed to meet the requirements of the Clean Water Act.” 79 Fed. Reg. at 

22,263. Unfortunately, the proposal does not make clear what is intended to be included 

within the phrase “waste treatment system”. By leaving this important provision unclear 

in the definition, the agency has left open the opportunity to expansion of what will be 

regulated in the future. (p. 3)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

7.87 The existing regulatory structure for wastewater treatment ponds at electric generation 

should also be preserved. (p. 4)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

65

Agency Response: See summary response at 7.1. 

South Carolina Chamber of Commerce (Doc. #14535)

7.88 ...there is no definition for the term "waters" which leaves open the possibility for both 

uncertainty and complexity in application of the term. Of specific concern to our 

members is the potential for industrial holding ponds or components thereof, such as 

stormwater treatment ponds, cooling water ponds or wastewater treatment ponds, to fall 

within the jurisdiction of this program. We believe that the definition of waters should be 

such that man-made structures used for commercial or industrial purposes are clearly 

excluded. (p. 2)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding the exclusions for certain cooling ponds and 

wastewater recycling and stormwater control features.

7.89 There should be no question that any stormwater management facilities that are part of an 

industrial stormwater pollution prevention plan under a stormwater permit are clearly 

covered by the waste treatment system exemption. Nonetheless, due to the expansive 

definitions and other provisions previously discussed, the preamble to any final rule 

should specifically state that this is the case to remove any doubt among all 

stakeholders... (p. 4)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

7.90 Waste Treatment Systems:

The proposed rule inserts a subtle punctuation change in the waste treatment system 

exclusion that could be misinterpreted to narrow the exclusion (a result the Agencies 

have said they do not intend). The current rule excludes: "Waste treatment systems, 

including ponds or lagoons designed to meet the requirements of the Clean Water Act." 

With this punctuation, the qualifier "designed to meet the requirements of the Clean 

Water Act" modifies only the phrase "ponds and lagoons." The Proposed Rule would add 

a comma after "lagoons," thus excluding "[w]aste treatment systems, including ponds or 

lagoons, designed to meet the requirements of the Clean Water Act." This punctuation 

change could be interpreted to change the reach of the qualifying language by applying it 

to all waste treatment systems. Under this reading, all systems, not just "ponds and 

lagoons" to which the qualification currently applies, would have to be "designed to meet 

the requirements of the Clean Water Act" in order to fall within the exemption.

This creates new interpretative issues, as "designed to meet" could be construed narrowly 

or broadly. For example, features that were constructed for waste treatment prior to the 

CWA's enactment in 1972 could not have been designed with CWA compliance in mind, 

yet such features often play an essential role in achieving compliance with current CWA 

requirements and are commonly excluded from regulation by virtue of the waste 

treatment system exclusion. The Agencies should avoid this interpretative minefield by 

deleting the new comma. (p. 8)

Agency Response: See summary response at 7.1. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

66

Institute of Scrap Recycling Industries, Inc. (Doc. #15041)

7.91 Potential Effects Originating On-Site

First, the potential effect of the proposed definition on the facility from within (i.e., onsite) would seem to be negated by the first exclusion: “(1) Waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act....”.

13 This exclusion exists in the current definition and importantly predates 

the 1987 CWA amendments that gave rise to NPDES permits for certain stormwater-only 

discharges. While the intent of this exclusion is laudable and appropriate—to prevent 

non-waters of the U.S. that are collected or present in structures created for CWA 

compliance from newly becoming themselves “waters of the U.S.” that would require 

additional CWA compliance—the exclusion is arguably insufficient to exclude on-site 

control measures for industrial stormwater because the exclusion uses the term “waste 

treatment systems”.

In the CWA,

14 as amended, the term “waste treatment system” appears only three times 

(once in the plural), and “waste” is not defined. “Waste treatment system” is most closely 

connected to “the storage, treatment, recycling, and reclamation of municipal sewage or 

industrial wastes of a liquid nature”, and if there is any connection between “waste 

treatment systems” and stormwater, it is via the following phrase farther down in the 

same paragraph:

“...; and any other method or system for preventing, abating, reducing, storing, 

treating, separating, or disposing of municipal waste, including storm water 

runoff, or industrial waste, including waste in combined storm water and sanitary 

sewer systems;” (Title II, §218).

Elsewhere, CWA grants for research and development address separately “storm water or 

both storm water and pollutants” and “advanced waste treatment and water purification 

methods [omitted parenthetical], or new or improved methods of joint treatment systems 

for municipal and industrial wastes” (Title I, §105(a)). Similarly, CWA grants for the 

construction of treatment works may be applied to “the necessary waste water collection 

and urban storm water runoff systems” (Title I, §208(b)(2)). These examples support the 

existence of a distinction between “waste water” and “storm water”.

Based on the above, it seems clear that industrial stormwater (runoff) is not waste; 

therefore, this proposed exclusion’s reliance on “waste treatment systems” is inadequate 

to fulfill its laudable and appropriate intent. To make this exclusion sufficiently 

expansive to cover the current scope of NPDES permits, which includes discharges of 

both industrial wastewater and industrial stormwater, and to meet its laudable and 

appropriate intent, this exclusion could be revised as follows: “(1) Treatment systems and 

control measures, including but not limited to treatment ponds or lagoons for wastewater 

 

13 Only in 40 CPR§122 docs this exclusion further include the following suspended requirement: "This exclusion

applies only to manmade bodies of water which neither were originally created in waters of the United States (such 

as disposal area in wetlands) nor resulted from the impoundment of waters of the United States".

14 Federal Water Pollution Control A CI (33 U.S.C. 125 1 et seq.), as amended through P.L. 107-303, November 27,

2002, as rendered in http://www.epw.senate.gov/water.pdf and accessed via http://www2.epa.gov/lawsregulations/summary-clean-water-act. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

67

and retention ponds for stormwater, designed to meet the requirements of the Clean 

Water Act”. (p. 3-4)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

American Council of Engineering Companies (Doc. #15534)

7.92 §122.2(b)(2) "Waste treatment systems, including treatment ponds or lagoons, designed

to meet the requirements of the Clean Water Act."

This regulation appears to be an obvious reference to wastewater treatment ponds and 

lagoons, but may refer to stormwater ponds as well. However, if the stormwater pond is 

to be excluded, it must be designed for the purposes of storm water treatment. If the 

storm water pond is for the purpose of estimating and managing attenuation volume only, 

it is not excluded. 

Since the regulations are jointly issued by EPA and USACE, there are two consequences 

to the designation of man-made ditches and storm water ponds as regulated waters of the 

U.S. First, water quality standards must be met, including water quality criteria and 

antidegradation requirements, Second, USACE dredge and fill requirements would be 

applicable. Therefore, stormwater attenuation ponds (with no water quality treatment) 

and drainage ditches that are in the floodplain would be required to meet water quality 

standards and jurisdictional requirements - even during routine maintenance activities, 

This results in a significant change in what has been considered regulated waters, 

especially in coastal communities. (p. 5)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

Federal Water Quality Coalition (Doc. #15822.1)

7.93 Waste Treatment Systems and Prior Converted Cropland.

Current regulations include exemptions for waste treatment systems, including 

impoundments “designed to meet the requirements of the Clean Water Act,” and for prior 

converted croplands. While the words of the wastewater treatment exemption are not 

being changed, the agencies are proposing to add a comma before the “designed to” 

clause, potentially applying that clause to all waste treatment systems, not just 

impoundments. This change would create significant uncertainty about the scope of the 

long-standing waste treatment system exemption. (p. 18)

Agency Response: See summary response at 7.1. 

Water Advocacy Coalition (Doc. #17921.1)

7.94 The exclusion for waste treatment systems fails to provide clarity.

The proposed rule excludes “waste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act.” 79 Fed. Reg. at 

22,263. Instead of taking this rulemaking as an opportunity to clarify longstanding 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

68

confusion on the waste treatment exclusion, the agencies have decided to avoid the issue 

all together. The agencies state that they do not propose any changes to the exclusion for 

waste treatment systems, id. at 22,217, but we have several concerns with the agencies’ 

handling of this exclusion.

First, the applicability of this exclusion has been anything but clear.15 In the experience of 

Coalition members, there is not a uniform understanding of what the agencies consider to 

be a “waste treatment system,” and, as a result, the exclusion has been implemented 

inconsistently in the field. The same feature may be treated as an excluded “waste 

treatment system” in one instance, but treated as a jurisdictional “water of the United 

States” in another instance.

Second, the addition of a comma in the regulatory text changes the meaning of the waste 

treatment exclusion. Under the existing regulations, the phrase “designed to meet the 

requirements of the CWA” modifies the examples of “treatment ponds or lagoons.” 33 

C.F.R. § 328.3(a). The proposed rule’s addition of a comma after “treatment ponds and 

lagoons” narrows the scope of the exclusion by requiring that all “waste treatment 

systems,” not just “treatment ponds or lagoons,” be “designed to meet the requirements 

of the CWA” to qualify for the exclusion. This could be interpreted to mean, for instance, 

that features that were constructed for waste treatment prior to the CWA’s enactment in 

1972 do not qualify for the waste treatment exclusion. Although the agencies say that 

they only propose “ministerial” changes to the waste treatment exclusion, 79 Fed. Reg. at 

22,217, the addition of this comma is a substantive change that would have significant 

implications for many existing waste treatment systems. The agencies should remove the 

new comma from the proposed regulatory text.

Third, the agencies improperly retain, in 40 C.F.R. § 122.2, both: (1) the sentence 

proclaiming that the waste treatment exclusion “applies only to manmade bodies of water 

which neither were originally created in waters of the United States (such as disposal area 

in wetlands) nor resulted from the impoundment of waters of the United States,” and (2) 

the accompanying footnote explaining that EPA suspended the sentence in question in 

1980. See 79 Fed. Reg. at 22,268. The suspended sentence would have drastically limited 

the scope of the waste treatment exclusion. Although this language was suspended in 

1980, courts have struggled with this issue, and in some instances have erroneously 

applied the suspended language.16 Retaining this suspended language simply adds 

confusion to an already confusing exclusion. To provide clarity, the agencies should 

delete the suspended sentence and accompanying footnote from 40 C.F.R. § 122.2. (p. 

71)

Agency Response: See summary response at 7.1. 

 

15 Other groups, including the Utility Waters Act Group (“UWAG”), National Mining Association (“NMA”), and 

Edison Electric Institute (“EEI”), have submitted comments that more fully address the history of the waste 

treatment exclusion and the confusion surrounding its application. The Coalition urges the agencies to respond to the 

concerns raised in these groups’ comments on this issue.

16 See, e.g., West Virginia Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1290 (S.D. W. Va. 1989); United States v. TGR 

Corp., 171 F.3d 762, 765 (2d Cir. 1999); Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng’rs, 2007 WL 2200686 

(S.D. W.Va. June 13, 2007), rev’d, 556 F.3d 177 (4th Cir. 2009).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

69

Virginia Manufacturers Association (Doc. #18821)

7.95 Despite the Agencies' claims that the exclusion for waste treatment systems has been 

preserved, the Proposal includes an apparent clerical error that could have the effect of 

narrowing the exclusion. The Proposal adds a comma after "lagoons" in the exclusion. 

This change could be construed to make all waste treatment systems subject to the 

"designed to meet" standard. This is problematic because many waste treatment systems 

were installed well before the Clean Water Act and thus could not have been "designed to 

meet" the requirements of the statute. Virginia's "surface waters" definition, modeled on 

the federal standard, does not include a comma after "lagoons." See 9 VAC 25-31-10. 

VMA requests that the Agencies delete the comma, consistent with the traditional federal 

language and the Virginia regulations, so that the exemption provision is retained as, 

"Waste treatment systems, including treatment ponds or lagoons designed to meet the 

requirements of the Clean Water Act." (p. 3)

Agency Response: See summary response at 7.1. 

National Association of Home Builders (Doc. #19540)

7.96 The Waste Treatment Systems Exclusion is Unclear and has been Unpredictable in 

Practice.

Today’s proposal excludes “waste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act.”17 The Agencies 

state that they do not propose any changes to this exclusion and in fact are not even 

accepting comments on it, but its applicability has been anything but clear.18 The 

following are just a sample of some of the ambiguities associated with the waste 

treatment systems exclusion:

 Waste treatment system – What do the Agencies consider to be a waste treatment 

system? Does the exclusion include ditches and conveyances that connect to 

treatment ponds? Does it include features that manage or store but do not treat 

water? Does it include stormwater retention basins? The Agencies must define 

“waste treatment systems.” They should also clarify that all on-site maintenance 

of water, including transport, storage, treatment, and use, are non-jurisdictional. 

Indeed, any discharges into waters of the United States that result from these 

activities are already covered under CWA Section 402.

 “Designed to meet the requirements of the Clean Water Act” – Is the exclusion 

limited to waste treatment units that were specifically designed to satisfy CWA 

obligations? Does the exclusion extend to waste treatment systems that were 

created before the enactment of the CWA? What if the system was installed 

before the CWA but was modified later to ensure the facility was able to comply 

with its NPDES permit? What if a feature was designed and used for treatment, 

but the owner has now ceased to use it for that purpose? What if the feature was 

 

17 79 Fed. Reg. at 22,263.

18 Id. at 22,190 (“Because the agencies do not address the exclusions from the definition of ‘waters of the United 

States’ for waste treatment systems and prior converted cropland or the existing definition of ‘wetlands’ in this 

proposed rule the agencies do not seek comment on these existing regulatory provisions”).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

70

installed to meet the requirements of a local or state ordinance and not the CWA? 

Because of the confusion and limits the phrase “meet the requirements of the 

Clean Water Act” places on the waste treatment system exclusion, the phrase 

should be removed.

 Man-made basins or ponds – Man-made basins and ponds serve a myriad of 

environmental and process purposes and do so in an environmentally responsible 

manner (e.g., fracking ponds). To render theses systems “waters of the United 

States” would make them prohibitively expensive and would altogether eliminate 

their viability. The waste treatment system exclusion should extend to man-made 

basins.

In the context of the CWA, the waste treatment exclusion makes imminent sense, but the 

value and practicalities of the exclusion could be quickly lost. NAHB urges the Agencies 

to engage with stakeholders who rely on the waste treatment exclusion to understand the 

confusion and unpredictability that surrounds it. After having these critical stakeholder 

discussions, the Agencies should propose a revised rule that addresses the waste 

treatment systems exclusion and provides much needed clarity for regulators and the 

regulated community. (p. 105)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

Vulcan Materials Company (Doc. #14642)

7.97 The exemptions from CWA jurisdiction currently provided by the USEPA and USCOE 

under the CWA should be listed in the proposed rule, specifically the exemption for 

excavations and pits at aggregate mining operations, and the water treatment system 

exemption. The scope of these exemptions needs to be clearly stated and consistent with 

the historic use and application of the exemptions. (p. 4)

Agency Response: See summary response at 7.1. See also summary response at 

7.3.5 regarding the agencies’ exclusion for certain aggregate mining pits.

Texas Mining and Reclamation Association (Doc. #10750)

7.98 The Agencies Should Clarify that Previously Non-Jurisdictional Water Features on 

Mine Sites Will Not Become Jurisdictional Waters Under the Proposed Rule.

Of critical concern to TMRA's members is the possibility that many water features 

constructed and used to manage water associated with mining operations which are 

currently not considered jurisdictional could fall within the definition of "waters of the 

United States" under the proposed rule. Diversion and conveyance ditches, including 

natural features within a permitted mine site, sediment and treatment ponds and 

impoundments, and other components of water treatment facilities are integral to mining 

operations, and are used to manage, contain, convey, and treat on-site waters in order to 

comply with existing environmental standards pursuant to the CWA, Surface Mining 

Control and Reclamation Act ("SMCRA"), and other federal and state mining laws and 

regulations. These features are currently excluded from CWA jurisdiction and should 

clearly remain excluded in any final rule.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

71

Notably, mining operations are required to obtain all appropriate environmental licenses 

and permits in advance of any land disturbance, including CWA Sections 404, 402, and 

401 permits and certifications. By way of one example, under Section 404 of the CWA, 

mining operations are typically required to mitigate the disturbance of onsite "waters of 

the United States" through the creation of off-site and on-site wetlands and streams. If the 

rule is not clarified to exclude these on-site operational water management features from 

the definition of "waters of the United States," the mining industry will be forced to 

obtain permits and provide mitigation in a never ending regulatory loop to meet other 

performance standards and requirements, including those required under the CWA, 

SMCRA, Mine Safety and Health Act, etc.

As such, TMRA urges the Agencies to revise the proposal to clarify that on-site water 

management features, including all structures – natural and man-made - that contain, 

convey, and, as necessary, chemically or physically treat on-site water associated with 

mining operations, continue to not constitute "waters of the United States.” Failure to do 

so will have serious implications on the mining industry in Texas, possibly rendering 

some mining operations unfeasible. 

On-Site Stormwater and Surface Water Management Features are Integral to 

Mining Operations.

Mining operations take place over vast stretches of land—typically several square miles –

and generally include complex process water systems. Mining operations are also 

dynamic, with different phases of activities such as construction, extraction and removal, 

and reclamation occurring at varying times and in different areas throughout the mine 

site. Mining companies depend on a variety of water management features within their 

mine sites to, for example, manage stormwater runoff from disturbed areas, recycle water 

for reuse such as for dust suppression, or convey water to ponds or basins where solids 

are settled out prior to reuse or discharge. Some water management features are created 

on dry lands, while others are created by impounding or modifying existing waters of the 

United States pursuant to Section 404 permits. These water management features 

historically have not been deemed "waters of the United States." Indeed, EPA has 

determined that these on-site waters are "treatment systems" that represent best 

practicable control technology and best available technology economically achievable for 

purposes of managing process wastewater consistent with the requirements of the CWA, 

or in other cases, that these features are part of required non-process and storm water 

management systems.19 Under SMCRA, these features are considered components of 

required water diversion and drainage systems.

...Mine operators also rely on a broad range of ponds and impoundments (typically, 

sediment ponds in Texas) to support mining operations. Like ditches and conveyances, 

 

19 See effluent limitation guideline development for coal, hard rock and phosphate mining sectors, determining use 

of ponds, impoundments, and basins to be best practicable control technology for controlling discharge of process 

generated waste water. 42 Fed. Reg. 21380 (Oct. 17, 1975); 44 Fed. Reg. 2586 (Jan. 12, 1979); 46 Fed. Reg. 28873 

(May 29, 1981); 47 Fed. Reg. 45382 (Oct. 13, 1982); 50 Fed. Reg. 41296 (Oct. 9, 1985); 67 Fed. Reg. 3370 (Jan. 

23, 2002); 42 Fed. Reg. 35843 (Jul. 12, 1977); 43 Fed. Reg. 9808 (Mar. 10, 1978); 43 Fed. Reg. 29711 (Jul. 11, 

1978); 47 Fed. Reg. 54598 (Dec. 3, 1982); 53 Fed. Reg. 18764 (May 24, 1988).

450 Fed. Reg. 41296, 41303 (Oct. 9, 1985).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

72

mine operators depend on these features to manage, store, and treat water within the mine 

site. According to EPA, these ponds and impoundments are considered to be a treatment 

method because they physically remove suspended solids and metals.20...

On-site water management features are highly regulated during the life of the mining 

operation. Among other things, these systems are designed to ensure that any surface 

discharges from a mine site into navigable waters is covered by an NPDES permit and as 

such will not cause or contribute to violations of water quality standards. Some water 

management features within mine sites are designed to be zero discharge systems. At 

those sites, water that is collected and managed is either reused in mining processes or it 

evaporates; it is not discharged to navigable or other state waters. Declaring these 

required water management and treatment systems to be "waters of the United States" 

would eliminate their entire purpose of ensuring that water and wastes associated with 

mining operations are properly managed and treated before leaving the site, and would 

upend the entire CWA regulatory scheme that has existed for over forty years...

As Currently Written, the Definitions in the Proposed Rule Could Inappropriately 

Extend CWA Jurisdiction to On-Site Water Management Features at Mine Sites.

On-site water features in the mining industry historically have not been considered 

"waters of the United States" under the existing regulatory framework. The Agencies 

have generally not attempted to assert jurisdiction over ditches on mine sites,21 and in 

those rare instances where the Corps has asserted jurisdiction, it has done so on a caseby-case basis. Most on-site waters fall within the scope of the waste treatment system 

exclusion, as the Agencies have recognized in prior guidance documents and practice.22

However, the application and scope of the regulatory exemption has not always been 

consistently applied in the courts and has been misconstrued by mining opponents. 

Consequently, mining permittees have had to undergo costly jurisdictional determinations 

and defend against citizen lawsuits.

For example, in Ohio Valley Envtl. Coal. v. Aracoma Coal Co., citizen groups challenged 

the scope of the exclusion by alleging that coal mine operators had to obtain a CWA 

 

20 50 Fed. Reg. 41296, 41303 (Oct. 9, 1985).

21 During the first decade or so after the passage of the CWA, EPA and the Corps took the position that drainage 

ditches are excluded from CWA jurisdiction. See, e.g., 40 Fed. Reg. 31,320, 31,321 (July 25, 1975). The Agencies 

have since taken the position that some non-tidal drainage and irrigation ditches could be "waters of the United 

States" on a case-specific basis. See, e.g., 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986); 53 Fed. Reg. 20,764, 20,765 

(June 6, 1988).

22 See, Wilcher, LaJuana S., Memorandum to EPA Director Region X EPA CWA Regulation of Mine Tailings 

Disposal (Oct. 2, 1992)(clarifying discharge of mine tailing for disposal/treatment into impounded waters for the 

purpose of containing and treating those materials does not require a permit under the CWA but that any discharge 

from the waste treatment system requires a 402 permit); Regas, Diane, et al., to EPA Director Region X CWA 

Regulation of Mine Tailings (May 17, 2002)(affirming revised definition of fill and discharge of fill material did not 

alter EPA's interpretation of waste treatment system exclusion from CWA regulation); Grumbles, Benjamin H., 

Memorandum to Hon. John Paul Woodley Assistant Secretary of the Army (Civil Works) (Mar. 1, 2006) 

(recognizing that some segment of the stream must be used to convey water from the fill to the sediment pond and 

that such stream segment is an unavoidable and necessary component of the treatment system because it is required 

to convey water and because it also provides initial treatment by settling some fraction of suspended sediments in 

the flow and clarifying that the entire system contributes to ensuring that the discharge from the sediment pond 

meets the requirements of the CWA and is exempt from CWA regulation).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

73

Section 402 permit for discharges from stream segments used to convey on-site, nonprocess runoff water to sediment ponds. Contrary to the citizen groups' claims, however, 

the Fourth Circuit upheld the Corps' application of the waste treatment system exclusion 

to in-stream sediment ponds and stream segments flowing into those ponds within a coal 

mining site.23 In so holding, the Court drew upon discussions from Agency guidance 

documents explaining that stream segments are a necessary component of treatment 

systems because they are required to convey water and provide initial treatment by 

settling suspended sediment, and because the entire system contributes to ensuring that 

the discharge from the sediment ponds meets the requirements of the CWA. Importantly, 

the court emphasized the Agencies' "consistent administrative practice."24

CWA regulations also clearly contemplate that the scope of the wastewater treatment 

system includes all structures, channels, ponds25 and other water treatment components.26

Furthermore, in developing effluent limitations for the mining sectors, EPA incorporated 

the use of settling ponds for pre-treatment prior to recycle/reuse or discharge and the use 

of stormwater diversion ditches for keeping non-contaminated water from commingling 

with process wastewater as best practicable control technology currently available." 

Similarly, environmental standards pursuant to SMCRA also consider use of ditches and 

sediment ponds as best technology currently available for preventing additional 

contributions of suspended solids to stream flow or runoff outside the permit area, as well 

as for compliance with State and federal water quality standards.27

Economic analyses associated with these effluent guideline development efforts were 

based on the assumption that such "treatment facilities" and "treatment systems" would 

be used to meet water quality requirements.28 Those guidelines define the term "treatment 

system" to include "all structures which contain, convey, and as necessary, chemically or 

physically treat coal mine drainage, coal preparation plant process wastewater, or 

drainage from coal preparation plant associated areas, which remove pollutants...from 

such waters. This includes all pipes, channels, ponds, basins, tanks and all other 

equipment serving such structures."29 The Agencies should therefore clarify that waste 

treatment systems include all these components that together ensure that any discharges 

from the system meet the requirements of the CWA... (p. 4-8)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

 

23 556 F.3d 177, 212-216 (4th Cir. 2009).

24 Id. It should also be noted that, in the context of surface coal mining, features such as on-site ponds and 

conveyances are regulated under SMCRA.

25 On-site ponds that incidentally manage water, but which were constructed for other purposes, should also be 

excluded from jurisdiction. These ponds can include emergency cooling water ponds, emergency firewater ponds, 

ponds used for dust suppression water, evaporation ponds, and water recycle ponds.

26 See 40 C.F.R. Part 434 (o).

27 30 U.S.C. Section 1265(b) (10).

28 50 Fed. Reg. 41296, 41306 (Oct. 9, 1985); 42 Fed. Reg. 35843, 35846 (Jul. 12, 1977).

29 Id.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

74

7.99 The Agencies Should Revise Certain Exclusions in the Proposed Rule to Ensure that 

Previously Non-jurisdictional On-Site Water Features at Mine Sites Remain 

Outside of the Definition of "Waters of the United States."

TMRA strongly supports the provisions in the proposed rule that identify categories of 

waters that are per se excluded from the definition of "waters of the United States" and 

the "no recapture" clause in the regulatory text that makes it clear that an exclusion 

controls even if the waters might otherwise meet the rule's definition of "waters of the 

United States.”30 TMRA also strongly supports the Agencies' exclusion of groundwater 

from CWA Jurisdiction. TMRA, however, urges the Agencies to revise certain proposed 

exclusions to ensure that on-site water management features used to contain, convey, or 

treat water at mines are excluded from the definition of "waters of the United States." As 

currently drafted, the exclusions are not sufficiently clear to effectuate that result.

The Scope of the Waste Treatment Systems Exclusion Must be Clearly Defined

The preamble to the proposed rule indicates that the Agencies propose only "ministerial 

actions" with respect to the waste treatment system exclusion and that the Agencies "do 

not propose to address the substance of the waste treatment system exclusion.”31 The 

proposed "ministerial actions" have, however, narrowed the scope of the exclusion. 

Moreover, given the potential for additional litigation over the scope of the existing 

exclusion, the Agencies should take this opportunity to provide much needed clarity. 

The proposed "ministerial changes" to the existing exclusion include the deletion of a 

cross reference to an EPA regulation (40 C.F.R. § 423.1 1(m)) that is no longer in the 

Code of Federal Regulations and the addition of a comma before the term "designed." In 

proposing these changes, EPA has significantly narrowed the exclusion by requiring that 

all waste treatment systems be "designed to meet the requirements of the CWA." Under 

the existing regulations, the phrase "designed to meet the requirements of CWA" 

modifies the examples of "treatment ponds or lagoons."32 The proposed language, 

however, excludes all waste treatment systems that were not designed to meet the 

requirements of the CWA, which could include, for instance, those that were constructed 

before 1972 or those that were designed to be zero discharge or to meet SMCRA's 

environmental protection standards internal to an approved mining permit area. By 

mandating that all waste treatment systems be designed to meet the requirements of the 

CWA, the Agencies' "ministerial" change will have the unintended consequence of 

potentially denying application of the exclusion to many existing waste treatment 

systems, including pursuant to citizen suits. It is important to note that there has been 

litigation over multiple facets of this particular exclusion, and as such even the most 

minor of grammatical changes could easily incite more court challenges. Because the 

Agencies' proposal is not intended to "address the substance" of or narrow this exclusion, 

the Agencies should remove the new comma from the regulatory text.

Furthermore, in declining to address the substance of the exclusion, the Agencies have 

sidestepped several ambiguities that have caused a great deal of confusion over the past 

 

30 See 79 Fed. Reg. at 22,263, 22,217.

31 79 Fed. Reg. at 22,217.

32 See, e.g., 33 C.F.R. § 328.3(a).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

75

several decades. In light of the fact that, as explained above, the language in the proposal 

- particularly the definitions of "tributary" and "adjacency," and the application of the 

aggregation concept could be misread to bring on-site waters under jurisdiction unless 

they are specifically excluded, despite the contrary intention of the Agencies, there is an 

increased need for clarification under this rule.

First, the proposed revision to 40 C.F.R. § 122.233 needlessly retains both (i) the sentence 

proclaiming that "[t]his exclusion applies only to manmade bodies of water which neither 

were originally created in waters of the United States (such as disposal area in wetlands) 

nor resulted from the impoundment of waters of the United States"; and (ii) the 

accompanying footnote explaining that EPA suspended the sentence in question since 

July 21, 1980.34 The suspended sentence would have limited the scope of the waste 

treatment system exclusion substantially, as many waste treatment systems within the 

mining industry, as well as in other industries, incorporate waters of the United States. 

Even though EPA suspended the sentence attempting to limit the waste treatment system 

exclusion back in July 1980, the limitation has been erroneously applied since that time, 

even by some federal courts.35 To avoid future erroneous attempts to revive the 

suspended language and to ensure uniformity across all regulatory programs under the 

CWA, the Agencies should delete the suspended sentence and accompanying footnote 1 

from 40 C.F.R. § 122.2.

Deletion of the suspended sentence and accompanying footnote 1 would also help clarify 

that waste treatment systems resulting from the impoundment of jurisdictional waters are 

excluded from the definition of "waters of the United States." In the past, the Agencies 

have recognized that the waste treatment system exclusion encompasses those systems 

that are created in jurisdictional waters or that result from the impoundment of 

jurisdictional waters."36 But that interpretation and recognition is not reflected in the 

Code of Federal Regulations so long as the suspended language remains in place. The 

preamble further adds to the uncertainty by declaring that "as a legal matter an 

impoundment of a 'water of the United States' remains a 'water of the United States[.]",37

The Agencies can resolve this uncertainty by deleting the suspended sentence and 

accompanying footnote and replacing it with regulatory text that leaves no doubt that the 

waste treatment system exclusion applies to those systems with impoundments of 

jurisdictional waters, such as "This exclusion applies to waste treatment systems created 

in waters of the U.S. or with impounded waters of the U.S. where the impoundment was 

constructed for the purpose of serving as part of the waste treatment system. In the case 

of an impoundment or fill whose construction pre-dated the CWA requirement to obtain a 

section 404 permit, it must be demonstrated to the satisfaction of the permitting authority 

that the impoundment is being or will be used for the purposes of being part of a waste 

treatment system."

 

33 See 79 Fed. Reg. at 22,268.

34 40 C.F.R. § 122.2 is the only provision defining "waters of the United States" that contains this limiting sentence 

and footnote.

35 See, e.g., United States v. TGR Corp., 171 FJd 762, 765 (2d Cir. 1999); Ohio Valley Envtl. Coal. v. U.S. Army 

Corps of Eng'rs, 2007 WL 2200686 (S.D. W.Va. June 13,2007), rev'd by 556 F.3d 177 (4th Cir. 2009).

36 See OVEC, 556 FJd at 212-216 (citing agency guidance documents).

37 79 Fed. Reg. at 22,201.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

76

Second, the Agencies should also clarify, in the preamble and the regulatory text, that the 

term "treatment" for purposes of the waste treatment system exclusion includes, but is not 

limited to, methods such as wastewater and stormwater retention, concentration 

(evaporation), settling, and active and passive treatments (in-situ or in-process) to remove 

or reduce pollutants. Mining companies uniformly rely on these forms of treatment to· 

support their operations and ensure that, if there are any downstream discharges, they 

meet all applicable NPDES effluent limits. Waste treatment does not necessarily require 

the addition of chemicals or the use of complex technologies like ion exchange or reverse 

osmosis. Natural processes such as detention over time, evaporation, or pollutant uptake 

by aquatic vegetation can effectively help solids settle out and even remove pollutants as 

in the case of neutralization and/or geochemical transformations in pipeline mixing. 

Collecting and retaining wastewater and stormwater runoff in on-site water management 

features is a widely used form of waste treatment in many industries, including mining, 

and as discussed above is widely recognized by EPA and SMCRA authorities. 

Finally, the Agencies should explicitly recognize, as they have in prior practice,38 that 

channels, diversions, ditches, feeder streams, wetlands, and other on-site features 

carrying flow to and from ponds and impoundments used to treat wastewater and 

stormwater are part and parcel of water treatment systems at mine sites. Such features are 

necessary to convey and manage wastewater and stormwater within the mine site, and 

they help sediment and other pollutants settle out before any water is released to 

downstream waters of the United States. Water that is conveyed from the mine site to 

downstream jurisdictional waters requires an NPDES permit and, not surprisingly, 

NPDES permitting authorities have typically agreed that it would be senseless to require 

additional permits above the point of discharge to downstream jurisdictional waters. 

Nevertheless, to avoid any potential confusion in the field concerning the scope of the 

waste treatment system exclusion, the Agencies should make it clear that the exclusion 

encompasses all components of the treatment system, including but not limited to 

ponds/impoundments and the related flowing waters within a mining project site that are 

necessary to convey waters to and from those ponds and impoundments. (p. 13-16)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

Pennsylvania Coal Alliance (Doc. #13074)

7.100 The PCA does not support proposed revisions to the waste treatment system 

exclusion, but does support other revisions to clarify the applicability of the 

exclusion.

As more fully discussed in NMA’s [National Mining Association] comments, onsite 

water features associated with the mining industry have not historically been considered 

“waters of the United States.” Courts have held that the waste treatment system exclusion 

applies to in-stream sediment ponds and stream segments flowing to those ponds from 

 

38 See fn. 7.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

77

coal mines.39 Similarly, treatment ponds used in mining activities have also traditionally 

fallen under the wastewater treatment pond exclusion under the current definition of 

“waters of the United States.” The PCA supports NMA’s comments that the Proposed 

Rule should not be changed, as proposed, to ensure that its language does not, 

intentionally or unintentionally, narrow or eliminate the waste treatment system 

exclusion.

The PCA also supports NMA’s comments that the Proposed Rule should be revised to 

clarify that: (1) the waste treatment systems exclusion applies to impoundments of 

jurisdictional waters where the impoundment was constructed for the purpose of serving 

as part of the waste treatment system, (2) “treatment,” for the purposes of the waste 

treatment system exclusion includes evaporation, wastewater and stormwater retention, 

settling and active and passive treatment, (3) the exclusion extends to the ditches, feeder 

streams or other features that convey waters to the waste treatment ponds and 

impoundments.

If the waste treatment system exclusion were no longer applicable to the on-site water 

features of mining sites, treatment ponds, sedimentation basins and the ditches and 

conveyances flowing to these structures could be considered jurisdictional waters as 

tributaries, adjacent waters or other waters, as explained in more detail within these 

comments. (p. 12-13)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

Newmont Mining Corporation (Doc. #13596)

7.101 The Scope of the “Waste Treatment System” Exception is Unclear: The Agencies’ 

Proposal retains the existing exception from jurisdictional waters for “waste treatment 

systems, including treatment ponds or lagoons, designed to meet the requirements of the 

Clean Water Act.” See, e.g., paragraph (b)(1) at 79 Fed. Reg. 22263. Because no State or 

federal regulators have ever thought to consider Newmont’s artificial ponds to be 

jurisdictional waters, Newmont has never been required to determine whether they could 

fit within this “waste treatment system” exception. Having now reviewed the history of 

that provision for purposes of preparing these comments, it is evident that the scope of 

that exception is far from clear.

Newmont’s TSFs, pregnant and barren solutions ponds, and quench ponds are designed 

to achieve zero discharge to surface water, in order to comply with the law of Nevada 

(which has been delegated CWA 402 authority by EPA) and, in the case of TSFs, with 

the ELGs established under the CWA for process wastewater from the precious metal 

mining industry. 40 C.F.R. §§ 440.100 - 440.105. In addition, the stormwater retention 

ponds are designed to comply with Newmont’s CWA 402 general stormwater permit. 

Thus, all of Newmont’s artificial ponds are designed to meet the requirements of the 

CWA. Moreover, “treatment” arguably occurs in all of these ponds because the solids in 

the solutions and slurries that enter these ponds settle, so that the liquids can be recycled 

 

39 Ohio Valley Environmental Coal v. Aracoma Coal Company, 556 F.3d177, 212-219 (4th Cir. 2009).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

78

for further use into production operations. We therefore believe that these ponds would 

satisfy the “waste treatment system” exception contained in the current regulations and 

the Agencies’ Proposal, but cannot be sure. This is because the waste treatment system 

exception has a tortured history. The NMA, whose comments we incorporate here, points 

out the lack of clarity in what the exception encompasses and what it does not 

encompass. As such, Newmont cannot obtain solace from the existing “waste treatment 

system” exemption to ensure that its artificial ponds are not deemed jurisdictional waters. 

(p. 20-21)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

7.102 Suggested Changes to the Proposal

As noted, EPA and Corps officials with whom we have spoken about this matter have 

been adamant that the Agencies’ Proposal was never intended to encompass mining 

artificial ponds, and associated constructed ditches and channels, such as those that are 

operated by Newmont and other hardrock mining companies in the arid and semi-arid 

West. But given the wording of the Proposal, we cannot be sure that every Corps or EPA 

regulator will reach the same conclusion. We therefore urge that EPA make clear in any 

final rule that such artificial ponds, and associated ditches/channels, are not jurisdictional 

waters. Solutions include the following:40

1. Creating a new exception in subsection (b) of the Proposal for: “Hardrock mining 

artificial ponds (including tailings impoundments, tailings storage facilities, pregnant 

and barren solution ponds, quench ponds, event ponds and stormwater retention 

ponds/sediment basins), and all culverts, constructed channels, ditches or other 

conveyances associated with such ponds, where: (a) the ponds are located in an area 

where annual evaporation exceeds precipitation; and (b) the ponds are designed to 

achieve zero discharge to surface water.” (p. 26)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control

features.

American Exploration & Mining Association (Doc. #13616)

7.103 The Waste Treatment Exclusion is Unclear.

The agencies state that they do not propose any changes to the exclusion for waste 

treatment systems, but the applicability of this exclusion has been anything but clear and 

agency interpretation of the scope of the exclusion has changed over time. Reliance on 

the waste treatment exclusion is critical for AEMA members. The Agencies also should 

clarify, either in the preamble or the regulatory text, that the term “treatment” for 

purposes of the waste treatment system exclusion includes, but is not limited to, methods 

such as wastewater and stormwater retention, concentration (evaporation), settling, and 

 

40 In suggested amendments to existing Proposal language, added text is underlined and deleted text is struck

through.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

79

active and passive treatments to remove or reduce contaminants. Mining companies 

uniformly rely on these forms of treatment to support their operations and ensure that, if 

there are any downstream discharges, they meet all applicable NPDES permitting 

requirements. Waste treatment does not necessarily require the addition of chemicals or 

the use of complex technologies like ion exchange or reverse osmosis. Natural processes 

such as evaporation or pollutant uptake by aquatic vegetation can effectively help solids 

settle out and even remove pollutants. Collecting and retaining wastewater and 

stormwater runoff in on-site water management features is a widely used form of waste 

treatment in many industries, including mining.

The Agencies should explicitly recognize, as they have in prior practice that ditches, 

feeder streams, and other on-site waters carrying flow to and from ponds and 

impoundments used to treat wastewater and stormwater are part and parcel of waste 

treatment systems at mine sites. Such flowing waters are necessary to convey wastewater 

and stormwater within the mine site, and they help sediment and other pollutants settle 

out before any water is released to downstream waters of the United States. Water that is 

conveyed from the mine site to downstream jurisdictional waters requires an NPDES 

permit and, not surprisingly, NPDES permitting authorities have typically agreed that it 

would be senseless to require additional permits above the point of discharge to 

downstream jurisdictional waters. Nevertheless, to avoid any potential confusion in the 

field concerning the scope of the waste treatment system exclusion, the Agencies should 

make it clear that the exclusion encompasses both ponds/impoundments and the related 

flowing waters within a mining project site that are necessary to convey waters to and

from those ponds and impoundments.

The agencies should address which features and waters can be considered a waste 

treatment system. Moreover, the agencies should clarify that all on-site management of 

water, including transport, storage, treatment, and use, are non-jurisdictional. Any 

discharges into waters of the U.S. that result from these activities are already covered 

under Section 402 of the Act. The agencies should engage with stakeholders that rely on 

the waste treatment exclusion to understand the confusion and unpredictability that 

surrounds this exclusion. After having these critical stakeholder discussions, the agencies 

should propose a revised rule that addresses the waste treatment exclusion and provides 

some much needed clarity for regulators and the regulated public. (p. 8)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

Wyoming Mining Association (Doc. #14460)

7.104 On-site water management systems should remain non-jurisdictional

On-site water treatment and conveyance systems are an integral part of mining 

operations. These systems are used to manage water at mine sites in an environmentally 

sound manner and may even be statutorily mandated under other regulations such as the 

Surface Mining Control and Reclamation Act (SMCRA). Mining operations utilize a 

variety of ditches and conveyance systems, both temporary and permanent in nature, to 

manage stormwater runoff, provide water for production needs, store water, treat water, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

80

reuse water and keep water away from disturbed areas. Mining operations are dynamic 

and can be quite expansive, requiring that these systems be used throughout the mine and 

may need to be frequently relocated. For water treatment, mines also use a number of 

impoundment and treatment systems which may include settling ponds, heap leach 

ponds, tailings ponds and slurry impoundments. These systems have traditionally been 

considered non-jurisdictional and should remain as such.

Under the proposed rule it is not clear that these on-site water management systems will 

remain non-jurisdictional. As such WMA is concerned that inclusion of these treatment 

and conveyance systems will significantly impact mining operations. If the rule is not 

clarified, the unintended consequence will be that many of these traditional, effective 

treatment systems will no longer be available to the mining industry. Moreover, the 

mining industry requests a clear statement in the rule that these mine site water 

management systems are non-jurisdictional.

If the onsite treatment systems are considered jurisdictional, mines will face additional 

permitting requirements related to these treatment systems. Mines will no longer be able 

to relocate the systems as needed without additional permitting requirements and 

associated delays. System maintenance and clean-out may be delayed or stopped because 

of the jurisdictional status and the inability to impact the system without triggering 

possible mitigation requirements. These onsite treatment systems must remain nonjurisdictional if they are to remain effective treatment systems.

Many of these onsite treatment systems are designed to ensure that if there are any 

surface discharges from a mine site into downstream navigable waters, those discharges 

are covered under an NPDES permit. As such possible, violations of the applicable water 

quality standards are covered through NPDES regulations. Often times these treatment 

systems are designed to be zero discharge, further safeguarding that there are no 

environmental impacts. The need to include these as jurisdictional waters is unwarranted 

because the discharges from these systems are already regulated through other CWA 

regulations. (p. 2-3)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

American Petroleum Institute (Doc. #15115)

7.105 The exclusion for waste treatment systems is incomplete

The 2014 Proposed Rule provides that “Waste treatment systems, including treatment 

ponds or lagoons, designed to meet the requirements of the Clean Water Act” are not 

jurisdictional.41 The meaning and scope of this exclusion is unclear. Does the exclusion 

require that the facility owner have an NPDES permit? Would interconnecting waters 

among these waters also be exempted? If a holding pond receives cooling water after it 

has passed through the facility, is that pond exempted, as it is treating water for 

temperature to meet CWA Section 316(a)? Are temporary and/or permanent basins 

 

41 2014 Proposed Rule, 79 Fed. Reg. at 22,272.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

81

designed to meet storm water best management practice provisions exempted? The 

exclusion should extend to all waters designed and/or operated to meet any provision of 

the Clean Water Act, whether or not the facility is currently an NPDES permittee. The 

exclusion should extend to all excavated or installed ditches or conduits conveying water 

to and from these bodies. Inflow of surface runoff should in no way alter the exclusion. 

There should be no ambiguity based on the purpose or use of the pond or basin.

Moreover, the exemption should also extend to waste treatment systems that meet the 

requirements of other environmental statutes, such as the Resource Conservation and 

Recovery Act, as well as to raw water storage ponds, process water holding ponds, fire 

water storage ponds, and other industrial water systems necessary for the facility but not 

designed to meet any particular environmental statutes.

The 2014 Proposed Rule also provides that the exclusion for waste treatment systems 

“applies only to manmade bodies of water which neither were originally created in waters 

of the United States (such as disposal areas in wetlands) nor resulted from the 

impoundment of waters of the United States.”42 But then, in a footnote to that very 

sentence, the agencies explain that in 1980 the agencies suspended that sentence, and 

further explain that the suspension of that sentence continues unaffected by the 2014 

Proposed Rule.43 This footnote is unnecessary. The Proposed Rule exempts waste 

treatment systems designed to meet the requirements of the Clean Water Act, 

“notwithstanding whether they meet the terms of [a water of the U.S.].” This clear 

exemption is sufficient to cover all cases, including waste treatment systems previously 

created by impounding waters of the U.S. The footnote should therefore be deleted. The 

agencies should make the proper change to the regulatory text rather than further 

continue their makeshift patch from decades ago. (p. 30-31)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4.

Sinclair Oil Corporation (Doc. #15142) 

7.106 Waste Treatment Exemption

The evaporation ponds and other components of the waste water treatment system have 

never been considered "waters of the United States"; however, the fact that these features 

may have been considered impoundments, tributaries, adjacent waters, or other waters, as 

they could be under the proposed rule, would not have been a major concern to Sinclair. 

Under the existing definition of "waters of the United States," all of these surface features 

were exempt from the definition of water s of the United State s because they were part 

of the refineries' RCRA-permitted waste water treatment systems. See e.g. 33 C.F.R. 328 

.3(a)(8 ). Sinclair is concerned that the proposed rule would support an argument that the 

waste treatment system exemption is no longer applicable.

Despite the Agencies' assurances that the proposed rule does not substantively alter the 

waste treatment system exemption and that the changes being made are ministerial, the 

 

42 Id. at 22,213.

43 Id. at 22,313 n.1.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

82

Agencies have substantively narrowed the scope of the waste treatment system 

exemption. The existing exemption provides that "[w]aste treatment systems, including 

treatment ponds and lagoons designed to meet the requirements of CWA (other than 

cooling ponds as defined in 40 CFR 423 .11(111) which also meet the criteria of this 

definition) are not waters of the United States." 33 C.F.R. 328.3(a)(8). This exempts all 

waste treatment systems, regardless of whether they are designed to meet the 

requirements of the CWA.

By contrast, the proposed rule, in addition to deleting the obsolete reference to 40 C.F.R. 

§ 423 .11(m), adds a comma before the word "designed." See 79 Fed. Reg. 22,263. The 

exemption in the proposed rule exempts from the definition of "waters of the United 

States" "waste treatment systems, including ponds and lagoons, designed to meet the 

requirements of the Clean Water Act." Id. Under this configuration of the exemption, 

only waste treatment systems designed to meet the requirements of the CWA are exempt. 

Since the waste water treatment systems at Sinclair's refineries are permitted under 

RCRA, not the CWA, the exemption may no longer apply to the evaporation ponds and 

other surface features that comprise those waste water treatment systems.44 This 

apparently unintended result will have major implications for Sinclair and others in the 

regulated community and should be corrected. The Agencies should take the opportunity 

to clarify that, as with the existing rule, the waste treatment exemption applies to all 

waste treatment systems regardless of the statute under which they are permitted.

As the above analyses show, the evaporation ponds and other components of the waste 

water treatment systems at Sinclair's refineries could be considered "waters of the United 

States" as impoundments, tributaries, adjacent waters, or other waters under the proposed 

rule despite the fact that these features do not have a significant nexus to a "water of the 

United States" and have never been considered jurisdictional in the past. More troubling 

is the fact that, under the proposed rule, Sinclair would have to disprove the elements of 

each of these categories of waters cumulatively, in order to re-establish that the waters 

are non-jurisdictional. Until it could do so and obtain a case-specific determination that 

the evaporation ponds are not "other waters," Sinclair risks being accused of violating the 

CWA by operating its RCRA-permitted waste water treatment facility. This scenario fails 

to provide the clarity, efficiency or regulatory certainty that the Agencies insist is the 

intent behind the proposed rule. (p. 17-18)

Agency Response: See summary response at 7.1. 

7.107 If, instead, the Agencies insist on promulgating the proposed rule, at a minimum the 

following revisions should be incorporated into the final rule:

...

 Remove the comma added before "designed" in the waste treatment system 

exemption and clarify that the exemption applies to all permitted waste treatment 

systems, regardless of whether they are permitted under the CWA. (p. 19)

Agency Response: See summary response at 7.1. 

 

44 Sinclair maintains that, even under the proposed language, the waste treatment systems should be considered 

exempt because they are designed to prevent any discharge to a "water of the United States."
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

83

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.108 The Agencies Should Clarify Existing Exemptions to Prevent Unwarranted Claims 

of Jurisdiction

Agency staff have emphasized that they are not revising existing exemptions, and that it 

is their intent, with minor exception, to continue those exemptions in any final rule 

exactly as they exist today. Due to the expansive nature of the Proposal, and the fact that 

those exemptions were adopted many decades ago, they may no longer exempt all the 

waters that should be exempt from jurisdiction. Accordingly, EPA should revise and/or 

clarify the exemptions as discussed below.45

Waste Treatment Exemption

The preamble for the proposal indicates that the Agencies do not intend to change the 

waste treatment system exemption under the current regulations (79 Fed. Reg. at 22,189). 

The proposal, however, made three changes to this exemption, two of which were helpful 

and one of which was not. Since this exemption is extremely important for our facilities, 

we are suggesting a few additional changes or clarifications that will improve the 

functioning of the exemption.

The proposal also adds new language to clarify the exemption applies even if the water 

subject to the exemption would otherwise qualify as a WOTUS. This new language is 

very helpful.

Domtar is suggesting the following changes/clarification for the Wastewater Treatment 

Exemption.

 Suspended Language Maintained in the Federal Register

The pre-publication version of the proposal removed the requirement that the waste 

treatment system be a man-made body of water and not have been created in an area that 

previously was a water of the U.S. Removal of that requirement from the rule was 

appropriate as the requirement has been suspended since July 1980, as is indicated in the 

Federal Register version of the rule. Unfortunately, when the Federal Register version 

was printed, that provision was not removed, but the language indicating the requirement 

was suspended was retained. The Agencies should make sure that any final rule removes 

that language, which apparently was the original intent. The proposal also removes the 

provision that carved out from the exemption certain cooling ponds. This is a good 

clarification and should be retained in any final rule. Both of these changes would make 

the waste treatment system exemption clearer and reduce confusion.

 Removal of a Comma

Unfortunately, the Agencies made one other change to the regulation, which appears to 

have been unintentional. The proposed rule excludes from “waters of the U.S”: “Waste 

treatment systems, including treatment ponds or lagoons, designed to meet the 

requirements of the Clean Water Act.” With the addition of a comma after the word 

 

45 In any event, EPA should retain the “notwithstanding” language that makes clear that waters qualifying for an 

exemption do not lose the exemption because they also meet the requirements of a WOTUS.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

84

“lagoons,” the proposal arguably limits the exemption to waste treatment systems 

designed to meet the requirements of the Act, whereas the current regulations arguably 

only apply the “designed to meet the requirements of CWA” criterion to treatment ponds 

or lagoons. With the addition of this comma, the proposed rule changes the existing 

exemption unchanged, and EPA has not provided a rationale for making the change. The 

comma needs to be removed in any final rule.

 “Designed to Meet”

Due to limiting language in the existing exemption, facilities that created their waste 

treatment systems before the adoption of the CWA arguably are vulnerable to potential 

challenges to the applicability of the exemption. These facilities have operated under 

NPDES permits since the 1970’s, and their permits have been continually updated to 

include stricter provisions over time. There is no reason to question the status of the 

exemption for these systems. The rationale for the exemption—that waste treatment 

systems are regulated through the NPDES program, and that imposing requirements 

intended to protect surface waters from discharges makes no sense when applied to 

“waters” that are wastewaters and are being treated to make them suitable for discharge 

to surface waters—applies equally to waste treatment systems that were constructed 

before 1972. The agencies should clarify that facility systems constructed before the 

CWA was adopted but are used to meet CWA requirements are still covered by the 

exemption.

EPA also needs to clarify in the preamble that zero discharge and/or land application 

systems fall within the exemption. For example, wet woodyard ponds used to implement 

a zero discharge requirement are implementing EPA effluent guidelines for the Timber 

Products source category and clearly are designed to meet the requirements of the CWA. 

On the other hand, land application systems used to meet a zero discharge effluent 

guidelines or to avoid an unpermitted discharge involve storage or pretreatment ponds as 

well as acres of sprayfields that may develop some wet areas over time or may collect run 

off to maintain zero discharge, may be subject only to permits under state law and may 

not be regulated under the NPDES program. Even though no federal NPDES permit is 

involved, these systems clearly are designed to meet the requirements of the CWA’s 

provision of no discharge of process wastewater to WOTUS and they should be 

recognized as such in the Preamble to any final rule. (p. 9-11)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.2 regarding the agencies’ creation of an exclusion for certain wastewater 

recycling features.

Alpha Natural Resources, Inc. (Doc. #15624)

7.109 The Agencies Should Clarify that Impoundments Serving as Waste Treatment 

Systems are Non-Jurisdictional

The preamble acknowledges that “ponds and lagoons” can serve as waste treatment 

systems to meet the requirements of the Clean Water Act, and are therefore not 

jurisdictional waters. Id. at 22,263. The preamble should—but does not—explain the 

difference between lagoons and impoundments, or explain whether the proposed per se
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

85

regulation of tributaries of impoundments applies even when the impoundment is serving 

as a waste treatment system.

Additionally, the agencies should make clear that while SMCRA permits are in place, all 

ponds that are used to control and treat mine drainage—and all natural and man-made 

ditches and streams carrying flow into those ponds—are non-jurisdictional waste 

treatment systems. (p. 9)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.2 regarding the agencies’ creation of an exclusion for certain wastewater 

recycling features.

Dominion Resources Services, Inc. (Doc. #16338)

7.110 The agencies state in the preamble to the proposed rule that they do not propose any 

changes to the exclusion for waste treatment systems (33 CFR 328.3(b)(1)) and are not 

soliciting comments on the provision. However, the agencies have added a comma after 

the word “lagoons” that could substantively change the scope of the exemption. We 

support the Utility Water Act Group (UWAG) comments on the history, scope and 

coverage of the waste treatment exemption and the punctuation change in the proposed 

rule. We request that the comma be removed. (p. 10)

Agency Response: See summary response at 7.1. 

Barrick Gold of North America (Doc. #16914)

7.111 The proposed rule would exclude “[w]aste treatment systems, including treatment ponds

or lagoons, designed to meet the requirements of the Clean Water Act.” This language is 

similar to language in the existing regulation, and the agencies disclaim any intent to 

make substantive changes in it.46 However, perhaps unintentionally, the proposed 

exclusion is substantively different than current law because of the placement of a new 

comma in the text after the word “lagoons.” The existing exclusion reads as follows: 

“Waste treatment systems, including treatment ponds or lagoons designed to meet the 

requirements of [the Clean Water Act].” 40 C.F.R. § 122.2 (2013). The existing rule 

excludes all waste treatment systems, including those designed to meet the requirements 

of the Clean Water Act. Because of the added comma, the proposed exclusion would 

apply only to those waste treatment systems specifically designed to meet the 

requirements of the Clean Water Act.

As explained above, many of Barrick’s water management ponds are designed to meet 

the requirements of the Clean Water Act and should fall within the exclusion. See supra 

Section I.b. However, infiltration basins and sedimentation ponds do not automatically 

meet the terms of the proposed exclusion; in the case of infiltration basins, they are 

designed to place water in or return water to the ground, an activity to which the Clean 

Water Act does not apply. Sedimentation ponds may discharge as part of storm water 

 

46 In the preamble, the agencies describe proposed changes to the waste treatment system exclusion as “ministerial”

and “non-substantive” and say explicitly: “The agencies do not propose to address the substance of the waste 

treatment system exclusion ....” 79 Fed. Reg. at 22,217.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

86

management, but in some cases they also are designed to allow water to infiltrate into the 

ground. Id.

Consistent with the agencies’ intentions as stated in the preamble, and as reiterated in 

meetings with stakeholders, the proposed waste treatment exclusion should be revised to 

remove the comma after the word “lagoons.” (p. 27-28)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

Barrick requests that the agencies amend the waste treatment systems exemption to 

remove the comma after the word “lagoons,” and clarify in the preamble to any final rule 

that the exclusion is intended to apply to ponds used in the mining industry to manage 

waste water, whether to prevent discharges of waste water to “waters of the United 

States” or to treat waste water before discharge pursuant to NPDES or storm water 

permits. See proposed text at 79 Fed. Reg. at 22,262 – 73. Barrick also requests that EPA 

remove from its proposed rule language the second sentence of the exclusion and its 

accompany footnote. The text reads: “This exclusion applies only to manmade bodies of 

water which neither were originally created in waters of the United States (such as 

disposal areas in wetlands) nor resulted from the impoundment of waters of the United 

States.” As explained in the footnote, a version of which also appears in the currently 

applicable rule, EPA suspended this sentence in a July 21, 1980 Federal Register notice. 

The suspension has been in place for over 30 years. Since EPA does not propose to 

modify or revoke the suspension, removing the sentence and footnote would simplify the 

exemption and add clarity to its applicability.

With regard to the exemption for “artificial lakes or ponds,” Barrick proposes the 

following modifications to make clear that the exemption applies to ponds and basins 

used at precious metals mining operations:

(5)(ii) Artificial lakes or ponds created by excavating and/or diking dry land and 

used exclusively for such purposes as process water management, storm water 

management, infiltration, stock watering, irrigation, settling basins, or rice 

growing.

(p. 28-29)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

Halliburton Energy Services, Inc. (Doc. #19458)

7.112 If the Agencies proceed to adopt the rule in its current form, HESI requests a 

clarification. HESI affiliates create diversions and sediment traps as part of necessary 

Best Management Practices for stormwater management in mining operational areas. 

These features are effectively a wastewater treatment system and should be treated as 

such and therefore fall within the existing exclusion from the definition of waters of the 

United States. Because there is so much room for interpretation throughout the proposed 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

87

rule, HESI seeks clarification or confirmation that the proposed rule is not intended to 

impose CWA jurisdiction on these necessary stormwater management structures. (p. 11)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2 and 7.4.4 regarding exclusions for certain settling basins and stormwater 

control features.

Alameda County Cattlewomen (Doc. #8674)

7.113 The proposed rule excludes waste treatment systems from “waters of the U.S.” (Proposed 

Rule at 22193). Cattle producers across the country utilize waste treatment systems as 

part of the Sec. 402 NPDES regulations for Concentrated Animal Feeding Operations 

(CAFOs). Most CAFOs utilize man-made earthen retention structures that are designed 

to retain the necessary quantity of water to meet the required effluent guidelines, but a 

small percentage were originally permitted to utilize naturally existing topographic 

impoundments or structures (such as playas) to retain wastewater. These impoundments 

or structures have been used by some CAFOs for this purpose since prior to the CWA’s 

inception. For clarity and consistency purposes, ACCW request the agencies remove 

language that has been stayed since 1980 that would remove natural features from 

inclusion in the waste treatment system exclusion only for Sec. 402. We also request that 

the agencies include a statement that further clarifies currently authorized facilities 

utilizing these features qualify for the exclusion.

ACCW generally support the agencies’ decision to maintain this exclusion. However, the 

exclusion under Sec. 402 includes the language “[t]his exclusion applies only to 

manmade bodies of water which neither were originally created in waters of the United 

States (such as disposal area in wetlands) nor resulted from the impoundment of waters of 

the United States.” (Proposed Rule at 22268). While this language has been suspended 

since 1980, ACCW request that it be permanently deleted from the regulation. It has 

resulted in confusion.

Removing this language from the definition is a logical change considering the agencies’ 

stated intent to provide clarity and consistency. In the other sections of the CWA the 

Waste Treatment System exclusion does not include this additional language limiting it to 

manmade features. And considering it has been stayed or suspended for so long, it would 

just be common sense to get rid of language that has no effect. Doing so would leave a 

definition that is consistent throughout the CWA. And, given that the provision has been 

stayed for 34 years, decisions too numerous count have been made by EPA, the Corps, 

other federal agencies, state agencies and businesses across the U.S. – decisions that were 

made in compliance with the CWA, under the understanding that the provision for waste 

treatment systems was not limited to manmade features. While the agencies did not seek 

comment on this regulatory language because it was not a change to the definition, 

ACCW see this as an opportunity for the agencies to provide some clarity and certainty to 

the cattle industry and other industries that have made decisions based on this 

understanding.

Additionally, ACCW request the agencies include in the definition for “waste treatment 

systems” exclusion the following statement, “For purposes of this exclusion, existing 

facilities that have been authorized to operate under the CWA are deemed to meet the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

88

requirements of the Act.” This statement would relieve confusion for facilities that have 

been authorized and operating on these isolated water features for more than four 

decades.

A number of facilities were constructed and placed into operation prior to adoption of the 

CWA, and as stated above, a number of decisions had been made by a variety of agencies 

and businesses in accordance with the stayed provision on waste treatment systems. At 

the same time, the cattle industry has worked to comply with permit provisions adopted 

by EPA over the past decade, especially as it relates to Concentrated Animal Feeding 

Operations (CAFOs). One such requirement has focused on a CAFO’s ability to retain 

rainfall runoff from a 25-year, 24-hour storm event. For the most part, these site-specific 

rainfall and retention capacity evaluations have been conducted by USDA-NRCS 

engineers or licensed professional engineers working as consultants for CAFO 

owners/operators. The resulting, documented engineering analysis forms the basis for the 

CAFO’s ability to meet the requirements for CAFO permit/CWA requirements for either 

manmade or natural impoundments.

To provide additional clarity regarding the word “designed,” ACCW would suggest the 

following definition for “designed”: “For purposes of this section, designed to meet the 

requirements of the act can be satisfied through a documented engineering analysis 

showing the waste treatment system’s capability to meet or exceed the requirements of a 

402 NPDES permit.”

ACCW believe these suggested changes to the Waste Treatment System Exclusion would 

alleviate long-standing confusion, would provide the regulatory certainty needed by 

currently authorized facilities, and are in line with the agencies’ intent to provide clarity 

to the regulated community. (p. 25-27)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

North American Meat Association and American Meat Institute (Doc. #13071)

7.114 The applicability of the waste treatment system exclusion historically has been obtuse. 

There has not been consistent application or understanding of what the agencies consider 

a “waste treatment system.” This uncertainty has led to inconsistent application in the 

field. Although the proposed rule properly retains the exclusion for waste treatment 

systems it fails to provide needed clarity regarding the applicability of the exclusion. 

Specifically, the proposed exclusion would apply to waste treatment systems, including 

treatment ponds or lagoons, designed to meet the Clean Water Act.47

Unclear is whether the exclusion would include multiple-use impoundments. Industrial 

facility impoundments are often utilized for treatment (e.g., settling out any contaminants 

in storm water, neutralization, etc.) and also for other beneficial purposes (e.g., water 

supply for dust suppression, firefighting, irrigation, etc.). Unknown is whether the 

exclusion applies if the predominant use is not for treatment, i.e., where discharges of 

 

47 79 Fed. Reg. at 22,263.
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89

treated water rarely or never occur. Similarly, the proposed rule does not indicate whether 

the exclusion applies if a system was designed to meet CWA requirements but 

subsequently converted to other uses when discharges were eliminated or handled 

through alternative means (e.g., by connection to a Publicly Owned Treatment Works). 

Likewise, the proposed rule does not address whether a system must be permitted under 

the NPDES program or otherwise subject to CWA regulations to be excluded.

The proposed rule also would add a comma to the regulatory text, which arguably could 

change the meaning of the exclusion. Currently, the phrase “designed to meet the 

requirements of the CWA” modifies the examples of “treatment ponds or lagoons.”48 The 

proposed rule would add a comma after “treatment ponds and lagoons,” narrowing the 

exclusion by requiring all “waste treatment systems,” not just “treatment ponds or 

lagoons,” be “designed to meet the requirements of the CWA” to qualify for the 

exclusion. This change could mean that features constructed for waste treatment prior to 

the CWA’s enactment in 1972 do not qualify for the waste treatment exclusion. Adding 

the comma might be interpreted as a substantive change with significant implications for 

many existing waste treatment systems. The agencies should keep the language as is and 

remove the new comma from the proposed regulatory text.

The proposed rule also would retain in the regulations (1) the sentence proclaiming that 

the waste treatment exclusion “applies only to manmade bodies of water which neither 

were originally created in waters of the United States (such as disposal area in wetlands) 

nor resulted from the impoundment of waters of the United States,” and (2) the 

accompanying footnote explaining that EPA suspended that sentence in 1980.49 Retaining 

the suspended language piles added confusion on to an already confusing exclusion. 

Rather, the suspended sentence and accompanying footnote from 40 CFR 122.2 should 

be deleted. (p. 8-9)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2 and 7.4.4.

Minnesota Agricultural Water Resource Center (Doc. #14284)

7.115 In agricultural settings, we recommend that the agencies treat wetlands and all ditches 

and all subsurface drainage systems as part of a treatment system, designed to meet the 

broad goals of the CWA. (p. 2)

Agency Response: See summary response at 7.1. 

Irvine Ranch Water District (Doc. #14774)

7.116 The Waste Treatment Exemption Should Specifically Be Amended to Include 

Constructed Water Quality Treatment Wetlands.

...constructed treatment wetlands are designed to treat urban runoff and remove 

pollutants before they enter jurisdictional waters. IRWD has worked with local partners 

to protect its watershed by using natural vegetation to remove nutrients and other 

 

48 33 CFR 328.3(a).

49 79 Fed. Reg. at 22,268. 40 CFR 122.2
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

90

contaminants, and such facilities result in cleaner water entering WOTUS. Constructed 

treatment wetland ponds are currently non-jurisdictional, but are often located in 

floodplains and adjacent to WOTUS. Under the proposed rule, the ponds themselves 

would likely become jurisdictional. Over regulation and inclusion of these types of 

facilities in the proposed rule will discourage the use of these water quality treatment 

methods, which currently provide multiple benefits to the environment, and receiving 

waters and watersheds.

The waste treatment exemption in Subsection (b)(l) should be amended to exempt 

constructed treatment wetlands, manmade water quality wetlands, bioswales, detention 

basins, settling ponds, and similar treatment facilities designed to manage pollutants in a 

watershed. The exemption should also make clear that lands, which are non-irrigated 

except by a system of constructed wetlands designed to remove pollutants, and waste 

treatment plant buffer property are exempt from the proposed rule. We also request that 

the phrase "meeting the requirements of the CWA" be removed from the waste treatment 

systems exemption. "Meeting the requirement of the CWA" is too broad and undefined, 

and may not capture constructed treatment wetlands which benefit receiving waters by 

removing some, but not necessarily all pollutant constituencies...(p. 2)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

7.117 The Waste Treatment Exemption Should Specifically Include Water Recycling 

Facilities and Storage.

IRWO notes that the proposed rule is meant to retain much of the structure of the 

Agencies' longstanding definition of WOTUS, and that the Agencies propose no change 

to the exclusion of waste treatment systems designed consistent with the requirement of 

the CWA. The District also appreciates that waste treatment systems, including treatment 

ponds or lagoons, designed to meet the requirements of the CWA, are exempt under the 

proposed rule and can never be considered "waters of the U.S." regardless of the other 

sections of the regulation. These exemptions comprise an essential component of the 

existing regulatory framework, and should be maintained.

While the proposed rule provides some specific exemptions, it does not provide great 

clarity on what other waste treatment facilities will be deemed to be exempted from the 

CWA under the waste treatment system exemption. This lack of clarity in the proposed 

rule removes any certainty that the proposed rule hopes to give waste treatment system 

operators through this exemption. In fact, the uncertainty will create regulatory barriers to 

the implementation of new waste treatment systems and facilities. Without clarification, 

the proposed rule will expand the scope of CWA jurisdictional waters and interfere with 

aspects of waste treatment processes and greater water recycling.

Recycled water is a drought-proof water supply that does not rely on uncertain 

hydrologic conditions associated with climate change. It is a vital part of the California's

water supply portfolio, and water providers are aggressively working to expand recycled 

water within the state. At IRWD, we meet roughly 29,850 acre-feet, or 25 percent, of our 

service area's water demands with recycled water through a 500-mile recycled water 

distribution system. We have more than 5,000 recycled water customers and provide 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

91

recycled water to homeowner's associations, golf courses, agricultural sites, industrial 

applications, and to nearly 60 dual-plumb buildings.

Greater recycled water use reduces potable water demand, reducing pressure on the other 

water resources. Furthermore, if recycled water is not put to use, the water must either be 

stored in limited recycled water storage facilities, or be discharged and not put to 

beneficial use. Recycled water storage allows recycled water purveyors to serve a greater 

amount of recycled water to approved uses by allowing them to adjust to seasonal 

demand changes. It is an essential component of a recycled water purveyor's waste 

treatment system. The proposed rule should affirm the importance of recycled water in 

the nation's water supply and affirm that recycled water storage is within the scope of the 

water treatment exemption.

Towards this end the waste treatment exemption should expressly include water 

recycling facilities and storage ponds. We request that the language in Subsection 

(b) (1) be modified to read as follows:

"Waste treatment systems, including treatment ponds, lagoons, manmade water 

quality wetlands, bioswales, detention basins, settling ponds, lands which are nonirrigated except by a system of constructed wetlands designed to remove 

pollutants, waste treatment plant buffer property, water recycling facilities and 

storage ponds, and similar treatment facilities designed to improve water quality 

or provide environmental benefits to a watershed, are not considered waters of the 

U.S or adjacent waters."

As suggested by the California Association of Sanitation Agencies, "[i]n the alternative, 

recycled water facilities and features (including storage ponds, basins, artificially created 

wetlands, recycled water reservoirs and other features associated with water recycling) 

should be expressly exempted as part of the specifically identified features that are not 

considered waters of the U.S. within the proposed rule. In this case, recycled water 

facilities would be treated similar to artificial lakes, ponds, swimming pools, ornamental 

waters, and groundwater, which are specifically identified and exempted." The same sort 

of exemption should be provided for water banking facilities.

Additionally, similar to agricultural return water exemptions, the discharge of water from 

a waste treatment system as described above should not be considered a point source that 

is regulated under other sections of the CWA. (p. 2-4)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding exclusions for certain wastewater recycling and 

stormwater features.

Georgia Paper & Forest Products Association (Doc. #14924)

7.118 EPA should maintain its longstanding wastewater treatment system exemption in the rule. 

In the proposed rule, modified grammar and new language that it must "be designed to 

meet CWA", has clouded this exemption. EPA should clarify in the rule that this 

exemption applies to all wastewater treatment systems, including all their components 

and management features that are used to meet CWA requirements, even if the system's 

use for wastewater treatment predates the CWA as many industrial treatment systems do. 

The exemption also should clearly state that it includes storm water management features 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

92

at a facility including, but not limited to, ditches and swales, retention and detention 

ponds, and any other control structures as well as the outfall structures. All of these 

features are intended to minimize storm water impacts on water quality regardless of 

whether the storm water system is covered by Federal or State jurisdiction. The 

exemption also should clearly state that treatment systems that are State-permitted but 

may not be NPDES permitted are included in the exemption. This would include systems 

such as land application systems which may have features like wastewater storage ponds 

or collection systems that may accumulate water to prevent flow off site. The wastewater 

treatment exemption should make it clear that none of these systems or any of their 

components would be included as being a jurisdictional water. EPA has said it does not 

intend to bring types of water that have not been regulated before into jurisdiction. The 

rule language should make that intent explicit. (p. 2-3)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding exclusions for certain wastewater recycling and 

stormwater control features.

Missouri Soybean Association (Doc. #14986)

7.119 Extremely narrow exemptions -

The rule also overreaches by narrowing the intent of the exemptions to the point that we 

are unsure how they would ever apply, rendering them nearly useless in the real world. 

The exemptions should apply broadly, without exceptions or strings attached to them. 

Below is an example of some areas where the exemption should be clarified and/or 

broadened.

a) (t)(l) - Many waste and water treatment and control systems are not designed (or 

otherwise not constructed) to meet CWA requirements. Thus, the rule overreaches 

and brings into jurisdiction features that were constructed for treatment or control 

purposes but not for a regulatory requirement... (p. 7)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins and wastewater 

recycling and stormwater control features.

North Carolina Farm Bureau Federation (Doc. #15078)

7.120 The exclusion for "[w]aste treatment systems, including treatment ponds or lagoons, 

designed to meet the requirements of the Clean Water Act" is a necessary exclusion. We 

support this exclusion with the understanding that waste treatment systems, including 

treatment ponds or lagoons designed to meet other federal, state and local laws and rules 

to protect water quality are also considered as being designed to meet the requirements of 

the Clean Water Act and are considered exempt as such. This was so stated by EPA 

representatives at the September 30, 2014 meeting in North Carolina. (p. 15-16)

Agency Response: See summary response at 7.1. 

Packaging Corporation of America (Doc. #15515)

7.121 A. Wastewater Treatment Exemption
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The preamble in the Proposal indicates that the Agencies do not intend to change the 

waste treatment system exemption under the current regulations (79 Fed. Reg. at 22,189).

Changes or Clarifications Needed Regarding the Exemption

i. "Designed to Meet"

Due to limiting language in the existing exemption, certain facilities, including some 

member mills, that created their waste treatment systems before the adoption of the 

CWA, arguably are vulnerable to potential challenges to the applicability of the 

exemption. These facilities have operated under NPDES permits since the 1970's, and 

their permits have been continually updated to include stricter provisions over time. 

There is no reason to question the status of the exemption for those systems. The 

rationale for the exemption-s-that waste treatment systems are regulated through the 

NPDES program, and that imposing requirements intended to protect surface waters from 

discharges make no sense when applied to "waters" that are treating wastewater to make 

it suitable for discharge to surface waters-applies equally to waste treatment systems 

constructed before 1972. The Agencies should clarify that facility systems constructed 

before the CWA were adopted but used to meet CWA requirements are still covered by 

the exemption.

Similarly, EPA should clarify in the Proposed Rule that land application and beneficial 

use systems fall within the exemption. For example, land application systems used to 

meet a zero discharge effluent guideline involve storage or pretreatment ponds as well as 

acres of spray fields that may develop some wet areas over time or may collect run off to 

maintain zero discharge, may be subject only to permits under state law and may not be 

regulated under the NPDES program. Even though no federal NPDES permit is involved, 

these systems clearly are designed to meet the requirements of the CWA's provision of no 

discharge of process wastewater pollutants to WOTUS, and they should be recognized as 

such in the Preamble to any final rule. (p. 4)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.2 regarding the agencies’ creation of an exclusion for certain wastewater 

recycling features.

Association of American Railroads (Doc. #15018.1)

7.122 C. Waste Treatment Exception

...AAR supports the Agencies’ continued application of the waste treatment exception to 

the definition of Waters of the United States. Because the Agencies have proposed to 

expand CWA jurisdiction, additional clarification is necessary to ensure that features that 

are excluded under the waste treatment exception will continue to be acknowledged. The 

need for clarification is underscored by the recent decision purporting to vacate EPA’s 

water transfer rule which had exempted certain conduits and conveyances from CWA 

jurisdiction. Catskill Mountains Chapter of Trout Unlimited Inc., et al. v. EPA

consolidated case Nos. 08-cv-0560 and 08-cv-9430 (S.D.N.Y., March 28, 2014). 

Clarification is appropriate in this rulemaking as the agencies have made “ministerial” 

changes to the exemption by removing an unneeded reference to cooling ponds and the 

addition of a comma.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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...

2. Waste Water Treatment Systems Should not be Limited to Those “Designed to 

Meet the Requirements of the CWA”

Because not all waste water treatment systems are subject to the CWA, the waste 

treatment exception should not be limited to those “designed to meet the requirements of 

the CWA.”

As the Agencies are aware, EPA requires CWA NPDES permits for only certain 

categories of storm water discharges.20 EPA always has residual authority to require a 

CWA NPDES permit for facilities or categories not within the prescribed categories upon 

a determination that a discharge contributes to a violation of a water quality standard or is 

a significant contributor of pollutants to waters of the United States. 40 C.F.R. § 

122.26(a)(v). There are thousands of waste treatment systems, and in particular storm 

water management systems, which meet the criteria for the waste treatment exception but 

are not required to obtain NPDES permits.50 Examples include storm water systems 

outside of designated MS4s, parts of industrial facilities not specifically identified in 40 

C.F.R. Part 122, roadway drainage systems, railroad ditches and storm water 

management systems.

Because thousands of waste treatment systems, including storm water management, are 

not subject to CWA requirements, the Railroads recommend the Agencies remove the 

phrase “designed to meet the requirements of the Clean Water Act.” (p. 13-14)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater 

features.

County of San Diego, California (Doc. #14782)

7.123 Strengthen exemption for "waste treatment systems"

The existing exemption language for "waste treatment systems" must be strengthened. 

The Federal Register posting asserts that there will be no change to the exclusion for 

waste treatment systems. The rule should be expanded to specifically exempt facilities 

that are designed and installed to meet any water quality requirements, including 

individual state or local water quality regulatory requirements (for example, the PorterCologne Act in California). CFR Part 328.3 (7) states that waste treatment systems, 

including treatment ponds or lagoons designed to meet the requirements of CWA are not 

waters of the United States. Although the agencies specifically state that they are not 

seeking comment on this section, the County strongly urges the agencies to strengthen 

and expand this vaguely written exemption or otherwise explicitly exempt all water 

quality treatment facilities. Currently, the regulations ("a" and "b'' below) appear to only 

vaguely exempt "waste treatment systems" (which presumably apply to permanent BMPs 

 

50 See, e.g., Hughey v. JMS, 78 F.3d 1523(11th Cir. 1996)(permit unavailable for construction stormwater 

discharges; “[p]ractically speaking, rain water will run downhill, and not even a law passed by the Congress of the 

United States can stop that.).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

95

such as: detention basins, retention basins, bioswales, etc.) that are designed to meet the 

requirements of the CWA:

a. Nationwide Permit (NWP) 43 has language that states: "Note that stormwater 

management facilities that are determined to be waste treatment systems under 33 

CFR 328.3(a)(8) are not waters of the United States, and maintenance of these 

waste treatment systems generally does not require a section 404 permit."

b. Then 33 CFR 328.3(a)(8) states the following: "Waste treatment systems, 

including treatment ponds or lagoons designed to meet the requirements of CWA 

(other than cooling ponds as defined in 40 CFR 423.11 (m) which also meet the 

criteria of this definition) are not waters of the United States."

EXAMPLE: Regulators could potentially allow use of the above NWP 43 or the language 

in 33 CFR 328.3(a)(8) to exempt maintenance of water quality treatment systems from 

requiring section 401 and 404 permits. However, since NWPs are renewed every five 

years they are not guaranteed to be in existence. In addition, the language in 33 CFR 

328.3(a)(8) is vague and does not specifically exempt water quality treatment so 

individual regulators may not apply this exemption uniformly to water quality treatment 

facilities. Therefore, the rule should be clarified to specifically exempt maintenance of 

these water quality treatment facilities. (p. 4-5) 

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

Arizona Public Service Company (Doc. #15162)

7.124 C. A Simple Comma Could Result in the Loss of Waste Treatment System Exemption

Waste treatment systems (WTS) at APS facilities include, but are not limited to, 

wastewater collection features (bins, basins, channels), wastewater treatment facilities 

(cooling ponds, ash ponds, coal pile runoff collection ponds, low volume waste ponds, 

storm water sedimentation ponds), as well as various wastewater and treated water 

conveyances such as pipes, channels, and conduits that convey treated or untreated water 

to and/or from WTS already mentioned. The proposed rule states that “waste treatment 

systems, including treatment ponds or lagoons, designed to meet the requirements of the 

Clean Water Act” will continue to be excluded from the definition of WOTUS. The 

Agencies do not solicit comment on this exclusion because they claim it has not changed 

from the current rule. While no change to the WTS exclusion may have been intended by 

the Agencies, the Agencies’ simple addition of a comma after “lagoon” in the WTS 

exemption will, unless addressed in the final rule, potentially subject WTS to NPDES 

permit requirements, which will result in substantial cost increases for the owners of 

these facilities. APS requests that the Agencies remove this comma from the text of the 

WTS exemption. (p. 11)

Agency Response: See summary response at 7.1. 

National Association of Clean Water Agencies (Doc. #15505)

7.125 Preservation and Clarification of Waste Treatment Exemption Critical
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

96

The draft rule preserves and clearly articulates a regulatory exemption for waste 

treatment systems, which is absolutely necessary. NACWA’s longstanding position 

supports an interpretation of CWA jurisdiction that maintains a clear articulation of the 

waste treatment exemption and we applaud the Agencies for maintaining the critical, 

existing exemption. Title 40, Section 122.2 of the U.S Code of Federal Regulations 

explicitly excludes manmade “waste treatment systems” from the definition of “waters of 

the United States.” This enables the proper functioning of publicly owned treatment 

works (POTWs). However, communities use a variety of approaches, ranging from green 

infrastructure (constructed wetlands, swales, etc.) and various components of municipal 

separate storm sewer systems (MS4s), to manage wet weather, which are not included in 

the exemption. NACWA does not suggest that the definition of POTW be expanded; 

however, explicit exemptions for these systems designed to meet CWA requirements 

need to be included in any final rule. In addition to waste treatment systems, the proposed 

rule exempts “treatment ponds or lagoons, designed to meet the requirements of the 

Clean Water Act” in 40 CFR 230.3(t)(1). Inserting language into this provision to expand 

it to cover a broader array of wet weather management practices including those 

discussed above, would be a viable solution. (p. 2)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

Orange County Sanitation District, California (Doc. #16335.1)

7.126 The wastewater treatment process generates biosolids which is commonly applied to 

lands such as farmlands, drought stricken areas, fire damaged areas, green belts, 

recreational areas, and landfills. Under the broad criteria of this proposed rule, land 

application sites for biosolids can be subject to regulation. Such sites are already subject 

to regulation under 40 CFR 503, which addresses the standards for the beneficial use or 

disposal of sewage sludge. To mitigate conflicting regulation, the existing rule 40 CFR 

503 should govern and therefore the waste treatment exemption should be broadened to 

include lands subject to 40 CFR 503 regulation. (p. 2)

Agency Response: See summary response at 7.1. 

7.127 As the proposed rule and existing practice acknowledge, waste treatment systems 

designed to meet the requirements of the Clean Water Act are not waters of the U.S., and 

OCSD wants to ensure that as part of these proposed amendments spreading 

grounds/basins, treatment ponds/lagoons, and constructed treatment wetlands used as part 

of the wastewater process are subject to the same exemption. Since these facilities are 

clearly part of the treatment process, providing additional treatment, residence and 

settling prior to discharge, these facilities should be expressly recognized in the rule as 

falling under the Waste Treatment Exception.

In addition, many water and wastewater agencies utilize spreading grounds or basins in 

order to facilitate groundwater replenishment; a vital part of water management 

throughout California. Others utilize artificially created effluent storage ponds as part of 

their treatment process. Many agencies maintain reservoirs or storage basins/ponds to 

store recycled water. These artificially created features and spreading grounds have not 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

97

previously been defined or regulated as "waters of the United States," and should remain 

separate. For this reason, the proposed rule should expressly include treatment 

ponds/lagoons, spreading grounds/basins, and constructed treatment wetlands within the 

scope of the Waste Treatment Exception, along with effluent storage reservoirs and 

recycled water storage facilities discussed previously. (p. 4)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features and summary response at 7.4.4. regarding groundwater recharge features.

Duke Energy (Doc. #13029)

7.128 Waste Treatment System Exclusion

Of specific concern to Duke Energy is that under the extremely broad language of the 

proposed rule, some onsite water management systems could classified as “waters of the 

United States.” Electrical generation sites commonly use many types of water 

management systems which include interconnected pipes, channels, basins, ponds and 

other features for collecting, storing and treating wastewater.

Duke Energy has extensive water management and treatment systems as part of the 

facility design and operations at its generation sites. These systems vary by facility, but 

can include cooling ponds, discharge canals, ash ponds, industrial stormwater treatment 

ponds, settling basins, low volume waste ponds, coal pile runoff ponds, and other various 

collection ponds. These systems also include wastewater and treated water conveyances 

(such as pipes, channels and conduits) that convey untreated or treated wastewater to and 

from these features. In addition, Duke Energy maintains “constructed wetlands” at some 

facilities that were built and designed for the treatment of wastewater. In some cases, 

Duke Energy also stores rain water or treated and/or partially treated industrial 

wastewater in ponds for eventual use within the facility. These storage and treatment 

systems provide important environmental benefits by allowing recycling and reuse of 

alternative water supplies and also ensures the proper handling and treatment of 

wastewater produced during the process of generating electricity. This ensures that the 

water is properly treated before it leaves a facility and these types of programs are 

encouraged by the State.

Under the proposed rule, some of these storage and treatment systems could be 

considered “adjacent” or “neighboring” to other “waters of the United States”. The 

majority of these are internal water features that are already regulated at their points of 

discharge to external waters under the CWA. If such systems were considered to be 

“waters of the United States,” the regulatory consequences would be substantial. The 

treatment systems would no longer be able to serve their essential purpose, which is to 

treat wastewater. For example, facilities could face an illogical situation in which an 

NPDES permit would be required for a discharge of wastewater into those treatment 

systems, and that permit would require compliance with all technology- and water 

quality-based limits before the water enters the treatment system. This would make these 

systems redundant and essentially useless for their intended purpose of controlling and 

treating waste streams requiring new expensive technologies to “treat” the waste stream 

before it entered the “waste treatment system” as originally designed. Additional CWA 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

98

program requirements could also come into play, such as Section 404 permitting for 

routine maintenance of a waste treatment pond or it conveyances.

The proposed rule includes the following language for the waste treatment exclusion:

Waste treatment systems, including treatment ponds or lagoons, designed to meet 

the requirements of the Clean Water Act.51

The agencies are not proposing any changes to the waste treatment exclusion, aside from 

two ministerial actions.52 However, they do not see these changes as substantive and are 

therefore not seeking any comment on it.53 In a Questions and Answers document on the 

proposed rule, the agencies explain that “[t]he proposed rule would not change, in any 

way, existing application of the waste treatment exclusion.”54 However, Duke Energy is 

concerned that the current language of the waste treatment system exclusion is not 

adequate to solve the problems created by the proposed rule’s revisions. As UWAG 

points out in their comments55 on the proposed rule, seemingly minor changes to the 

exclusion wording over the years have resulted in additional confusion and application of 

the waste treatment exclusion has been inconsistent.

One area that needs clarity is how the agencies define “designed to meet the requirements 

of the Clean Water Act.” While it seems fairly straightforward, questions arise 

concerning the historical existence of many of these waste treatment systems prior to the 

enactment of the CWA. Does the exclusion apply to waste treatment systems that were 

designed and built pursuant to other statutes beside the CWA? For example, some waste 

treatment systems at Duke Energy’s sites do not have point source discharges, but instead 

discharge to groundwater. These waste treatment systems typically are not covered by 

NPDES permits, but are regulated under state permitting programs such as Florida’s 

rigorous licensing program governing discharges to groundwater. Under Florida law 

these treatment systems must meet state groundwater standards, which include a 

provision protective of downgradient surface waters.56 These systems have never been 

classified as “waters of the United States”, but are clearly regulated and protective of the 

environment. However, it is not clear from the proposed rule’s regulatory language if the 

waste treatment exclusion would be applicable, contrary to the agencies’ assertions. Duke 

Energy recommends that the waste treatment exclusion include any and all types of 

treatment or water management systems regulated under State provisions.

The agencies also need to clarify that the waste treatment “system” includes all 

conveyances, drains, pipes or ditches that carry water into or from the places where 

treatment occurs and should be considered as a holistic unit. At many facilities, there are 

drains and ditches that flow to sumps, lagoons, and other ponds, whose contents are 

eventually pumped or discharged to another pond exempted under the waste treatment 

 

51 79 Fed. Reg. at 22,263

52 Id. at 22,217

53 Id. at 22,190

54 EPA & U.S. Army Corps of Engineers, Questions and Answers – Waters of the U.S. Proposal at Page 6 – Q24, 

available at http://www2.epa.gov/uswaters/questions-and-answers-about-waters-us-proposal-pdf

55 UWAG comments on WOTUS Proposed Rule (November 14, 2014), Section V (D.)

56 Fla. Admin. Code 62-520.310(12)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

99

systems (e.g., ash ponds). The entire “system” needs to be defined to include all of these 

conveyance or internal features.

Classifying waste treatment systems as jurisdictional “waters of the United States” would 

also place states in an impossible position with respect to setting and implementing water 

quality standards, including assigning a designated use for the jurisdictional water. Since 

the agencies are precluded from designating a use as “waste transport,” states would be 

required to assign “fishable, swimmable” uses these waters, unless the state performs an 

analysis that demonstrates that attaining the highest use is infeasible for one of six narrow 

reasons. Regulators would face two equally unpalatable options: attempt to impose 

patently arbitrary “fishable, swimmable” uses for waste treatment systems, effectively 

rendering them useless for their intended purpose, or undertake the expensive, timeconsuming scientific analysis required to justify less restrictive uses and criteria. And, if 

the state chooses the first option and the “receiving water” fails to meet the applicable 

criteria (which almost certainly will be the case), the regulator will need to identify the 

waterbody as impaired and develop any pollutants pecific total maximum daily loads 

(“TMDLs”) necessary to ensure the uses and criteria are met. This would do nothing to 

protect the Nation’s waters; its only purpose would be to undermine the use of treatment 

systems designed to serve the statute’s pollutant discharge reduction goals. (p. 43-46)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

7.129 Another specific area for discussion in this area concerns how the proposed rule would 

affect ash pond closure activities. For example, all of our sites in North Carolina will be 

undergoing ash pond closures over the next several years. All of Duke Energy’s ash 

ponds are currently covered under the waste treatment exclusion and the effluent from 

these ponds is addressed through the site’s NPDES permit. Duke Energy expects the 

agencies to continue to include ash ponds under this exemption. As discussed previously 

in these comments, the agencies have stated publicly several times that they were not 

making any changes to the waste treatment exemption. However, even with the 

exemption in place, the proposed rule’s expanded definitions, which are expected to bring 

in an increased number of water features deemed jurisdictional (i.e. conveyances, 

stormwater drainage areas, etc.). This will result in additional secondary impacts for pond 

closure activities. Some of these activities include development of temporary roads, 

laydown areas and borrow areas. Ultimately, this will result in additional permitting 

requirements for larger areas and increased mitigation costs. Duke Energy recommends 

that the agencies clarify that all water features that are associated with ash ponds, 

including conveyances to the pond and any upstream collection basins, be considered part 

of the entire waste treatment system and covered by the appropriate exclusion. In 

addition, Duke Energy recommends that the agencies confirm that the waste treatment 

exclusion for ash ponds and all associated internal conveyances will not change until all 

closure activities have been completed. Any redundant permitting requirements for these 

activities could lead to lengthy delays in restoring these areas. (p. 67-68)

Agency Response: See summary response at 7.1. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

100

Ameren Corporation (Doc. #13608)

7.130 The proposed rule also indicates there will be no change to the waste treatment exclusion 

for systems designed consistent with the requirements of the Clean Water Act. However, 

Ameren energy centers have numerous ponds, lagoons or impoundments used for storage 

of storm water runoff or for waste water treatment that may fall under this proposed 

definition and may result in additional permitting or case-specific evaluations. Point 

source discharges that are covered by NPDES permits should not fall under the 

jurisdiction of WOTUS. (p. 2)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

Florida Power & Light Company (Doc. #13615)

7.131 The proposed rule's introduction of several broad terms, such as "tributary," "adjacent," 

"similarly situated waters," "significant nexus" and "neighboring," complicates a clear 

assessment of the proposed rule's potential to expand or alter the extent of WOTUS. The 

terms and their associated definitions expand the Clean Water Act's (CWA) jurisdiction 

over waters that are currently classified as non-jurisdictional, such as ephemeral streams 

and geographically isolated features based on current agency practice. For example, FPL 

has significant concern that the language in the proposed rule could be interpreted to 

conclude that cooling ponds at power plants could be jurisdictional if they are adjacent or 

neighboring to WOTUS. Similarly, man-made ditches or drainage swales that are 

designed to convey stormwater or wastewater to discharge points or on-site 

retention/detention ponds for subsequent, direct or indirect, discharge to a regulated 

WOTUS could be jurisdictional under the proposed rule. It is critical that the final rule 

make clear that the waste treatment system exemption includes each potential design 

feature of a waste treatment system regardless of its location near a WOTUS, and that 

cooling ponds at power plants continue to be exempted from WOTUS designation. (p. 1-

2)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.

7.132 The proposal removes the "cooling ponds" exception contained in the original exclusion. 

The original exclusion stipulates that WOTUS do not include "waste treatment systems, 

including ponds or lagoons designed to meet the requirements of this act (other than 

cooling ponds as defined in 40 C.F.R. 423.II (m) which also meet the criteria of this 

definition) ...',57 The current proposal removes this parenthetical reference, While it is 

appropriate to remove this language as that definition no longer appears in 40 C.F.R. 423, 

we urge the inclusion of additional regulatory language that clearly exempts cooling 

ponds from WOTUS classification.

 

57 40 CFR 122.3(i).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

101

The proposal also adds a comma after "lagoons" in the original exemption. This 

grammatical modification is a substantive change that could unintentionally limit the 

exemption to only ponds or lagoons. While we believe the agencies' view is that the rule 

refers to all waste treatment systems, not just ponds and lagoons, the punctuation error

should be addressed so as not to undermine the scope and intent of the exemption.

With respect to the exemption itself, the preamble appropriately notes that "[w]here 

waters would be determined to be jurisdictional under the proposed rule, applicable 

exemptions in the CWA would continue to preclude application of CWA permitting 

requirements.58 We believe the agencies have not intentionally sought to limit the scope 

of the existing waste treatment system exemption; however, the inclusion of additional 

terms such as "adjacency" and "neighboring" create further uncertainty around 

jurisdictional designations that could potentially result in permitting delays and confusion 

for regulators and project applicants. As a result, the final rule should include language 

that clarifies what specific waste treatment system components are exempt in order to 

minimize applicants' and permitting agencies' confusion.

Adding specificity to the components of exempt waste treatment systems is essential to

promoting the regulatory clarity intended through this rulemaking and will ensure that the

exemption is not unintentionally undermined. For example, many power plants use large

reservoirs for cooling water as part of a closed-cycle recirculating system (CCRS).

Traditionally, these are not considered WOTUS as they are created to allow water heated 

by generation equipment to cool off before being reused. However, under the proposed 

rule, many such systems could be deemed jurisdictional due to their proximity to 

WOTUS. If these ponds are designated as WOTUS, they would be subject to additional 

restrictions or even prevent the use of such ponds for CCRS, undermining the intent of 

the recently-finalized standards for cooling water intake structures under CWA Section 

316(b). Additionally, utilities also use surface drainage ditches and ponds to ensure 

compliance with existing Spill Prevention, Control and Countermeasures (SPCC) 

regulations and comply with both the CWA and the Oil Pollution Act, as well as state and 

local-level water quality laws. In some cases, the ditches are part of an overall system to 

capture oil and other spills well before reaching regulated WOTUS. These ditches and 

ponds should remain expressly exempted from WOTUS. We also recommend that any 

system constructed and maintained as a water quality treatment system, whether under 

federal or state authority, should be covered under the exemption.

Thus, we recommend regulatory language stating that the waste treatment system 

exemption includes at least the following components (see proposed regulatory language 

below):

• Treatment ponds and lagoons

• Drainage ditches

• Stormwater detention/retention ponds

• Cooling water impoundments

 

58 79 Federal Register 22189 (April 21, 2014).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

102

• Spill diversion ditches and containment ponds

• Polishing ponds

• Ditches and canals that connect units of a waste treatment system

• Wastewater treatment tanks, including oil-water separators and sumps, and

piping/conveyances

We also urge that the final rule make clear that a waste treatment system should be 

exempted if it was designed for the purpose, in whole or in part, of treating any type of 

waste considered a pollutant under the CWA, and the system was constructed in uplands 

or not in WOTUS. Further, if the construction of the waste treatment system pre-dated 

the CWA and the agencies' expansion of jurisdictional inclusion of adjacent wetlands, the 

system should also be expressly exempted. (p. 3-5)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.

7.133 We recommend the following regulatory revision to 33 CFR 328.3(b),59 with additions

underlined bold.

(b) The following are not "waters of the United States" notwithstanding whether

they meet the terms of paragraphs (a)(1) through (7) of this section-

(1) Waste treatment systems, including treatment ponds or lagoons, designed to

meet the requirements of the Clean Water Act or an applicable state water

quality law or regulation. Waste treatment systems include, but are not

limited to, the following features:

(i) Treatment ponds and lagoons;

(ii) Drainage ditches;

(iii) Stormwater detention/retention ponds;

(iv) Cooling water impoundments;

(v) Spill diversion ditches and containment ponds;

(vi) Polishing ponds;

(vii) Ditches and canals that connect units of a waste treatment system;

and

(viii) Wastewater treatment tanks, including oil-water separators and sumps, 

and piping/conveyances.

The agencies should also define such waste treatment features out of WOTUS definitions 

in existing regulatory guidance documents (p. 3-5)

 

59 79 Federal Register 22263 (April 21, 2014).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

103

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

Murray Energy Corporation (Doc. #13954)

7.134 ...despite the claim that the existing exclusion for waste treatment systems has been 

preserved, the Agencies have proposed clerical changes to the exclusion that appear to 

have the effect of narrowing it. The following marked text highlights the difference 

between the existing exclusion and the proposed one:

Existing. Waste treatment systems, including treatment ponds or lagoons 

designed to meet the requirements of CWA (other than cooling ponds as defined 

in 40 C.F.R. § 423.11(m) which also meet the criteria of this definition) are not 

waters of the United States.

Proposed. Waste treatment systems, including treatment ponds or lagoons, 

designed to meet the requirements of the Clean Water Act.

Comparison. Waste treatment systems, including treatment ponds or lagoons, 

designed to meet the requirements of the Clean Water Act.

The addition of a comma after “lagoons” would presumably make all waste treatment 

systems – not just treatment ponds or lagoons – subject to the “designed to meet” 

standard. This clerical change could have an unintended substantive effect of narrowing 

the exclusion by making all waste treatment systems – not just treatment ponds or 

lagoons – subject to the “designed to meet” standard. This is a particular concern for 

Murray and the coal mining industry...wastewater treatment systems at surface coal mine 

sites are, as they must be, designed to meet the requirements of SMCRA. We question the 

Agencies’ characterization of this as being an ineffectual “clerical” revision. If the 

Agencies did not intend to alter the wastewater treatment system exemption in any way, 

as they claim, then it is hard to see why there is even a need for this change. (p. 19-20)

Agency Response: See summary response at 7.1. 

The Florida Electric Power Coordinating Group, Inc. (Doc. #13993)

7.135 ...A specific concern is that some waste treatment systems could be seen as being waters 

of the United States under the extremely broad language of the proposed rules. Examples 

of such waste treatment systems include cooling ponds, ash ponds, industrial stormwater 

treatment ponds, rapid infiltration basins, settling basins, etc. Many such waste treatment 

systems very likely will be "adjacent" or "neighboring" under the proposed definition, 

due to Florida's unique, low gradient topography. If such waste treatment systems are 

considered to be waters of the United States, the regulatory consequences would be 

enormous. The treatment systems would no longer be able to serve their essential purpose 

(which is to treat wastewater), because EPA's regulations specifically state that waste 

assimilation and transport cannot be designated uses of waters of the United States. 40 

CFR §131.10(a).

Capturing such treatment works as waters of the United States would be an absurd policy 

choice, because permitted waste treatment systems cannot possibly be part of the aquatic 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

104

inventory that Congress intended to protect under the CWA (in contrast to some 

wetlands, that do warrant protection). To assert that waste treatment systems are waters 

of the United States would be to negate their status as waste treatment systems. Although 

permitted waste treatment systems potentially could impact nearby jurisdictional waters, 

asserting jurisdiction is not a sensible approach to addressing potential impacts. 

Alternatives include reliance on state licensing agencies (in states that have groundwater 

standards protective of downgradient surface waters), facilitating management of 

potential impacts through EPA's oversight of the CWA nonpoint source continuing 

planning process, or relying on potential impacts to be addressed under the TMDL 

program.

The current language of the waste treatment system exclusion is not adequate to solve the 

problems created by the proposed rule revisions, because courts have tended to interpret 

exclusions very narrowly. For example, in one case the court held that the exclusion is 

available only if the waste treatment system is completely self-contained (presumably 

meaning it cannot discharge to groundwater that migrates to surface waters) or is 

authorized under an NPDES permit. Northern California River Watch v. City of 

Healdsburg, 496 F.3d 993 (9th Cir. 2007). In Florida, virtually all groundwater migrates 

to nearby surface waters, and treatment systems that do not have point source outfalls are 

not covered under NPDES permits (though the discharges to groundwater are regulated 

under state law). Thus, there is an acute need for changes to the proposed rule revisions.

Recommendation

The FCG-EC recommends that in the final rule the agencies decline to utilize the 

significant nexus concept to extend jurisdiction categorically to "other waters" that are 

neighboring or adjacent to traditionally navigable waters (or their tributaries). This would 

substantially address most of the FCG-EC's concerns with respect to both waste treatment 

systems as well as CWA §404 permitting more generally. Alternatively, the FCG-EC 

recommends that this definition of "waste treatment system" be included in the final rule:

A ''waste treatment system" is an impoundment or other body of water that is 

created primarily to treat pollutants pursuant to the Clean Water Act or State law. 

It includes treatment ponds or impoundments created prior to the enactment of the 

Clean Water Act in 1972, and also includes treatment ponds or impoundments 

created in ''waters of the United States" where construction of the pond or 

impoundment is authorized by a federal regulation or permit that takes into 

account impacts on the aquatic ecosystem. It also includes all treatment systems 

regulated under a NPDES permit. It includes treatment ponds or impoundments 

that do not have point source outfalls and discharge to groundwater, if the 

groundwater discharges are licensed by a State environmental agency and 

applicable State groundwater regulations account for impacts to surface waters. A 

waste treatment system includes any appurtenant features, including, but not 

limited to, ditches, canals, and other waterways that convey wastewater or treated 

water to or from features where treatment occurs. (p. 4-5) 

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

105

NRG Energy, Inc. (Doc. #13995)

7.136 ...NRG understands the rationale for correction of an outdated regulatory reference; 

however, we strongly disagree with the Agencies ' suggestion that the change is not 

substantive for the following reasons.

Specifically, the deletion of the cross- reference is of special concern with regard to 

perched cooling ponds. Historically these ponds have been considered to be part of 

permitted wastewater treatment systems, designed to dissipate heat prior to cooling water 

being discharged to surface waters. As such, these ponds have been exempt from 

consideration as either waters of the state or waters of the U.S. However, cooling ponds 

may lie within the floodplain area of "traditionally navigable waters" or may be in close 

proximity to such jurisdictional water. Cooling ponds may also be "adjacent" ("borders, 

contiguous or neighboring") to WOTUS and separated from traditionally jurisdictional 

waters by man-made dikes or barriers, and therefore could be considered as WOTUS 

under the proposed definition.

The complete lack of specific reference in the proposed rule to perched cooling ponds or 

the use of ponds for cooling purposes is problematic in light of the set of new and 

expanded definitions discussed above, which blur the distinction between a designated 

wastewater treatment system and a WOTUS. 

Another concern involves existing wastewater treatment collection and conveyances

historically deemed to meet the current interpretation as components of a permitted 

treatment system, because they do not directly discharge into a lake, stream, or river 

unless through an authorized (i.e., permitted) outfall. As mentioned above, the broadened 

definitions included in the proposed rule could be applied to these storm and process 

water conveyances (influent and effluent) and holding ponds which historically have 

been excluded from WOTUS determination, in turn requiring the installation of 

significant and costly, but unnecessary and redundant new controls to be built to protect 

these waters, which are already part of a permitted wastewater system.

Because the above mentioned terms are not explicitly identified in the proposed rule 

definitions, and to eliminate the risk of unintended and unwarranted jurisdiction, NRG 

recommends the following additions to the definition of "Waters of the US":

Revise 40 CFR 230.3 (t) (1) as follows:

"Waste treatment systems and their associated conveyances, including treatment and 

perched cooling ponds or lagoons, designed to meet the requirements of the Clean Water 

Act." and, 

Revise 40 CFR 230.3 (t) (5) (ii) as follows:

"Artificial lakes or ponds created by excavating and/or diking dry land and used 

primarily for such purposes as stock watering, irrigation, cooling, storage/ retention, 

settling basins, or rice growing." 

On a similar note relating to impoundments, the following was taken from the preamble: 

"The agencies also note that an impoundment of a water that is not a waters of the United 

States can become jurisdictional if, for example, the impounded waters become 

navigable-in-fact and covered under paragraph (a)(l)".( Id. at 22201). This statement was 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

106

likely intended to exclude waste treatment systems from waters of the United States; 

however, it should be clarified with specific language identifying perched cooling 

pond/permitted wastewater system component exclusions, as discussed above. (p. 6-7)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.

Southern Company (Doc. #14134)

7.137 The Agencies Must Resolve a Clerical Error That Could Undermine Their Intentions 

of Preserving the Existing Waste Treatment System Exemption

This historical waste treatment exclusion is vitally important to electric utilities as it 

applies to operational units such as ash ponds and thermal treatment systems. And, while 

the agencies claim to have preserved the existing exclusion, a proposed clerical change to 

the exclusion, involving the insertion of a single comma,60 may have the effect of 

narrowing it. In discussions with EPA during the comment period, the agency has 

reiterated its commitment to maintaining the exclusion and has signaled its willingness to 

correct this error in the final rulemaking.

The addition of a comma after “lagoons” could be construed to make all waste treatment 

systems—not just treatment ponds or lagoons—subject to the “designed to meet” 

standard. To the extent there is any doubt that the comma after “lagoons” is a scrivener’s 

error that would potentially change the scope of the exemption, we note that none of the 

eight States that have “state waters” definitions modeled on the federal standard have 

included a comma after “lagoons.” (See, e.g., New York, New Jersey, New Mexico, 

Oklahoma, Louisiana, South Carolina, South Dakota, and Virginia). As such, we propose 

the following correction: “Waste treatment systems, including treatment ponds or lagoons 

designed to meet the requirements of the Clean Water Act.” (p. 47-48)

Agency Response: See summary response at 7.1. 

Southern Illinois Power Cooperative (Doc. #14402)

7.138 The Agencies should preserve an inclusive wastewater treatment system exclusion, and 

provide an on-site water and wastewater management exclusion, to avoid disrupting 

hundreds of thousands of existing industrial operations nationwide; thus impeding 

development of needed new infrastructure, and imposing substantial new regulatory 

burdens on the regulated community, States, and the Agencies themselves. (p. 11)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

 

60 The proposed exclusion provides “Waste treatment systems, including treatment ponds or lagoons, designed to 

meet the requirements of the CWA” are not waters of the United States.”
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

107

Golden Spread Electric Cooperative, Inc. (Doc. #14422)

7.139 The Agencies are not proposing any change to this exemption. However, this exclusion 

has historically suffered from ambiguity, which is not surprising, as the Agencies do not 

provide a definition of what they consider to be a "waste treatment system." The 

Agencies do not explain if features that manage water (or convey water through ditches 

or other structures) but do not provide treatment to meet limits or other standards are 

exempt. For example, manmade basins and ponds serve a myriad of environmental and 

process purposes and do so in an environmentally responsible manner. It is also common 

for facilities to have stormwater retention basins to manage regulated storm water. To 

render these features "waters of the United States" would make them prohibitively 

expensive and would eliminate their viability. As such, Golden Spread recommends 

extending the waste treatment exclusion to manmade basins, in addition to those 

constructed for stock watering, irrigation or settling basins. (p. 7)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.

National Lime Association (Doc. #14428.1)

7.140 6. “Isolated” as used in the Definition of “Wetlands” is Another Term Which Needs 

to be Defined and the Definition of “Wetlands” Needs to Clarified.

... b. “Wetlands”: Although “wetlands” is defined in the regulatory text of the proposed 

rule, as the proposed rule is currently written, the definition can be construed to include 

an area where stormwater runoff is held to allow it to evaporate and thereby avoid its 

discharge into another water which is, or might be, jurisdictional. Such features were 

created and exist solely for that functional purpose and would thus should fall within the 

exclusion for waste treatment systems provided under §328.3(b)(1) and the 

corresponding sections under the related C.F.R. parts (hereafter collectively referred to as 

the §328.3(b)(1) exclusion). While we believe that this exclusion would apply, because of 

the broad public belief that the proposed rule expands WOTUS jurisdictional and because 

of the overall ambiguity of the regulatory text as currently written (discussed throughout 

these comments), the Agencies need to reconfirm that such features do qualify as waste 

treatment systems and pursuant to §328.3(b)(1) are not to be considered jurisdictional 

wetlands.

If, however, the Agencies do not agree that such features qualify for the §328.3(b)(1) 

exclusion, they should nonetheless be classified as non-jurisdictional along the same lines 

provided for the several other features which the proposed rule would expressly exclude 

from being jurisdictional, see, e.g., proposed §328.3(b)(5)(ii) (“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.”),61 79 Fed. Reg. at 22263, and 

 

61 As written, the exclusion provided under §328.3(b)(5)(ii) appears to apply solely to agriculture and farming.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

108

§328(b)(5)(v) (“Water-filled depressions created incidental to construction.”).62 Id. (p. 

10-11)

Agency Response: See summary responses at 7.1., 7.4.2, and 7.4.4.

Synagro Technologies, Inc. (Doc. #14565)

7.141 The Waste Treatment Exemption Should Specifically Include Land Applications Sites for 

Biosolids

Synagro appreciates that the Proposed Rule explicitly specifies that EPA will not change 

the longstanding regulations that exclude “waste treatment systems” designed to meet the 

requirements of the CWA (and prior converted cropland) from the definition of “Waters 

of the United States.” (79 FR 22217). As such, the Proposed Rule maintains and clearly 

articulates the exemption for waste treatment systems designed to meet the requirements 

of the CWA. Synagro understands that the “waste treatment systems” exclusion from 

additional regulation from the Proposed Rule will include biosolids management 

performed in compliance with the Part 503 regulation.63 These regulations provide an 

essential component of the existing regulatory framework that ensures effective 

wastewater agency operations.

The retention of the waste treatment exemption is one of the highest priorities for 

wastewater agencies and their biosolids management service providers. Synagro also 

endorses the proposed rule’s clarification that EPA does not intend alter the regulation of 

groundwater at the federal level and, in fact, the proposed rule codifies a number of the 

waters and features that EPA has by longstanding practice generally considered not to be 

“Waters of the United States.” (Id. at 22218) Nevertheless, Synagro is concerned that 

without clear and definitive language expressly provided in the Final Rule that it can be 

inferred that the increased federal jurisdiction over lands (by calling them “navigable 

waters”) could easily be construed as establishing a new federal power would cause an 

impediment ordinary farming practice of utilizing biosolids as a fertilizer. Specifically, 

the lack of clarity in the Proposed Rule as to what is included in the waste treatment 

exemption will create regulatory barriers to the effective implementation of biosolids 

land application projects without a commensurate benefit to the environment.

The wastewater treatment process generates biosolids which is applied to lands which 

includes farm land, drought stricken areas, fire damaged areas, green belts, and 

recreational areas. Under the broad criteria of this Proposed Rule, land application sites 

for biosolids can be subject to Proposed Rule designation and requirements. As stated 

before, such sites are already subject to CWA regulation by EPA under the Part 503 Rule 

which addresses control of coincidental wastewater and runoff which may collect during 

the handling, interim storage and processing of biosolids for land application. To mitigate 

conflicting regulation, the existing Part 503 provisions should govern and therefore the 

 

62 As written, the §328(b)(5)(v) exclusion appears to apply solely to construction.

63 See 40 C.F.R. §35.2005(b)(12), defining “complete waste treatment system” as “all the treatment works necessary 

to meet the requirements of title III of the [CWA], involving . . . the ultimate disposal, including recycling or reuse, 

of the treated wastewater and residues which result from the treatment process.” (Emphasis added)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

109

waste treatment exemption should be broadened to expressly include in the final rule that 

lands already subject to Part 503 land application requirements. (p. 2)

Agency Response: See summary response at 7.1. 

National Rural Water Association (Doc. #14623)

7.142 We do not believe that a new rule should result in changing the historic regulatory 

understanding for coverage of water infrastructure. Any final rule should retain the 

current exclusion (33 CFR 328.3(a) and 40 CFR 122.2) for “waste treatment systems” 

and clarify that that the exclusion includes similar practices implemented by drinking 

water treatment systems. (p. 4)

Agency Response: See summary response at 7.1. 

Berkshire Hathaway Energy Company (Doc. #14650)

7.143 A. The Agencies Should Clarify That Waste Treatment Systems Not Subject To Effluent 

Limitations or Otherwise Subject to Regulation are Exempt from Waters of the U.S.

The Agencies state that no changes are being proposed to the longstanding exclusion for 

waste treatment systems designed to meet the requirement of the Clean Water Act.64 The 

waste treatment exemption has historically included surface impoundments or settling 

ponds that are part of a waste treatment system at an electric generation facility. 

However, if the Agencies proceed with the proposed expansion of the definition of waters 

of the U.S., changes will be required to the existing exemption for waste treatment 

systems because utilities will be required to rely on the waste treatment system 

exemption to a greater degree.

To illustrate, certain surface impoundments and settling ponds that may be considered as 

part of a waste treatment system may not be subject to effluent limitations under the 

Clean Water Act because the water is used in a closed-cycle system and is not 

discharged. Such surface impoundments and settling ponds have not historically been 

considered waters of the U.S. because they were not considered wetlands. Accordingly, 

companies have not needed to rely on the waste treatment exemption for exclusion of 

certain waste water systems. However, under the proposed expanded definition of waters 

of the U.S., these waste water systems could become jurisdictional. Accordingly, the 

waste treatment system exemption should be modified to specifically exempt waste 

treatment systems that are not subject to effluent limitations. In addition, waters that may 

otherwise be subject to future regulations, such as updated effluent limitation guidelines 

or coal combustion residual rules, should specifically be included in the exemption of 

waste treatment systems. (p. 4)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2 and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, and 

stormwater control features.

 

64 Id. at 22217. [Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. 76 at 22193 

(April 21, 2014).]
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

110

American Public Power Association (Doc. #15008)

7.144 APPA has concerns that the proposed rule indicates that the agencies would interpret the 

waste treatment exclusion to mean that no waste treatment system qualifies for the 

exclusion unless the system was designed consistent with the requirements of the CWA. 

79 Fed. Reg. at 22,199. Therefore, facilities designed prior to passage of the CWA could 

be in question under the proposed rule. Clarification of the waste treatment exclusion is 

critical for APPA’s members, as they must be able to rely on the exclusion. The agencies 

should address which features and waters can be considered a waste treatment system. 

Moreover, the agencies should clarify that all on-site management of water, including 

transport, storage, treatment, and use, are non-jurisdictional. Any discharges into waters 

of the U.S. that result from these activities are already covered under Section 402 of the 

CWA. The agencies should engage with stakeholders that rely on the waste treatment 

exclusion to understand the confusion and unpredictability that surrounds this exclusion. 

After having these critical stakeholder discussions, the agencies should propose a revised 

rule that addresses the waste treatment exclusion and provides some much needed clarity 

for regulators and the regulated public. (p. 9-10)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

Utility Water Act Group (Doc. #15016)

7.145 5. Implications for § 316(b) Regulation of Cooling Water Intake Structures

The definition of WOTUS also determines the applicability of EPA’s CWA § 316(b) 

rules for new and existing facilities, which apply to facilities that withdraw “cooling 

water” from WOTUS and have any sort of NPDES permit. Although many facilities 

withdraw cooling water from natural waters, many others withdraw cooling water from 

purpose-built ponds or impoundments designed to capture on-site stormwater and 

snowmelt, ensure adequate cooling water supply, and reduce withdrawals from nearby 

jurisdictional waters. Some of those ponds also receive and remove heat from condenser 

cooling water, in which case they should fall within the waste treatment system 

exclusion. But others do not and, given their likely location (adjacent and connected, 

directly or indirectly, to jurisdictional waters), could be reclassified as WOTUS. Where 

the cooling impoundment is self-contained and does not require withdrawals from any 

jurisdictional water, reclassifying the impoundment as a WOTUS would trigger 

application of the § 316(b) rule and the substantial costs associated with that rule. 79 Fed. 

Reg. 48,300, 48,383-401 (Aug. 15, 2014); EPA, EPA-821-R-14-001, Economic Analysis 

for the Final Section 316(b) Existing Facilities Rule (May 2014), available at

http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/upload/Cooling-Water_Phase4_Economics_2014.pdf. And where cooling water is replenished by withdrawing makeup water from a WOTUS, classifying the pond as jurisdictional would create enormous 

confusion regarding the point of compliance with the § 316(b) rules. (p. 28-29)

Agency Response: See summary response at 7.1. See also summary response at 

7.3.2 regarding exclusion of certain cooling ponds.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

111

7.146 The Agencies say that they are neither changing nor seeking comment on the waste 

treatment system exclusion here. 79 Fed. Reg. at 22,189 col. 2, 22,190 col. 1. But the 

Agencies, perhaps unintentionally, have made at least one change – the addition of a 

simple but crucial comma – that could be misinterpreted as narrowing this important 

exclusion. See infra p. 73. In meetings with industry and in various public statements, the 

Agencies have stressed their desire to maintain the status quo with respect to waste 

treatment systems and other industrial features not currently regulated as jurisdictional 

waters. Below, we explain why it is important for the Agencies to avoid unintended 

“regulation by punctuation” that could change the status quo for many waste treatment 

systems appropriately treated as non-jurisdictional at steam electric plants and other 

industrial facilities. If the Agencies intend their proposed definition of waters of the 

United States to cover any industrial waters, including any waste treatment system 

components of the type discussed below, which typically have not been considered 

jurisdictional, they may do so only after fully assessing the costs and other regulatory 

consequences, and providing adequate notice and an opportunity to comment. (p. 66-67)

Agency Response: See summary response at 7.1. 

7.147 Waste treatment systems vary by facility, but at electric generating stations, they typically 

include: wastewater collection features (such as bins, basins, and channels), wastewater 

treatment facilities (such as cooling ponds, ash ponds, physical/chemical treatment tanks, 

dewatering bins, coal pile runoff collection ponds, raw water clarifier ponds, sludge 

management ponds, low volume waste ponds, and stormwater sedimentation ponds), and 

wastewater and treated water conveyances (such as pipes, channels, and conduits) that 

convey untreated or treated wastewater to and from these features. Waste treatment 

systems also include stormwater retention/detention basins at service centers, substations, 

and other fixed facilities. Waste treatment systems also include SPCC structures located 

at generating plants and other types of fixed facilities (e.g., substations, transmission 

poles) containing transformers.

Some components of a waste treatment system may be enclosed (e.g., in a building or a 

pipe), while other components typically are outdoors (e.g., an ash pond, cooling lake or 

pond, or a runoff collection pond). The electric utility industry commonly uses systems of 

interconnected pipes, channels, basins, ponds, and other features for collecting and 

treating wastewater. As EPA has acknowledged, “[s]ystems for handling the products of 

coal combustion by hydraulic...conveyors [(i.e., by water)] have been used for 50 years 

or more.65

EPA has long recognized that the collection and treatment of waste in ponds or 

impoundments is an important component of effective waste treatment. Indeed, the 

Agency’s effluent limitations guidelines for the steam electric power generating category 

include technology-based limitations predicated on the level of control achievable by 

“ash ponds.” Ash ponds hold and treat ash transport water via the settling of solids, or 

sedimentation. “Sedimentation processes promote gravity settling of solid particles to the 

bottom of the water column where accumulated solids are removed.” American Water 

 

65 EPA, Development Document for Final Effluent Limitations Guidelines, New Source Performance Standards, and 

Pretreatment Standards for the Steam Electric Point Source.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

112

Works Association, Water Quality and Treatment 163 (4th ed. 1990); see also Mackenzie 

Davis & David Cornwell, Introduction to Environmental Engineering 189 (2d ed. 1991). 

Supplemental treatment – for example, the addition of polymers or flocculants – can be 

designed economically by treating portions of ash transport water separated into 

treatment “cells.”

Ash transport water is just one example of the type of wastestream that steam electric 

plants manage and treat in ponds or impoundments. As another example, coal-fired plants 

generally collect sediment-laden runoff from coal piles and then convey that sediment to 

coal pile runoff collection ponds where the sediment is allowed to settle out of the water 

before the water evaporates, is re-used, or, in many cases, is discharged.

Coal-fired power plants are not alone in using ponds or impoundments to treat 

wastewater. Like coal-fired plants, gas- and oil-fired plants, as well as nuclear plants, 

produce a variety of low volume wastewater and stormwater from the generating site. 

That water must be managed and treated to ensure compliance with permit requirements. 

Waste treatment ponds are an effective and proven technology for meeting such 

requirements – so much so that EPA itself identifies both wet and dry ponds as “best 

management practices” for controlling pollutant discharges from stormwater. See EPA, 

Water: Best Management Practices, Post-Construction Stormwater Management in New 

Development & Redevelopment, 

http://water.epa.gov/polwaste/npdes/swbmp/PostConstruction-Stormwater-Managementin-New- Development-and-Redevelopment.cfm (last updated July 2, 2014).

The treatment of heat is another important example of waste treatment systems at electric 

generating stations. Steam electric plants use condenser cooling water to transfer waste 

heat. Heated water from the plant may be conveyed to a cooling pond or impoundment, 

where the heat is treated by dissipation to the air. Cooled water within the cooling pond 

can be pumped back into the plant to start the cooling process again (in a closed loop 

system) or discharged to downstream “waters of the United States” (subject to CWA § 

402 permitting requirements, including limits governing waste heat). Many of these 

features are man-made reservoirs that were created purposefully to serve an industrial 

facility, and they are different from natural waterbodies. As an example, most power 

plant cooling impoundments located in Texas are designed specifically for heat 

dissipation. Moreover, in most cases, the man-made features would not exist without the 

power plant.

Similarly, areas that might otherwise contain features consistent with jurisdictional 

wetlands (or “waters of the United States”), such as hydrophytic vegetation and hydric 

soils, can in fact be waste treatment systems. For example, EPA has recognized and 

encouraged the use of “constructed wetlands” for wastewater treatment. See, e.g., EPA, 

EPA/625/1-88/022, Design Manual: Constructed Wetlands and Aquatic Plant Systems for 

Municipal Wastewater Treatment at 15 (Sept. 1988), available at

http://water.epa.gov/type/wetlands/upload/design.pdf. EPA also considers wetlands 

restoration a method of abating pollution from nonpoint and point sources. See EPA, 

EPA-841-B-05-003, National Management Measures to Protect and Restore Wetlands 60 

and Riparian Areas for the Abatement of Nonpoint Source Pollution at 43 (July 2005), 

available at http://www.epa.gov/owow/nps/wetmeasures/; EPA, EPA/832-R-93-005, 

Constructed Wetlands for Waste Water Treatment and Wildlife Habitat, 17 Case Studies 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

113

(Sept. 1993), available at http://www.epa.gov/owow/wetlands/pdf/ConstructedWetlandsComplete.pdf.

As this short overview demonstrates, water features ranging from constructed wetlands to 

ponds, lagoons, basins, and other impoundments, along with the ditches, channels, and 

canals that convey waste to and from those features, typically play an important role in 

waste treatment systems used at electric generating stations and related transmission and 

distribution facilities. They provide important environmental benefits by facilitating the 

proper handling and treatment of wastes produced during the process of generating, 

transmitting, and distributing electricity, ensuring that pollutant discharges are properly 

controlled before they discharge through a regulated point source to WOTUS.

If these waste treatment systems or their components were deemed WOTUS as a result of 

the Proposed Rule (for instance, as a result of their “adjacency” to a jurisdictional water), 

facilities would face the incongruous situation whereby an NPDES permit would be 

required for a discharge of wastewater or other fluids or substances into its treatment 

system,66 and that permit would require compliance with all technology- and water 

quality-based limits before the water enters the treatment system. This would make those 

features redundant and essentially useless for their intended purpose. It also would add 

exorbitant costs (mostly borne by the ratepayers) for replacement systems that provide 

little or no additional benefit.67 Alternative technologies, if practicable or available at all, 

could create their own environmental issues, for example by increasing impervious cover 

and requiring additional energy for pumping. Likewise, a Corps § 404 permit would be 

required for essential maintenance of waste treatment systems and the placement of 

control features or other structures within these features. (p. 67-71)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.

7.148 B. Exclusion of All Parts of a Waste Treatment System Is Consistent with the 

Language of the Statute and Congressional Intent.

Exclusion of treatment facilities from the definition of the WOTUS is consistent with the 

language of the statute and Congressional intent. These treatment facilities function as 

NPDES “end-of-pipe” treatment technologies and form an integral part of the total plant 

production and treatment process. Congress did not expect that EPA would view 

treatment facilities as regulated waters or regulate discharges into treatment facilities. 

 

66 Although § 122.45 of the NPDES regulations authorizes the establishment of “internal waste stream[ ]” limits 

where compliance monitoring at the point of discharge to WOTUS is impractical or infeasible, the authority to 

impose those limits is based on control of discharges from the point source to WOTUS. 40 C.F.R. § 122.45(h).

67 State regulators also would face additional costs, since they would have to establish water quality standards for 

those waterbodies. As discussed supra pp. 13-16 and infra p. 63, absent a waste treatment system exclusion, EPA’s 

Water Quality Standards rule, 40 C.F.R. § 131.10, forces regulators to choose between assigning patently arbitrary 

“fishable, swimmable” uses and associated criteria on manmade systems for which such uses are wholly 

inappropriate or spending their scarce time and treasure performing “use attainability analyses” in the hopes of 

justifying less restrictive uses and criteria. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

114

Instead, Congress intended that each company would be free to make “its own, 

innovative...decision” on how to meet end-of-pipe standards.68

The plain language and structure of the CWA reflects Congressional intent that waste 

treatment systems would be viewed as components of point sources or facilities, not as 

WOTUS. The CWA defines “point source” as any “discrete conveyance...from which 

pollutants are or may be discharged.” CWA § 502(14), 33 U.S.C. 1362(14) (emphasis 

added). Waste treatment systems are upstream of the point of discharge and thus are part 

of the system “from which” – not into which – pollutants are discharged within the 

meaning of the CWA. Id. Both the plurality opinion and Justice Kennedy’s opinion in 

Rapanos identify and accept this important distinction and recognize that the CWA 

definitions conceive of “point sources” and “navigable waters” as separate and distinct 

categories. Rapanos, 547 U.S. at 735 (plurality), 771 (Kennedy, J.).69 Excluding waste 

treatment systems from jurisdiction is essential to maintaining this distinction. (p. 71-72)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

7.149 The waste treatment system exclusion is one important tool for avoiding those 

implications and preventing conflicts with NPDES requirements. (p. 73-74)

Agency Response: See summary response at 7.1. 

7.150 Both Agencies’ definitions include a parenthetical cross-reference to “cooling ponds as 

defined in 40 CFR 423.11(m) which also meet the criteria of this definition . . . .” 40 

C.F.R. § 122.2(g); 33 C.F.R. § 328.3(a). The effect of that parenthetical is to exclude 

such ponds from protection under the waste treatment system exclusion. But, over thirty 

years ago, EPA withdrew the technology-based cooling pond regulations and 

accompanying definition that the parenthetical was designed to reference. See 45 Fed. 

Reg68,328 (Oct. 14, 1980) (proposed); 47 Fed. Reg. 52,290 (Nov. 19, 1982) (final). The 

Agencies propose (appropriately, we agree) to delete this parenthetical cross reference, 

recognizing that it refers to “an EPA regulation that is no longer in the Code of Federal 

Regulations.” 79 Fed. Reg. at 22,217 col. 3. The preamble characterizes this change as 

non-substantive. Id. Again, we agree. EPA long ago withdrew its regulations designed to 

 

68 S. REP. NO. 92-414, at 59 (1971), reprinted in 2 A LEGISLATIVE HISTORY OF THE WATER POLLUTION 

CONTROL ACT AMENDMENTS OF 1972, at 1477 (1973). Similarly, the Conference Report on the 1972 CWA 

states that:

[T]he Administrator is required to establish standards of performance which reflect the levels of control 

achievable through improved production processes, and of process technique, etc., leaving to the individual 

new source the responsibility to achieve the level of performance by the application of whatever technique 

determined available and desirable to that individual owner or operator.

S. REP. NO. 92-1236, at 128 (1972) (Conf. Rep.), reprinted in 1 A LEGISLATIVE HISTORY OF THE WATER 

POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 311 (1973).

69 Justice Kennedy takes issue with the plurality for its “negative inference” that, because point source discharges 

and WOTUS are mutually exclusive, and the plurality assumes that point source discharges are always intermittent, 

waters that flow intermittently are more like point sources than WOTUS. Id. at 771-72. But Justice Kennedy’s 

quarrel is with the assumption that all point source discharges are intermittent, not with the legal significance of the 

distinction between point source discharges and WOTUS.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

115

constrain the use of cooling ponds and lakes, meaning that the substantive change 

occurred years ago. (p. 78-79)

Agency Response: See summary response at 7.1. 

7.151 2. The Waste Treatment System Exclusion Applies Without Regard to When or 

Why a System Was Originally Constructed or Whether It Requires an NPDES 

Permit.

In many cases, waste treatment systems excluded from CWA jurisdiction involve 

components that were designed and constructed before the CWA was passed, that 

perform multiple functions, including treatment, or that do not require an NPDES permit. 

State and federal regulators routinely apply the waste treatment system exclusion to such 

systems, thereby excluding them from CWA jurisdiction.

For example, at several electrical generating stations in Florida, the treatment and 

subsequent movement of industrial wastewater from ponds to groundwater are regulated 

through a state regulatory program. The Florida Department of Environmental 

Protection’s (“FDEP”) Industrial Wastewater Program (“IWW”) authorizes the use of 

“percolation ponds.” Percolation ponds are artificial impoundments designed and 

operated to allow the vertical movement of treated water through the bed of the pond. 

The wastewater being treated in these ponds is composed mostly of neutralized, nonhazardous low-volume wastes from generating stations.

Because these ponds allow the movement of treated water to groundwater, which is not 

regulated under the CWA, and typically do not discharge to surface waters regulated 

under the CWA, these percolation ponds generally are not included or regulated in 

NPDES permits issued 71 by the FDEP. Instead, percolation ponds are regulated under a 

separate environmental permit issued by the FDEP under separate state statutes and rules. 

Therefore, while the design and operation of these ponds are subject to state regulation, 

the industry and state regulatory agencies consider these ponds to be waste treatment 

systems, not WOTUS regulated under the CWA. (p. 80-81)

Agency Response: See summary response at 7.1. See also the summary response 

at 7.4.2 regarding the agencies’ creation of an exclusion for certain wastewater 

recycling features, including percolation ponds.

7.152 3. The Waste Treatment System Exclusion Applies to the System as a Whole, Including 

Related Conveyances.

Most waste treatment systems do not consist of a single impoundment, structure, or 

feature where all treatment functions occur. Rather, management of the wastewater to and 

from the places where treatment occurs is an intrinsic and important part of the waste 

treatment system. This principle should be so obvious as to encounter no opposition.70

 

70 A passing statement in the Proposed Rule’s preamble says: “Ditches may have been created for a number of 

purposes, such as irrigation, water management or treatment, and roadside drains. In order to be excluded, however, 

the ditch must be excavated wholly in uplands, drain only uplands, and have less than perennial flow.” 79 Fed. Reg. 

at 22,203-04 (emphasis added). What this statement does not say, however, is whether such a ditch also could be 

excluded under the waste treatment system exclusion. We believe that the Agencies most likely failed to mention the 

exclusion in this context because, in their minds, it is settled that it should apply and therefore not worthy of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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(After all, the word “system” itself connotes a set of connected parts of things forming a 

complex whole, not a single, isolated feature.) The Agencies and reviewing courts agree, 

confirming that channels linking the basin where treatment occurs are unavoidable and 

necessary components of a waste treatment system. See 2006 Grumbles Letter at 3; Ohio 

Valley Envtl. Coal., 556 F.3d at 209 (“[S]tream segments, together with the sediment 

ponds to which they connect, are unitary ‘waste treatment systems’ . . . .”). Also, as the 

Agencies acknowledge, such channels often provide additional treatment. 2006 Grumbles 

Letter at 3.

In short, the waste treatment system exclusion has been properly interpreted and applied 

to include all of the drains and ditches that flow to sumps, lagoons, and other ponds, or 

whose contents are eventually pumped or discharged to a pond exempted under the waste 

treatment systems (e.g., ash ponds) and from there discharge to jurisdictional waters. (p. 

82-83)

Agency Response: See summary response at 7.1. 

7.153 E. The Agencies Should Undo Their Inadvertent But Potentially Substantive 

Change to the Waste Treatment System Exclusion.

The Agencies propose a subtle change in the waste treatment system exclusion that could 

be misinterpreted to narrow the exclusion (a result the Agencies have said they do not 

intend). The current rule excludes “Waste treatment systems, including treatment ponds

or lagoons designed to meet the requirements of the Clean Water Act.” With this 

punctuation, the qualifier “designed to meet the requirements of the Clean Water Act” 

modifies only the phrase “treatment ponds and lagoons.” The Proposed Rule would add a 

comma after “lagoons,” thus excluding “[w]aste treatment systems, including ponds or 

lagoons, designed to meet the requirements of the Clean Water Act.” Proposed 33 C.F.R. 

§ 328.3(b)(1), 79 Fed. Reg. at 22,263 col. 1. This punctuation change could be interpreted 

as a substantive change to the provision. It can be read to change the reach of the 

qualifying language by applying it to all waste treatment systems. Under this reading, all 

systems, not just “treatment ponds and lagoons” to which the qualification currently 

applies, would have to be “designed to meet the requirements of the Clean Water Act” in 

order to fall within the exclusion. This creates new interpretative issues, as “designed to 

meet” could be construed narrowly or broadly.71 For example, features that were 

constructed for waste treatment prior to the CWA’s enactment in 1972 could not have 

been designed with CWA compliance in mind, yet such features often play an essential 

role in achieving compliance with current CWA requirements and are commonly 

 

mention. If so, the Agencies should clarify that ditches that are part of a waste treatment system are covered by the 

waste treatment system exclusion. If that is not the case, however, the Agencies should explain their position and 

provide an opportunity for public comment.

71 Even if the “designed to meet” language were applied to all waste treatment systems, it need not be read as 

preventing application of the exclusion to systems that pre-date the CWA, serve multiple functions, or require no 

NPDES permit. Absent temporal and other qualifications, it would be perfectly natural to read the “designed to 

meet” language as referring to those systems that currently function to reduce water pollution in some fashion. Such 

a reading is certainly consistent with the way in which the exclusion has been applied in most cases. But adding the 

comma invites unnecessary speculation and uncertainty, which we urge the Agencies to avoid.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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excluded from regulation by virtue of the waste treatment system exclusion. The 

Agencies should avoid this interpretative minefield by deleting the new comma.

UWAG does not support this unacknowledged edit to the exclusion, which could limit 

the scope of the exclusion, converting currently excluded waste treatment systems into 

WOTUS with a single stroke. The Agencies have said they are not making any 

substantive changes to the provision. If so, they should remove the comma. If the 

Agencies nevertheless retain the new comma, they must acknowledge the comma, 

explain what it means, and afford an opportunity for public comment. (p. 83-84)

Agency Response: See summary response at 7.1. 

Edison Electric Institute (Doc. #15032)

7.154 ...today a utility can withdraw water from a river or lake to an on-site, constructed pond 

and then use that water in a closed-cycle system, with or without returning the water to 

the river or lake. Under current regulations, that pond typically would not be considered a 

water of the U.S. and use of the pond would not trigger related regulatory requirements 

(e.g., CWA section 402 permitting obligations for transfers of water to or from the pond, 

section 404 permitting obligations for maintenance activities associated with the pond, or 

section 316(b) cooling water intake structure requirements for withdrawals from the pond 

to the power plant for cooling purposes). However, the proposed rule categorically asserts 

jurisdiction over tributary and adjacent waters in a manner that could reclassify the pond 

as a water of the U.S. This would hinder the use of closed-cycle systems, which EPA's 

cooling water intake structure rules seek to promote. This also would be inconsistent with 

past practices and interpretations, creating enormous confusion about the jurisdictional 

status of the pond and related regulatory requirements. Under longstanding EPA policy, 

water that has been withdrawn from the waters of the U.S. is not subject to federal 

jurisdiction. 72 The proposed rule should maintain that distinction. (p. 20)

Agency Response: See summary response at 7.1. See also the summary response 

at 7.3.2 regarding the exclusion of certain cooling ponds.

7.155 ...utilities also may have lagoons for the management of wastewater at their generation 

facilities. In some cases that wastewater may be discharged to a river under a section 402 

national pollutant discharge elimination system (NPDES) permit. In other cases, the 

lagoon may not discharge. In either case, the lagoon should be covered by the waste 

treatment system exclusion. Like closed-cycle cooling ponds, under the current 

definition, such a lagoon would not be considered a water of the U.S. However, the 

proposed jurisdiction over "adjacent waters" under the proposed rule calls into the 

question the status of these lagoons. These lagoons are determined to be waters of the 

U.S., utilities may no longer be able to use them for storage, effectively requiring 

generation facilities immediately to find alternative, undoubtedly very costly, waste 

system management options that can be implemented within the physical constraints of a 

 

72 This policy is described in the preamble to EPA's water transfer rule, which distinguishes between "a situation in 

which, for example, an industrial facility takes in water for the purpose of cooling some part of the facility itself' 

where "the water used for cooling loses its status as a water of the United States" with transfers of water from one 

water body to another without an intervening industrial use. 73 Fed. Reg. 33697,33705 n.10 (June 13,2008).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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given facility site. This would prevent the use of lagoons in cases where they may be 

desired and appropriate, and the orderly and cost-effective transition away from them in 

cases where utilities are required to move to other treatment options over time. Like 

cooling water, the water in these lagoons is being used for an industrial purpose and 

should not be considered a water of the U.S.73 (p. 20-21)

Agency Response: See summary response at 7.1. 

7.156 The proposed rule would maintain the current exclusion of waste treatment systems from 

being jurisdictional, and the agencies state that they do not propose any substantive 

changes to the exclusion for waste treatment systems, though they would add a comma so 

the exemption would apply to "waste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act." 79 Fed. Reg. 22217. 

However, although the exclusion itself is fairly straightforward, it has not always been 

applied consistently. As a result, the same type of feature may be treated as an excluded 

"waste treatment system" in one instance, but treated as a jurisdictional "water of the 

U.S." in another instance.

In addition, by adding a comma after the word "lagoons," the proposed rule could be read 

to narrow the scope of the exclusion by requiring that all "waste treatment systems," not 

just "treatment ponds or lagoons" as under the current rules, be "designed to meet the 

requirements of the CWA" to qualify for the exclusion. This could be interpreted to 

mean, for instance, that features that were constructed for waste treatment prior to the 

CWA's enactment in 1972 do not qualify for the waste treatment exclusion. This creates 

new interpretive issues, as "designed to meet the requirements of the CWA" can be 

construed narrowly or broadly. For example, features that were constructed for waste 

treatment prior to the CWA's amendment in 1972 could not have been designed with 

CWA compliance in mind. Yet these features often play an important role in achieving 

compliance with current CWA requirements, and are now commonly excluded from 

regulation by virtue of the waste treatment system exclusion.

Furthermore, the Agencies have missed an opportunity to delete long-suspended 

language included only in the NPDES version of the exclusion, and thus to bring greater 

clarity and certainty to the interpretation and application of the exclusion. The agencies 

should delete that suspended language to avoid confusion. (p. 21-22)

Agency Response: See summary response at 7.1. 

7.157 The agencies should carefully maintain the waste treatment exemption to ensure that 

utilities and other businesses can continue to rely on their waste treatment conveyance 

and storage systems to comply with the water quality requirements of the CWA. The 

agencies should delete the proposed new comma in the exemption and the suspended 

limitation in the current section 402 waste treatment exclusion. (p. 30)

 

73 See preceding note. This policy is described in the preamble to EPA's water transfer rule, which distinguishes 

between "a situation in which, for example, an industrial facility takes in water for the purpose of cooling some part 

of the facility itself' where "the water used for cooling loses its status as a water of the United States" with transfers 

of water from one water body to another without an intervening industrial use. 73 Fed. Reg. 33697,33705 n.10 (June 

13,2008).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

119

Agency Response: See summary response at 7.1. 

Colorado River Water Conservation District (Doc. #15070)

7.158 The River District supports the continuation of the explicit exemption for ditches, canals, 

and retention/detention/treatment ponds that are part of wastewater treatment systems. 

We request that the proposed rule also include explicit exemptions for water management 

infrastructure related to permitted stormwater management and drinking water treatment 

systems. (p. 3)

Agency Response: See summary response at 7.1. See also summary response at 

7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control 

features.

Cleco Corporation (Doc. #15077)

7.159 The exclusion for waste treatment systems should be clarified.

The definition of Waters of the U.S. currently appears in EPA's NPDES regulations in 40 

C.F.R. § 122.2. That definition section includes the waste treatment system exemption, 

which reads as follows:

Waste treatment systems, including ponds or lagoons designed to meet the requirements 

of the Clean Water Act (other than cooling ponds as defined in 40 C.F.R. 423.11 (m) 

which also meet the criteria of this definition) are not waters of the United States.

Both Agencies' definitions include the reference, in parenthesis, to "cooling ponds as 

defined by 40 C.F.R. 423.l1(m) which also meet the criteria of this definition." But, over 

thirty years ago, EPA withdrew the technology-based cooling pond regulations and the 

accompanying definition that the parenthetical was designed to reference. See 45 Fed. 

Reg. 67,629, 68,328 (Oct. 14, 1980) (proposed); 47 Fed. Reg. 52,115, 52,290 (Nov. 19, 

1982) (final). The Agencies propose to delete this parenthetical cross reference since it 

refers to an EPA regulation that is no longer in the Code of Federal Regulations. 79 Fed. 

Reg. at 22,217. Cleco agrees that this action is appropriate. (p. 2)

Agency Response: See summary response at 7.l. 

7.160 The exclusion for waste treatment systems should be further clarified.

The proposed rule excludes "waste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act." But the agencies 

retain, in 40 C.F.R. § 122.2, both: (1) the sentence proclaiming that the waste treatment 

exclusion "applies only to manmade bodies of water which neither were originally 

created in waters of the United States (such as disposal area in wetlands) nor resulted 

from the impoundment of waters of the United States," and (2) the accompanying 

footnote explaining that EPA suspended the sentence in question in 1980. See 79 Fed. 

Reg. at 22,268. Although this language was suspended in 1980, Cleco is concerned that 

some may have erroneously applied the suspended language in the past and that others 

might do so in the future. Retaining this suspended language simply adds confusion. To 

provide clarity, the Agencies should delete the suspended sentence and accompanying 

footnote from 40 C.F.R. § 122.2. (p. 2-3)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

120

Agency Response: See summary response at 7.1. 

7.161 The proposed addition of a comma in the regulatory text changes the meaning of the 

waste treatment exclusion.

The current rule excludes: "Waste treatment systems, including ponds or lagoons 

designed to meet the requirements of the Clean Water Act." With the punctuation in this 

sentence, the qualifier "designed to meet the requirements of the Clean Water Act" 

modifies only the phrase "ponds and lagoons." But the addition of a comma in the 

Proposal's regulatory text changes the meaning of the waste treatment exclusion. Again, 

in the existing regulations, the phrase "designed to meet the requirements of the CWA" 

modifies the examples of "treatment ponds or lagoons." 33 C.F.R. § 328.3(a). The 

proposed rule's addition of a comma after "treatment ponds and lagoons" narrows the 

scope of the exclusion by requiring that all "waste treatment systems," not just "treatment 

ponds or lagoons," be "designed to meet the requirements of the CWA" to qualify for the 

exclusion. This punctuation change could be interpreted as a substantive change to the 

provision. It can be read to broaden the reach of the qualifying language by applying it to 

all waste treatment systems. Under this reading, all systems, not just "ponds and lagoons" 

to which the qualification currently applies, would have to be "designed to meet the 

requirements of the Clean Water Act" in order to fall within the exemption. Cleco 

encourages the Agencies to remove the new comma inserted in the Proposal. (p. 3)

Agency Response: See summary response at 7.1. 

7.162 Waste-treatment system ditches should be included in the exemption.

Ditches are often a necessary component of waste treatment systems. Historically, the 

waste treatment system exclusion has been properly interpreted and applied to include all 

of the drains and ditches that flow to sumps, lagoons, and other ponds, or whose contents 

are eventually pumped or discharged to a pond exempted under the waste treatment 

systems (e.g., ash ponds) and from there discharge to jurisdictional waters. Agencies 

should clarify in the final rule that ditches that are part of a waste treatment system are 

covered by the waste treatment system exclusion. (p. 3)

Agency Response: See summary responses at 7.1 and 7.4.2. 

7.163 An exemption should be added to the Proposal to clarify ponds and impoundments 

used for raw water storage and transfer are not Waters of the U.S.

Raw water and other service ponds are used in facilities to store rain water, stormwater 

runoff, and water withdrawn from other water bodies, for eventual use by the facility. For 

those ponds that do not qualify as waste treatment systems, classifying this type of manmade water feature as a Waters of the U.S. could have important and costly impacts. For 

example, a particular impact could be a raw water storage pond falling under 

classification as a Waters of the U.S. could fall under 316(b) regulations for cooling 

water intake structures. Imposing section 316(b) requirements on cooling water 

withdrawals from ponds and reservoirs purpose-built to supply water for steam electric 

plants, would impose enormous costs without any corresponding environmental benefit. 

To avoid substantial and unnecessary impacts of this kind, Cleco requests that the 

Agencies add an exemption to clarify that ponds and impoundments used for raw water 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

121

storage and transfer are not Waters of the U.S., so as to allow their continued use without 

the creation of issues associated with water transfer. (p. 3-4) 

Agency Response: See summary response at 7.1. See also the summary response 

at 7.3.2 regarding exclusion of certain cooling ponds.

NiSource Inc. (Doc. #15112)

7.164 The agencies should address which features and waters can be considered a waste 

treatment system. Moreover, the agencies should clarify that all on-site management of 

water, including transport, storage, treatment, and use, are non-jurisdictional. Any 

discharges into waters of the U.S. that result from these activities are already covered 

under section 402 of the Act. The agencies should engage with stakeholders that rely on 

the waste treatment exclusion to understand the confusion and unpredictability that 

surrounds this exclusion. After having these critical stakeholder discussions, the agencies 

should propose a revised rule that addresses the waste treatment exclusion and provides 

some much needed clarity for regulators and the regulated public. (p. 7)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

Michigan Manufacturers Association (Doc. #15170)

7.165 The agencies state that they do not propose any changes to the exclusion for waste 

treatment systems, but the applicability of this exclusion has been anything but clear and 

agency interpretation of the scope of the exclusion has changed over time. Reliance on 

the waste treatment exclusion is critical for MMA’s members. The agencies should 

address which features and waters can be considered a waste treatment system. 

Moreover, the agencies should clarify that all on-site management of water, including 

transport, storage, treatment, and use, are non-jurisdictional. Any discharges into waters 

of the U.S. that result from these activities are already covered under section 402 of the 

Act. The agencies should engage with stakeholders that rely on the waste treatment 

exclusion to understand the confusion and unpredictability that surrounds this exclusion. 

After having these critical stakeholder discussions, the agencies should propose a revised 

rule that addresses the waste treatment exclusion and provides some much needed clarity 

for regulators and the regulated public. (p. 4-5)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.

Ohio Utility Group (Doc. #15246)

7.166 Under the Ohio Revised Code, "treatment works" are defined as "any plant, disposal 

field, lagoon, dam, pumping station, building sewer connected directly to treatment 

works, incinerator, or other works used for the purpose of treating, stabilizing, blending, 

composting, oz holding sewage, sludge, sludge materials, industrial waste, or other 

wastes, except as otherwise defined." R.C. 6111.01(F). In addition, "disposal system" is 

defined as "a system for disposing of sewage, sludge, sludge materials, industrial waste, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

122

or other wastes and includes sewerage systems and treatment works." R.C. 6111.01(G). 

Under Ohio's regulations, treatment works and disposal systems are excluded from the 

definition of "surface waters of the state" or "water bodies." Ohio Adm. Code 3745-1-

02(13)(77) ("Surface waters of the state" or "water bodies" mean all streams, lakes, 

reservoirs, ponds, marshes, wetlands or other waterways which are situated wholly or 

partially within the boundaries of the state, except those private waters which do not 

combine or effect a junction with natural surface or underground waters. Waters defined 

as sewerage system, treatment works or disposal system in section 6111.01 of the 

Revised Code are not included.") (emphasis added). However, under the proposed 

definition, some treatment works or disposal systems may be considered "waters of the 

United States." (p. 2)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain cooling ponds and wastewater 

recycling and stormwater control features.

7.167 While the rule affirms that there is still an exclusion of "waste treatment systems," OUG 

would like U.S. EPA to confirm that the treatment systems defined under R.C. 6111.01 

still fall within the exclusion of "waste treatment systems" because a reading of this broad 

definition of "tributary" appears to broaden the definition and could cover "treatment 

works" and "disposal systems," which are not subject to Water Quality Standards. (p. 3)

Agency Response: See summary response at 7.1. 

7.168 The Utilities have also had mixed results with the Corps on whether small streams that 

drain in ash ponds are jurisdictional. In some instances, the Corps has determined that 

since an ash pond had a nexus with a water of the United States, the stream was 

jurisdictional. In other instances, the inlet stream was deemed non-jurisdictional. Under 

the proposed rule, it is likely that all inlet streams of this nature would be classified as a 

water of the United States... (p. 3)

Agency Response: See summary response at 7.1. See also Compendium 8 –

Tributaries. 

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407)

7.169 For the first time, the proposed rule extends the concept of jurisdiction by virtue of 

adjacency to non-wetland waters. Essentially all waters within the floodplain or riparian 

area of a jurisdictional water body or waters that have a shallow subsurface hydrological 

connection to a jurisdictional water body, have a significant nexus and will be 

jurisdictional by rule.

The proposed approach is certain to sweep in many features that have only remote and 

insubstantial connections with traditional navigable waters. Waters that used to be 

considered “isolated” and therefore beyond the scope of CWA jurisdiction will now be 

“adjacent” and the proposed “shallow subsurface hydrologic connection or confined 

subsurface hydrologic connection” language will be used to assert jurisdiction over any 

wet area, including on-site ponds and impoundments.

Such unbounded jurisdiction would have major impacts for countless industrial facilities 

that rely on industrial earthen settling basins for their operations. For example, our Oak 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

123

Creek Power Plant has several DNR-approved basins that are within several hundred feet 

of Lake Michigan. It is unclear what the jurisdictional result will be when a single water, 

such as a settling basin, is arguably included in the scope of the rule as a result of 

adjacency, and also expressly excluded by virtue of coverage under one of the categorical 

exclusions in 40 C.F.R. § 230.3(t) or § 232.2(2), such as the waste treatment exclusion, 

discussed below. The solution is for the rule to clearly exclude these types of facilities. 

The agencies should revise the proposed rule such that only wetlands can be 

jurisdictional by virtue of adjacency. (p. 5-6)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features. See also Compendium 3

(Adjacent Waters) and Compendium 5 (Significant Nexus). 

7.170 D. The Waste Treatment Exclusion is Unclear

The agencies should address which features and waters can be considered a waste 

treatment system. Moreover, the agencies should clarify that all on-site management of 

water, including transport, storage, treatment, and use, are non-jurisdictional. Any 

discharges of pollutants into waters of the United States that result from these activities 

are already covered under section 402 of the CWA. The agencies should engage with 

stakeholders that rely on the waste treatment exclusion to understand the confusion and 

unpredictability that surrounds this exclusion. After having these critical stakeholder 

discussions, the agencies should propose a revised rule that addresses the waste treatment 

exclusion and provides some much needed clarity for regulators and the regulated public. 

(p. 6)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

SCANA Services, Inc. (Doc. #15660)

7.171 The proposed rule includes a change in punctuation in the waste treatment system 

exclusion. This change (the addition of a comma after “ponds and lagoons”) could be 

interpreted to include all waste treatment systems, instead of just ponds and lagoons. 

Clarification is needed here to address whether a change in scope is intended. (p. 2)

Agency Response: See summary response at 7.1. 

Lower Colorado River Authority (Doc. #16332)

7.172 The Proposed Rule includes an exclusion of "waste treatment systems, including 

treatment pond or lagoons, designed to meet the requirements of the Clean Water Act." 

79 Fed. Reg. at 22,199. According to EPA and USAGE, the Agencies "propose no 

change to the exclusion for waste treatment systems designed consistent with the 

requirements of the CWA." 79 Fed. Reg. at 22,189. LCRA requests that EPA and 

USAGE confirm that this exclusion covers waste treatment systems such as those in 

place at electric generation utilities. (p. 4)

Agency Response: See summary response at 7.1. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

124

Seminole Electric Cooperative, Inc. (Doc. #16363)

7.173 The amorphous yet undeniably expansionistic proposed definition of waters of the United 

States is especially problematic for steam electric utilities near jurisdictional waters. A 

specific concern is that some waste treatment systems could be seen as being waters of 

the United States under the extremely broad language of the proposed rules. Examples of 

such waste treatment systems include cooling ponds, ash ponds, industrial stormwater 

treatment ponds, rapid infiltration basins, settling basins, etc. Many such waste treatment 

systems very likely will be "adjacent" or "neighboring" under the proposed definition, 

due to Florida's unique, low gradient topography. If such waste treatment systems are 

considered to be waters of the United States, the regulatory consequences would be 

enormous. The treatment systems would no longer be able to serve their essential purpose 

(which is to treat wastewater), because EPA's regulations specifically state that waste 

assimilation and transport cannot be designated uses of waters of the United States. 40 

CFR § 131.10(a).

Capturing such treatment works as waters of the United States would be a substandard 

policy choice, because permitted waste treatment systems cannot possibly be part of the 

aquatic inventory that Congress intended to protect under the CWA (in contrast to some 

wetlands, that do warrant protection). To assert that waste treatment systems are waters 

of the United States would be to negate their status as waste treatment systems. Although 

permitted waste treatment systems potentially could impact nearby jurisdictional waters, 

asserting jurisdiction is not a sensible approach to addressing potential impacts.

The current language of the waste treatment system exclusion is not adequate to solve the 

problems created by the proposed rule revisions, because courts have tended to interpret 

exclusions very narrowly. Thus, there is an acute need for changes to the proposed rule 

revisions. In that respect, Seminole supports the proposed definition of "waste treatment 

system" proposed in a separate comment letter by the Florida Electric Power 

Coordinating Group, Inc., Environmental Committee. (p. 3-4)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

Tri-State Generation and Transmission Association, Inc. (Doc. #16392)

7.174 The waste treatment system exclusion is a long-held regulatory provision implemented in 

various sections and programs of the CWA. The proposed rule stated that the Agencies 

"do not propose to address the substance of the waste treatment system exclusion."74

However, as written, one such proposed change reads:

Current exemption (33 CFR 328.3(a)(8)):

... Waste treatment systems, including treatment ponds or lagoons designed to 

meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 

423.11(m) which also meet the criteria of this definition) are not waters of the 

United States.

 

74 Id. at 22217. [79 Federal Register (FR) 22263 and 22217]
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

125

Proposed rule exemption (33 CFR 328.3(b)(l)):

Waste treatment systems, including treatment ponds or lagoons designed to meet 

the requirements of the Clean Water Act.

The Agencies have significantly narrowed the exclusion by requiring that all waste 

treatment systems be "designed to meet the requirements of the Clean Water Act." Under 

the existing regulations, the phrase "designed to meet the requirements of CWA" only 

modifies the examples of "treatment ponds or lagoons."75

The proposed language indicates that all waste treatment systems that were not designed 

to meet the requirements of the CWA, which could include, for instance, those that were 

designed to be zero discharge or to meet the Surface Mining Control and Reclamation 

Act of 1977 (SMCRA) environmental protection standards would not be exempt from 

jurisdiction. By mandating that all waste treatment systems be designed to meet the 

requirements of the CWA, the Agencies' administrative change will have the unintended 

consequence of potentially denying application of the exclusion to many existing waste 

treatment systems. Because the Agencies' proposal is not intended to "address the 

substance" of or narrow this exclusion, the Agencies should remove the new comma from 

the regulatory text.

Tri-State agrees with the Agencies' intent to not change the existing exclusion. Water 

reuse is essential for Tri-State operations in the arid to semi-arid western United States, to 

preserve and protect important water resources. Ditches, onsite ponds, impoundments, 

and other water management features are used to control and recycle waters onsite, 

reducing freshwater needs. Some water management features are created on dry lands, 

while others are created by impounding or modifying existing waters of the United States 

pursuant to Section 404 permits.

... In the alternative to removing the additional comma, Tri-State urges the Agencies to 

revise the proposal to maintain the current exclusion for waste treatment systems 

designed for any water quality purpose. Accordingly, TriState suggests the following 

added boldface text to the proposed language for 33 CFR 328.3(b)(l) and equivalent 

sections in the other regulations proposed for revision. Waste treatment systems, 

including treatment ponds or lagoons~ such as hut not limited to those designed to meet 

the requirements of the Clean Water Act, Surface Mining Control and Reclamation Act 

or other water quality requirement of a Local, State or Federal agency. (p. 6-7, 8)

Agency Response: See summary response at 7.1. 

7.175 The Agencies should also clarify, either in the preamble or the regulatory text, that the 

term "treatment" for purposes of the waste treatment system exclusion includes, but is not 

limited to, methods such as wastewater and stormwater retention, concentration 

(evaporation), settling, and active and passive treatments to remove or reduce 

contaminants. Power generation and mining companies, and other industries, uniformly 

rely on these forms of treatment to support their operations and ensure that, if there are 

any downstream discharges, they meet all applicable NPDES permitting requirements. 

Wastewater treatment does not necessarily require the addition of chemicals or the use of 

 

75

e.g., 33 C.F.R. § 328.3(a).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

126

complex technologies like ion exchange or reverse osmosis, and may consist of simply 

allowing suspended solids to settle prior to discharge under a NPDES permit. Natural 

processes, such as evaporation or pollutant uptake by aquatic vegetation, can effectively 

help solids settle out and even remove pollutants. Collecting and retaining wastewater 

and stormwater runoff in on-site water management features is a widely used form of 

waste treatment in many industries. In fact, construction of stormwater treatment ponds is 

often a required "best management practice" to control and treat stormwater runoff and 

protect downstream WOTUS. Such required features should not be jurisdictional 

WOTUS.

Finally, the Agencies should explicitly recognize that ditches, feeder streams, and other 

on-site waters carrying flow to and from ponds and impoundments used to treat 

wastewater and stormwater are part and parcel of waste treatment systems at industrial 

facilities and are included in the waste treatment exemption. Such flowing waters are 

necessary to convey wastewater and stormwater, and increase sediment and other 

pollutants settling prior to discharge to downstream WOTUS. Waste or process water that 

is conveyed to downstream jurisdictional waters requires an NPDES permit when a 

pollutant is added and, not surprisingly, NPDES permitting authorities have typically 

agreed that it would be senseless to require additional permits above the point of 

discharge to downstream jurisdictional waters. Nevertheless, to avoid potential confusion 

in the field concerning the scope of the waste treatment system exclusion, the Agencies 

should make it clear that the exclusion encompasses both ponds/impoundments and the 

related flowing waters within a facility project site that are necessary to convey waters to 

and from those ponds and impoundments as part of the treatment process. (p. 8)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

Xcel Energy (Doc. #18023)

7.176 The agencies should also address which features and waters can be considered a waste 

treatment system. The agencies should engage with stakeholders that rely on the waste 

treatment exclusion to understand the confusion and unpredictability that surrounds this 

exclusion. After having these critical stakeholder discussions, the agencies should 

propose a revised rule that addresses the waste treatment exclusion and provides some 

much needed clarity for regulators and the regulated public. (p. 8)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

Alliant Energy Corporate Services, Inc. (Doc. #18971)

7.177 The WTS provision currently provides an exclusion from WOTUS for "Waste treatment 

systems, including treatment ponds or lagoons designed to meet the requirements of the 

Clean Water Act" 40 C.F.R. §122 .2. EPA and the Corps have acknowledged that WTS 

are not jurisdictional and should remain excluded from any definitions of WOTUS and 

thus have "proposed no change to the exclusion for waste treatment systems designed 

consistent with the requirements of the CWA" (79 Fed. Reg. at 22,189). Alliant Energy 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

127

supports the EPA and the Corps' desire to maintain the WTS exclusion. However, a 

subtle change to the WTS exclusion is noted in the proposed rule as follows: "Waste 

treatment systems, including treatment ponds or lagoons, designed to meet the

requirements of the Clean Water Act" (79 Fed. Reg. at 22,193). Adding a comma after 

"lagoons" implies that all systems, not just treatment ponds and lagoons, would have to 

be "designed to meet the requirements of the Clean Water Act" in order to fall within the 

exclusion. This creates confusion. For example, a facility may have a WTS with 

components constructed prior to and after the enactment of the CWA which are covered 

under the same NPDES permit. It's unclear how the proposed WTS exclusion language, 

with the additional comma, would apply to such a facility. 

In addition, the proposal provides little clarity on other lingering issues regarding 

implementation and interpretations of the WTS exclusion. Historically, the WTS 

exclusion has failed to provide consistent application or clear legal - standing for utilities. 

Alliant Energy utilizes various structures, such as ash ponds, cooling ponds, stormwater 

run-off ponds, and various conveyances to manage and treat water at its generating 

facilities. Periodic maintenance, such as dredging, is required for these systems to ensure 

efficient operation. Without the WTS exemption, these activities would require individual 

permitting, which would have compounding negative impacts to the facility's operational 

status and availability. (p. 3)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

7.178 Considerations:

Alliant Energy has the following suggestions for EPA and the Corps to consider when 

editing the proposal:

 Clearly define all WTS structures and water features, including influent conveyance 

and effluent discharge, on -site storage, treatment, and site maintenance (e.g., 

stormwater management) or otherwise "in-use" waters, which are non-jurisdictional 

and, therefore, covered by the WTS exclusion. 

...

 Clarify that cooling ponds are considered Waste Treatment Systems and therefore, 

excluded from WOTUS. See the Federal Water Quality Coalition's comments for 

further detail. (p. 3-4)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

South Carolina Public Service Authority (Doc. #18860)

7.179 The proposed rule asserts that "[t]he agencies propose no change to the exclusion for 

waste treatment systems designed consistent with the requirements of the CWA." The 

proposed rule provides that "[w]aste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act" are not WOTUS. 

Despite the agencies' claims that nothing has changed with respect to this exclusion, the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

128

language of the proposed rule indicates that the agencies would interpret the waste 

treatment exclusion to mean that no waste treatment system qualifies for the exclusion 

unless the system was designed consistent with the requirements of the CWA. Reliance 

on the waste treatment exclusion is critical. These systems and their discharges are 

already covered under Section 402 of the CWA. Additional regulation under Section 404 

would result in an unintended and unworkable regulatory outcome. There should be no 

question that systems for on-site, or off-site through legal rights-of-ways, transport,

storage, treatment, and use of water, including stormwater, wastewater, drinking water, 

cooling water, process water, and raw water are not regulated under Section 404.

These comments are also applicable to stormwater systems operating under MS4s and/or 

local ordinances, and systems handling stormwater discharges from construction activity. 

Regulation of these systems as WOTUS would be unmanageable and would have direct 

effect on essentially all of our customers. (p. 4-5)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2, 7.4.2, and 7.4.4 regarding exclusions for certain settling basins, cooling ponds, 

and wastewater recycling and stormwater control features.

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network 

(Doc. #15233)

7.180 ...while we agree that waste treatment systems may be properly excluded if they are 

properly regulated under other sections of the CWA, we are concerned that where 

wastewater treatment systems include natural, restored, or manmade wetlands, swales, 

etc., the proposed rule does not clarify how discharges from those features will be 

addressed by EPA as WOTUS or as wastewater systems? (p. 10)

Agency Response: See summary response at 7.1. 

Natural Resources Defense Council et al. (Doc. #15437)

7.181 C. The Rule Should Limit the Current Exemption for Waste Treatment Systems

The proposal excludes “[w]aste treatment systems, including treatment ponds or lagoons, 

designed to meet the requirements of the Clean Water Act” from being considered 

Waters of the United States and therefore jurisdictional under the Act. This aspect of the 

proposal is unchanged from the current regulations. Because EPA and the Corps are not 

proposing to do anything new, the Federal Register notice accompanying the proposal 

contains no commentary or explanation for the exemption.76

 

76 Indeed, the agencies appear to be trying to wall off this exemption from public comment and perhaps even judicial 

review. See 79 Fed. Reg. at 22,190 (discussing exemptions and stating, “the agencies do not seek comment on these 

existing regulatory provisions”). However, this exemption is centrally related to the core elements of this 

rulemaking, especially because many so-called waste treatment systems would qualify as impoundments of 

jurisdictional waters, such that they should be categorically protected under this proposal. Moreover, as the history 

recounted in the text indicates, the exemption as currently implemented has not been subjected to notice-andcomment rulemaking, such that it is only fair to the public that the provision be examined in this rulemaking. 

Accordingly, the agencies must carefully consider comments on this exemption, and should ensure that any final 

provision exempting waste treatment systems is consistent with the original intent of the regulatory provision.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

129

We have considerable concern with the agencies’ current practice with regard to this 

exemption for waste treatment systems. Since the exemption was written into the 

regulations, EPA and the Corps have attempted to expand it to cover waters for which it 

plainly was not intended. In 1980, EPA amended its regulations to provide that:

Waste treatment systems, including treatment ponds or lagoons designed to meet 

the requirements of the Act ... are not waters of the United States. This exclusion 

applies only to manmade bodies of water which neither were originally created in 

waters of the United States (such as a disposal area in wetlands) nor resulted from 

the impoundment of waters of the United States.77

Clearly, the exclusion was limited. In view of the fact that the Act “was not intended to 

license dischargers to freely use waters of the United States as waste treatment systems, 

the definition makes clear that treatment systems created in those waters or from their 

impoundment remain waters of the United States.”78 Although the second sentence of the 

regulatory exclusion was suspended in order to dispel concerns that pre-existing 

treatment systems would be retroactively brought into the regulatory system,79 the 

exemption was not meant to be a wholesale authorization of anything described as a 

“waste treatment system.” To the contrary, EPA‘s initial implementation of the rules 

rejected a sweeping interpretation; the agency argued in litigation that in-stream disposal 

of coal mining waste did not qualify for the exemption.80

Unfortunately, over time, EPA and the Corps have reversed this interpretation, and now 

allow sources to use the regulatory exemption to treat new waste treatment facilities in 

protected waters as excluded from the Clean Water Act. Under the agencies’ revised 

interpretation, a new impoundment of waters of the United States is able to qualify for the 

waste treatment system exclusion if it is established via a section 404 permit.81 This 

position has since been upheld in litigation.82

We strongly oppose this approach – nothing is more inconsistent with the basic premise 

of the Clean Water Act and its foundational goal of eliminating discharges of pollutants 

 

77 W.Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1289 (S.D. W.Va. 1989) (quoting 40 C.F.R. § 122.3 (1980)).

78 Id. (quoting 45 Fed. Reg. 33,298 (May 19, 1980)).

79 Id. (citing 45 Fed. Reg. 48,620 (July 21, 1980)).

80 Id. at 1289-90 (deferring to EPA‘s interpretation that treatment ponds were regulated “impoundments,” not 

excluded “waste treatment systems”). See also Memorandum from Marcia Williams, EPA Office of Solid Waste 

Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B (Apr. 2, 

1986) (“EPA applies a standard which treats newly created impoundments of waters of the U.S. as ‘waters of the 

U.S.,’ not as ‘waste treatment systems designed to meet the requirements of the CWA,’ whereas impoundments of 

‘waters of the U.S.’ that have existed for many years and had been issued NPDES permits for discharges from such 

impoundments are ‘wastewater treatment systems designed to meet the requirements of the CWA’ and therefore are 

not ‘waters of the U.S.’”), available at 

http://yosemite.epa.gov/osw/rcra.nsf/documents/4BD7508AD59EA15F852565DA006F0A63.

81 Memorandum from LaJuana S. Wilcher, EPA Assistant Administrator, to Charles E. Findley, Director, Water 

Div., Region X, U.S. Army Corps of Eng‘rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 

1992); see also State Program Requirements; Approval of Application to Administer the NPDES Program; Texas, 

63 Fed. Reg. 51,164, 51,183-84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed Treatment Wetlands 

at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constructed/upload/guiding-principles.pdf.

82 See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 211-16 (4th Cir. 2009) (upholding the agencies’ 

interpretation).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

130

into waterways83 than allowing polluters to convert the nation’s waters into waste dumps. 

The agencies should use the opportunity of this rulemaking to explicitly limit the 

application of the waste treatment systems exemption to pre-existing facilities. (p. 58-60)

Agency Response: See summary response at 7.1. 

Waterkeeper Alliance et al. (Doc. #16413)

7.182 IX. WASTE TREATMENT SYSTEMS SHOULD NOT BE CATEGORICALLY 

EXCLUDED FROM THE DEFINITION

A. History of the Waste Treatment System Exclusion

On May 19, 1980, EPA issued a final rule that made clear that waste treatment systems 

created by impounding "waters of the United States" are not exempt from regulation 

under the CWA.84 Specifically, the rule stated:

[w]aste treatment systems, including treatment ponds or lagoons designed to meet 

the requirements of CWA (other than cooling ponds as defined in 40 C.F.R. § 

423.11(m) which also meet the criteria of this definition) are not waters of the 

United States. This exclusion applies only to manmade bodies of water which 

neither were originally created in waters of the United States (such as disposal 

area in wetlands) nor resulted from the impoundment of waters of the United 

States.85

In response to industry pressure, however, EPA suspended the final sentence of the 

regulation, which states that "[t]he exclusion applies only to manmade bodies of water 

which neither were original created in waters of the United States (such as disposal area 

in wetlands) nor resulted from the impoundment of waters of the United States," just a 

few months later.86

EPA expressly cited the utility industry's concern that they would now have to obtain an 

NPDES permit to discharge into existing coal ash dumps that were created by 

impounding "waters of the United States" as part of its justification for suspending this 

part of the rule.87 At that time, EPA claimed that this was a temporary suspension and 

promised to "promptly [] develop a revised definition and to publish it as a proposed rule 

for public comment. At the conclusion of that rulemaking, EPA [stated] it w[ould] amend 

the rule, or terminate the suspension."88

EPA never followed through on its promise to address this important issue, allow the 

public an opportunity to provide comments, and finalize a new regulation or terminate the 

suspension. EPA, along with the Corps, is now proposing to formally codify the waste 

 

83 33 U.S.C. § 1251(a)(1) (“it is the national goal that the discharge of pollutants into the navigable waters be 

eliminated by 1985”).

84 45 FR 33,290, 33,424 (May 19, 1980).

85 Id. at 33,424 (emphasis added).

86 45 Fed. Reg. 48,620, 48,620 (July 21, 1980).

87 Id.

88 Id.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

131

treatment system exclusion without providing notice and comment.89 In the current 

proposed rule, the agencies state that they are not accepting public comment on the waste 

treatment exclusion because they maintain they have proposed no changes to the waste 

treatment system exclusion.90 Instead of making good on the promise it made over thirty 

years ago, EPA is now attempting to evade compliance with the CWA and

Administrative Procedures Act by bootstrapping the impermissible exclusion onto the 

"waters of the United States" rule without notice and comment.

B. Coal Ash Surface Impoundments

This exclusion has had and will continue to have serious consequences for our nation's 

waters if the agencies finalize the proposed waste treatment exemption. For example, it 

has been a common practice for the utility industry to impound streams and rivers to 

create waste dumps for coal ash91 and other wastes associated with coal-fired power 

plants. In fact, EPA cited the utility industry's concern about coal ash impoundments as 

one of the primary reasons EPA suspended the sentence making clear that permits are 

required for discharges into a waste treatment system created by impounding waters of 

the United States.92 Coal-fired power plants generate millions of gallons of wastewater

loaded with toxic pollutants like arsenic, boron, cadmium, chromium, lead, mercury, and 

selenium into our rivers, lakes, and streams each year. This pollution is discharged 

directly from the power plant; flows from old, unlined surface impoundments or "ponds" 

that many plants use to store toxic slurries of coal ash and smokestack scrubber sludge; 

and seeps from unlined ponds and landfills into ground and surface waters. EPA 

estimates that at least 5.5 billion pounds of pollution are released into the environment by 

coal-burning power plants every year.93 Coal-burning power plants are responsible for at 

least 50 to 60 percent of the toxic pollutants discharged into waters of the U.S-more than

the other nine top polluting industries combined.

94

Coal combustion wastewaters contain a slew of toxic pollutants that can be harmful to 

humans and aquatic life in even small doses. Due to the bioaccumulative nature of many 

of these toxins, this pollution persists in the environment, and even short-term exposure 

can result in long-term damage to aquatic ecosystems. In short, coal plant water pollution 

has serious public health consequences and causes lasting harm to the environment. 

According to EPA, power plant pollution has caused over 160 water bodies not to meet 

state water quality standards, prompted government agencies to issue fish consumption 

advisories for 185 waters, and degraded 399 water bodies across the country that serve as 

public drinking water supplies.95

 

89 See 79 Fed. Reg. 22,188, 22,189 (Apr. 21, 2014).

90 79 Fed. Reg. at 22,190.

91 Coal combustion waste or coal ash are wastes "from the combustion of coal in power plants and captured by 

pollution control technologies, like scrubbers." U.S. Envtl. Prot. Agency, Coal Combustion Residuals - Proposed 

Rule, http://www.epa.govjoswjnonhazjindustrialjspecialjfossiljccr-rulej (last visited Nov. 12, 2014).

92 45 Fed. Reg. at 48,620.

93 EPA, Environmental Assessment for the Proposed Effluent Limitation Guidelines and Standards for the Steam 

Electric Power Generating Point Source Category 3-14 (Apr. 2013), Docket No. EPA-HQ-OW-2009-0819-2260 

[hereinafter EA].

94 Id. at 3-13.

95 http://water.epa.gov/scitech/wastetech/guide/steam-electric/proposed.cfm.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Utilities in other states have also created coal ash dumps by impounding or burying a 

waters of the United States. For example, the FirstEnergy Little Blue Run impoundment 

in Pennsylvania, the nation's largest coal ash impoundment, was created by damming 

Little Blue Run stream. The Pennsylvania Department of the Environment took 

enforcement action for widespread pollution caused by this leaking impoundment and 

recently ordered a $169 million dollar cleanup and closure of Little Blue Run.167 

Although EPA claims that the waste treatment exclusion is not a wholesale exemption 

from compliance with the CWA because they interpret it to apply only to impoundments 

that had been in existence for many years at the time it first suspended the final sentence 

of the definition, the plain language of the regulation includes no grandfather provisions 

or other limiting language related to the age of the impoundment. Further, EPA appears 

to be backtracking on this interpretation to allow new impoundments to claim the 

exemption so long as they obtain a § 404 permit. In short, EPA is proposing to codify a 

regulation that creates a gaping hole in the CWA and authorizes utilities and industrial 

operators to use our nation's waters as their own private sewers-all while refusing to

follow notice and comment requirements of the CWA and the Administrative Procedures 

Act. (p. 61-64)

Agency Response: See summary response at 7.1. 

Association of State Floodplain Managers, Inc. (Doc. #19452)

7.183 6. The proposed rule includes language reiterating current exemptions for waste 

treatment systems. However, the regulation of natural or artificial waters that are 

used to convey or treat stormwater is not clear; this is a long standing issue that is 

further complicated by the proposed rule. 

Regulations and exemptions for waters conveying stormwater should be clarified in the 

final rule and in implementing guidance. In addition, any distinctions between §404 

dredge and fill requirements, and the regulatory scheme under §402 – including 

stormwater treatment – should be clarified.

...

It is sometimes unclear whether cooling ponds are “waste treatment systems” or treated 

as such, particularly when a cooling pond is located in the jurisdictional water (i.e. 

mangroves).

... (p. 9)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2 and 7.4.4 regarding exclusions for certain cooling ponds and stormwater 

control features.

The Association of State Wetland Managers (Doc. #14131)

7.184 7. The proposed rule includes language reiterating current exemptions for waste 

treatment systems. However, the status of regulation of natural or artificial waters 

that are used to convey or treat stormwater is not clear. This is a long standing issue 

that is further complicated by the proposed rule. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

133

Regulations and exemptions for waters conveying stormwater should be clarified in the 

final rule and in implementing guidance. In additions, any distinctions between §404 

dredge and fill requirements, and the regulatory scheme under §402 – including 

stormwater treatment – should be clarified.

 The basic underlying question of whether stormwater collection and treatment 

systems are considered to be wastewater treatment systems must be clarified. In some 

circumstances, artificial stormwater treatment ponds have reportedly been identified 

by federal agency staff as wastewater systems, but in other cases they have been 

treated as waters of the United States. Situations where natural waters are used to 

collect, store, convey, or filter stormwater become even more complicated. It should 

be noted that a regulatory system that works for dredge and fill activities may not be 

efficient for §402 permitting, and vice versa. Therefore it is likely that other 

regulatory tools – including exemptions (e.g. for maintenance), general permits, and 

so on – may be needed to effectively accommodate both program areas.

 Urban agencies are concerned with MS4 stormwater collection systems and the extent 

to which these systems may become subject to §404 permitting.

 It is sometimes unclear whether cooling ponds are “waste treatment systems” or 

treated as such, particularly when a cooling pond is located in the jurisdictional water 

(i.e. mangroves).

 A number of questions have been raised regarding jurisdiction over natural waters 

used to convey and filter stormwater. In some instances, these waters were used to 

convey stormwater prior to regulation under the CWA. Some of these waters are and 

should remain jurisdictional particularly when they are part of the natural stream and 

waterbody system that existed historically.

 The distinction between wetlands or other waters that store or convey stormwater, 

and those wetlands used specifically to treat or filter stormwater, also raises questions 

regarding the scope of the wastewater system exemption

 Finally, ASWM recognizes that the §402 and §404 programs have distinctly different 

goals and requirements as applied to stormwater management. Therefore, we urge 

that EPA recognize these distinctions in the final rule and in subsequent guidance. (p. 

8)

Agency Response: See summary response at 7.1. See also summary responses at 

7.3.2 and 7.4.4 regarding exclusions for certain cooling ponds and stormwater 

control features.

Caloosahatchee River Citizen’s Association (Doc. #4711.2)

7.185 Urban waste treatment systems. In our local watersheds, approximately 200,000 

dwellings process their sewage through septic tanks and unregulated “package plant” 

processors. Poorly treated effluent flows into our drainage canals and thence into formal 

tributaries of waters of the United States. This effluent contains fecal bacteria as well as 

trace amounts of mercury and other metals that have been disposed in a household. The 

Caloosahatchee River has demonstrated discernible levels of dissolved pharmaceutical 

products that are not removed by wastewater treatment or septic tanks. Nutrient pollution 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

134

– nitrogen and phosphorus from human sources – is thought to be equal or greater than 

nutrient pollution from animal agriculture. Yet the presence of nutrient pollutants, metals, 

and pharmaceuticals that originate from human wastes and disposals is categorically 

untouchable due to the exclusion of urban waste waters.

One primary purpose and function of the CWA is to prevent the discharge of biological 

and medical wastes, sediments, nutrients, and all other forms of pollutants into the 

“waters of the United States,” because these pollutants endanger the nation's public 

health, drinking water supplies, shellfish, fin fish, recreation areas, etc. Because the entire 

tributary system of the traditional navigable waters or the territorial seas is 

interconnected, pollutants that are dumped into any part of the tributary system 

eventually are washed downstream to traditional navigable waters, interstate waters, or 

the territorial seas where those pollutants endanger public health and the environment. 

The significant nexus relating to pollution transport (or prevention of such transport) 

from all tributaries of traditional navigable waters and the territorial seas to their 

downstream waters in and of itself justifies the assertion of CWA jurisdiction including 

all tributaries by rule. (p. 3-4)

Agency Response: See summary response at 7.1. 

Earthjustice (Doc. #14564)

7.186 III. WASTE TREATMENT EXCLUSION

Earthjustice strongly objects to the proposal to retain the “waste treatment system” 

exclusion, particularly given that EPA has never allowed for public notice and comment 

on the current version of this section of the rule. EPA lacks authority to exempt waters of 

the U.S. from the protections of the Clean Water Act. This exclusion is a major affront to 

the Clean Water Act and should be deleted. If not, at a minimum EPA must add a 

provision in the text of the rule explicitly barring its application to waters of the U.S. If 

this exclusion is retained, it can only be applied to manmade waste treatment systems 

constructed in uplands that are not waters of the U.S. As it stands, the waste treatment 

system exclusion contravenes the clearly expressed congressional intent to protect all 

waters of the U.S., including impounded waters, and it therefore fails Step One of 

Chevron. Moreover, it is an unreasonable and therefore impermissible interpretation

under Step Two, and also does not represent reasoned decisionmaking supported by the 

record.

In various parts of the country—mountainous regions of Appalachia, Iron Range states in

the Great Lakes, mining and agricultural areas of the west and in Alaska—the “waste 

treatment system” exclusion is routinely invoked by federal and state agencies to allow 

the impoundment of natural streams or wetlands, or the filling or excavation of lakes and 

wetlands, to drain runoff from surface mines and/or to hold tailings or overburden from 

mining operations.96 Playa lakes have been used as animal waste retention ponds for 

 

96 See Bernhardt and Palmer, The Environmental Costs of Mountaintop Mining Valley Fill Operations for Aquatic 

Ecosystems of the Central Appalachians, Ann. N.Y. Acad. Sci. 1223, 39–57, at 43 (2011).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

135

confined animal feeding operations.97 Generally (almost always) the natural stream, lake, 

or wetland would be considered a water of the U.S. under the existing or proposed rules.

Under current practice and the so-called “waste treatment system” exception, the now

impounded/excavated/filled waterbody loses its status as a protected water under the 

Clean Water Act, meaning that it does not have to meet basic water quality standards and 

the mining or coal or utility is free to dump pollutants into the stream or lake or wetland 

without the basic protections and requirements of a Clean Water Act NPDES permit. 

These waste treatment ponds are often filled with things like toxic coal ash, acid-leaching 

mine tailings or overburden from sulfide ore deposits that will also leach acid, selenium, 

and other toxic metals. The ponds are often filled with sediment that can decimate 

spawning areas and that can affect light and temperature necessary for aquatic life. The 

impounded wastes typically are not isolated from waters of the U.S., and in most cases 

are designed to discharge directly into protected waters. The “treatment” that occurs in 

these impoundments is frequently a farce, and often consists of nothing more than 

allowing the heaviest sediments in the discharges to settle to the bottom of the pond while 

the remaining untreated effluent is discharged into downstream waters. This practice

causes serious water quality degradation downstream, even when discharges from the 

waste ponds are covered by permits. Usually water quality constituents such as hardness, 

conductivity, chlorides, sulfates, temperature and pH are adversely affected. This practice 

and result is utterly absurd and plainly contrary to law.

First, EPA and the Corps lack authority to adopt a regulation that empowers the agencies

to exclude waters that qualify as “waters of the U.S.” from statutory coverage under § 

502(7), as well as from all of the safeguards that would otherwise protect that water under 

the Clean Water Act. National Ass'n of Manufacturers v. Dept. of Labor, 159 F.3d 597, 

600 (D.C. Cir. 1998) (“There is, of course, no such ‘except’ clause in the statute, and we 

are without authority to insert one.”). This exclusion goes well beyond EPA’s authority to 

interpret and apply the Act. Cf. Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 

1372 (D.C. Cir. 1977) (striking down an EPA rule that attempted to exempt certain 

categories of point sources from the permit requirements of Clean Water Act section 

402). Since EPA cannot exempt categories of point sources from NPDES permit 

requirements, EPA lacks the authority to do so here by creating an artificial exclusion 

from the definition of waters of the U.S. Furthermore, the exclusion is breathtakingly 

broad, with no apparent limit on the use of our nation’s waters as waste dumps. This is 

unlawful. See Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 861 (D.C. Cir.

2006) (rejecting reading of a statute where “there is no stopping point”); Valdes v. United 

States, 475 F.3d 1319, 1328 (D.C. Cir. 2007) (rejecting a legislative interpretation that 

“appears to lack a limiting principle”).

This exclusion is particularly arbitrary in light of the fact that, in almost all other

circumstances, impoundments are assiduously guarded within the definition of waters of 

the U.S. under subsection (s)(4). Earthjustice agrees that the inclusion of impoundments 

under (s)(4) is justified because “as a legal matter an impoundment of a ‘water of the 

 

97 See EPA Region 6, National Pollutant Discharge Elimination System General Permit and Reporting 

Requirements for Discharges From Concentrated Animal Feeding Operations, 58 Fed. Reg. 7610, 7620-21 

(February 8, 1993).
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136

United States’ remains a ‘water of the United States’....” 79 Fed. Reg. at 22201 

(discussing S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 379 n.5 (2006) 

and U.S. v. Moses, 496 F.3d 984 (9th Cir. 2007)). The only difference between the 

impoundments that are covered under subsection (s)(4) and those that are excluded 

through the artifice of the “waste treatment system” exclusion is the fact that the latter are 

intended to be filled with waste.98 This is not a reasonable or permissible interpretation of 

the Act, and it therefore also fails Step Two of Chevron. Nor does it constitute reasoned 

decisionmaking supported by the record.

Second, the proposal to retain the so-called waste treatment system exclusion in its 

current form violates the notice-and-comment requirements of the Administrative 

Procedure Act. 5 U.S.C. § 553. The history of the current rule shows that this exclusion 

was not originally intended to allow the current practice of using the nation’s waters as 

waste dumps. The 1980 regulatory definition of waters of the U.S. clearly provides that 

the waste treatment exclusion “applies only to manmade bodies of water which neither 

were originally created in waters of the United States (such as a disposal area in 

wetlands) nor resulted from the impoundment of waters of the United States.” Several 

months later, EPA published notice purporting to “suspend” the operation of this 

language, but not replacing it with anything else or further explanation. The omission of 

the language was never the subject of a notice and comment public rulemaking process 

despite the fact that it plainly significantly alters the law with respect to application of the 

protections of the Clean Water Act. Now the proposed rule specifically discourages 

members of the public from commenting on the proposal to retain the exclusion without 

the limiting language, stating that because the agencies “do not address” this and other 

exclusions they “do not seek comment” on them. 79 Fed. Reg. at 22190. Even assuming 

for the sake of argument that this exclusion is lawful under the Clean Water Act (and it is 

not), a decision to exclude natural bodies of water from the definition of waters of the 

U.S. must be subject to public process. EPA and the Corps’ retention and application of 

this disastrous and unauthorized exclusion must be suspended pending proper process.

Third, it is simply ludicrous that this brazen give-away to some of the most polluting 

industries is allowed. Providing this exclusion violates the very fundamentals of the Act 

to eliminate toxic discharges and to preserve and protect the physical, chemical and 

biological integrity of the nation’s waters. As noted repeatedly by the SAB members, 

even small tributaries, including wetlands and lakes that are in headwaters of watersheds, 

provide critical function and value in protecting downstream waters. Indeed, the proposed 

rule acknowledges that “scientific literature demonstrates that impoundments continue to 

significantly affect the chemical, physical, or biological integrity of downstream waters[,] 

traditional navigable waters, interstate waters, or the territorial seas.” 79 Fed. Reg. at 

22201. To allow them to be obliterated by polluting industrial activity and then polluted 

further with wastes based on the fiction that they are no longer waters of the U.S. is 

completely contrary to every single comment regarding tributaries, wetlands, and waters 

 

98 The impoundments themselves are also sources of pollution. Regardless of whether impoundments and the 

pollutants therein (including heavier sediment) are intended to ‘stay put,’ runoff and overflow from these areas can 

pollute traditional navigable waters. See attached memo (“The Rapanos Plurality: ‘Mobile’ § 402 Pollutants and 

‘Stationary’ § 404 Pollutants”), at 15-20.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

137

of the U.S. submitted by the members of the SAB and the general conclusions of the 

Connectivity Report. (Moreover, it does not appear that the SAB was given sufficient, or 

any, information about this exclusion and the way it is applied in practice to enable the 

SAB to advise EPA on the scientific merit or lack of merit underlying the waste treatment 

exclusion.) This further illustrates why the waste treatment system exclusion is 

unreasonable and therefore fails Step Two of Chevron, and does not constitute reasoned 

decisionmaking supported by the record.

Earthjustice presses EPA to eliminate this exclusion entirely. At a minimum, EPA must 

provide full opportunity for notice and comment rulemaking for this polluting and 

damaging practice. (p. 14-17)

Agency Response: See summary response at 7.1. 

Tulane Environmental Law Clinic, Tennessee Clean Water Network, et al. (Doc. #15123)

7.187 We...believe that the categorical exclusion of upland ditches and certain kinds of 

wastewater treatment systems incorrectly places many waters of the United States beyond 

the reach of the Act. When upland ditches function as tributaries, they should be treated 

as tributaries whether they are manmade or not, and whether they are perennial or not. 

Likewise, when tributaries or adjacent waters are used in connection with wastewater –

whether in-stream disposal of coal mining waste or impoundments used as lagoons or 

treatment ponds – they should be treated as the tributaries and wetlands they are, and not 

swept into the exemption for man-made wastewater systems. (p. 2)

Agency Response: See summary response at 7.1. Also section the ditches 

compendium (topic 6).

7.188 B. Waste Treatment Systems, Including Ponds or Lagoons Should Be Considered 

Waters of the United States.

The proposed Rule exempts “[w]aste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act” from being 

considered waters of the United States and therefore jurisdictional under the Act. This 

aspect of the proposal is unchanged from the current regulations.

We have considerable concern with the agencies’ current practice with regard to this 

exemption for waste treatment systems. Since the exemption was written into the 

regulations, EPA and the Corps have attempted to expand it to cover waters for which it 

plainly was not intended. In 1980, EPA amended its regulations to provide that:

Waste treatment systems, including treatment ponds or lagoons designed to meet 

the requirements of [the Act] ... are not waters of the United States. This 

exclusion applies only to manmade bodies of water which neither were originally 

created in waters of the United States (such as disposal area in wetlands) nor 

resulted from the impoundment of waters of the United States.”99

Clearly, the exclusion was limited. In view of the fact that the Act “was not intended to 

license dischargers to freely use waters of the United States as waste treatment systems, 

 

99 40 C.F.R. § 122.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

138

the definition makes clear that treatment systems created in those waters or from their 

impoundment remain waters of the United States.”100

Although the second sentence of the regulatory exclusion was suspended in order to 

dispel concerns that pre-existing treatment systems would be improperly brought into the 

regulatory system,101 the exemption was not meant to be a wholesale authorization of 

anything described as a “waste treatment system.” To the contrary, EPA‘s initial 

implementation of the rules rejected a sweeping interpretation; the agency argued in 

litigation that in-stream disposal of coal mining waste did not qualify for the 

exemption.102 Unfortunately, over time, a further exception has developed allowing 

natural streams and lakes to be excluded from the definition of “waters of the United 

States” when an impoundment of waters of the United States is able to qualify for the 

waste treatment system exclusion if it is established via a section 404 permit.103

We strongly oppose this approach – nothing is more inconsistent with the basic premise 

of the Clean Water Act than allowing polluters to convert the nation’s waters into waste 

dumps. The agencies should use the opportunity of this rulemaking to explicitly limit the 

application of the waste treatment systems exemption to pre-existing facilities. (p. 12-13)

Agency Response: See summary response at 7.1. 

Columbia Riverkeeper (Doc. #15210)

7.189 The “waste treatment exclusion” should be immediately rescinded. In practice, this 

loophole—on which the public was never allowed to comment—frequently allows the 

unregulated discharge of mine tailings and other waste into waters of the United States. 

(p. 2)

Agency Response: See summary response at 7.1.

 

100 W.Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1289 (S.D. W.Va. 1989) (quoting 45 Fed. Reg. 33,298 (May 19,

1980)).

101 Id. (citing 45 Fed. Reg. 48,620 (July 21, 1980)).

102 Id. at 1289-90 (deferring to EPA‘s interpretation that treatment ponds were regulated “impoundments,” not 

excluded “waste treatment systems”). See also Memorandum from Marcia Williams, EPA Office of Solid

Waste Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B

(Apr. 2, 1986) (“EPA applies a standard which treats newly created impoundments of waters of the U.S. as

‘waters of the U.S.,’ not as ‘waste treatment systems designed to meet the requirements of the CWA,’ whereas

impoundments of ‘waters of the U.S.’ that have existed for many years and had been issued NPDES permits for

discharges from such impoundments are ‘wastewater treatment systems designed to meet the requirements of the 

CWA’ and therefore are not ‘waters of the U.S.’”), available at

http://yosemite.epa.gov/osw/rcra.nsf/documents/4BD7 508AD59EA15F852565DA006F0A63.

103 Memorandum from LaJuana S. Wilcher, EPA Assistant Administrator, to Charles E. Findley, Director, Water

Div., Region X, U.S. Army Corps of Eng‘rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2,

1992); see also State Program Requirements; Approval of Application to Administer the NPDES Program;

Texas, 63 Fed. Reg. 51,164, 51,183-84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed

Treatment Wetlands at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constructed

/upload/guiding-principles.pdf. See also Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 211-16

(4th Cir. 2009) (upholding the agencies’ interpretation).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

139

Louisiana Environmental Action Network (Doc. #15377)

7.190 (2) The Agencies Must Clarify that the Wastewater Treatment Systems Exclusion 

Does Not Apply to Systems Built in Natural Streams and Lakes.

The Agencies must revise the categorical exclusion for waste treatment systems to clarify 

- consistent with EPA’s long-standing interpretation - that it does not apply to systems 

built in natural streams or lakes. See W. Va. Coal Ass'n v. Reilly, 728 F. Supp. 1276, 1290 

(S.D.W. Va. 1989) (upholding EPA’s interpretation that “the exclusion for treatment 

ponds was never meant to apply to treatment ponds constructed in United States 

waters.”), aff’d 932 F.2d 964 (4th Cir. 1991). Although the Proposed Rule does not 

purport to expand the current waste treatment system exclusion, it fails to clarify the 

ambiguity that EPA created in 1980 by suspending regulatory language that would have 

specifically limited the waste treatment system exception to manmade bodies of water. 

See 45 Fed. Reg. 48620, 48620 (July 21, 1980). The suspended language remains in 

EPA’s current and Proposed Rule definition of “waters of the United States at 40 C.F.R. 

§ 122.2, together with a note explaining the suspension remains in place:

Waste treatment systems . . . are not waters of the United States. This exclusion 

applies only to manmade bodies of water which neither were originally created 

in waters of the United States (such as disposal area in wetlands) nor resulted 

from the impoundment of waters of the United States. [See Note 1 of this 

section.]

...

Note 1: At 45 FR 48620, July 21, 1980, the Environmental Protection Agency 

suspended until further notice in § 122.2, the last sentence, beginning “This 

exclusion applies ___” in the definition of “Waters of the United States.” This 

revision continues that suspension.

40 C.F.R. § 122.2 (emphasis added); 79 Fed. Reg. at 22268.

When it suspended the clarifying language, EPA affirmed its purpose “to ensure that 

dischargers did not escape treatment requirements by impounding waters of the United 

States and claiming the impoundment was a waste treatment system, or by discharging 

wastes into wetlands.” 45 Fed. Reg. at 48620; see 45 Fed. Reg. 33290, 33298 (May 19, 

1980) (Prior Clean Water Act regulations, like the Act itself, were "not intended to 

license dischargers to freely use waters of the United States as waste treatment 

systems."). Nevertheless, EPA agreed to re-consider the language to avoid overbreadth. 

45 Fed. Reg. at 48620; 07/15/1980, Memo Re: Suspension of portion of definition of 

"Waters of the United States" in Consolidated Permit Regulations (noting EPA “did not 

intend [the] result” that, “could require many power plants and oil refineries (among 

other industries) to apply for NPDES permits for discharges into their ash ponds and 

treatment lagoons.”)104 EPA also stated that it “intends promptly to . . . amend the rule, or 

terminate the suspension.” 45 Fed. Reg. at 48620. EPA has still not amended the rule or 

terminated the suspension. The Proposed Rule is the opportunity to do so.

 

104 Available at http://www.epa.gov/npdes/pubs/owm560.pdf .
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

140

EPA’s failure to amend the rule has led to the sort of confusion that the Proposed Rule 

seeks to avoid. The prolonged limbo of suspension has reduced EPA’s clear regulatory 

mandate to interpretations requiring court intervention or agency guidance to confirm. 

See, e.g., W. Va. Coal v. Reilly, 932 F.2d 964, 1991 WL 75217 *5 (4th Cir. 1991) (“[W]e 

agree with the district court's conclusion that the in-stream treatment ponds and the 

waters above such ponds fall within the definition of ‘waters of the United States’ . . . and 

the EPA did not act beyond its statutory authority in regulating these waters.”); 

10/25/2007, Memorandum for POA-1992-574 & POA-1992-574-Z (Oct. 25, 2007) 

(“EPA and the Corps agree that the agencies’ designation of a portion of waters of the 

U.S. as part of a waste treatment system does not itself alter CWA jurisdiction over any 

waters remaining upstream of such system. Both the Corps and EPA believe that all the 

waters upstream and downstream of the tailings dam that were jurisdictional prior to the 

authorized activity and that qualify as jurisdictional waters of the U.S. under the Rapanos 

guidance are still subject to CWA jurisdiction . . . .”).

105 Moreover, guidance and court 

intervention have developed a further exception, declining to apply the exclusion to 

natural streams and lakes unless a U.S. Army Corps of Engineers § 404 permit authorized 

conversion of waters of the United States to a treatment system. See Ohio Valley Envtl. 

Coalition v. Aracoma Coal Co., 556 F.3d 177, 215 (4th Cir. 2009) (finding an exception 

when the Corps “exercises its § 404 authority to permit the use of a stream segment as 

part of the treatment system for fill runoff, [because] it has allowed the temporary 

removal of these waters from the definition of ‘waters of the United States’ only after 

analyzing the impacts of creating the system and mitigating those impacts as necessary”) 

(citing Letter from Benjamin H. Grumbles, Asst. Administrator for the EPA, to the Hon. 

John Paul Woodley, Assistant Secretary of the Army (Civil Works) (Mar. 1, 2006); 

Memo from LaJuana S. Wilcher, Asst. Administrator for the EPA, to Charles E. Findley, 

Director, Water Division, Region X, United States Army Corps of Engineers, on Clean 

Water Act Regulation of Mine Tailings Disposal (Oct. 2, 1992)).

In short, to accomplish its purpose of clarity, the Agencies must revise the Proposed Rule 

to confirm that the wastewater treatment exclusion does not allow a discharger to convert 

any water of the United States into non-jurisdictional waters by building an in-stream 

treatment system. Indeed, the failure to “terminate the suspension” or amend the rule now 

that the opportunity is at hand may increase confusion. Notably, however, if the failure to 

address the suspended language were to signal an expansion of the waste-treatment 

system exclusion from the definition of “waters of the United States,” such a narrowing 

of jurisdiction would be arbitrary and capricious and unlawful as contrary to Congress’ 

stated intent for the Clean Water Act. (p. 3-4)

Agency Response: See summary response at 7.1.

Delaware Riverkeeper Network (Doc. #15383)

7.191 Comment 9: Waste Treatment System Exclusion: Section 328.3(b)(1)

 

105 Available at http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/cwa_guide/WTS_POA1992-574_POA-1992-574-Z.pdf .
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

141

Waste Treatment systems should not be excluded; especially those constructed in 

floodplains and wetlands, and that are subject to flooding or wall collapse. This exclusion 

was originally added as a footnote after finalization of the CWA, and has therefore never 

been subject to notice and comment. Because EPA did not follow proper due process 

requirements, it is now obligated to have a public comment period on the exclusion of 

impoundment waters that are used as wastewater treatment. The proposed rule seeks to 

codify this exclusion without proper notice and comment and for this reason the 

exclusion should not be included in the final rule. DRN does not support the Water 

Treatment Exclusion for procedural grounds and substantive grounds, especially when 

these types of facilities are constructed in floodplains. If such an impoundment flooded or 

was breached due to poor design or maintenance, the responsible party should be fined 

and ordered to clean up, but under the proposed rule the taxpayers would be responsible. 

That conclusion is untenable. (p. 5)

Agency Response: See summary response at 7.1. 

Tennessee Clean Water Network et al. (Doc. #16537)

7.192 6. Categorical exclusion of certain kinds of wastewater treatment systems 

incorrectly places many waters of the United States beyond the reach of the Act.

The proposed rule exempts "[w]aste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act" from being 

considered waters of the United States and therefore jurisdictional under the Act. This 

aspect of the proposal is unchanged from the current regulations.

We have considerable concern with the agencies' current practice with regard to this 

exemption for waste treatment systems. Since the exemption was written into the 

regulations, EPA and the Corps have attempted to expand it to cover waters for which it 

plainly was not intended. In 1980, EPA amended its regulations to provide:

Waste treatment systems, including treatment ponds or lagoons designed to meet 

the requirements of the Act ... are not waters of the United States. This exclusion 

applies only to manmade bodies of water which neither were originally created in 

waters of the United States (such as a disposal area in wetlands) nor resulted from 

the impoundment of waters of the United States."106

Clearly, the exclusion was limited. In view of the fact the Act "was not intended to 

license dischargers to freely use waters of the United States as waste treatment systems, 

the definition makes clear that treatment systems created in those waters or from their 

impoundment remain waters of the United States."107 Although the second sentence of 

the regulatory exclusion was suspended in order to dispel concerns pre-existing treatment 

systems would be improperly brought into the regulatory system,108 the exempt ion was 

not meant to be a wholesale authorization of anything described as a "waste treatment 

system." To the contrary, EPA's initial implementation of the rules rejected a sweeping 

 

106 W. Va. Coal Ass'n v, Reilly, 728 F. Supp. 1276, 1289 (S.D.W.Va. 1989) (quoting 40 C.F.R. § 122.3 (1980)).

107 Id. (quoting 45 Fed. Reg. 33,298 (May 19, 1980)).

108 Id. (citing 45 Fed: Reg. 48,620 (July 21, 1980)).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

142

interpretation; the agency argued in litigation that in-stream disposal of coal mining waste 

did not qualify for the exemption.109 Unfortunately, over time, EPA and the Corps have 

reversed this interpretation, and now allow sources to use the regulatory exemption to 

treat new waste treatment facilities in protected waters excluded from the Clean Water 

Act. Under the agencies' revised interpretation, a new impoundment of waters of the 

United States is able to qualify for the waste treatment system exclusion if it is 

established via a section 404 permit.110 This position has been upheld in litigation.111

We strongly oppose this approach - nothing is more inconsistent with the basic premise 

of the Clean Water Act than allowing polluters to convert the nation's waters into waste 

dumps. This threat is especially prominent in the Appalachian region of the state where 

coal mining companies can abuse this exemption. The agencies should use the 

opportunity of this rulemaking to explicitly limit the application of the waste treatment 

systems exemption to pre-existing facilities. (p. 5-6)

Agency Response: See summary response at 7.1.

Midwest Environmental Advocates (Doc. #16645)

7.193 III. The categorical exclusion of waste treatment systems that includes those waters 

that were once waters of the U.S. is a blatant give away to the mining industry and is 

inconsistent with the Clean Water Act.

Similarly, the waste treatment exclusion has no basis in science, sound policy or the law. 

The purpose of the Clean Water Act is to clean up our nation’s waters. “Congress enacted 

the law to "restore and maintain the chemical, physical, and biological integrity of the 

Nation's waters," 33 U. S. C. § 1251(a), and it pursued that objective by restricting 

dumping and filling in "navigable waters," §§ 1311(a), 1362(12).”112 This exclusion—

allowing waters that were once waters of the U.S. to become waste dumps for the mining 

industry—is plainly inconsistent with the goals of the CWA.

The waste treatment system started out as a narrow exception for constructed waste 

treatment systems that were not previously waters of the U.S. The EPA’s current 

 

109 Id. at 1289-90 (deferring to EPA's interpretation that treatment ponds were regulated "impoundments," not 

excluded "waste treatment systems"). See also Memorandum from Marcia Williams, EPA Office of Solid Waste 

Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B (Apr. 2, 

1986) ("EPA applies a standard which treats newly created impoundments of waters ofthe U.S. as 'wa ters of the 

U.S.,' not as 'waste treatment systems designed to meet the requirements of the CWA,' whereas impoundments of 

'waters of the U.S.' that have existed for many years and had been issued NPDES permits for discharges from such 

impoundments are 'wastewater treatment systems designed to meet the requirement of the CWA' and therefore are 

not 'waters of the U.S."'), available at http://yosemite.epa.gov/osw/rcra.nsf/documents/4110 7 

508AD59EAl5F852565DA006FOA63.

110 Memorandum from LaJuana S. Wilcher, EPA Assistant Administrator, to Charles E. Findley, Director, Water 

Div., Region X, U.S. Army Corps of Eng'rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 

1992); see also State Program Requirements; Approval of Application to Administer the NPDES Program; Texas, 

63 Fed. Reg. 51,164, 51,183-84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed Treatment Wetlands 

at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constrncted/upload/guiding-principles.pdf.

111 See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,211-16 (4th Cir. 2009) (upholding the agencies' 

interpretation).

112 Rapanos v. United States, 547 U.S. 715, 779 (2006).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

143

expansive definition of the waste treatment exclusion is not consistent with the initial rule 

as promulgated in 1980, which provided “that the waste treatment exclusion “applies 

only to manmade bodies of water which neither were originally created in waters of the 

United States (such as a disposal area in wetlands) nor resulted from the impoundment of 

water of the United States.”113 EPA later suspended operation of the part of this rule that 

made the exception inapplicable to waters of the U.S., but did not clarify its position 

through additional rulemaking. EPA has since taken the position that waters of the U.S. 

can lose CWA protection if they are turned into waste treatment systems.114

Continuing the waste treatment exclusion is inconsistent with the purpose of the Clean 

Water Act because it is too broad of a construction of the act’s language and goes beyond 

the scope intended in the initial exemption. First, “claims of exemption, from the...CWA 

broad pollution prevention mandate must be narrowly construed to achieve the purposes 

of the CWA.115 Second, the original exemption was strictly limited to “self-contained” 

bodies of water.116 Allowing mining companies or other polluters the license to impound 

navigable waters and create “self-contained” ponds provides an indiscriminate license to 

pollute into any waters. The practical effect of the proposed exclusion will frustrate the 

CWA’s purpose.

If the EPA continues to allow mining companies to turn our nation’s waters into dumping 

grounds, it will have serious and detrimental effects in Wisconsin. We are currently 

facing a proposal by Gogebic Taconite, LLC to construct a very large, open-pit iron ore 

mine—possibly over 4 miles long—in the Penokee hills of northern Wisconsin.117 The 

site of the proposed mine is in the headwaters of Bad River watershed, between trout 

streams designated as Outstanding and Exceptional Resource Waters.118 Harmful 

pollution from heavy metals, including selenium among others, has been documented at 

other iron ore mines in the region, including the Empire and Tilden mines to the north of 

this proposed mine.119 Allowing Gogebic Taconite to use these pristine waters as 

dumping grounds is extremely concerning. (p. 6-7)

Agency Response: See summary response at 7.1.

 

113 40 C.F.R. § 122.3 (1980).

114 79 Fed. Reg. 22188, 22217 (Apr. 21, 2014) (Proposed Rules) (providing that the proposed rule is consistent with 

the EPA’s “longstanding regulations” that excluded waste treatment systems from the CWA).

115 Northern California River Watch v. City of Healdsburg, 496 F.3d 993,1001 (9th Cir. 2007).

116 Id. at 1001-1002 (“The exception was meant to avoid requiring dischargers to meet effluent discharge standards 

for discharges into their own closed system treatment ponds.”).

117 Wisconsin Department of Natural Resources, Gogebic Taconite, LLC, potential mining project, available at 

http://dnr.wi.gov/topic/mines/gogebic.html.

118 See Wisconsin Department of Natural Resources, Gogebic Taconite, LLC, potential mining project, available at 

http://dnr.wi.gov/topic/mines/gogebic.html; see also Wisconsin Department of Natural Resources, Waters 

designated in 2006 as Exceptional or Outstanding Resource Waters (Oct 2006) (designating Bad River and Tyler 

Forks River as Outstanding Resource Waters), available at http://dnr.wi.gov/topic/SurfaceWater/oerw/list1006.pdf; 

see also Gogebic Taconite, LLC Preapplication Notice to the Wisconsin Department of Natural Resources (June 17, 

2013), available at http://dnr.wi.gov/topic/Mines/documents/gogebic/GTACPreapplicationNotice20130617.pdf.

119 Michigan Department of Environmental Quality, Update on Selenium Projects at Tilden and Empire Mines, Vol. 

1 (Jan. 2010), available at http://www.michigan.gov/documents/deq/wrd-npdes-EmpireTilden-Vol1_364698_7.pdf.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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WaterLegacy (Doc. #18017)

7.194 Mine Tailings Impoundments

Mine tailings impoundments impact the flow of navigable waters and impact water 

quality. Mine tailings are industrially processed and chemically dissimilar from 

excavated materials. Yet, they may be treated as fill and exempted from laws defining 

and requiring containment and treatment of wastes. Despite the potential adverse impacts 

of mine tailings impoundments and their significant nexus with natural waters, the Clean 

Water Act has been interpreted to prevent their effective regulation.

An exemption from waters of the U.S. that may be appropriate for an impervious holding 

pond for a wastewater treatment facility is abhorrent to the purposes of the Clean Water 

Act if applied to an unlined tailings impoundment seeping into hundreds of acres of 

wetlands, streams or other natural waters. WaterLegacy proposes that the exemption for 

waste treatment systems from “waters of the United States” only apply to constructed 

impoundments that are isolated from natural waters and are part of a wastewater 

treatment system. We request this change in EPA’s proposed rule 40 C.F.R. § 230.03(t):

(t) The following are not “waters of the United States,” notwithstanding whether 

they meet the terms of paragraphs (s)(1) through (7) of this section—

(1) Waste treatment systems, including treatment ponds or lagoons, isolated from 

natural waters that are part of a wastewater treatment system designed to meet the 

requirements of the Clean Water Act; (p. 2-3)

Agency Response: See summary response at 7.1.

Clark Fork Coalition (Doc. #19539)

7.195 ...regarding the "waste treatment plant" exclusion retained in the proposed rule -we urge 

you to re-clarify that waste treatment system exclusion only applies to manmade waters, 

as EPA recognized in 1980. We are particularly concerned about mining companies who 

construct a tailings dam across wetlands or a river under a 404 permit - and then classify 

the previously clean and free-flowing waters behind the dam as a "waste treatment 

system," rather than "waters of the United States." This loophole undermines the entire 

purpose of the Clean Water Act, encouraging destruction of critical watershed 

ecosystems rather than prohibiting the use of our waters as a dumping ground for 

industry. (p. 2)

Agency Response: See summary response at 7.1. 

Water Environment Federation (Doc. #16584)

7.196 Spreading Grounds and Related Features of the Wastewater Treatment Process Should

Be Expressly Exempted Under the Final Rule

As the proposed rule and existing practice acknowledge, waste treatment systems 

designed to meet the requirements of the Clean Water Act are not waters of the United 

States, and WEF wants to ensure that as part of these proposed amendments spreading 

grounds/basins, treatment ponds/lagoons, and constructed treatment wetlands used as part 

of the wastewater process are subject to the same exemption. Since these facilities are 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

145

clearly part of the treatment process, providing additional treatment, residence and 

settling prior to discharge, these facilities should be expressly recognized in the rule as 

falling under the Waste Treatment Exception.

In addition, many WEF members utilize spreading grounds or basins in order to facilitate 

groundwater replenishment; a vital part of water management throughout certain states. 

Others utilize artificially created effluent storage ponds as part of their treatment process. 

Many agencies maintain reservoirs or storage basins/ponds to store recycled water. These 

artificially created features and spreading grounds have not previously been defined or 

regulated as “waters of the United States,” and should remain separate. For this reason, 

the proposed rule should expressly include treatment ponds/lagoons, spreading 

grounds/basins, and constructed treatment wetlands within the scope of the Waste 

Treatment Exception, along with effluent storage reservoirs and recycled water storage 

facilities discussed previously. (p. 3)

Agency Response: See summary response at 7.1. See also summary responses at 

7.4.2 and 7.4.4 regarding the agencies’ creation of exclusions for certain wastewater 

recycling and stormwater control features.

Robert J. Goldstein & Associates (Doc. #16577)

7.197 1) Waste treatment ponds or lagoons designed to meet CWA requirements: Some of these 

features were natural ponds, wetlands, or streams prior to being converted to stormwater 

or sanitary waste treatment. Features that were designed and legitimately permitted for 

this purpose should be excluded from WOTUS, but natural waters that have become 

stormwater treatment ponds by default, due to land management activities that did not 

provide adequate stormwater management, should not be excluded.

I am aware that some organizations including municipalities, state transportation 

departments, and the stormwater engineering lobby are recommending that entire 

municipal stormwater drainage systems be excluded from WOTUS because they are 

“already regulated” under NPDES. However, many of these drainageways are modified 

natural streams (some of them quite large) with important aquatic functions. We should 

not exclude a stream from WOTUS simply because some portion of it is piped or 

channelized through a developed area as part of a MS-4 system. (p. 1)

Agency Response: See summary response at 7.4.4.

7.2. PRIOR CONVERTED CROPLAND (PCC)

Summary Response

In the rule, the agencies identify a variety of waters and features that are not "waters of the 

United States." In neither the proposed nor the final rule do the agencies make a change to the 

existing exclusion for prior converted cropland. 

The existing exclusion for prior converted cropland moves to paragraph (b)(2) of the rule and is 

unchanged. The agencies did not propose any changes to the exclusion for prior converted 

cropland. As a result, comments addressing the substance of the exclusion or its implementation 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

146

are outside the scope of this rulemaking and the rule does not reflect changes suggested in public 

comments. The agencies will continue to implement this exclusion consistent with current 

policy and practice. In some instances, the agencies have provided information that maybe 

useful to a commenter, but this does not alter the scope of the rulemaking. In addition, some 

issues that commenters raised are related to other exclusions identified under paragraph (b), and 

commenters should see those essays and responses for more detail.

A number of commenters suggested changes to the existing exclusion for prior converted 

cropland. As previously stated, these comments are outside the scope of this rulemaking and the 

rule does not reflect changes suggested in public comments.

Comments included questions about dates the exclusion applied to. There was also a request to 

match definitions with other agencies including two commenters who wanted the agencies to use

the USDA definition of PCC at 7 C.F.R. 12.2, specifically. Another commenter recommended 

using the definition at 58 Fed Reg, 45008, 45301, (Aug 25, 1993). One commenter 

recommended using procedures defined in RGL 90-07 and then codified at 328.3(a)(8), (Page 2-

3).

Several commenters requested that the exclusion be expanded and provided examples of 

recommended changes. One commenter did not want state or local/municipal/county 

governments to oppose additional oversight. Commenters suggested that PCC should always be 

defined as non-jurisdictional regardless of any future change in use. Some expressed concern that 

PCC does not cover normal farming and wants a clearer statement. A commenter requested that 

an exemption for PCC also be developed for 402. Another commenter requested that prior 

converted forest lands be added to exemptions. 

Conversely, some commenters felt the exclusion was too expansive. A commenter stated that 

PCC is a regulatory construct for the Food Security Act and does not reflect the ecological 

functions or values of these lands. In addition, they said that PCC should be able to be 

recaptured. Another comment requested that the 5 year abandonment provision be included in 

the agencies’ discussion of PCC.

A few of the concerns appear to be misconceptions about how the exclusion has been used in the 

past and current practice concerning PCC, farmed wetlands, and the agricultural and silviculture 

exemptions. A commenter felt that the rule was a barrier to entry into farming for new farmers. 

A commenter was worried that if they enrolled in NRCS programs such as CRP it would cause 

them to not meet the exemption because their land would be taken out of production. A 

commenter was concerned that even if land continues in agricultural production but is sold or 

passed to next generation then would come under new restrictions. Another commenter was 

concerned that if prior converted cropland is excluded that cropland would be jurisdictional. 

Another identified concern that the connectivity language used in the rule would allow some 

PCC to be considered jurisdictional. Five commenters were concerned about the statement 

“Notwithstanding the determination of an area’s status as prior converted cropland by any other 

Federal agency...” and felt that indicated that EPA will overturn a USDA determination of what 

was “prior converted cropland.” Another commenter asked for the number of times a 

determination of PCC has been overturned in the past. In contrast, some commenters expressed 
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147

concern that the agricultural exemptions allow pollution to enter waters and cause problems for 

natural communities. Again, the agencies did not propose and are not making any changes to the 

PCC exclusion. Comments regarding implementation are beyond the scope of this rule.

Several comments in this section are also addressed in other sections of the response to 

comments. Two commenters expressed concerns about irrigated crop lands. One suggested that 

irrigated lands should be exempt and that the construction and maintenance of irrigation features 

should not need a permit. Another commenter wanted formerly irrigated lands brought back into 

production to also be considered exempt. Artificially irrigated areas that would revert to dry land 

should application of water to that area cease are excluded from jurisdiction. Section 7.3.1 

provides additional discussion. There were two comments related to ditches. One commenter 

requests that legacy ditches be added to exemptions. Another commenter asked if ditches 

through PCC regardless of hydrologic regime would also be exempt. For more discussion on 

ditches see compendium 6, and for tributaries see compendium 8. 

Specific Comments

New Mexico Department of Agriculture (Doc. #13024)

7.198 The Federal Register notice for this proposed rule (in a footnote) states the Agencies use 

the Natural Resource Conservation Service (NRCS) definition of prior converted 

cropland for purposes of determining jurisdiction under the CWA (79 FR 22 189). The 

NRCS defines prior converted cropland as farm land that was:

 "Cropped prior to December 23, 1985, with an agricultural commodity (an 

annually tilled crop such as com);

 The land was cleared, drained or otherwise manipulated to make it possible to 

plant a crop;

 The land has continued to be used for agricultural purposes (cropping, haying or 

grazing);

 And the land does not flood or pond for more than 14 days during the growing 

season."120

NMDA is highly concerned with the exclusion of prior converted cropland, as it is 

currently identified, because it relies on the NRCS's use of 1985 as the year that farmland 

must have been used for agricultural purposes. This creates a clear barrier to entry and is 

further analyzed in the subsection "Barriers to Entry" in the "Economic Analysis" section 

below. NMDA requests that all agricultural land be excluded due to the fact that these 

lands are managed to provide food, fiber, and other necessary products - regard less of 

whether the agricultural operation was established before or after 1985.

Also, several NRCS programs, such as the Conservation Reserve Program (CRP), 

incentivizes agricultural producers to take land out of production:

 

120 Natural Resource Conservation Service. "Wetland Fact Sheet - Prior Converted Cropland."

http://www.nrcs.usda.gov/wps/portal/nrcs/detail/vt/programs/?cid=nrcs142p2_010517.
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"In exchange for a yearly rental payment, farmers enrolled in the program agree 

to remove environmentally sensitive land from agricultural production and plant 

species that will improve environmental health and quality. Contracts for land 

enrolled in CRP are 10-15 years in length. The long-term goal of the program is to 

re-establish valuable land cover to help improve water quality, prevent soil 

erosion, and reduce loss of wildlife habitat."121

Will being enrolled in conservation programs such as NRCS's CRP bar agricultural 

producers from this exemption because the land in question has not "continued to be used 

for agricultural production"?

Furthermore, even though the Federal Register notice for this proposed rulemaking 

claims the Agencies will use the NRCS's definition, the language of the proposed rule 

states the Agencies have "final authority regarding Clean Water Act jurisdiction." The 

Agencies have neglected to independently define prior converted cropland, which is 

contrary to logic given that EPA's claims of final authority over determining exclusions. 

Providing a clear definition would assist in offering consistency for the regulated public 

in determining if their land will be considered prior converted cropland thus excluded 

from being jurisdictional. (p. 8)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged. As a result, such comments 

are outside the scope of this rulemaking and the rule does not reflect changes 

suggested in public comments. 

7.199 Barriers to Entry

As previously detailed, the NRCS defines prior converted cropland as farmland that was 

"cropped prior to December 23, 1985, with an agricultural commodity (an annually tilled 

crop such as com); the land was cleared, drained, or otherwise manipulated to make it 

possible to plant a crop; the land has continued to be used for agricultural purposes 

(cropping, haying, or grazing); and the land does not flood or pond for more than 14 days 

during the growing season."122

The explicit exclusion for "prior converted croplands" will create a barrier to entry for 

agricultural producers due to the NRCS cutoff date of 1985. Younger agriculturalists 

wanting to start their own operations will not be afforded the same opportunities as older, 

more established farmers or ranchers. The average age of agricultural producers in the 

United States is 58 years old;123 implementing arbitrary requirements may prevent new 

fanners from entering the market. This barrier could have profound impacts on rural 

economies in addition to the nation's ability to provide enough agricultural goods for a 

growing population.

 

121 U.S. Department of Agriculture, Farm Service Agency. "Conservation Reserve Program."

http://www.fsa.usda.gov/FSA/webapp?area=home&subject=copr&topic=crp.

122 Natural Resource Conservation Service . "Wetland Fact Sheet - Prior Converted Cropland."

http://www.nrcs.usda.gov/wps/portal/nrcs/detail/vt/programs/?cid=nrcs142p2_010517.

123 U.S. Department of Agriculture. "2012 Census of Agriculture."

http://www.agecensus.usda.gov/Publications/2012/Full_Report/Volume_1_Chapter _1_US/.
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It is also contrary to many policies of the United States Department of Agriculture, which 

aim to provide incentives to young people to get involved in agriculture and could 

jeopardize the future of fanning.

Similarly, in reference to the "continuous operation" provision, NMDA requests 

clarification on whether land use restrictions near a newly designated Waters of the U. S. 

will change when agricultural lands are either sold or passed from one generation to the 

next when the use for the land is maintained as agricultural. If restrictions are put into 

place or if major permitting would be required with new ownership, it would create a 

barrier to entry for new agricultural producers, especially since it is not uncommon for 

agriculture operations to be passed on from one generation to the next. (p. 21-22)

Agency Response: See previous response.

Gila River Indian Community (Doc. #13619)

7.200 The Community has historically relied upon agriculture for sustenance and commerce. 

Our ability to farm the Reservation was crippled when upstream water users diverted the 

flow of the Gila River. However, enactment of the Arizona Water Settlements Act of 

2004 has reinvigorated our vibrant agricultural economy by facilitating the restoration 

and expansion of irrigation canals and related infrastructure that carries water to existing 

and future croplands.

The Proposed Rule exempts “prior converted croplands” from the definition of waters of 

the United States, but is silent as to new and future agricultural development, and 

provides no justification for this distinction. The Reservation includes significant swaths 

of land that have not been farmed for decades due to a lack of water, but that were 

historically irrigated. Such historically irrigated crop lands should be exempt, but the 

Proposed Rule provides significant discretion to the Agencies to assert jurisdiction over 

upwards of 40,000 new acres of croplands for which irrigation features will be restored or 

constructed in coming years. The Proposed Rule addresses this point in multiple places 

but fails to confirm that the construction and maintenance of such necessary irrigation 

features will not require a permit. The Final Rule should clarify this.124 (p. 5)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged. The agencies recognize the 

vital role of farmers in providing the nation with food and fiber and are sensitive to 

their concerns. The rule does not affect the exemptions provided in the Clean Water 

Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)), which exempts many normal 

farming activities such as seeding, harvesting, cultivating, soil and water 

conservation practices, and other activities from the Section 404 permitting 

requirement. Even where waters are covered by the CWA, the agencies have 

adopted many streamlined regulatory requirements to simplify and expedite 

compliance through the use of measures such as general permits and standardized 

mitigation measures.

 

124 These include: Part 328 (§328.3 (b) (2)); Part 110 (§110.1 (2) (ii)); Part 112 (§112.2 (2) (ii)); Part 116 (§116.3 (2) 

(ii)); Part 117 (§117.1 (2) (ii)); Part 122 (§122.2 (b) (2)); Part 230 (§230.1 (t) (2)); Part 232 (§232.2 (2) (ii)); Part 

300 (§300.5 (2) (ii)); appendix E to Part 300 (1.5 (2) (ii); Part 302 (§302.3 (2) (ii); and Part 401 (§401.11 (2) (ii)).
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North Carolina Forest Service, North Carolina Department of Agriculture (Doc. #14122)

7.201 Comment 1

In the portion of the proposed rule which explicitly excludes or exempts certain land 

features from being considered as a WOTUS [Part (b) of the proposed rule], we suggest 

adding prior-converted forest lands and legacy ditches to this exclusion list, with 

suggested new text offered below in underline:

• "Prior-converted forest lands and their associated legacy ditches. 

Notwithstanding the determination of a forest area's status as prior-converted 

forest lands by any other federal or state or local agency, for the purposes of 

the Clean Water Act the final authority regarding Clean Water Act jurisdiction 

remains with the USEPA."

Justification for Comment 1:

Forest lands that were converted prior to July 1, 1977 are currently considered not to be 

jurisdictional wetlands, as allowed in 33CFR330.3. However, with the proposed new and 

confusing definition of the term "tributary," there is concern that the ditches that were 

dug in the past to drain and convert these forest lands would be interpreted as a WOTUS 

"tributary," and thus the "adjacent" or "neighboring" prior-converted forest lands could 

then be re-captured as jurisdictional wetlands/waters, due to the proposed broad 

definition of new terms "riparian area" and "floodplain."

The USEPA claims that the proposed WOTUS rule will not expand new jurisdiction into 

ditches or ephemeral streams. We disagree with this assertion, as it depends upon how 

broadly "tributary" ... "adjacent"...and other related definitions will be interpreted and 

applied. By adding prior-converted forest lands and their associated legacy ditches to the 

exclusion list under part (b), this would avoid confusion and uncertainty, while adding 

clarity to the rule; and avoid having two sets of federal rules potentially conflicting with 

each other.

Also, we suggest adding "or state or local agencies" to the exclusion statement, to assure 

consistent regulatory oversight by the USEPA on wetland matters related to silviculture, 

and preclude attempts by state or local/municipal/county governments to impose 

additional oversight of silvicultural activities in wetlands. Primacy must remain vested 

with the USEPA, and/or USACE where delegated. (p. 1-2)

Agency Response: In the final rule, the agencies have modified the definitions of 

“tributary” and “neighboring”. See the preamble for a discussion of these terms. 

See Section 7.2 summary response above. Under section 510 of the CWA, unless 

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

tribe to establish more protective standards or limits than the Federal CWA.
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Board of Supervisors, Pocahontas County, Iowa (Doc. #13666)

7.202 The federal agencies seek input as to which waters “should be determined nonjurisdictional.”125 Below are the Community’s recommendations.

...

5. Prior converted cropland is expressly exempt from jurisdictional waters under the 

proposed rulemaking. By the absence of any discussion on new or future agricultural 

lands, future agricultural development could be deemed jurisdictional. These formerly 

irrigated lands that are brought back into production should be exempt. (p. 9)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

Board of Supervisors, Sutter County, California (Doc. #19657)

7.203 Under the current regulations, waters of the United States do not include "prior converted 

cropland." 33 C.F.R § 328.3(a)(8). The Proposed Rule would retain the prior converted 

cropland exception unchanged, while moving it to subsection 328.3(b)(2).We agree that 

the agencies should retain this exception, but we request that the agencies' final 

rulemaking clarify that the prior converted cropland exception applies regardless of any 

change in use of the land subsequent to its conversion.

The United States Department of Agriculture has defined prior converted cropland by 

regulation as:

[A] converted wetland where the conversion occurred prior to December 23, 

1985, an agricultural commodity had been produced at least once before 

December 23, 1985, and as of December 23, 1985, the converted wetland did not 

support woody vegetation and met the following hydrologic criteria:

(i) Inundation was less than 15 consecutive days during the growing 

season or 10 percent of the growing season, whichever is less, in most 

years (50 percent chance or more); and

(ii) If a pothole, playa or pocosin, ponding was less than 7 consecutive 

days during the growing season in most years (50 percent chance or more) 

and saturation was less than 14 consecutive days during the growing 

season most years (50 percent chance or more).

7 C.F.R § 12.2. The Proposed Rule states that the Corps and the EPA use this definition 

for purposes of determining jurisdiction under the Clean Water Act. See Proposed Rule at 

22189 n.2. However, since 2005, the Corps' policy has been to treat prior converted 

cropland as no longer falling within the exception, and therefore subject to Clean Water 

Act jurisdiction, if the land is no longer devoted to agricultural use. This policy is not 

supported by the text of the Corps' regulations and is inconsistent with the USDA's 

definition of prior converted cropland, because a subsequent change in use has no bearing 

on whether the converted wetland met the regulatory criteria as of December 23, 1985. 

 

125 Id. at 22193
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Moreover, the Corps' policy unnecessarily restricts changes in land use that are necessary 

and appropriate to meet changing local and regional needs. We therefore request that the 

agencies make the following change to the Proposed Rule:

 Add language to proposed 33 C.F.R § 328.3(b)(2), clarifying that "waters of the 

United States do not include prior converted cropland, as that term is defined by 

USDA regulations at 7 C.F.R § 12.2, notwithstanding any change in use of the 

prior converted cropland occurring after December 23, 1985." (p. 6)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged, and the definition of the term 

“prior converted cropland” is outside the scope of this rule.

Virginia Association of Counties (Doc. #15175)

7.204 Under ([t][2]), "prior converted cropland" is excluded as a jurisdictional water. However, 

the proposed rule also states that "for purposes of the Clean Water Act the final authority 

regarding Clean Water Act jurisdiction remains with EPA." This statement seems to 

suggest the "prior converted cropland" is excluded, but only until a determination is made 

by EPA that identifies a significant nexus between "converted cropland" and waters 

clearly understood to be jurisdictional. To clarify this issue, VACo recommends that EPA 

codify the longstanding meaning of "prior converted cropland" as found in 58 Fed. Reg. 

45008, 45031 (Aug. 25, 1993).

Recommendation: The term prior converted cropland means areas that, prior to 

December 23, 1985, were drained or otherwise manipulated for the purpose, or having 

the effect, of making production of a commodity crop possible." (p. 3)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged, and the definition of the term 

“prior converted cropland” is outside the scope of this rule.

Michigan Association of Conservation Districts (Doc. # 16583)

7.205 Prior Converted Cropland and Farmed Wetlands. The proposed rule states 

"Notwithstanding the determination of an area's status as prior converted cropland by any 

other federal agency, for the purposes of the Clean Water Act the final authority 

regarding Clean Water Act jurisdiction remains with EPA". Prior Converted Cropland 

(PCC) and Farmed Wetlands (FW) that are within agricultural fields and have been 

actively farmed for generations could be deemed jurisdictional by the proposed rule. 

Section 404 provides an exemption for normal farming, silviculture and ranching 

activities for PCC and FW. However, section 402 does not provide a similar exemption 

and normal farming practice. MACO recommends an agricultural exemption for PCC and 

FW be developed under Section 402 that is parallel and consistent to what currently 

exists in Section 404. This will reduce uncertainty for farmers and more clearly spell out 

section 402 exemptions. (p. 2)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged, and the implementation of the 

NPDES permitting program is outside the scope of this rule.
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Kerr Environmental Services Corp. (Doc. #7937.1)

7.206 1. Item (b)(2) Prior Converted Cropland. On August 25, 1993, the USEPA and 

USACE published its regulations specifying that Prior Converted cropland were not 

waters of the United States (Section 328.3(a)(8). The preamble, states at page 45032

“The amendment of the definition of waters of the United States in today’s rule 

also codifies that agencies’ current policy of not regulating prior converted 

cropland under Section 404 as reflected by Corps RGL 90-7. RGL 90-7, 

moreover, eased the regulatory burden of the Section 404 program by excluding 

prior converted cropland from coverage under this provision.”

Since this August 25, 1993 regulation, we have experienced strong and consistent 

resistance by certain USACE Districts to ignore the application of RGL 90-7 in 

evaluating Prior Converted cropland under the CWA and have been told that RGL 90-07 

is no longer applicable at all, in any circumstances relative to CWA jurisdictional 

determinations made by the USACE.

While USACE and USEPA may have believed it was unnecessary to include a reference 

to RGL90-7 in the actual 1993 regulation, they have the opportunity to rectify that error 

as the currently proposed wording for Prior Converted Cropland referencing EPAs 

authority, has no reference to any standard. We recommend the paragraph on Prior 

Converted cropland at 328.3(b)(2) be revised as follows (new language underlined):

Prior converted cropland. Notwithstanding the determination of an area's status as 

prior converted cropland by any other Federal agency, for the purposes of the 

Clean Water Act, the final authority regarding Clean Water Act jurisdiction 

remains with the EPA and will rely on the procedures defined in RGL 90-7, and 

then codified at 328.3(a)(8). (p. 2-3)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged, and the case-specific 

implementation of the 404 permitting program is outside the scope of this rule.

Montana Wool Growers Association (Doc. #5843.1)

7.207 The Proposed Rule's exclusions imply that land features would be jurisdictional but for 

the exclusion. 

a. Section (b)(2) excludes "prior converted cropland," implying that cropland would 

normally be jurisdictional and any subsequent cropland conversions will be regulated. 

If the Agencies intend to exclude only croplands that were previously converted from 

wetlands, riparian areas, or floodplains the Proposed Rule should say so. [For a joint 

agency memorandum from 1990 discussing prior converted cropland, see EPA, 

Memorandum: Clean Water Act Section 404 Regulatory Program and Agricultural 

Activities, http://water.epa.gov/lawsregs/guidance/wetlands/cwaag.cfm (May 3, 

1990).] (p. 10)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.
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National Farmers Union (Doc. #6249)

7.208 The proposed rule also specifically continues the exclusion of prior converted cropland 

from the definition of "waters of the United States" at section (b)(2). The proposed rule 

and preamble's direct confirmation of these matters provides clarity for the regulated 

community. The agencies should provide further clarity for the regulated community on 

this point by stating in the final rule, "This rule does not require a permit for any plowing 

and planting activity that was legally conducted without a permit before this rule was 

issued." This language captures the intent of the agencies and provides the regulated 

community with the certainty it needs to continue farming its existing planted acreage 

without threat of new interference. (p. 10)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged. The rule does not affect the 

exemptions provided in the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 

1344(f)(1)), which exempts many normal farming activities such as seeding, 

harvesting, cultivating, soil and water conservation practices, and other activities 

from the Section 404 permitting requirement.

Michigan Farm Bureau (Doc. #10196)

7.209 While the agencies emphasize the exclusion of prior converted cropland from CWA 

regulation, the specific inclusion lacks clarity and certainty for landowners and farmers. 

The EPA and USACE reserve final authority regarding CWA jurisdiction over an area's 

status as prior converted cropland, but fail to acknowledge the inconsistency with which 

the agencies have considered prior converted croplands and applicable exclusions from 

the CWA in the past, such as in New Hope Power Company, et al. v. United States Army 

Corps of Engineers, No. 10-22777- CIV-Moore/Simonton, 2010 U.S. Dist. (S.D. Fla. 

Sept. 28, 2010). In any proposed rule, EPA and USACE must clarify the exclusion of 

prior converted cropland as well as assurance of consistent exclusion of those lands. (p. 

8)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

Minnesota Agricultural Water Resource Center (Doc. #14284)

7.210 In agricultural settings, we recommend...Prior converted cropland should also be clearly 

defined as always non-jurisdictional. (p. 2)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

California Association of Winegrape Growers (Doc. #14593)

7.211 1. Improper and Illegal Encroachment on Agriculture

The Proposed Rule states that it will not affect prior converted cropland, normal farming 

practices, or irrigated agricultural return flows. Unfortunately, the tremendous 

expansiveness of the general concept of “connectivity” as defined in the Connectivity 

Report and the Proposed Rule’s Scientific Evidence in Appendix A opens vast new 
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155

frontiers of ambiguity into which we fear various exceptions to the exceptions will 

predictably creep.

In 1993, the Corps adopted a rule that established that agricultural lands that were 

converted from wetlands prior to 1985 (“prior converted croplands”) were categorically 

excluded from the definition of “the waters of the United States” and, therefore, were not 

subject to regulation under Section 404 of the CWA, 33 U.S.C. § 1344. (See Final Rule, 

Clean Water Act Regulatory Program, 58 Fed. Reg. 45,008 (Aug. 25, 1993) (“1993 Final 

Rule”) (codified at 33 C.F.R. § 328.3(a)(8) (2009)). There are over 53 million acres of 

prior converted cropland throughout the country. (See U.S. Department of Agriculture, 

Natural Resources Conservation Service, RCA Issue Brief #8, “Wetlands Programs and 

Partnerships,” (Jan. 1996), available at 

http://www.nrcs.usda.gov/technical/rca/ib8text.html [“The Corps and EPA agreed to final 

regulations ensuring that approximately 53 million acres of prior-converted cropland will 

not be subject to wetland regulation.”]; U.S. Army Corps of Eng’rs, “Two Years of 

Progress: Meeting Our Commitment for Wetlands Reform; Protecting America’s 

Wetlands: A Fair, Flexible and Effective Approach August 1993 - August 1995,” 

available at 

http://www.usace.army.mil/CECW/Documents/cecwo/reg/materials/wetland_policy1995.

pdf [“To make the Federal wetlands program more consistent and predictable for farmers, 

the Clinton Administration clarified that ‘prior converted croplands’ are not subject to 

regulation under Section 404 of the Clean Water Act. Nearly 53 million acres of farm 

land are covered by this action which exempted lands that no longer perform the wetlands 

functions as they did in their natural condition.”].) Notwithstanding subsequent case 

law126 occurring after the adoption of this formal rule, the Corps continues to lack 

jurisdiction over such lands and no jurisdictional determination or Corps permit is 

required for their use. Thus, any attempt by the Proposed Rule to infringe about the “prior 

converted cropland” exemption is improper and invalid. (p. 15-16)

Agency Response: See Section 7.2 summary response above. In the final rule, the 

agencies have modified the definitions of “tributary” and “adjacent”. See Sections 

IV.F and G of the preamble for a discussion of these terms.

American Soybean Association (Doc. #14610)

7.212 “Prior converted cropland” is another issue in which more questions are raised than 

answered in the proposed rule. ASA appreciates the clarity provided in the “Questions 

and Answers” document that clearly states that the existing exclusion from jurisdiction 

for prior converted cropland is carried forward unchanged. However, sections of the 

proposed rule state that, “Notwithstanding the determination of an area’s status as prior 

converted cropland by any other Federal agency, for the purposes of the Clean Water Act 

the final authority regarding Clean Water Act jurisdiction remains with EPA.” While the 

Department of Agriculture makes the “prior converted” decision, jurisdiction under the 

law is EPA’s. We understand that there is no history of EPA overturning a USDA “prior 

 

126 Rapanos does not affect the conclusion that prior converted croplands are not subject to the Agencies’ CWA 

jurisdiction.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

156

converted” decision. Unfortunately, there is a great deal of unease among farmers that 

past practice is no guarantee for the future. (p. 2)

Agency Response: See Section 7.2 summary response above.

Great Plains Canola Association (Doc. #14725)

7.213 ... The Proposed Rule also states that prior converted cropland is not “waters of the 

United States”, yet other sections of the rule state that “Notwithstanding the 

determination of an area’s status as prior converted cropland by any other Federal 

agency, for the purposes of the Clean Water Act the final authority regarding Clean 

Water Act jurisdiction remains with EPA.” This contradiction is greatly concerning to 

GPCA producers. (p. 2)

Agency Response: See Section 7.2 summary response above.

National Pork Producers Council (Doc. #15023)

7.214 We strongly recommend that the Agencies spell out what they believe prior-converted 

cropland is and how they work with USDA in using the USDA PCC determinations. In 

particular, we believe a discussion in the preamble of the final rule that details the long 

relationship and history of coordination between the Agencies and USDA on the issue of 

PCC determinations would help address any uncertainty pork producers or others in 

agriculture have regarding the potential treatment of PCC under the proposed rule. In 

particular, there should be a clear discussion of the number of occasions an NRCS PCC 

determination has been overturned by the Agencies and the circumstances that existed 

when that occurred. Additionally, in furtherance of the stated goal of providing clarity 

and certainty to farmers, we strongly urge the Agencies to expressly define what they 

consider PCC by simple reference to the current regulatory standards implementing the 

provisions of the 1985 Food Security Act, set forth at Title 7, Part 12 of the Code of 

Federal Regulations. (p. 22)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

North Carolina Farm Bureau Federation (Doc. #15078)

7.215 ...This rule states that PCC is not WOTUS. We support the exclusion of PCC. However, 

we are concerned that there has been a resistance in recent years by some of the Agencies' 

staff to honoring the existing exemption for PCC and an effort to narrow the existing 

exemption. Promulgation of a new rule should not be taken as an opportunity to issue 

new guidance that further narrows the exclusion of prior converted cropland from being 

considered "waters of the US." (p. 16)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

US Dry Bean Council (Doc. #15256)

7.216 The Proposed Rule also states that prior converted cropland is not “waters of the United 

States.” Yet other sections of the rule state that “Notwithstanding the determination of an 

area’s status as prior converted cropland by any other Federal agency, for the purposes of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

157

the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains 

with EPA.” This contradiction is unacceptable for dry bean producers and we ask that 

this be clarified to make it clear that prior converted cropland is not “waters of the United 

States.” (p. 2)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

Minnesota Soybean Growers Association (Doc. #15542)

7.217 While the definition of "prior converted cropland" is unchanged in the proposed rule, it is 

confusing and does not give regulatory certainty. Farmers and landowners that currently 

have "prior converted croplands" are not given any assurance that the EPA will not use a 

drastically different definition of this phrase than other federal agencies are already using. 

There is no reason that the EPA could not define this language similar to other definitions 

used by other federal agencies. The EPA would not be giving up any jurisdiction or 

ceding their authority to another agency by having a similar definition. (p. 2)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

National Barley Growers Association (Doc. #15627)

7.218 Prior Converted Cropland. The Proposed Rule provides that prior converted cropland 

falls outside the definition of “waters of the United States,” yet also states: 

“[n]otwithstanding the determination of an area’s status as prior converted cropland by 

any other Federal agency, for the purposes of the Clean Water Act, the final authority 

regarding Clean Water Act jurisdiction remains with EPA.” This conflicting language 

suggests that EPA and/or the Corps are trying to have it both ways. (p. 5)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

US Canola Association (Doc. #16361)

7.219 The Proposed Rule also states that prior converted cropland is not “waters of the United 

States.” Yet other sections of the rule state that “Notwithstanding the determination of an 

area’s status as prior converted cropland by any other Federal agency, for the purposes of 

the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains 

with EPA.” This contradiction is unacceptable for canola producers. (p. 2)

Agency Response: See Section 7.2 summary response above. The existing 

exclusion for prior converted cropland is unchanged.

Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1)

7.220 1. The Rule states that there will be no change to the exclusion for prior converted 

cropland; however, the exemption states that authority regarding CWA Jurisdiction for 

prior converted cropland remains with the EPA. How will jurisdictional determinations 

on prior converted cropland, including drainage ditches within the cropland be handled 

by the EPA/Corps if the land use changes? In light of the February 2011 U.S. District 

Court for Southern District of Florida's decision to deny the Corps' motion to alter the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

158

court's September 2010 decision in the New Hope Power Company and Okeelanta 

Corporation v. U.S. Corps of Engineers and Stockton, 746 F. Surma 2d 1272 (S.D. Fla. 

2010), how will the EPA/Corps process jurisdictional requests for prior converted 

cropland that propose to change their land use? Will the applicant/owners be required to 

coordinate directly with EPA for all jurisdictional determinations associated with prior 

converted croplands that propose a change in land use? If case-specific analysis and 

coordination with EPA is required for all prior converted croplands that propose to 

change their land use, even in light of the New Hope v. Corps (Stockton) court decision, 

this process may require more time and resources while providing less clarity, certainty 

and predictability for the regulated community. (p. 5-6)

Agency Response: See Section 7.2 summary response above. In the final rule, the 

agencies have modified the definitions of “tributary” and “neighboring”. See 

Sections IV.F, IV.G, and IV.I of the preamble for a discussion of these terms and the 

ditch exclusions.

7.221 5. The Rule states that ephemeral features located on agricultural lands that do not 

possess a bed and banks are not tributaries, even though they may contribute flow during 

some rain events. The City of Chesapeake supports this position on agricultural ditches, 

but how will ephemeral, intermittent and/or perennial ditches that may contain a bed and 

bank and contribute flow to a TNW during rain events be assessed on prior-converted 

croplands? Since prior-converted croplands are exempt to regulatory oversight under the 

CWA, will all agricultural ditches, no matter their hydrologic regime or geomorphic 

nature also be exempt to regulatory oversight under the CWA? Furthermore, the Rule 

only exempts ephemeral ditches located on agricultural lands, and all ephemeral features 

including, but not limited to ditches, dry swales, dry detention ponds and rain gardens, 

which may contribute flow during rain events should not be categorized as WOUS under 

the proposed Rule. (p. 6)

Agency Response: See Section 7.2 summary response above. In the final rule, the 

agencies have modified the exclusions for ditches. See Section IV.I of the the 

preamble for the discussion regarding the ditch exclusions. 

Caloosahatchee River Citizen’s Association (Doc. #4711.2)

7.222 Categorical Exclusion of Non-Point Pollution Sources

Agricultural Stormwater and Irrigation Return– Crop Production. American 

agriculture has become highly productive in its dependency on water-soluble chemicals --

fertilizers, pesticides, and herbicides. Thousands of jobs in Southwest Florida depend on 

this productive agriculture. Yet one consequence of the use of water-soluble chemicals in

crop production is the run-off, in sheetflow or in watercourses, of agricultural chemicals 

that were not taken up by the crops in the field. Commonly in Southwest Florida, 

quantities of nutrients such as nitrogen and phosphorus, pesticides such as chlorpyrfos 

from citrus production and carbofuran from sugar production, and herbicides such as 

glyphosate from turfgrass sod production and atrazine from sugar production are found in 

our waters. Yet the presence of these nutrient and chemical pollutants that originate in 

cropland agriculture are categorically untouchable due to the exclusion of agricultural 

stormwater and irrigation water return.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

159

In an egregious example of the effect of water-borne agricultural chemicals, the USGS 

has found atrazine in Southwest Florida waters. Low concentrations of atrazine cause a 

variety of adverse effects in fish, including reduced sperm production, disruptions of 

normal behavior, kidney damage, and decreased ability to withstand warm temperatures. 

The hormone systems of both amphibians and alligators are disrupted by atrazine. 

Atrazine also stimulates fungi that cause plant diseases, including the common root rot 

Fusarium.

Atrazine can damage natural communities. For example, in a pond community, atrazine 

(at a concentration of 20 parts per billion) caused reductions in populations of aquatic 

plants, aquatic insects, and the fish that feed on them. Despite the demonstrated effects of 

atrazine, it continues to pollute our surface waters and aquifers.

Agricultural Stormwater – Animal Production. The beef industry is an essential part 

of Southwest Florida agriculture in jobs and revenues. However, surface run-off from 

pastures is a major source of nitrate, ammonia, phosphorus, and cryptosporidium in our 

surface waters and aquifers. The effect of high nutrient content in the Caloosahatchee 

River has been the seasonal growth of mircroalgae. The turbidity caused by this algae 

reduces the light penetration to submerged vascular aquatic vegetation, killing off 

vegetation essential to life cycles of shrimp, crabs, sport fishes, and forage fishes. Yet the 

presence of these nutrient pollutants that originate in animal agriculture is categorically 

untouchable due to the exclusion of agricultural stormwater. (p. 2-3)

Agency Response: Implementation of the NPDES permitting program or sources 

nonpoint source pollution are outside the scope of this rulemaking. 

Citizens Committee to Complete the Refuge (Doc. #14738)

7.223 Prior converted croplands:

The preamble to the proposed rule states, "Waters and features that are determined to be 

excluded under section (b) of the proposed rule will not be jurisdictional under any of the 

categories in the proposed rule under section (a). There is no recapture provision for 

these excluded waters in the proposal." [emphasis added]

Prior converted croplands are listed under section (b), with the proviso "Notwithstanding 

the determination of an area's status as prior converted cropland by any other Federal 

agency, for the purposes of the Clean Water Act the final authority regarding Clean 

Water Act jurisdiction remains with EPA." Please clarify what this means with respect to 

prior converted croplands determinations. Does this mean EPA will review all PCC 

determinations to determine if these wetlands still possess wetlands functions and values?

EPA and the Corps have not adequately demonstrated their presumption that prior 

converted croplands do not possess valuable wetlands functions and values, nor have the 

agencies adequately demonstrated that these areas could not be fully restored to 

functional and valuable wetlands in the absence of agricultural manipulation. We strongly 

object to prior converted croplands being placed under section (b) of the proposed rule 

and classified as areas that have no recapture provision.

A common misconception is that lands identified/certified by the Natural Resources 

Conservation Service (NRCS) as Prior Converted Croplands have been sufficiently 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

160

altered to permanently remove wetland characteristics and in particular, the hydrology 

required to maintain wetland functions and values. The designation Prior Converted 

Croplands is a regulatory construct for the purposes of implementing the "swampbuster" 

provisions of the Food Security Act (FSA) and does not reflect the ecological functions 

or values of these lands.

Votteler and Muir127 observed:

Clinton's proposals relaxed some of the current restrictions on agricultural effects 

on wetlands and increased funding for incentives to preserve and restore wetlands 

on agricultural lands. The administrative policy excluded 53 million acres of 

"prior converted croplands" from regulation as wetlands... [emphasis added]

And Ruffolo128 also referred to changes implemented by the Clinton Administration:

7.224 ...It also made the Soil Conservation Service, in the Department of 

Agriculture, responsible for wetland jurisdictional determinations on agricultural 

lands under both the Clean Water Act and the "Swampbuster" program (the Food 

Security Act). The administration also excluded "prior converted croplands" from 

regulation. This exemption excluded from regulation vast tracts of wetlands that 

had been drained and converted to agricultural use prior to 1985. [emphasis 

added]

Prior Converted Croplands are defined in the 5th Edition of the National Food Security 

Act Manual (NFSAM) in the following manner:

A. Definition

(1) Prior converted cropland (PC) is a converted wetland where the conversion 

occurred before December 23, 1985; an agricultural commodity had been 

produced at least once before December 23, 1985; and as of December 23, 1985, 

the area was capable of producing an agricultural commodity (i.e., did not support 

woody vegetation and was sufficiently drained to support production of an 

agricultural commodity). The conversion could include draining, dredging, filling, 

leveling, or otherwise manipulating (including the removal of woody vegetation 

or any activity that results in impairing or reducing the flow and circulation of 

water) the wetland area. In addition, PC meets the following hydrologic criteria:

(i) If the area is not a pothole, playa, or pocosin, inundation is less than 15 

consecutive days during the growing season or 10 percent of the growing season, 

whichever is less, in most years (50 percent change or more).

(ii) If the area is a pothole, playa, or pocosin, inundation is less that 7 consecutive 

days and saturation is less than 14 consecutive days during the growing season in 

most years (50 percent chance or more). [emphasis added]

 

127 Votteler, Todd H. and Thomas A. Muir. "Wetland Management and Research - Wetland Protection Legislation." 

National Water Summary on Wetland Resources. United States Geological Survey Water Supply Paper 2425. 

http://water.usgs.gov/nwsum/WSP2425/legislation.html.

128 Ibid.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

161

The definition clearly labels PCCs "wetlands." The determining factor in whether a 

hydrologically modified (prior to December 23, 1985) wetland is regulated or not, is that 

of ponding. Is the (hydrologically modified) wetland inundated (ponded) for less than 15 

consecutive days? If so (unless it is a pothole, playa, or pocosin), it is a PCC and not 

regulated, even if there is saturation of soils to the surface.

In response to the question "Why regulate PCC wetlands?" the Washington State 

Department of Ecology asserts:

The original assumption behind exempting PCC wetlands from federal regulation 

was the belief that these wetlands had been so altered they no longer provided 

important wetland functions. However, PCC wetlands in Washington perform 

many of the same important environmental functions as other wetlands, including 

recharging streams and aquifers, storing flood waters, filtering pollutants from 

water and providing wildlife habitat. [emphasis added]

The National Research Council129 observes (p. 159):

One potential concern, however, is that agricultural wetlands will begin to diverge 

as separate from those regulated by USACE and EPA. This divergence could be 

fostered by maintenance of separate delineation manuals for agricultural and 

nonagricultural wetlands. Several major differences based on policy rather than 

science are already apparent. [emphasis added]

And, recommends for "Especially Controversial Wetlands" (p. 167):

Wetlands on agricultural lands should not be regulated differently from other 

wetlands. These wetlands may have many of the same attributes as do other 

wetlands, including maintenance of water quality, and there is no scientific basis 

for delineating them under definitions or federal manuals different from those 

applicable to other wetlands. [emphasis added]

...Wetlands in agricultural settings can enhance runoff water quality...

Sheldon, et al,130 asserts:

...However, many wetlands meeting the criteria for PCC would still be expected 

to provide important functions, given that the criteria for being designated "Prior 

Converted" require only that the wetland has been manipulated for production of 

commodity crops since 1985 and does not pond for more than 14 consecutive 

days during the growing season.

...In addition, the authors of Volume I have documented significant water quality 

and quantity functions provided by PCCs in projects reviewed and permitted by 

the Department of Ecology (This data has not been published). [emphasis added]

 

129 National Research Council. "Wetlands: Characteristics and Boundaries." National Academy Press. Washington 

D.C. 1995.

130 Sheldon, Dyanne, Tom Hruby Ph.D., Patricia Johnson, Kim Harper, Andy McMillan, Teri Granger, Stephen 

Stanley, Erik Stockdale. "Wetlands in Washington State Volume 1: A Synthesis of the Science." Ecology 

Publication #05-06-006. Department of Ecology Publications Distribution Office. 

http://www.ecy.wa.gov/biblio/0506006.html. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

162

There is a need for protection and recapture of areas certified as PCC. PCC wetlands 

receive no protection under the FSA. Thousands of acres of wetlands could be at risk 

from actions that reduce or impair the reach, flow or circulation of these wetlands.

According to a "Wetland Fact Sheet - Prior Converted Cropland" published by the

Vermont NRCS131:

Areas that qualify as Prior Converted Cropland (PC) are exempt from the 

Swampbuster provision of the Farm Bill. These areas can be further drained, 

cropped or manipulated without loss of eligibility for USDA program benefits. 

[emphasis added]

Once determined PCC, the wetland is forever considered PCC. Despite the fact that other 

categories of wetlands on agricultural lands are considered "abandoned" following the 

cessation for five consecutive years of management or maintenance, "PC lands will not 

be considered abandoned under the Food Security Act."132

The NFSAM does state:

This definition of abandonment is applicable only for compliance with the Food 

Security Act. Regulations governing the Clean Water Act may provide different or 

additional criteria for abandonment, particularly with regard to PC areas.

Participants who are planning to abandon PC areas should be advised to discuss 

their plans with the COE before proceeding. [emphasis added]

The February 25, 2005 Memorandum to the Field issued jointly by USDA-NRCS and the 

USACE provides the following guidance regarding PCCs:

Prior-Converted Cropland. Prior-converted cropland (PC) is identified for the 

purpose of implementing the FSA, and refers to wetlands that were converted 

from a non-agricultural use to cropland prior to December 23, 1985. While a PC 

area may meet the wetland hydrology criterion, production of an agricultural 

commodity or maintenance or improvement of drainage systems on the PC area, 

is exempt from the swampbuster provisions. A certified PC determination made 

by NRCS remains valid as long as the area is devoted to an agricultural use. If the 

land changes to a nonagricultural use, the PC determination is no longer 

applicable and a new wetland determination is required for CWA purposes. 

Specific guidance will be provided by the Corps in the near future addressing how 

the Corps will treat PC designations for land that changes from agricultural to 

non-agricultural use. [emphasis added]

This language explicitly states that PCC determinations and exemptions remain valid 

only as long as the land is in agricultural use. However, the specific guidance promised 

has yet to be provided by EPA or the Corps. Conversion of agricultural lands to 

development is an ever present threat in California. The potential loophole afforded by 

non-regulation of PCC wetlands must be avoided in the WRAPP. We are aware of 

 

131 Vermont NRCS. "Wetland Fact Sheet - Prior Converted Cropland. 

http://www.vt.nrcs.usda.gov/programs/Wetland_Compliance/Wetland%20Fact%20Sheet%20-

%20Prior%20Converted%20Cropland.htm. 

132 NRCS. National Food Security Act Manual. M_180_NSFAM_514_D, Fifth Edition, November 2010.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

163

situations where landowners/developers have attempted to utilize PCC determinations to 

preclude Clean Water Act regulation of wetlands.

The proposed rule must not exempt conversion of PCC wetlands to non-agricultural uses 

and as stated above, must not exempt activities that would reduce or impair the reach, 

flow of circulation of waters of the U.S. similar to the existing agricultural exemptions. 

The intent is not to regulate historic and ongoing farming operations, but to regulate any 

change in use that will result in the conversion of wetland areas to uplands. Changes in 

use could encompass proposals to remove the agricultural wetlands from farming for the 

purposes of development, but could also include changes in farming to crops that require 

drier soils. The latter is especially of concern, as we are aware of several instances in the 

San Francisco Bay Area where landowners brought in fill or deep ripped soils (e.g. 

Borden Ranch) under the guise of "normal farming operations" on lands where we were 

aware of future development proposals. The proposed rule should not include loopholes 

that would allow the unregulated conversion of wetlands to uplands.

Every five to seven years agricultural policies are evaluated and reauthorized or modified 

by U.S. lawmakers through the Farm Bill authorization process. As can be observed by 

the recent 2014 Farm Bill, the process is highly politicized and not without controversy. 

EPA must not merely adopt NRCS's definition of PCC wetlands, as that definition is 

vulnerable to changes in definition or conditions with each Farm Bill reauthorization. As 

an example, PCC wetlands were originally considered abandoned if they were not 

cropped for five years. This policy was drastically altered with the 1996 Farm Bill, which 

stated PCC wetlands will not be considered abandoned under the FSA. Once a wetland is 

identified PCC, that designation (and exemption from regulation) lasts forever, as long as 

the lands are used for the production of food, forage or fiber, and so long as alterations of 

PCC wetlands do not alter the hydrology of nearby wetlands. We have already discussed 

the need for the incorporation of a recapture clause to prevent the unregulated drainage 

and conversion of these wetlands under the guise of normal farming operations. EPA 

must ensure its policies are well defined and protective of waters of the state. EPA must

ensure its policies will not inadvertently be altered by changes adopted by an outside 

agency - especially one that does not have protection of waters of the state as its primary 

charge. To do anything less would be abrogating the EPA's responsibilities under the 

CWA.

No inventory of PCC determinations is available, thus it is impossible to determine how 

many thousands of acres of wetlands may be at risk.

Crumpton et al133 observed:

Lack of public information on cropped wetlands: Because USDA does not make 

the data public, very little information about cropped wetlands is available. 

USDA, the Corps, EPA and the Interior Department coordinated wetland 

protection under a 1994 interagency agreement. USDA confidentiality, however, 

was one reason that agreement terminated. It is essential that these data be made 

 

133 Crumpton, William, Arnold van der Valk, Will Hoyer, David Osterberg. "Wetland Restoration in Iowa 

Challenges and Opportunities." The Iowa Policy Project. May 2012. www.IowaPolicyProject.org. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

164

public in order to assess the policy implications of various alternatives for dealing 

with cropped wetlands.

Without such information, it is impossible for EPA and the Corps to determine the 

environmental impacts of providing a recapture clause for PCC wetlands.

On February 28, 2005, the NRCS provided rationale for withdrawing from the 1994 

Memorandum of Agreement (Ag MOA)134. Of note are the following:

The 2002 amendments prohibit NRCS from sharing confidential producer 

information to agencies outside USDA. This makes it illegal for NRCS to provide 

wetlands delineations and determinations to the COE and EPA for CWA 

permitting and enforcement.

1996 amendments eliminated the concept of "abandonment" for prior converted 

(PC) cropland. As a result, land may be considered non-wetland for Swampbuster 

purposes, and wetland for CWA purposes...

The MOA states that NRCS wetland determinations shall not be revised without 

interagency coordination. However, NRCS is required to comply with the decision of the 

USDA National Appeals Division, which may overturn a previous wetland determination 

without coordination among the agencies.

Per the MOA, NRCS agreed to conduct wetland determinations on agricultural land for 

the purpose of obtaining a CWA permit. Regulations at 7 C.F.R. §12.30 state that 

NRCS's responsibilities regarding wetlands extend only to implementing the wetland 

conservation provisions of the FSA. [emphasis added]

Clearly, NRCS cannot comply with the spirit and intent of the 1994 MOA. The FSA fails 

to provide any regulatory protection of wetlands identified as prior converted croplands. 

It has been nine years since the NRCS and the Corps withdrew from the Ag MOA and 

there is yet to be any specific guidance regarding recapture of PCC wetlands.

In conclusion, with the exceptions noted above, we support the proposed definition of 

"waters of the U.S." We believe ample scientific documentation exists to support the 

proposed rule. We encourage EPA to adopt the recommendations put forth in the SAB 

letter dated September 30, 2014. (p. 4-8)

Agency Response: See Section 7.2 summary response above.

Stormwater Management Commission, Lake County, Illinois (Doc. #15381)

7.225 We acknowledge and support the proposed exemptions for agricultural lands and the 

specific exclusion of prior-converted cropland from regulation as WOUS in §328.3(b)(2). 

(p. 2)

Agency Response: Comment noted.

 

134 NRCS. "Guidance on Conducting Wetland Determinations for the Food Security Act and Section 404 of the 

Clean Water Act." http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_007868.pdf. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

165

Wetland Science Applications, Inc. (Doc. #4958)

7.226 I agree with placing the exceptions at 33 CFR 328(b) into the rule with the following 

exceptions: 

1. Regarding (2) prior converted, the 5-year abandonment provision should be 

specifically included to avoid parochial efforts similar to that adjudicated in the New 

Hope case;... (p. 1)

Agency Response: See Section 7.2 summary response above.

7.3. ADDITIONAL PROPOSED EXCLUSIONS

Summary Response

The Agencies have historically indicated that a number of features are not considered Waters of 

the United States under the Clean Water Act, but only the exclusions for waste treatment systems 

and prior converted cropland were found in the rule itself. In the proposed and final rule the 

agencies add exclusions for waters and features previously identified as generally exempt in 

preamble language from Federal Register notices by the Corps on November 13, 1986, and by 

EPA on June 6, 1988. The agencies also add exclusions for groundwater and erosional features, 

as well as exclusions for some waters that were identified in public comments as possibly being 

found jurisdictional under proposed rule language where this was never the agencies’ intent, such 

as stormwater control features constructed in dry land to convey, treat, or store stormwater, and 

cooling ponds that are created in dry land. These exclusions generally reflect current agencies’ 

practice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of 

providing greater clarity over what waters are and are not protected under the CWA. This is the 

first time these exclusions have been established by rule. 

Because questions about permitting sometimes arise, it may be helpful for the agencies to clarify 

that exemptions and exclusions are not the same. Where something is excluded from the 

definition of waters of the US, a water or feature meeting the definition of that exclusion is not 

itself a jurisdictional water under the Clean Water Act. Examples of such exclusions include 

prior converted cropland and waste treatment systems. However, even where a water is clearly 

identified as a water of the US, in some cases there are statutory or regulatory permitting 

exemptions that allow certain activities to occur in jurisdictional waters with no need for a 

permit. Examples of such permitting exemptions include normal farming, silviculture, and 

ranching practices and construction and maintenance of farm or stock ponds or irrigation ditches. 

The final rule establishes exclusions from the definition of waters of the US for artificially 

irrigated areas that would revert to dry land should application of water to that area cease; 

artificial lakes and ponds created in dry land and used primarily for uses such as stock watering, 

irrigation, settling basins, rice growing, or cooling ponds; artificial reflecting pools or swimming 

pools created in dry land; small ornamental waters created in dry land; water-filled depressions 

created in dry land incidental to mining or construction activity, including pits excavated for 

obtaining fill, sand, or gravel that fill with water; erosional features, including gullies, rills, and 

other ephemeral features that do not meet the definition of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; and puddles. The agencies also exclude groundwater, 
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166

erosional features including gullies and rills, and non-wetland swales. Comments relating to all 

of these issues are discussed in more detail in subsections of 7.3 and in individual comments 

below.

Specific Comments

Virginia Department of Transportation (Doc. #12756)

7.227 Information contained on p. 22263, first column, paragraphs 7(b)(5)(ii)-(iv), 

unnecessarily complicates the exclusions from the definition of WOUS. These sections 

should be rewritten as one exclusion, stating that artificial lakes, ponds or pools created 

by excavating and/or diking dry land are not WOUS. (p. 6)

Agency Response: The agencies disagree that the organization of the exclusions is 

unnecessarily complicated and are not making this change.

Ohio Department of Natural Resources et al. (Doc. #15421)

7.228 328.3(b)(5)(ii) Diked/excavated farm ponds, 3283(b)(5)(1ii) Reflection pools, swimming 

pools, 328.3(b)(5)(iv) Ornamental ponds

It should be clarified in the federal register discussion that these types of areas would not 

be considered jurisdictional waters of the U.S. even if they have outflow. For example, if 

an artificial pond was created by excavation and intercepted groundwater, and the 

resulting pond then possessed a discharge (either ephemeral, intermittent, or perennial), 

the pond itself would not be considered jurisdictional even though it connects to a water 

of the U.S. Presumably the new water created from the discharge of the pond would be 

considered a ditch, and would only be considered jurisdictional if it possessed perennial 

flow. Please confirm this assumption. (p. 6)

Agency Response: The agencies are clear that waters listed as excluded in 

paragraph (b) cannot be brought into jurisdiction under other parts of the rule. 

Where exempted features such as pools and ponds listed in paragraph (b) are 

connected to jurisdictional waters through outfalls, such outfalls could be 

considered ditches and treated as such under the rule but this is dependent on the 

facts of a particular situation. Under prior policies the agencies could determine 

that a particular feature generally considered nonjurisdictional was a “water of the 

United States.” The agencies do not retain that authority for features excluded 

under the rule.

Scott County Soil and Water Conservation District, Illinois (Doc. #8410)

7.229 It must not affect areas previously excluded from federal jurisdiction, including prior 

converted cropland, artificially irrigated areas that would revert to upland if irrigation 

stops; artificial lakes or ponds created by excavating and/or diking dry land and used for

purposes; purposes such as rice growing, stock watering, or irrigation; artificial 

ornamental waters created for primarily aesthetic reasons; water-filled depressions 

created as a result of construction activity; pits excavated in upland for fill, sand, or 

gravel; and waste treatment systems (including treatment ponds or lagoons). (p. 2)
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Agency Response: The agencies are, for the instances mentioned above, reflecting 

current practice in the exclusions now written into the rule.

Ames Construction, Inc. (Doc. #17045)

7.230 ...with this proposed rule, the agencies are effectively shifting the burden to the regulated 

community to prove the application of the limited and ambiguous exclusions on a caseby-case basis. This point is particularly prominent with regard to the exclusions for 

'water-filled depressions incidental to construction activity' and 'water-filled depressions 

excavated on dry land for the purposes of obtaining sand and gravel.' Old maps and aerial 

photos may be the only sources available to identify historic conditions in order to 

resolve third-party allegations of violations of federal CWA laws; however, these tools 

often lack the level of resolution required to make a proper determination. It will 

ultimately be up to the regulated community to provide compelling evidence that an 

uneven surface area on the land (i.e., man-made wet area) first came about during 

construction activity, or face complicated and layered reviews, costly penalties or even 

citizen suits. (p. 2)

Agency Response: The agencies are formalizing existing exemptions in rule 

language and expect no difference in implementation for the issues discussed in the 

comment. It remains the government’s burden to demonstrate a particular water is 

a “water of the United States.”

Richland Communities (Doc. #18793)

7.231 Richland supports the policy decision to exclude rice growing areas from the definition of 

''waters of the United States" under the Clean Water Act. Richland is concerned, 

however, that the language in this provision is unclear and incomplete. As such, the 

language creates the potential that areas dedicated to rice growing could inappropriately 

be deemed jurisdictional despite the clear policy intent of the agencies that such areas be 

excluded as a matter of law.

For the reasons explained below, Richland requests that the exclusion for "rice growing" 

be moved from the second bulleted item listed above involving "artificial lakes or ponds" 

(79 Fed. Reg. 22263, section (b)(5)(ii)) to the first item encompassing "artificially 

irrigated areas" (79 Fed. Reg. 22263, section (b)(5)(i)). In addition, language should be 

added to ensure that the exclusion applies to any areas whose topography lawfully was 

altered for rice growing prior to the enactment of the Clean Water Act and its regulations, 

and that the exclusion will apply prospectively to rice growing areas that may change to 

some other crop or usage.

Specifically, Richland recommends the following changes (shown in italics and strikeout) 

to the text of these two elements of section (b) of the proposed rule excluding specified 

features from the definition of ''waters of the United States":

 Artificially irrigated areas, including rice growing areas, that would revert to 

upland should application of irrigation water to that area cease. The exclusion for 

rice growing areas includes any areas whose topography lawfully was graded, 

diked or otherwise altered for rice growing prior to the enactment of the Clean 
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Water Act and its regulations, and applies prospectively to rice growing areas 

that may change to some other crop or usage.

 Artificial lakes or ponds created by excavating and/or diking dry land and used 

exclusively for such purposes as stock watering, irrigation, and settling basins, or 

rice growing. (p. 2)

Agency Response: The agencies maintain current policy in the final rule language 

and the agencies believe this suggestion would alter and expand current practice 

without sufficient reasons to do so. In all cases in order to be excluded a feature 

must meet the definitions in paragraph (b). See also the summary response at 7.3.2.

7.232 The agencies' proposed rule appropriately recognizes this historically unique aspect of 

rice cultivation. As the preamble to the proposed rule states, the agencies propose, for the 

first time, to exclude by rule certain waters and features over which the agencies have, as 

a policy matter, generally not asserted jurisdiction in the past. The express exclusion for 

"rice growing" clearly means that the agencies do not intend for lands used for rice 

production to be considered "waters of the United States" for Clean Water Act purposes, 

even if they would otherwise satisfy the regulatory definition. (79 Fed. Reg. 22217-

22219, 22263.)

This is an important addition to the proposed rule. But unless the wording of this 

provision is expanded and clarified as Richland suggests, the intent and goals underlying 

the exclusion risk becoming diluted and misapplied in practice. (p. 3)

Agency Response: See response above.

7.233 The Term "Dry Land" Is Problematic in the Unique Context of Rice Growing

As noted above, the exclusion for "rice growing" is embedded in an element of section 

(b) of the proposed rule that would exclude "artificial lakes and ponds created by 

excavating and/or diking dry land." The term "dry land" in connection with rice growing 

leaves open the troubling possibility that an entire parcel of land in rice production could 

be deemed jurisdictional by a future regulator if some small part of the parcel was 

wetland prior to conversion.

This is no small potential problem. California is the second largest producer of rice in the 

United States, contributing about one quarter of the nation's rice yield. According to 

historic data, in California's Central Valley, which is a primary production area, only a 

very small percentage of active rice production areas would have been converted entirely 

in dry uplands. (ECORP 2014). Thus, the exclusion should be changed to acknowledge 

the unique nature of rice farming and to reflect that lands of any type that have been 

excavated, diked, or otherwise converted for rice farming purposes are excluded from 

jurisdiction.

Moving the exclusion for rice growing from (b)(5)(ii) to (b)(5)(i) of the proposed rule, as 

Richland urges, would help to resolve this problem by removing the requirement that the 

rice growing area was created in "dry land." Without this change to the text of this 

provision, a strong risk exists that the exclusion could be applied too narrowly or not at 

all in some cases - despite the clear intent that the proposed rule broadly and definitively 

exclude rice lands.
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This change makes sense because rice growing areas are more akin to "artificially 

irrigated lands" than to "artificial lakes or ponds" used for such purposes as "stock 

watering" and "settling basins." If the rice growing provision is left where it is in the rule, 

it could mistakenly be read to apply only when "artificial ponds and lakes" are present, 

i.e., only when a rice field is inundated. This is an important consideration because the 

waters used to flood rice fields are regularly drained due to cultivation practices. They 

may also be drained for economic reasons such as fallowing during droughts or 

conversion to other crops or other uses. Property owners - here, rice farmers - deserve the 

assurance that their lands will not fall in and out of jurisdiction or be subject to capricious 

case-by-case jurisdictional determinations. Making this simple change to the language of 

the proposed rule will provide greater certainty to regulators and to land owners by 

helping to ensure that these lands retain their nonjurisdictional status. (p. 3-4)

Agency Response: See response above. In addition, in the exclusion for artificial 

lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing 

the uses. Artificial lakes and ponds are often not used exclusively for one purpose 

and can have other beneficial purposes, such as animal habitat, water retention or 

recreation. The change to the exclusion reflects Agency practice and ensures that 

waters the agencies have historically not treated as jurisdictional do not become so 

because of another incidental beneficial use. 

7.234 The Historic Use of a Site Should Be Considered

The changes in wording that Richland recommends would take into account the historic 

use of sites and the fact that conversion to rice growing, in many instances, lawfully 

occurred prior to the enactment of the federal Clean Water Act and its regulations in 

areas where wetlands once existed. (See discussion above.) The language should make 

clear that areas converted to uplands for rice growing purposes prior to the Act's passage 

should fall within the jurisdictional exclusion as a matter of law. This additional language 

would be in harmony with the longstanding principle that laws and their regulations are 

not retroactive in application. (Hughes Aircraft Co. v. U.S. (1997) 520 U.S. 939, 946 

[presumption against retroactive legislation "is deeply rooted in our jurisprudence"]; 

Golden Gate Audubon Society, Inc. v. U.S. Army Corps of Engineers (N.D. Cal. 1988) 

717 F.Supp. 1417, 1421-1422 [Corps could find that dry land was a site's normal 

circumstance because site was transformed into dry land by 1975 and regulatory 

definition does not retroactively extend jurisdiction].)

Such additional clarifying language also would be in harmony with the well-established 

principle that the Clean Water Act does not regulate areas that were historically graded 

out of wetlands and into uplands. Under a frequently cited distinction, the U.S. Army 

Corps of Engineers has recognized that wetlands may be altered in a legitimate and 

permanent manner (construction of levees or placement of drainage tiles, for example) 

that eliminate an area's wetland properties, thereby removing the area from jurisdiction 

under Section 404 of the Clean Water Act (33 U.S.C. § 1344). In contrast, lands where 

individuals engage in ongoing management or removal of hydrophytic vegetation or 

wetland hydrology to deliberately evade Section 404 regulatory requirements could come 

under Section 404 jurisdiction. (See, e.g. Regulatory Guidance Letter 90-07, Paragraph 4; 

42 Fed. Reg. 37128 [preamble to regulatory definition of "wetlands" responds to 

"situations in which an individual would attempt to eliminate the permit review 
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requirements of Section 404 by destroying the aquatic vegetation"]; Army Corps of 

Engineers Wetlands Delineation Manual, January 1987, p. 73 ["Unauthorized 

activities"].)

This practical distinction recognizes that lands that have experienced one-time structuraltype changes to topography that permanently alter a site's hydrology should not be 

regulated as long as the changes were conducted lawfully prior to the Clean Water Act's 

enactment. Rice lands that have been graded and diked to facilitate the inundation 

necessary for cultivation fall squarely under this rubric. (p. 4-5)

Agency Response: The agencies discuss the exclusion for rice fields that were 

constructed by excavating or diking dry land in the summary response to 7.3.2

below. This exclusion does not apply to cases where rice fields were created in 

wetlands. The agencies agree that waters and wetlands that were lawfully converted 

to dry land are no longer “waters of the United States” under the CWA. However, 

consistent with current practice, where the rice field was created in a wetland and 

retains wetlands characteristics, it may be considered jurisdictional where it meets 

the definitions in paqragraph (a). In such cases, of course, permitting exemptions 

for normal farming activities would apply.

Water Law (Doc. #13053)

7.235 ...we recommend that there be a categorical exemption given to all artificial lakes and 

ponds, artificial water features, ornamental waters, swimming pools, and water filled 

depressions constructed within upland or dry land regardless of use or size. (p. 11)

Agency Response: The final rule clarifies exclusions for these features.

Coalition of Renewable Energy Landowner Associations (Doc. #14626)

7.236 With respect to the exemption for artificial and man-made structures such as upland 

ditches, lakes, stock ponds, small ornamental waters, water filled depressions created 

incidental to construction activity, and subsurface drainage systems, it is unclear as to 

what is available remedies that would prevent these exemptions from becoming “nonexempt” as illustrated before with the “gullies”. What is to pre-vent a depression, swale, 

rice pond or artificial lake or pool from being having its status changed to a wetland or 

“other waters” if/they are not maintained and/or remediated in a timely and regular 

fashion for the designated purposes listed in the exemption? Is a requirement for concrete 

of fabric lining necessitated to keep stock ponds and depressions from becoming an 

“other water” In some areas, concrete lined stormwater channels are considered “Waters 

of the United States” We are not convinced that any exemption cannot at a future 

juncture become jurisdictional as a tributary, other water or wetland without detailed 

clarification. (p. 7)

Agency Response: So long as a feature meets the definitions under paragraph (b), 

it is excluded and is not subject to jurisdiction.

Pennsylvania Independent Oil and Gas Association (Doc. #15167)

7.237 Exclusions — The exclusions to the definition of "waters of the United States" are very 

specific and. seemingly arbitrary. PIOGA asks that the exclusions for (1) "artificial lakes 
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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" and (2) "artificial 

reflecting pools or swimming pools created by excavating and/or diking dry land" be 

expanded to include other types of ponds excavated in dry land, including impoundments 

and stormwater ponds. (p. 17) 

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded. Because of public comments, the agencies now identify 

stormwater ponds excavated in dry land as excluded under paragraph (b). 

However, impoundments of waters of the US have historically been and continue to 

be jurisdictional under the rule.

Ducks Unlimited (Doc. #11014)

7.238 G. Waters that are not “Waters of the United States”:

We agree with the inclusion of the expanded list of waters that would be explicitly 

excluded from jurisdiction. As the agencies well know, this proposed rule has been 

controversial, to a large extent because of confusion about which waters would be 

excluded and which could have jurisdiction restored (again, recognizing the overarching 

fact that the proposed rule will cover significantly fewer waters than are jurisdictional 

under the existing regulations). Much of the expressed concern and confusion has 

stemmed from within the agricultural community. Codification of the agricultural and 

other exclusions, direct and clear communications about them, and follow up 

administration of the rule that is fully consistent with those communications on a 

nationwide basis, will go a long way toward increasing certainty and predictability on the 

part of farmers, ranchers, and other landowners.

In addition, given the concerns that are often raised about small, inconsequential (from 

the perspective of affecting “waters of the U.S.”) water bodies, we believe it is also 

important and useful for the agencies to have taken the step of explicitly listing a number 

of exclusions relevant to those concerns, e.g., gullies, rills, non-wetland swales, small 

ornamental waters, and water-filled depressions incidental to construction activity, 

among others. Expressly making all of these kinds of waters non-jurisdictional by rule 

will help convey clarity and address many of the concerns of important segments of the 

landowning public and, in particular, the farming and ranching communities. (p. 34-35)

Agency Response: The agencies have finalized all exemptions described above 

from the proposed rule into the final rule, and hope this clarity will address 

concerns of the farming and ranching communities.
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Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394)

7.239 II. Defenders Objects to the Agencies’ Proposal to Exclude Groundwater and Other 

Categories of Waters From the Protections of the Clean Water Act.

Defenders disagrees with the agencies’ proposal to categorically exclude waters listed in 

proposed subsections (t)(1)-(5), particularly groundwater, from Clean Water Act 

protections because this proposal is not grounded in science or the law. As detailed by the 

individual members of the SAB, the scientific evidence gathered for the Connectivity 

Report demonstrates that these waters, at a minimum, should be included in the “other 

waters” category in proposed subsection (s)(7) because they often play critical ecological, 

hydrological, and biological roles in connecting surface waters and waters of the U.S. As 

the SAB report concluded, “[t]he Clean Water Act exclusions of groundwater and certain 

other exclusions listed in the proposed rule and the current regulation do not have 

scientific justification.” SAB letter at 3. In addition, these exclusions have no legal 

justification. Excluding the waters listed in proposed subsections (t)(3)-(t)(5) based on 

“longstanding practice” and administrative convenience (79 Fed. Reg. at 22217) is not a 

reasonable or permissible interpretation of the statute. See Chevron, 467 U.S. 837, 842-

43. (p. 1-2)

Agency Response: As explained in the preamble, the agencies believe the caselaw 

supports the conclusion that some water features should not be subject to 

jurisdiction, and longstanding practice is an appropriate consideration.

Delaware Riverkeeper Network (Doc. #15383)

7.240 Comment 8c: Exclusion of Gullies, Rills, Non-Wetland Swales, Artificial Irrigated 

Areas, Artificial Lakes and Pond, Reflection Pools and Water-Filled Depressions: 

Section 328.3(b)(5)(i), (ii), (iii) and (v)

Gullies, rills, and non-wetland swales are important for moving water between 

jurisdictional waters and should not be excluded from jurisdiction. Such water bodies 

should be examined on a case-specific basis as science does not support the exclusion of 

this class of waters as a whole.8 Also, artificial lakes and ponds and reflection pools may 

be connected to jurisdictional waters by shallow or deeper groundwater, and therefore a 

blanket exclusion should not be provided for these water bodies. (p. 5)

Agency Response: The exclusions reflect the agencies’ long-standing practice and 

technical judgment that certain waters and features are not subject to the CWA. 

The exclusions are also guided by Supreme Court cases. The significant nexus 

standard arises from the case law and is used to interpret the terms of the CWA. 

Thus, a significant nexus determination is not a purely scientific inquiry, but rather 

is a determination by the agencies in light of the statutory language, the statute’s 

goals, objectives and policies, the case law, the relevant science, and the agencies’ 

technical expertise and experience. The plurality opinion in Rapanos also noted that 

there were certain features that were not primarily the focus of the CWA. The 

Supreme Court has recognized that clarifying the lines of jurisdiction is a difficult 

task: “Our common experience tells us that this is often no easy task: the transition 

from water to solid ground is not necessarily or even typically an abrupt one. 

Rather, between open waters and dry land may lie shallows, marshes, mudflats, 
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173

swamps, bogs — in short, a huge array of areas that are not wholly aquatic but 

nevertheless fall far short of being dry land. Where on this continuum to find the 

limit of ‘waters’ is far from obvious.” Riverside Bayview at 132-33. The exclusions 

reflect the agencies’ determinations of the lines of jurisdiction based on science, the 

case law and the agencies’ experience and expertise.

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935)

7.241 Although “waters that are subject to the ebb and flow of the tide” are listed as 

jurisdictional under (a)(1), the agencies are proposing to exclude mudflats and sandflats, 

both tide-dependent, from their jurisdictional list. The agencies need to clarify this 

apparent contradiction. (p. 6)

Agency Response: While mudflats and sandflats are no longer specifically called 

out in the rule, such features would be jurisdictional where they meet the definitions 

in paragraph (a).

Water Environment Federation (Doc. #16584)

7.242 The Proposed Amendments to What is Considered an “Adjacent Water” Must be 

Reexamined to Consider Wastewater Treatment Processes

Many wastewater treatment processes, including man-made spreading basins, are located 

near or even “adjacent” to rivers and tributaries that have been (or under the proposed 

rule, would be) designated as waters of the United States. and may be located in the 

riparian or floodplain areas of these rivers. Because the proposed rule defines 

“adjacency” and includes the incorporation of waters within the flood plain or riparian 

area of a designated water of the U.S. as also being a jurisdictional water (see section 

328.3(c)(2)-(4), FR 22263), this could lead to an interpretation that such spreading basins 

and artificial storage ponds are jurisdictional.

...

Within the proposed rule, there are two specific exemptions that could potentially address 

this issue. Pursuant to section 328.3(b)(5)(i) and 122.2(b)(5)(i)2, a spreading ground 

could fall under the definition of “[a]rtificially irrigated areas that would revert to upland 

should application of irrigation water to that area cease” (79 FR 22263 and 22268) 

Spreading grounds utilized by wastewater treatment facilities are generally artificially 

created and might not otherwise exist aside from the application of wastewater effluent to 

the area. However, without being explicitly stated, it is not clear enough that this 

definition would apply to upland wastewater spreading grounds. Similarly, pursuant to 

section 328.3(b)(5)(ii) and 122.2(b(5)(ii), wastewater and recycled water ponds and 

spreading grounds could fall under an expanded definition of “[a]rtificial lakes or ponds 

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

stock water, irrigation, settling basins, or rice growing.” (79 FR 22263 and 22268) The 

word “such” seems to indicate that these are merely examples, not an exhaustive list, and 

thus spreading grounds utilized in conjunction with and/or as part of the overall 

wastewater treatment process could fall under this exclusion. However, without specific 

references within these provisions to treatment ponds and spreading grounds, WEF and 

its members are very concerned that these facilities could become jurisdictional and 
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create significant problems for agencies attempting to protect public health and the 

environment. This, we would request the explicit inclusion of the terms such as 

“spreading grounds” and “wastewater and recycled water storage,” within this section. (p. 

4-5)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. 

The exclusion also covers water distributary structures that are built in dry land for 

water recycling. These features often connect or carry flow to other water recycling 

structures, for example a channel or canal that carries water to a percolation pond. 

The agencies have not considered these water distributary systems jurisdictional 

where they do not have surface connections back into, and contribute flow to, 

“waters of the United States.” In contrast, the agencies have consistently regulated 

aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land. The exclusion in paragraph (b)(7) codifies longstanding agency practice and encourages water management practices that the 

Agencies agree are important and beneficial. See essay and responses below 

regarding the exclusion in paragraph (b)(7).

7.3.1 Artificially Irrigated Areas that would Revert to Upland should Application of Irrigation 

Water to that Area Cease

Summary Response

The agencies have identified artificially irrigated areas that would revert to upland should 

application of irrigation water to that area cease as generally not “waters of the United States” in 
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previous preambles or guidance documents. Federal Register notices by the Corps on November 

13, 1986, and by EPA on June 6, 1988 identify, among other general exclusions, “artificially 

irrigated areas which would revert to upland if the irrigation ceased.” Under this previous

preamble guidance the agencies could determine that a particular feature generally considered 

nonjurisdictional was a “water of the United States.” The agencies do not retain that authority 

for features excluded under the rule. The proposed rule contained this exemption unchanged 

from previous preamble language. The rule identifies as excluded “artificially irrigated areas that 

would revert to dry land should application of water to that area cease,” substituting “dry lands” 

for “uplands.”

The agencies clarify in the preamble that “dry land” refers to areas of the geographic landscape 

that are not water features such as streams, rivers, wetlands, lakes, ponds and the like. However, 

it is important to note that a “water of the United States” is not considered “dry land” if it lacks 

water at a given time. Similarly, an area remains “dry land” even if it is wet after a rainfall 

event. 

The agencies also here clarify their longstanding view that only the specific land being directly 

irrigated that would revert to dry land should irrigation cease is excluded; it is not the case that 

all waters within watersheds where irrigation occurs are excluded. 

Comments included a request to delete the limitation to areas that would revert to upland and to 

include all irrigated areas under the exemption for prior converted cropland. Commenters also 

asked whether irrigation must cease for the exemption to be applied or whether alternative 

approaches to show lack of hydrology without irrigation would suffice to demonstrate 

applicability of the exemption and asked whether it mattered if the area being irrigated was 

considered dry land before the irrigation occurred. As discussed further in the comment 

responses below, the agencies are not removing the longstanding limitation, nor do they choose 

to conflate two separate exclusions. In addition, the agencies longstanding practice regarding the 

implementation of the exclusion for artificially irrigated areas to address the later comments.

Specific Comments

Office of the Governor, State of Montana (Doc. # 16694)

7.243 Amend the proposed definition of the listed features exempted from the definition of 

"waters of the U.S." in proposed 40 CFR 230.3(t)(5) with one of the following: strike 

from the proposed definition of "artificially irrigated areas" the language that states “that 

would revert to upland should application of irrigation water to that area cease;" or 

replace the entire definition of "artificially irrigated areas" with the existing exemption 

under 33 CFR 328.3(a)(8), which states: "Waters of the United States do not include prior 

converted cropland. Notwithstanding the determination of an area's status as prior 

converted cropland by any other federal agency, for the purposes of the Clean Water Act, 

the final l authority regarding Clean Water Act jurisdiction remains with the EPA." (p. 4)

Agency Response: The commenter requests that the agencies remove a 

longstanding limitation on this exclusion by removing the clause about reversion to 

upland in case irrigation ceases. The commenter’s suggestion would substantially 

alter the scope of this exclusion, and there was no reason provided why the agencies 
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176

should adopt the suggested approach. The agencies feel it is important and 

appropriate to maintain consistency with longstanding practice while bringing the 

exclusion into rule language. Even where the exclusion does not apply because 

hydrology remains even without artificial irrigation, the area would have to meet 

the definitions in paragraph (a) in order to be considered a water subject to the 

Clean Water Act.

In addition, the rule maintains the longstanding exclusion for prior converted 

cropland. The exclusions for prior converted cropland and artificially irrigated 

areas that would revert to dry land if irrigation ceases are separate exclusions that 

address distinct factual scenarios. The agencies believe combining the exclusions 

would create significant confusion, if it was even possible. Prior converted 

cropland, by its definition, was cropped prior to December 23, 1985 with an 

agricultural commodity; was cleared, drained or otherwise manipulated to make it 

possible to plant a crop; has continued to be used for agricultural purposes; and has 

lost wetland characteristics such that it does not flood or pond for more than 14 

days during the growing season. The final rule does not change the exclusion for 

prior converted cropland and comments on the prior converted cropland exclusion 

are beyond the scope of the rulemaking. 

California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

7.244 5) Caltrans requests that the exclusion for artificially irrigated areas be further clarified. 

As currently written, it is unclear whether or not irrigation must cease in order to exclude 

these areas, or if other documentation showing that the area would lack hydrology 

without the irrigation would be sufficient to support the exclusion of an irrigated area. (p. 

2)

Agency Response: Continuing longstanding agency practice, irrigation does not 

need to cease in order to meet the exclusion. There are a number of tools such as 

maps, aerial photos, remote sensing, and water budgets that can show that an area 

was previously dry land and can show an area would lack hydrology without the 

irrigation. 

Board of Supervisors, Sutter County, California (Doc. #19657)

7.245 ...we request that the agencies make the following changes and additions to the 

exceptions in the Proposed Rule.

 Clarify that "artificially irrigated areas" described in proposed 33 CF.R § 

328.3(b)(i) will be deemed to revert to uplands absent irrigation if the area being 

irrigated was dry land when the irrigation began or if the irrigation started before 

July 25, 1975. (p. 5)

Agency Response: In most cases, where an area was dry land before it was 

irrigated it will revert to dry land when irrigation ceases. Continuing longstanding 

agency practice, irrigation does not need to cease in order to meet the exclusion.

There are a number of tools such as maps, aerial photos, remote sensing, and water 

budgets that can show that an area was previously dry land and can show an area 

would lack hydrology without the irrigation. The exclusion for artificially irrigated 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

177

areas that would revert to dry land if irrigation ceased is activity based not time 

based. This means there is no date before which irrigation must have begun in order 

to qualify for the exclusion. The commenter does not explain why a date limitation is 

appropriate or the particular date was chosen. As mentioned in the summary, 

Federal Register notices by the Corps on November 13, 1986, and by EPA on June 

6, 1988 identify, among other general exclusions, “artificially irrigated areas which 

would revert to upland if the irrigation ceased.” This exclusion has been in place 

since then and will continue to be in place with this rule.

Earthjustice (Doc. #14564)

7.246 C. Subsection (t)(5)(i), (ii)—“Artificially” Irrigated or Created Areas.

This part of the rule is simply unclear. What is meant by “artificially” irrigated areas that 

would return to upland? This implies that there are areas that are so heavily irrigated they

turn into wetland or other bodies of water that might be considered a water of the U.S. It 

is unclear what fact pattern this language is trying to address. The next subsection 

specifically refers to rice growing, so it appears (t)(5)(i) does not refer to the kind of 

flood irrigation that might occur in a rice operation.

This exclusion (and the exclusion for ditches) also raises a question with respect to point 

sources and protected waters. EPA knows that many of the categorical exclusions are also 

significant sources of pollutants to water of the U.S. Artificial irrigation, rice growing 

operations (that fill and then later drain fields) and other “artificially” created areas such 

as settling basins, flush huge amounts of sediments, nutrients and chemicals such as 

pesticides into our waters. If they are not themselves protected waters subject to meeting 

water quality standards or protected by permit requirements if someone is to discharge to 

them, then EPA must ensure that the pollutants that the artificial areas contribute to 

waters of the U.S. do not escape regulation and continue to jeopardize downstream 

waters, currently severely polluted with agricultural runoff wastes. If they are not waters 

of the U.S. and they are not regulated as discrete point source conveyances of pollutants, 

then a very large problem for our waters will be unaddressed and wholly unregulated. (p. 

13-14) 

Agency Response: In practice across the country some areas are irrigated 

through man-made systems sufficiently to develop wetland characteristics. This is a 

common occurrence, for example, in the arid west, which relies heavily on artificial 

irrigation. Under longstanding agency practice, codified into regulations through 

this final rule, areas that are so heavily irrigated they develop wetland 

characteristics are not considered waters of the US if they would revert to upland 

should irrigation cease. The agencies note that if a feature functions as a “point 

source” under CWA section 502(14)), discharges of pollutants to waters through 

these features would be subject to other CWA regulations (e.g., CWA section 402).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

178

7.3.2. 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

Summary Response

The Agency received a total of 53 comments that were categorized under Section 7.3.2- 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. Most of the 

comments centered on requesting language changes to the rule to increase the list of exclusions, 

and/or broaden the definition within the exclusions. Some of these comments were incorporated

during the rulemaking process, for example, suggestions that cooling ponds be considered nonjurisdictional (see below). 

In the exclusion for artificial lakes or ponds, the agencies have removed language regarding 

“use” of the ponds, including the term “exclusively.” More importantly, the agencies recognize 

that artificial lakes and ponds are often used for more than one purpose and can have other 

beneficial purposes, such as animal habitat, water retention or recreation. For example, rice fields 

are flooded for the purpose of weed control and to facilitate rice cultivation, but these rice fields 

are often extensively used by waterfowl and other wildlife. The agencies agree with commenters 

who raised concerns that rice fields “used” both for rice growing and waterfowl habitat should 

continue to be excluded even where they are not used “exclusively” for a single purpose. The 

change to the exclusion reflects the agencies’ practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another incidental 

beneficial use. 

The agencies have also added farm ponds, log cleaning ponds, and cooling ponds to the list of 

excluded ponds in the rule based on public comments. The list of ponds has always been 

illustrative rather than exhaustive, and the additions respond to requests to clarify that farm 

ponds, log cleaning ponds, and cooling ponds created in dry land are excluded. The agencies 

recognize that cooling ponds may be exempt under the waste treatment exemption as well as this 

provision. Listing cooling ponds as an example here does have any relation to the waste 

treatment system exemption, and the agencies are not reopening that exclusion. Additional ponds 

will also likely fall under the exclusion based on site specific evaluation, including, for example, 

fire control ponds and fishing ponds excavated from dry land. Artificial lakes and ponds created 

in dry land that do not connect to jurisdictional waters are covered by this exclusion. Where 

these ponds do connect and discharge to jurisdictional waters, the agencies will evaluate factors 

such as the potential for introduction of pollutants and coverage under an issued NPDES permit.

As a general matter, ponds created in dry land that discharge to “waters of the United States” are 

covered by the exclusion where such discharge is regulated under a NPDES permit.

Conveyances created in dry land that are physically connected to and are a part of the excluded 

feature are also excluded. These artificial features are working together as a system, and it is 

appropriate to treat them as one functional unit. The agencies emphasize that ponds excluded 

from “waters of the United States” can, in some circumstances, be point sources of pollution 

subject to section 301 of the Act. In addition, the agencies make clear in the preamble that water 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

179

features identified in paragraph (b) as excluded will not be “waters of the United States,” even if 

they otherwise fall within one of the categories in paragraph (a)(4) through (a)(8). 

The phrase “dry land” appears in the 1986 and 1988 preambles, and the agencies believe the 

term is well understood based on almost 30 years of practice and implementation. However, in 

keeping with the goal of providing greater clarity, section IV.I of the preamble clarifies that “dry 

land” refers to areas of the geographic landscape that are not water features such as streams, 

rivers, wetlands, lakes, ponds and the like. 

To address the comments correlating to ponds or lakes for recreational purposes, flood reduction, 

erosion reduction, or for purposes that are not listed for exclusivity, the Agency redirects the 

commenters to the traditional CWA 404 process for making a jurisdictional determination 

followed by the CWA 404 permitting process.

Specific Comments

Oak Ridge National Laboratory (Doc. #14463)

7.247 The meaning of the exclusion at (b)(5)(ii) should be clarified. It could be interpreted in 

contradictory ways. On one hand, the lake or pond must be "used exclusively" but then 

examples of such uses are listed "for such purposes as stock watering, irrigation, settling 

basins, or rice growing" which implies that there are unlisted purposes that would qualify 

under this exception. The Agencies need to be clear if these are examples or an exclusive 

list of purposes. If they are examples list, how do you determine when or if other 

examples qualify for the exception? The current-day purpose of the water feature, even if 

different than past purposes, should be used to evaluate this exception. (p. 2)

Agency Response: See summary response.

Tennessee Department of Environment and Conservation (Doc. #15135)

7.248 The exemption for artificial lakes or ponds created by excavating and/or diking dry land 

unnecessarily includes the requirement that they be used exclusively for such purposes as 

stock watering, irrigation, settling basins, or rice growing. The state agencies understand 

these features to be wholly in uplands with no hydrological connection to any waters; 

therefore, it seems unnecessary to additionally mandate their use for specific purposes. 

We request EPA and the Corps remove the qualification for specific uses or explain why 

this additional qualification is necessary under the CWA. (p. 29)

Agency Response: See summary response.

Arizona Game and Fish Department (Doc. #15197)

7.249 6. The Department requests that 40 CFR 230.3 (t)(5)(ii) be revised to additionally 

exclude from the definition of waters of the United States the following: fish hatcheries; 

fish production ponds; wildlife watering ponds; and wildlife water catchments. (p. 3)

Agency Response: See summary response.
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Southern Ute Indian Tribe Growth Fund (Doc. #15386)

7.250 9. Comments on the exclusion of manmade structures

...

It is not clear whether the Proposed Rule would exclude, for example, artificial lakes and 

ponds that have connections to downstream waters, underground stormwater drainage, 

natural versus artificial swales, roadside ditches, stormwater quality basins, bioswales, or 

treatment wetlands regardless of whether they were installed to meet the requirements of 

the Clean Water Act.

...

With respect to artificial lakes and ponds that have connections to downstream waters, 

underground stormwater drainage, natural versus artificial swales, roadside ditches, 

stormwater quality basins, bioswales, or treatment wetlands, it would be important to 

exclude these types of structures from jurisdiction since many of them provide both water 

quality and hydrologic benefits to downstream water. (p. 9)

Agency Response: See summary response above. With respect to the 

jurisdictional status of stormwater control features as waters of the U.S., please see 

summary response 7.4.4. See summary response at 7.3.7 for additional information 

regarding swales.

West Virginia Department of Environmental Protection (Doc. #15415)

7.251 The WVDEP recommends broadening the exclusion for artificial lakes so that 

impoundments constructed for industrial purposes by the mining and oil and gas 

industries are also excluded. As to the coal mining industry, the WVDEP regulates these 

structures under the state counterpart to SMCRA, W. Va. Code 8 22-3-1, et seq. As to the 

quarry mining industry, the WVDEP regulates these structures under the state Quarry 

Reclamation Act. W.Va. Code 22-4-1, et seq. As to the oil and gas industry, the WVDEP 

regulates these structures under the West Virginia Horizontal Well Control Act, W.Va. 

Code 9 22-6A-1, et seq. In the oil and gas industry, these structures are built for two 

primary purposes, both of which provide significant environmental benefits. Freshwater 

impoundments enable gas operators to withdraw the water they need for their operations 

from the State's streams during periods of higher flow and store it until needed for use. 

This allows the operators to protect streams by avoiding excessive withdrawals of water 

during periods of lower flow. Other impoundments provide storage for flowback water 

from gas operations. This allows operators to: (1) re-use contaminated flowback water, 

avoiding the need for additional fresh water withdrawal from streams; and (2) avoid the 

need to treat and discharge the stored flowback water. (p. 14)

Agency Response: See summary response. Also see summary response at 7.4.2 

with regard to wastewater recycling features.

Allen Boone Humphries Robinson, LLP (Doc. # 19614)

7.252 "Artificial Lakes, Ponds, and Pools"
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181

The agencies further propose to exclude lakes, ponds and pools that have been created for 

specifically listed purposes: stock watering, irrigation, settling, rice growing, reflecting, 

swimming and ornamentation. To qualify for the exclusion, these features must have 

been created by excavating and/or diking dry land. These proposed exclusions are wholly 

inadequate for our clients, who create lakes, ponds and pools for a variety of nonexcluded purposes, such creating conditions suitable for non-swimming recreation, such 

as fishing and canoeing, and for restricting the flow of storm water runoff to reduce peak 

flows so as to minimize down-slope erosion and turbidity. (p. 9)

Agency Response: See summary response. With respect to the jurisdictional 

status of stormwater control features as waters of the U.S., please see summary 

response 7.4.4.

Board of Supervisors, County of Nevada, California (Doc. #6856)

7.253 The proposed rule states: Artificial lakes or ponds created by excavating and or diking 

dry land and used exclusively for purposes such as stock watering, irrigation or rice 

growing are not "waters of the United States". The rule also states: Lakes and ponds 

(either natural or man-made) that contribute flow either directly or indirectly are 

considered tributaries and are "waters of the United States". Unless clarified, these 

conflicting statements opens the potential for any stock watering pond, irrigation pond or 

rice growing area that overflows during the rainy season and contributes flow to be 

considered jurisdictional. (p. 2)

Agency Response: See summary response. Also see overarching summary 

response for topic 7.

Central Valley Soil and Water Conservation District and Penasco Soil and Water Conservation 

District, Artesia, Maryland (Doc. #14943)

7.254 The proposed rule states that it will not change the jurisdiction over farm ponds or stock 

tanks. This is not true. The rule would make farm or stock tanks meaningless by 

regulating low spots as "navigable waters." The rule will also prevent landowners from 

building and/or maintaining a pond or stock tank. Existing tanks would also not be in 

compliance if the water runs through or around a spillway after the tank was full. (p. 3)

Agency Response: See summary response. Also see overarching summary 

response for topic 7.Arizona Game and Fish Department (Doc. #14789)

7.255 The Department requests that 40 CFR 230.3 (t)(5)(ii) be revised to additionally exclude 

from the definition of waters of the United States the following: fish hatcheries; fish 

production ponds; wildlife watering ponds; and wildlife water catchments. (p. 3)

Agency Response: See summary response.

City of Glendale, Arizona (Doc. #15054)

7.256 Artificial Lakes and Ponds

Water is a precious resource in the arid West. To save potable water resources, effluent 

provided by the City of Glendale is used for a variety of purposes such as irrigating golf 

courses and parks. For example, the Arrowhead Lakes development in northern Glendale 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

182

includes multi-purpose lakes. In support of continued use of effluent, the City of 

Glendale agrees with the proposed exclusion of artificial lakes or ponds used for 

irrigation. However, the City of Glendale respectfully requests the removal of 

"exclusively" from the exclusion language as these lakes and ponds often provide 

aesthetic amenities as well. (p. 2-3)

Agency Response: See summary response.

Board of Supervisors, Nevada County, California (Doc. #18894)

7.257 The proposed rule states: Artificial lakes or ponds created by excavating and or diking 

dry land and used exclusively for purposes such as stock watering, irrigation or rice 

growing are not "waters of the United States". The rule also states: Lakes and ponds 

(either natural or man-made) that contribute flow either directly or indirectly are 

considered tributaries and are "waters of the United States". Unless clarified, these 

conflicting statements opens the potential for any stock watering pond, irrigation pond or 

rice growing area that overflows during the rainy season and contributes flow to be 

considered jurisdictional. (p. 2)

Agency Response: See summary response. Also see overarching summary 

response for topic 7.

Board of Supervisors, Sutter County, California (Doc. #19657)

7.258 ...we request that the agencies make the following changes and additions to the 

exceptions in the Proposed Rule.

 Add a definition for "excavating and/or diking dry land," applicable to proposed 

33 CF.R §328.3(b)(5)(ii), (iii) and (iv), which clarifies that features created before 

July 25, 1975, are deemed to have been created by excavating or diking dry land 

without a factual showing by the applicant of conditions existing at the time of 

excavation. Suggested language: "Excavating or diking dry land means that the 

land being excavated or diked was not a water of the United States when the 

excavation or diking occurred; the excavation or dike was authorized by a section 

404 permit; or the land was excavated or diked before July 25, 1975." Also clarify 

that the non-jurisdictional status of lands subject to proposed 33 CF.R § 328.3(b) 

(5)(ii), (iii) and (iv) continues to apply for 10 years after the land is no longer used 

for the purpose specified in each subsection. (p. 5)

Agency Response: See summary response.

Washington State Water Resources Association (Doc. #16543)

7.259 Despite the proposals stated objective to add clarity to the regulatory process, the 

proposal in fact creates great confusion and uncertainty. Some of the unanswered 

questions have been alluded to...Other issues that must be addressed, through 

clarification and in the context of an ongoing dialogue amongst stakeholders, include:

...
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

183

 How will the agencies treat artificial lakes or ponds that are not used exclusively 

for such purposes as stock watering, irrigation, settling basins, or rice growing, 

including stormwater detention ponds;

... (p. 17, 18)

Agency Response: See summary response above, as well as summary responses at 

7.4.2 and 7.4.4.

U.S. Chamber of Commerce (Doc. #14115)

7.260 Artificial Lakes, Ponds, and Pools

The Agencies further propose to exclude lakes, ponds and pools used exclusively for 

listed purposes: stock watering, irrigation, settling, rice growing, reflecting, swimming 

and ornamentation. To qualify for the exclusion, these features must have been created by 

excavating and/or diking dry land. In other words, if a stock watering pond or a settling 

pond was excavated in a small wetland area that was not jurisdictional (maybe nothing 

more than a low spot), the resulting stock pond or settling pond is not excluded from 

jurisdiction and instead may be regulated. Given that ponds and pools tend to be dug in 

low spots, these proposed exclusions are wholly inadequate.

In addition, while the exclusions may theoretically benefit some uses, they do nothing for 

most industrial/commercial operations. Lakes, ponds and pools are used throughout the 

country for a wide variety of industrial uses, as well as for combinations of different uses. 

Examples include: storing storm water for use as a dust suppressant; storing storm water 

for use in industrial processes; storing storm water for use in fighting fires; creating 

conditions suitable for non-swimming recreation, such as fishing and duck hunting; and 

restricting the flow of storm water runoff to reduce peak flows so as to minimize downslope erosion and turbidity. (p. 34-35)

Agency Response: See summary response. With respect to the jurisdictional 

status of stormwater control features as waters of the U.S., please see summary 

response 7.4.4.

South Carolina Chamber of Commerce (Doc. #14535)

7.261 B. Industrial Holding Ponds

There should be no question that man-made industrial or commercial holding ponds that 

store rain water, stormwater runoff, and water withdrawn from other water bodies for 

eventually use by the facility, such as cooling water or process water, should also be 

clearly and explicitly excluded from regulation. Some facilities may discharge treated 

effluent to such ponds for re-use, in which case the same exclusion should apply. There is 

an exemption for "artificial lakes or ponds created by excavating and/or diking dry land 

and used exclusively for such purposes as stock watering, irrigation, settling basins, and 

rice growing." It may have been the agencies' intention to broadly exclude man-made 

reservoirs constructed for commercial or industrial purposes but the language provided 

does not appear to provide clarity on this point. The Chamber requests that the rule add 

language to clarify that ponds and impoundments used for water storage and transfer are 

not WOTUS. (p. 5)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Agency Response: See summary response. Also see summary response at 7.4.4 

with regard to stormwater control features.

Dow Chemical Company (Doc. #15408)

7.262 Dow and Dow Agricultural Sciences (DAS) facilities...create and/or manage artificial 

lakes, ponds, basins, field tiles and engineered farm drainage systems (e.g., field 

waterways, field strips) and basins that are not used exclusively for purposes such as 

stock watering, irrigation, settling basins, or rice growing. The most common usage of 

these items is for erosion control. It is common to form artificial lakes and ponds to retain 

storm water through the use of dams, terraces, and similar engineered structures. These 

structures exist both on conventional farms as well as in many industrial R&D/field 

stations. Many of these man-made structures are constructed under USDA oversight. 

Thus, these infrastructure elements should also be excluded from the jurisdiction of 

waters of the United States for the same reasons described in comment #3 above.

Dow Recommendation: The proposed should rule be amended to exclude...artificial 

lakes, ponds, and basins, as well as field tile and engineered farm drainage systems (field 

waterways, filter strips, etc.) that are not used exclusively for purposes such as stock 

watering, irrigation, settling basins, or rice growing from those waters covered by the 

CWA. The inclusion of these “waters” such would be an undue burden on the regulated 

community, unnecessary paperwork for government agencies, costly to implement, and 

will not have a positive environmental effect on our nation’s water resources. (p. 7)

Agency Response: See summary response. Also see summary responses at 7.3.6, 

7.4.2, and 7.4.4.

Federal Water Quality Coalition (Doc. #15822.1)

7.263 3. Artificial lakes or ponds

Under the proposed rule, artificial lakes or ponds that are used exclusively for purposes 

such as stock watering, irrigation, settling basins, or rice growing are not waters of the 

U.S. Expressly excluding only specific types of artificial lakes and ponds has created 

significant uncertainty about the status of other artificial lakes and ponds not explicitly 

included in the exemption language, such as cooling ponds and fire water retention 

ponds. (p. 19)

Agency Response: See summary response.

NAIOP Commercial Real Estate Development Association (Doc. #14621)

7.264 4. §328.3(b)(5)(ii). Artificial Ponds.

There is much concern in the regulated community that stormwater facilities currently 

exempt from regulations as a WOTUS could become regulated by the proposed rule,135

and that the adjective “exclusively” is extremely limiting. Therefore, to codify statements 

from the Agencies to the contrary, please revise this section to read as follows:

 

135 This concern clearly generated EPA Q&A #22. However, it only addresses rain gardens – and not other 

stormwater facilities.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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(ii) Artificial lakes or ponds created by excavating and/or diking dry land and used for 

such purposes as stock watering, irrigation, settling basins, rice growing, or wet or dry 

stormwater facilities, stormwater Best Management Practice (BMPs), flood control 

facilities, Low Impact Development (LID) facilities or other systems designed to control 

and treat stormwater runoff.

This achieves the stated purpose of the proposed rule and eliminates the current 

ambiguities. (p. 3-4)

Agency Response: See summary response. With respect to the jurisdictional 

status of stormwater control features as waters of the U.S., please see summary 

response 7.4.4.

Staker Parson Companies (Doc. #15618)

7.265 EPA's website indicates that pits excavated in uplands are exempted from the rule but 

EPA did not include that exemption in the rule itself. This is a crucial issue for the 

industry. Pits excavated in uplands for sand and gravel must be included in the rule,

which should also state that an excavated pit is not "abandoned" if it is still undergoing 

reclamation under State law or otherwise permitted. I am furthermore concerned about 

pits in states that do not have reclamation jurisdiction over sand & gravel (Utah for 

example) and how this would apply if there was no formal reclamation obligation. 

Throughout the West there are sand & gravel operations that are inactive due to economic 

conditions. Some sites have been inactive for close to a decade but will be put back into 

production given better economic conditions. (p. 1)

Agency Response: See summary response at 7.3.5.

Texas Mining and Reclamation Association (Doc. #10750)

7.266 3. The Agencies Should Clarify that the Artificial Ponds and Lakes Exclusion 

Applies to Certain Water Features on Mine Sites

As an initial matter, TMRA notes that, if the Agencies clarify the scope of the waste 

treatment system exclusion as suggested above, TMRA's following comments with 

respect to artificial ponds and lakes are moot, as the features discussed below would be 

excluded due to being part of a wastewater treatment system. However, to the extent that 

the Agencies do not adopt TMRA's suggested language concerning the waste treatment 

system exclusion, the artificial ponds and lakes exclusion should be modified 

accordingly.

The Agencies have long recognized that artificial ponds created on dry land to collect and 

retain water and that are used as settling basins are generally not jurisdictional.136 The 

proposed rule would clarify that "[a]rtificial lakes or ponds created by excavating and/or 

diking dry land and used exclusively for such purposes as ... settling basins," among other 

purposes, are per se not jurisdictional.137 TMRA supports the categorical exclusion of 

 

136 See, e.g., 51 Fed. Reg. at 41,217 (Corps regulatory preamble); 53 Fed. Reg. at 20,765 (EPA regulatory 

preamble).

137 79 Fed. Reg. at 22,263.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

186

such ponds and lakes, but would urge the Agencies to make it clear that this exclusion 

encompasses the many types of ponds on mine sites that are used for the collection, redirection, and concentration and/or settling of solids.138

As currently drafted, the regulatory text appears to apply to sediment ponds and other 

onsite ponds on mine sites that are used for concentration and settling.139 But, TMRA is 

concerned that some might interpret the exclusion as being limited to water features 

associated with agriculture given that the term "settling basins" appears in the regulatory 

text among a list of references to agricultural activities, i.e., "stock watering," 

"irrigation," and "rice growing." The preamble to the proposed rule does not shed any 

light on whether the reference to "settling basins" encompasses such features used in 

other industries. The Agencies should therefore clarify that this exclusion is not limited to 

agriculture-related ponds by explicitly referencing "industrial sediment ponds" or 

"industrial settling basins" in the list of permissible purposes, and should also clearly note 

that on-site ponds which may incidentally manage water but which are constructed for 

purposes including emergency firewater and cooling water ponds, ponds used for dust 

suppression water, evaporation ponds, and water recycle ponds qualify for this exclusion 

as well, In addition, the Agencies should clarify in the preamble that the exclusion is not 

confined to water features relating to agricultural activities.

The Agencies should further clarify that artificial ponds meet the requirement of being 

[excavated on dry land even if such features are constructed within floodplains or riparian 

areas land even if such features might share a subsurface hydrological connection to a 

downstream jurisdictional water. The exclusion would be rendered meaningless if it does 

not apply to ponds constructed on lands within floodplains and riparian areas. The same 

would be true if the Agencies (or a citizen plaintiff) could claim that a pond is a "water of 

the United States" based solely on a groundwater connection that ultimately develops 

between an on-site pond and an ephemeral tributary, to use an example. (p. 17-18)

Agency Response: See summary response. Also see summary response at 7.4.2 

with regard to exclusion of wastewater recycling features.

Pennsylvania Coal Alliance (Doc. #13074)

7.267 8. The Proposed Rule should be revised to expand coverage of the exclusions for 

settling ponds and other types of ponds created by excavating dry land.

In addition to exclusions for waste treatment systems and converted croplands, the 

Proposed Rule would codify exclusions for a long list of other practices and water 

features that have been generally regarded as excluded from the definition of “waters of 

the United States.” While the PCA supports the incorporation of these exclusions into the 

Proposed Rule, the PCA also supports the comments of NMA and WAC, which seek 

 

138 As previously explained, TMRA believes that these sorts of ponds are already excluded as waste treatment 

systems. But to the extent they do not fall within that existing exclusion, they should nevertheless remain nonjurisdictional under this newly codified exclusion.

139 Cf 64 FR 39252,39332 (July 21,1999) (Corps nationwide permit recognizing that "[s]upport facilities are 

essential components of a mining operation" and authorizing facilities such as "settling ponds and settling basins, 

ditches, stormwater and surface water management facilities" among others).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

187

further clarification and expansion of the applicability of these exclusions. The agencies

state that these exclusions will provide more “clarity, certainty and predictability” in 

identifying jurisdictional waters.140 However, as written, the exclusions are very narrow, 

with little explanation to why certain waters and features are excluded and other similar 

waters and features, presumably, are not. For example, the Proposed Rule excludes “ 

“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,” but does not clarify whether the reference to “settling basins” is intended to 

apply only to agricultural purposes or to all industries that use settling basins. This 

exclusion should be revised to make clear that it applies to all industries and all types of 

settling basins. (p. 13)

Agency Response: See summary response.

Newmont Mining Corporation (Doc. #13596)

7.268 The Agencies’ Proposal, and in particular Appendix A to that Proposal, states that a 

“significant nexus” can be established though a deep groundwater connection or through 

the fact that organisms might use a certain isolated water as well as a nearby tributary as 

part of their habitat. See 79 Fed. Reg. at 22246. The Preamble also states in Appendix B 

that if an artificial pond collects meteoric water that otherwise might flow to a TNW, that 

might also be deemed a “significant nexus.” Id. at 22261. While the vast majority of 

Newmont’s artificial ponds are lined (and in many cases double-lined), and the 

groundwater is monitored and the distance to groundwater is typically hundreds of feet, 

Newmont cannot guarantee that there could never be one molecule of a solution from 

some of its artificial ponds that might migrate to deep groundwater and from there 

eventually migrate to a tributary network that gets to a TNW. Moreover, even though 

Newmont’s operations are all located in arid to semi-arid climates, precipitation does 

occur, and Newmont’s artificial ponds will collect meteoric water, some of which 

perhaps otherwise might have migrated to a tributary network that reaches a TNW if the 

artificial pond had never existed. Moreover, at least in the case of some stormwater 

retention ponds, certain biota may use the pond, as well as perennial streams, as habitat. 

Perhaps of more concern, statements made in the Preamble and Appendix A to the 

Proposal suggest that, in determining the jurisdictional status of Newmont’s artificial 

ponds, a regulator would have to take into account all “similarly situated” ponds in the 

same watershed. See 79 Fed. Reg. at 22204, 22246. That means that if artificial ponds 

operated by another operator – whether or not a mining operator – in the watershed 

release solutions to surface water, or release solutions to deep groundwater, or prevent 

rainfall from reaching a TNW, or provide habitat to biota that also inhabits a TNW, then 

somehow Newmont’s ponds could potentially be deemed jurisdictional even though they 

have no such characteristics. 

That result, we submit, is unfair. It would put Newmont and other mining companies in a 

position of having in effect to prove to the Corps (and EPA) that every single artificial 

pond on their properties should not be deemed jurisdictional. The expense and 

 

140 79 Fed. Reg. 22217.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

188

inconvenience of doing so, and the fact that current operations would be thrown into 

limbo, would be enormous – and totally unnecessary, because these ponds could never 

affect (significantly or otherwise) a TNW. In this respect, we incorporate the comments 

of the WAC and NMA dealing with the “science” upon which the Agencies’ Proposal is 

based. As far as we have been able to ascertain, the claimed scientific underpinning for 

the Agencies’ Proposal contains no evidence, or discussion, that artificial ponds such as 

those operated by Newmont in the arid West could have any impact, much less a 

significant adverse impact, on the chemical, biological, or physical integrity of a TNW 

located from 50 to 200 miles away. 

Finally, we note that any attempt by EPA to assert jurisdiction over such ponds would run 

directly counter to the square holding in SWANCC that EPA and the Corps have no 

jurisdiction under the CWA to regulate isolated ponds that do not discharge to TNWs, or 

to a tributary system to a TNW. (p. 19-20)

Agency Response: See summary response. Also see overarching summar 

response at topic 7.

7.269 d. The Scope of the Artificial Pond Exception is Likewise Unclear: Nor is it clear 

whether Newmont’s artificial ponds fall within the “artificial lakes or ponds” exception 

contained in the Agencies’ Proposal. That exception excludes from the scope of 

jurisdictional waters: “Artificial . . . ponds created by excavating and/or diking dry land 

and used exclusively for such purposes as stock watering, irrigation, settling basins, or 

rice growing.” See, e.g., paragraph (b)(5)(ii) at 79 Fed. Reg. 22263. Newmont’s artificial 

ponds are in the main created by excavating and/or diking dry land; however, as noted 

earlier, at times Newmont must divert portions of ephemeral drainages that could be 

deemed jurisdictional waters under the Agencies’ Proposal. Moreover, it is unclear 

whether the purposes to which mining ponds are put – e.g., retention of stormwater, 

retention and recycling of cooling fluids, retention and recycling of tailings slurry, 

retention and recycling of pregnant and barren heap leach solutions – would fall within 

the phrase “used exclusively for such purposes as stock watering, irrigation, settling 

basins, or rice growing.”

The Proposal’s Preamble contains no discussion on the universe of artificial ponds 

intended to be encompassed by this new exception. While settling does, and is intended 

to, occur in mining artificial ponds, the illustrative examples given in the exception all 

appear to be related in some way or form to agriculture or silviculture activities, and so 

one could argue that only ponds used in those industries were intended to be excluded. 

We submit that mining artificial ponds are as, if not more, deserving of exemption than 

agriculture and silviculture artificial ponds. As discussed earlier, Newmont’s artificial 

ponds are permitted and regulated under the comprehensive State WPCA designed to 

ensure that there is no discharge to surface or groundwater and that any releases to 

groundwater will be detected and remediated. Moreover, they are located in the arid and 

semi-arid West, where evaporation exceeds precipitation, and the chances are virtually nil 

that the contents of these ponds could ever reach surface water.

The bottom line, therefore, is that some of Newmont’s artificial mining ponds might be 

deemed per se jurisdictional under the Agencies’ Proposal (if they are adjacent to an 

ephemeral drainage that is otherwise deemed a jurisdictional water under the Proposal), 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

189

and all of Newmont’s artificial ponds could potentially be deemed “other waters,” 

because they might collect rainfall that might otherwise flow to a jurisdictional water, or 

might be connected by deep groundwater to jurisdictional waters many miles away, or 

might provide habitat to organisms that also have habitat in jurisdictional waters, or 

might be deemed “similarly situated” to ponds operated by others. Moreover, although 

Newmont has good arguments that its artificial ponds should fall within the “waste 

treatment system” or “artificial pond” exceptions, there is no guarantee that every 

regulator, or indeed any regulator, would so concur. Thus, Newmont’s artificial ponds 

could potentially be deemed regulated waters of the United States, even though: (1) no 

one would ever, or could ever, conclude that they have any kind of impact, significant or 

otherwise, on a TNW; (2) the “science” relied upon by the Agencies as a basis for the 

Proposal does not establish or support in any way the assertion of jurisdiction over such 

artificial ponds; and (3) assertion of jurisdiction over such artificial ponds would be 

directly contrary to the holding in SWANCC that isolated ponds cannot be deemed 

jurisdictional by the Agencies. (p. 21-23)

Agency Response: See summary response. Also see summary responses at 7.4.2 

and 7.4.4 regarding exclusions for wastewater recycling and stormwater control 

features.

7.270 5. Suggested Changes to the Proposal

As noted, EPA and Corps officials with whom we have spoken about this matter have 

been adamant that the Agencies’ Proposal was never intended to encompass mining 

artificial ponds, and associated constructed ditches and channels, such as those that are 

operated by Newmont and other hardrock mining companies in the arid and semi-arid 

West. But given the wording of the Proposal, we cannot be sure that every Corps or EPA 

regulator will reach the same conclusion. We therefore urge that EPA make clear in any 

final rule that such artificial ponds, and associated ditches/channels, are not jurisdictional 

waters. Solutions include the following:141

...

2. Amending the existing “artificial lakes or ponds” exception contained in subsection 

(b)(5)(ii) of the Proposal to read: “Artificial lakes or ponds created primarily by 

excavating and/or diking dry land and/or diverting ephemeral or intermittent drainages 

and used exclusively for such purposes as stock watering, irrigation, settling basins, or 

rice growing, or managing process waters, wastewaters, solutions, groundwater or other 

liquids associated with the extraction, beneficiation or processing of ores and minerals, 

and all culverts, ditches, constructed channels or conveyances associated with such lakes 

or ponds.”

3. Creating a new exception in subsection (b) of the Proposal for: “Industrial artificial 

ponds and associated culverts, ditches, constructed channels, and other conveyances, that 

are permitted under State or federal law to manage solutions, wastewater, process water, 

stormwater, or other liquids.” (p. 26-27)

 

141 In suggested amendments to existing Proposal language, added text is underlined and deleted text is struck

through.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

190

Agency Response: See summary response. Also see summary responses at 7.4.2 

and 7.4.4 regarding exclusions for wastewater recycling and stormwater control 

features.

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.271 Exemption for Artificial Lakes or Ponds

The proposed rule continues the existing exemption from CWA jurisdiction for 

“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.” (122.2(b)(5)(ii)) This long-standing exemption recognizes that these bodies of 

water are fundamentally different from the nation’s waters that Congress intended to 

address through the CWA, and that there would be little or no regulatory benefit and 

substantial confusion if EPA or the Corps, state agencies or private citizen-suit plaintiffs 

tried to apply CWA requirements to these water bodies.

However there are the following potential ambiguities in this exemption which the 

agencies need address for any final rule for improved clarity and reduced confusion.

 Substitute the term “dry land,” with upland and define uplands as recommend above. 

If the agencies view it necessary to continues to use the term “dry lands” then discuss 

that “dry lands” mean the same as uplands (using the definition of uplands provided 

above).

 It is unclear how much these four listed purposes limit the exemption. Because the 

exemption speaks of purposes “such as” the four listed ones, they cannot be the only 

purposes covered by the exemption. The agencies need to clarify in any final rule that 

the exemption is intended to cover any artificial lakes or ponds created by excavating 

or diking dry land, that are used for a particular purpose or purposes and these four 

listed purposes are just examples.

 The requirement that the pond be used “exclusively for such purposes” adds just 

another layer of ambiguity. While it appears the intent behind the “exclusively” 

language was to make sure that a lake or pond whose use is unrestricted is not 

considered exempt just because it is used for one of the listed purposes. However if 

applied literally, very few lakes and ponds might be said to be used for only one 

purpose, although they might have been excavated for only one purpose, or their 

owner’s primary use maybe for only one purpose. Domtar recommends the agencies 

remove the “exclusively” qualification and explain in a final rule that the exemption 

is not meant to include lakes or ponds whose use is unrestricted (e.g., an artificial lake 

that functions like a natural lake and is a source of irrigation water) however the 

exemption is also not lost if the artificial lake or pond is used for more than one 

purpose. (p. 13-14)

Agency Response: See summary response.

Barrick Gold of North America (Doc. #16914)

7.272 There is no exclusion in the existing rules for artificial lakes and ponds, but the agencies 

note in the preamble that, “by longstanding practice,” they have not considered these 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

191

features (among others) to be “waters of the United States.” 79 Fed. Reg. at 22,218. The 

agencies thus propose a new exclusion for “[a]rtificial 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.” Id. The exclusion could apply to 

Barrick ponds, but its applicability is not clear. The listed examples of covered ponds 

seem mostly to apply to agricultural activities, and thus do not clearly apply to process 

ponds and other ponds related to industrial activity such as gold mining.

Some of Barrick’s process ponds, mine water and storm water management ponds do 

function as “settling ponds.” The primary purpose of tailing ponds is to settle out solids 

and recycle process water. Similarly, infiltration basins and sedimentation ponds function 

as settling ponds. These features therefore arguably would be covered by the proposed 

exclusion. However, even if that were the case, other ponds, such as Barrick’s pregnant 

and barren ponds associated with heap leaching, would not be covered because they are 

not designed to be settling ponds. (p. 28)

Agency Response: See summary response. Also see summary responses at 7.1, 

7.4.2, and 7.4.4.

Montana Wool Growers Association (Doc. #5843.1)

7.273 The Proposed Rule's exclusions imply that land features would be jurisdictional but for 

the exclusion. 

b. Section (b)(S)(ii) excludes "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," implying all ponds caused by natural depressions, all 

abandoned (but functional) reservoirs, and all ponds constructed for recreation, 

personal enjoyment, or to increase the value of property, would be jurisdictional. The 

exclusion should be rewritten to give full effect to the exclusion to avoid creating 

false impressions about the breadth and scope of the CWA. For example, "artificial 

lakes or ponds including, but not limited to, those used for farming, stock watering, 

settling basins, recreation, and landscaping." (p. 10)

Agency Response: See summary response.

Alameda County Cattlewomen (Doc. #8674)

7.274 The agencies’ exclusion of “artificial ponds excavated wholly in uplands,...used 

exclusively for livestock watering...” is both unclear and not encompassing of many 

ponds used by the livestock industry. The agencies, once again, have simply forgotten to 

define key terms. What does the word “exclusively” mean in terms of uses? Does this 

mean that a cost-shared pond that has been stocked with fish for the occasional 

recreational fishing use is now outside the exclusion? If a farmer or rancher’s children 

swim occasionally in the pond, is it now outside the exclusion?

Farmers and ranchers utilize both natural ponds and artificial ponds for watering their 

livestock. Both natural and artificial ponds are maintained by farmers and ranchers, 

which benefits not only the livestock but also the wildlife in the area. Our industry’s 

preservation of such ponds, whether natural or artificial, benefits everyone. The proposed 

rule will create a disincentive from maintaining and creating such beneficial ponds. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

192

Although Sec. 404(f)(1)(C) exempts construction and maintenance from Sec. 404 

permitting, it does not protect farmers and ranchers from Sec. 402 NPDES permits, or 

from 404 permits for activities outside the scope of “construction and maintenance” or 

“normal” under both the (C) and (A) exemptions. Calling all natural ponds a “water of 

the U.S.” and perhaps including many artificial ponds that might not be exclusively used 

for stock watering is inappropriate. These isolated waters are beyond the scope of 

“navigable waters” and the agencies should recognize them as such.

ACCW assert that all stock ponds should be excluded from the category of “waters of the 

U.S.” because they are not navigable in-fact and they lack a significant connection to any 

TNWs. We also assert that it is ludicrous that all natural ponds in a region or floodplain 

can be aggregated under the agencies “similarly situated” criteria to find a significant 

nexus where one does not exist individually. Additionally, the burden on livestock 

producers to determine whether their ponds meet the criteria for exclusion is extremely 

high, and opens their operations up to citizen suit litigation, where the farmer or rancher 

himself will need to defend his stock pond use in court. (p. 24)

Agency Response: See summary response. With regard to significant nexus for 

non-excluded ponds, see Section III of the preamble and Section II of the Technical 

Support Document. It remains the government’s burden to demonstrate a 

particular water is a “water of the United States.”

California Agricultural Commissioners and Sealer Association (Doc. #9670)

7.275 IV. Contradictions within the rule concerning agricultural practices.

Some sections of the proposed rule appear to contradict other sections. For example, the 

proposed rule states: Artificial lakes or ponds created by excavating and or diking dry 

land and used exclusively for purposes such as stock watering, irrigation or rice 

production are not "waters of the United States". However, the rule also states: Lakes and 

ponds (either natural or man-made) that contribute flow either directly or indirectly are 

considered tributaries and are "waters of the United States." Interpreting the two sections 

would lead to the conclusion that any stock watering pond, irrigation pond or rice 

growing area that overflows during the rainy season and contributes flow would no 

longer be exempt. (p. 2)

Agency Response: See summary response. Also see overarching summary 

response for topic 7.

Montana Farm Bureau Federation (Doc. #12715)

7.276 Under the proposed rule, any impoundment of those drainage features will be an unlawful 

discharge absent a section 404 permit, and the resulting farm pond itself will become a 

“Water of the United States.” In addition, any construction of a farm pond in a small low 

spot (wetland) swept into CWA jurisdiction under the “adjacent” or “other waters” 

provisions of the proposed rule (also explained above) will also require a section 404 

permit and the consequent pond/reservoir would itself be considered a water of the U.S. 

Not only would this render the pond largely unusable, it makes no sense that a farmer or 

rancher would have to acquire a 404 permit in order to build a structure to create another 

“Water of the United States.”
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

193

This aspect of the rule will affect countless farm and stock ponds. By expanding 

jurisdiction to include common ephemeral drainages and isolated wetlands, the rule will 

prohibit the impoundment of natural drainages and low spots. Places like this are the only 

logical locations to build farm or stock ponds. Farm or stock ponds, called reservoirs here 

in Montana, are typically constructed at natural low spots to capture rain water and snow 

melt through ephemeral drainages. Depending on the topography, reservoir construction 

is virtually impossible without diking or damming a natural drainage. For that reason, the 

proposal’s exclusion for “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” is almost meaningless. As explained above, “dry land” is interpreted to 

exclude anything that qualifies as a wetland or any ephemeral feature where storm water 

naturally migrates. This leaves little “dry” land available for the construction of 

reservoirs, and if land qualified as “dry” under this rule is dammed, it is highly unlikely 

that it will collect any water, especially in areas that receive very little precipitation.

Consequently, reservoirs are not excavated on hill tops and ridges. They are excavated at 

low spots where water naturally flows and collects. Thus, the proposed farm pond 

exclusion will provide no relief for most farmers and ranchers. (p. 6-7)

Agency Response: See summary response.

Bayless and Berkalew Co. (Doc. #12967)

7.277 The ambiguous wording of the rule is ripe for litigation as left to the interpretation of 

agency enforcement and environmental litigants. In one section of the proposed rule the 

agencies exempt specific agricultural construction, such as stock ponds, from permitting 

while in the pre-amble of the document making such statements as “As a matter of law 

and science, an impoundment does not cut off connection between upstream tributaries 

and a downstream WOTUS and the agencies technical expertise and practical knowledge 

confirm that impoundments have chemical, physical, and biological effects on 

downstream waters.” (p. 4)

Agency Response: See summary response.

North American Meat Association and American Meat Institute (Doc. #13071)

7.278 The proposed rule also would exclude lakes, ponds, and pools created for specifically 

listed purposes: stock watering, irrigation, settling, rice growing, reflecting, swimming, 

and ornamentation. To be excluded these features must have been created by excavating 

and/or diking dry land. The proposed exclusions are insufficient because, although they 

may benefit some agricultural uses, they do nothing for most industrial or commercial 

operations. Lakes, ponds, and pools are used for an array of industrial purposes, and 

combinations of different uses. The lakes, ponds, pools exclusion should be broadened to 

accommodate legitimate industrial and commercial purposes. (p. 9)

Agency Response: See summary response. Also see summary responses for 7.4.2 

and 7.4.4 with regard to exclusions for wastewater recycling and stormwater control 

features.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

194

USA Rice Federation (Doc. #13998)

7.279 ...the proposed exemptions for ponds used for irrigation and rice growing do not achieve 

their intended purpose. First, a rice field may not be considered a lake or pond. Second, 

as discussed above, rice fields and onsite reservoirs for irrigation water do not have 

exclusive uses. Rice farmers may grow other crops in rotation. Some rice farmers also 

use their fields to raise crawfish. Many rice farmers allow sportsmen to hunt waterfowl 

on their property. In fact, USA Rice Federation has a partnership with Ducks Unlimited, 

the “USA Rice-DU Stewardship Partnership” that serves as a model of cooperation and 

communication between a farm group and a conservation organization. Its purpose is to 

promote the conservation and enhancement of wildlife habitat on working lands. Under 

the proposed rule, rice farmers would have to deny access to sportsmen for hunting to 

allow their rice fields and reservoirs to meet the terms of the exclusion for ponds, 

contrary to the objectives of our partnership. (p. 8-9)

Agency Response: See summary response.

Kansas Agriculture Alliance (Doc. #14424)

7.280 This exception struggles for the same reason as the exception for ditches in that it fails to 

define what is meant by “excavation and/or diking of dry land . . . .”142 Without a 

definition, the only certainty that agriculture has is to excavate a pond on top of a hill. 

This is particularly troubling to a western state like Kansas where annual rainfall can be 

as little as fifteen inches per year. In such situations, ponds cannot function unless the 

pond is constructed on an ephemeral or intermittent stream or feature that has a bed, 

bank, and OHWM. It seems odd that EPA and the Corps would not build this into the 

exception, as ephemeral and intermittent streams in the west have limited connection to a 

TNW. This not only forecloses the building of new ponds, but also maintenance of 

existing ponds.

In addition, the constraint that the pond be used exclusively for stock watering, irrigation,

a settling basin, or rice growing is further troubling. The term exclusively suggests that 

no other use may be permitted or the pond would lose its exempt status. Many farm 

ponds may be primarily used for agricultural purposes, but may also provide auxiliary 

benefits to the owner such as wildlife habitat or recreational uses. Incidental utilization of 

a pond or lake for such purposes should not destroy the exception. (p. 7)

Agency Response: See summary response. Also see the tributaries compendium 

(topic 8).

Missouri Soybean Association (Doc. #14986)

7.281 Extremely narrow exemptions -

The rule also overreaches by narrowing the intent of the exemptions to the point that we 

are unsure how they would ever apply, rendering them nearly useless in the real world. 

The exemptions should apply broadly, without exceptions or strings attached to them. 

 

142 79 Fed. Reg. at 22263.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

195

Below is an example of some areas where the exemption should be clarified and/or 

broadened.

...c) (t)(S)(ii) ... "Artificial lakes, ponds...used exclusively for such purposes as stock 

watering...." No lake or pond is exclusively used for anyone purpose and it is next to 

impossible to prevent wildlife from purposefully using it. Thus the rule overreaches by 

narrowing the exemption with the word 'exclusive' to an extent that it will have no 

applicability as no feature will ever meet this standard. The exemption should apply 

broadly, without except ion or strings attached, to a number of non-natural purposes 

including agricultural, wastewater and stormwater control and treatment, ornamental 

waters, aesthetic purposes, swimming pools , and reflecting pools among many others... 

(p. 7-8)

Agency Response: See summary response.

Colorado Cattlemen's Association (Doc. #15068)

7.282 The agencies' exclusion of "artificial ponds excavated wholly in uplands, ...used 

exclusively for livestock watering..." is both unclear and not encompassing of many 

ponds used by the livestock industry. The wording of this exclusion leaves too many 

questions for livestock producers. It also well documented that these ponds benefit 

wildlife and the livestock industry is instrumental in preserving and maintaining these 

extremely important resources. Consequently, these features should not be regulated and 

should be broadened even further to exclude all stock ponds from the category of "waters 

of the U.S." Additionally, because they are not navigable in-fact and they lack a 

significant connection to any TNWs they should be excluded. The burden on livestock 

producers to determine whether their ponds meet the criteria for exclusion is extremely 

high, and opens their operations up to citizen suit litigation, where the fanner or rancher 

himself will need to defend his stock pond use in court. (p. 7-8)

Agency Response: See summary response. It remains the government’s burden to 

demonstrate a particular water is a “water of the United States.”

North Carolina Farm Bureau Federation (Doc. #15078)

7.283 The exclusion "[a]rtificial 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" is far too narrow. The restriction to "dry land" is problematic, because farm 

ponds are not built on the tops of hills because they will never fill. This exclusion may 

also inadvertently narrow the agricultural pond exemption under Section 404(f). Another 

problem is the phrase "used exclusively for such purposes as ..." This seems to mean that 

the pond could not be used for more than one purpose, such as stock watering and 

irrigation. It is commendable that the Agencies are trying to carve out exclusions, but the 

pond exclusion should be much more expansive to include situations in the real world. (p. 

16)

Agency Response: See summary response.

Jensen Livestock and Land LLC (Doc. #15540)

7.284 v. Exclusively
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

196

The agencies have failed to provide clarity or certainty regarding livestock ponds. The 

proposed rule states, “Specifically, the agencies propose that the following are not 

‘‘waters of the United States’’ notwithstanding whether they would otherwise be 

jurisdictional under section (a):...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.” (Proposed Rule at 22218 (emphasis added)).

Under the exclusion for artificial ponds the agency has failed to extrapolate on and 

clearly define the extent of the agencies’ meaning in using the word “exclusively.” The 

livestock industry heavily utilizes artificial stock ponds to deliver water to our animals. 

The exclusion of such ponds only when they are “exclusively” used for watering of 

livestock raises many questions. Does the term mean for commercial purposes? Does it 

mean 90 percent of the time what is the purpose for which it is used? If the pond is also 

used as a water retention system, does it lose its excluded status. If the livestock 

producers’ children swim in the pond occasionally does that mean it is sometimes used 

for recreation and loses its excluded status? If, as many stock ponds provide, they are 

used by wildlife does that negate its excluded status? Jensen Livestock and Land LLC. 

assert the agencies should have provided an explanation about the extent of the 

qualification that only artificial ponds used exclusively for stock watering are excluded.

The Merriam-Webster definition of “exclusive” (root word) means “not shared: available 

to one person or group.”143 As used in the exclusion for artificial ponds and lakes, it is 

apparent the only purpose that an artificial livestock pond can ever have is livestock 

watering. If at any time it is used for fishing, swimming, ice skating, water retention, or 

any other purpose it would be removed from the excluded category and make it a “water 

of the U.S.” Jensen Livestock and Land LLC are extremely disappointed that the 

agencies have once again failed to adequately define what their exclusions actually mean, 

calling into question whether any water will actually fall into such categories. Jensen 

Livestock and Land LLC. believe that due to the subjective nature of the artificial ponds 

and lakes exclusion, very few livestock ponds will be excluded from the category of 

“waters of the U.S.” Jensen Livestock and Land LLC submit that the agencies should 

exclude from “waters of the U.S.” “all ponds used for livestock watering.” (p. 18-19)

Agency Response: See summary response.

National Barley Growers Association (Doc. #15627)

7.285 Stock Ponds. While EPA says that the Proposed Rule will not affect stock ponds, the 

language presented suggests otherwise. For example, the rule says that stock ponds are 

exempt only if they are “artificial” and used “exclusively” for stock watering, irrigation, 

settling basins or rice growing. Natural stock ponds and stock ponds used for purposes 

other than those listed by EPA may meet the WOTUS definition. EPA and the CORPS 

should broaden the definition of stock ponds that fall outside federal regulatory authority. 

(p. 6)

Agency Response: See summary response.

 

143 Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/exclusive.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

197

Florida Crystals Corporation (Doc. #16652)

7.286 The Proposed Rule also would assert jurisdiction over most artificial ponds and lakes in 

Florida. Florida is dotted with artificial lakes and ponds, many of which have no surface 

connection to offsite navigable waters. On farmlands, ponds are commonly present for 

purposes of stock watering, local drainage and irrigation, sumps, or other purposes. In 

urban areas, lakes and ponds were created as borrows pits, and now serve recreational, 

drainage, and other purposes. Since most of Florida originally was a wetland, such

artificial lakes and ponds were typically excavated from wetlands, either pursuant to a 

CWA permit or before passage of the CWA itself.

Currently, such ponds and lakes are not subject to CWA regulatory jurisdiction. After the 

Supreme Court decision in Solid Waste Agency of Northern Cook County v. us. Army 

Corps of Eng'rs, 531 U.S. 159 (2001), the Army Corps Jacksonville District generally has 

not asserted jurisdiction over such "isolated" lakes and ponds if they are located more 

than 200 feet away from a regulated navigable water and do not have a surface 

connection. U.S. General Accounting Office, Waters and Wetlands: Corps of Engineers

Needs to Evaluate its District Office Practices in Determining Jurisdiction 19 (Feb. 

2004). (p. 4-5)

Agency Response: See summary response.

Richland Communities (Doc. #18793)

7.287 Rice Lands Converted to Other Uses in the Future Should Continue To Be 

Nonjurisdictional

Given the agencies' intent to take uncertainty out of the equation for rice growing areas 

by making them nonjurisdictional as a matter of law, the language of the proposed rule 

should clarify that the legal designation can be relied upon and will not be revoked based 

on a future changed use. The lack of such assurances could open the door to the exact 

problem the agencies seek to eliminate with the proposed rule- costly case-by-case 

jurisdictional determinations for a historically unique type of land that the agencies have 

wisely determined should not be jurisdictional as a matter of law. For this reason, 

Richland requests that the proposed rule clarify that the legal nonjurisdictional status of 

rice growing areas applies prospectively. Otherwise, the legal status of a parcel of rice 

growing land could be based on a rule of law one day, and on the personal determination 

of a regulator the next. Such a scenario is illogical but unfortunately possible without the 

clarification Richland seeks.

The preamble to the proposed rule explains the agencies' rationale for "drawing lines and 

concluding that certain waters and features are not subject to the jurisdiction of the Clean 

Water Act," including rice growing areas. (79 Fed. Reg. 22218.) The agencies were 

guided by the Supreme Court's observation in United States v. Riverside Bayview Homes

(1985) 474 U.S. 121 that it can be difficult to identify "where waters end" and the 

Supreme Court plurality's observation in Rapanos v. United States (2006) 547 U.S. 715 

that "there were certain features that were not primarily the focus" of the Clean Water 

Act. As the preamble states:

One of the agencies' goals in this proposed rule is to increase clarity and certainty 

about the scope of "waters of the United States." To that end, the agencies 
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propose 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 .... These waters would not be jurisdictional by rule.

(79 Fed. Reg. 22218.)

In applying the spirit of the Rapanos plurality, the agencies have made the policy 

decision that rice growing areas do not fall under the primary "focus" of the Clean Water 

Act. Clarifying that this provision would not expire at some point in the future would 

help to strengthen the agencies' objective to provide "greater clarity, certainty, and 

predictability for the regulated public and the regulators" under the proposed rule. (79 

Fed. Reg. 22189.) (p. 5-6)

Agency Response: See summary response. Also see overarching summary 

response for topic 7.

Water Law (Doc. #13053)

7.288 Artificial Lakes and Ponds used exclusively for stock watering, irrigation, settling basins, 

or rice growing. This necessarily makes artificial lakes and ponds that are used for any 

other purpose jurisdictional, such as ponds used for piscatorial, fire suppression, 

geothermal exchange, dust suppression, municipal supply, stormwater retention, or 

augmentation purposes. No rationale for this limited list is given. Nearly all ponds in the 

western United States are permitted or decreed for multiple uses. For example, a fire 

protection pond filled by a ditch in a rural area will now be subjected to federal 

jurisdiction. (p. 9)

Agency Response: See summary response. Also see summary response at 7.4.4 

with regard to stormwater control features.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

7.289 VI. Unanswered Questions

Despite the proposal’s stated objective to add clarity to the regulatory process, the 

proposal in fact creates great confusion and uncertainty...issues that must be addressed, 

through clarification and in the context of an ongoing dialogue amongst stakeholders, 

include:

...

 How will the agencies treat artificial lakes or ponds that are not used exclusively 

for such purposes as stock watering, irrigation, settling basins, or rice growing, 

including stormwater detention ponds;

... (p. 6-7)

Agency Response: See summary response.

Oglethorpe Power Corporation (Doc. #14618)

7.290 The Proposed Rule also seeks to exclude "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," as well as for use as artificial reflecting pools, 
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swimming pools, and ornamental waters. However, the language of this proposed 

exclusion is not all-inclusive, thus creating ambiguity whether any other uses are allowed 

for "artificial lakes or ponds." Therefore, Oglethorpe Power seeks clarification regarding 

the following question:

 Would a retention or detention pond that was created by excavating dry land, 

which is currently used exclusively to collect or detain storm water, constitute an 

artificial lake or pond, such that the retention or detention pond would be 

excluded from the meaning of "waters of the United States"? (p. 3)

Agency Response: See summary response. Also see summary response at 7.4.4.

Santa Clara Valley Water District (Doc. #14776)

7.291 THE EXCLUSIONS SET FORTH IN THE PROPOSED RULE SHOULD BE 

CLARIFIED AND EXPANDED IN CERTAIN RESPECTS

A. Artificial Groundwater Recharge Basins Should More Clearly Be Excluded

Artificial groundwater recharge basins can be used to clean and store surface water 

underground for use later for irrigation, municipal, or industrial purposes. The Proposed 

Rule would exempt "groundwater'' and "[a]rtificial 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." Although the District believes that this 

language is broad enough to cover artificial groundwater recharge basins, uncertainty 

arises from the fact that artificial groundwater recharge basins are not specifically 

excluded. The Proposed Rule should clarify that artificial groundwater recharge basins 

are excluded from the definition of "waters of the United States."

Sub-paragraph (b )(5)(ii) should be amended as follows to add the underlined language: 

"Artificial lakes, basins, or ponds created by excavating and/or diking dry land and used 

exclusively for such purposes as stock watering, irrigation, settling basins, groundwater 

recharge, or rice growing;" (p. 6-7)

Agency Response: See summary response. Also see summary response at 7.4.2.

Tri-State Generation and Transmission Association, Inc. (Doc. #16392)

7.292 The Agencies have long recognized that artificial ponds created on dry land to collect and 

retain water and that are used as settling basins are generally not jurisdictional.144 The 

proposed rule would clarify that "[a]rtificial lakes or ponds created by excavating and/or 

diking dry land and used exclusively for such purposes as ... settling basins," among other 

purposes, are per se not jurisdictional.145 Tri-State supports the categorical exclusion of 

such ponds and lakes rather than relying on the 1986 preamble language, but would urge 

the Agencies to make it clear that this exclusion encompasses the many types of ponds on 

mine sites and other facilities that are used for the concentration and settling of solids.

 

144 51 FR 41217 (1986 Corps regulatory preamble); 53 FR 20765 (EPA regulatory preamble).

145 79 FR 22263.
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As currently drafted, the proposed regulatory text appears to apply to sedimentation 

ponds and other onsite ponds on mine sites that are used for concentration and settling.146

But, Tri-State, along with NMA, is concerned that some might interpret the exclusion as 

being limited to water features associated with agriculture given that the term "settling 

basins" appears in the regulatory text among a list of references to agricultural activities, 

i.e., "stock watering," "irrigation," and "rice growing." The preamble to the proposed rule 

does not shed any light on whether the reference to "settling basins" encompasses such 

features used in other industries, often for stormwater management and treatment 

purposes. The Agencies should therefore clarify that this exclusion is not limited to 

agriculture-related settling basins by explicitly referencing "industrial sedimentation 

ponds" or "industrial settling basins" in the list of permissible purposes. In addition, the 

Agencies should clarify in the preamble that the exclusion is not confined to water 

features relating to agricultural activities.

The Agencies should further clarify that artificial ponds meet the requirement of being 

excavated on dry land even if such features are constructed within floodplains or riparian 

areas, and even if such features might share a subsurface hydrological connection to a 

downstream jurisdictional water. The exclusion would be rendered meaningless if it does 

not apply to ponds constructed on lands within floodplains and riparian areas. The same 

would be true if the Agencies (or a citizen plaintiff) could claim that a pond is a "water of 

the United States" based solely on a groundwater connection that ultimately develops 

between an anthropogenic on-site pond and an ephemeral tributary, to use an example. (p. 

10)

Agency Response: See summary response. Also see overarching summary 

response for topic 7 and summary responses at 7.4.2 and 7.4.4.

Xcel Energy (Doc. #18023)

7.293 Section 328.3(b)(5)(ii) of the Proposed Rule would exempt "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[.]" The scope of this exemption 

is unclear, because the term "exclusively" would indicate that only reservoirs used for the 

specifically listed purposes will qualify. However, the use of the phrase "such purposes 

as" would indicate that other purposes of use may also qualify for the exemption. Xcel 

Energy recommends that the revised Proposed Rule should not use the word 

"exclusively" to describe the purposes of use of the reservoir. The exemption from 

jurisdiction found in §404(f)(l) contains no such "exclusive" limitation. (p. 8)

Agency Response: See summary response.

Ducks Unlimited (Doc. #11014)

7.294 In the same vein, the exclusion of “artificial lakes or ponds created by excavating and/or 

diking dry land and used exclusively [emphasis ours] for such purposes as stock watering, 

 

146 64 FR 39252, 39332 (July 21, 1999) (Corps nationwide permit recognizing that "[s]upport facilities are essential 

components of a mining operation" and authorizing facilities such as "settling ponds and settling basins, ditches, 

stormwater and surface water management facilities" among others).
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irrigation, settling basins, or rice growing,” should be modified. Many of the artificial 

reservoirs used for rice agriculture, for instance, serve additional, ancillary purposes such 

as waterfowl hunting. These water bodies, whose primary use is clearly to provide 

agricultural irrigation water and which have not previously been regulated, should not 

now be brought under the jurisdiction of the new rule because there are often secondary 

uses of that water. We leave it to the agencies to work with the agricultural sector to 

develop suitable wording to address this concern. (p. 21)

Agency Response: See summary response.

Southern Environmental Law Center et al. (Doc. #13610)

7.295 To avoid confusion the term “dry land” should be changed to “uplands.” To the extent 

that this is an alternative to using the farm pond exemption set forth in the statute, we 

support it. (p. 42)

Agency Response: See summary response. The agencies have deleted the term 

“uplands” in response to the confusion the term created and instead use the term 

“dry land,” which was used in prior preamble statements. 

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network 

(Doc. #15233)

7.296 The same thing is true for your new proposed exclusions of artificial lakes and ponds, 

artificial reflecting pools and swimming pools, “small ornamental waters,” water-fill 

depressions created “incidental to construction activity,” and your exclusion of gullies, 

rills and non-wetland swales. 40 CFR 122.2 (b)(5)(ii), (iii), (iv), (v), (vi). Here, again, 

even where these waters and features have a significant nexus to and impact on the 

physical, chemical and biological integrity of downstream waters, you would define them 

as non-jurisdictional. However, this conflates the question of jurisdiction with level of 

concern regarding these particular “other waters”. In most cases these may be waters of 

no concern (e.g., swimming pools and reflection ponds), however, in other cases they 

may be of concern. These should not, then, be removed from the definition of “other 

waters” categorically. For instance, field runoff catch basins from CAFO manure 

application fields where applications have been above agronomic rates would lose 

agricultural runoff exemptions and become, at least, point sources subject to CWA 301 

prohibitions from discharge. Stock water ponds, where animals have direct contact with 

the ponds, should not be allowed to discharge to streams or rivers. If they have 

intermittent hydrologic interaction they would impact the physical, chemical and 

biological integrity of downstream waters in violation of the CWA. (p. 10)

Agency Response: See summary response. Also see overarching summary 

response for topic 7.

Patrick E. Murphy, Member of Congress, House of Representatives (Doc. #15371.1)

7.297 I. The Proposed Rule Will Greatly Increase the Scope of Federal Clean Water Act 

Jurisdiction Over Farmlands

B. Most Farm Ponds Will Become “Waters of the United States”
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 Currently, small isolated bodies of water (such as farm ponds and quarry lakes) are 

not regulated by the Corps or EPA under the Clean Water Act

 The Proposed Rule will make most such waters in Florida “waters of the United 

States”

o The Proposed Rule states that all waters that are “adjacent” to federallyregulated waters are part of the “waters of the United States”

o “Adjacent” is defined to mean “neighboring,” which is further defined to 

mean “waters located within the ... floodplain [of jurisdictional waters] or 

waters with a shallow subsurface hydrological connection [to jurisdictional 

waters]”

o In Florida, with our flat topography and surficial aquifers, the “floodplain” 

covers most farmlands and there almost always is a subsurface connection 

between isolated ponds and some offsite body of water. (p. 1-2)

Agency Response: See overarching summary response for topic 7. The agencies 

have revised the definition of adjacency. See the preamble and Compendium 3 

regarding adjacent waters. As described in the rule and throughout this document, 

the agencies have identified a number of exclusions that may apply to agricultural 

operations.

Robert J. Goldstein & Associates (Doc. #16577)

7.298 3) Lakes or ponds created by excavating or diking dry land: Does “dry land” include 

former wetlands that were drained by ditching? Does “dry land” include intermittent 

streams that were diked/dammed during their fry season? If so, then the inconsistency 

described in #2 above is again a concern. Please define the concept of “dry land” more 

completely. (p. 2)

Agency Response: See summary response.

7.3.3. Artificial Reflecting Pools or Swimming Pools Created by Excavating and/or Diking 

Dry Land

Specific Comments

Federal Water Quality Coalition (Doc. #15822.1)

7.299 3. Artificial pools.

Under the proposed rule, artificial reflecting pools or swimming pools created by 

excavating and/or diking dry land are not jurisdictional. Limiting the exemption to 

reflecting or swimming pools has created significant uncertainty about the status of other 

artificial pools that can hold water, such as concrete tanks and even secondary 

containment structures. (p. 19)

Agency Response: The final rule identifies several artificial water features that 

are excluded. Concrete tanks and secondary containment structures may be 

excluded under other exclusions, depending on the circumstances. The agencies 

disagree this exclusion creates significant uncertainty.
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Water Law (Doc. #13053)

7.300 Artificial Reflecting Pools or Swimming Pools created by excavating and/or diking dry 

land. This necessarily means that artificial pools for any purpose other than reflecting and 

swimming are subjected to federal jurisdiction. (p. 9)

Agency Response: The final rule identifies several artificial water features that 

are excluded. Artificial pools in addition to reflecting and swimming pools may be 

excluded under other exclusions, depending on the circumstances.

Berkshire Hathaway Energy Company (Doc. #14650)

7.301 C. The Agencies Should Clarify the Exemption for Artificial Lakes or Ponds to Also 

Exempt Drainage Water or Channels from Artificial Lakes or Ponds

The Agencies should similarly consider modifications to the exemption for artificial lakes 

or ponds created by excavating and/or diking dry land. Waters that otherwise show 

characteristics of waters of the U.S. but are sourced from an exempt water such as an 

artificial pond should not be jurisdictional. The drainage water and channel from an 

exempt artificial pond created by excavating dry land should not create a nexus to the 

pond or themselves be jurisdictional. The Agencies should clarify this accordingly. (p. 5)

Agency Response: The final rule clarifies that excluded waters are never 

jurisdictional even where they otherwise fall into one of the categories in paragraphs 

(a)(4) through (a)(8). 

Southern Environmental Law Center et al. (Doc. #13610)

7.302 Dry land should be changed to uplands. (p. 42)

Agency Response: The agencies retain the term “dry land” but have provided 

additional explanation of the term in response to requests for additional clarity.

7.3.4. Small Ornamental Waters Created by Excavating and/or Diking Dry Land for 

Primarily Aesthetic Reasons

Summary Response

The agencies have identified small ornamental waters created by excavating and/or diking dry 

land for primarily aesthetic reasons as generally not “waters of the United States” in previous 

preambles or guidance documents. The Federal Register notices by the Corps on November 13, 

1986, and by EPA on June 6, 1988, preambles indicated these waters could be determined on a 

case-specific basis to be “waters of the United States.” The agencies do not retain that authority 

for features excluded under the rule. The proposed rule contained this exemption unchanged 

from previous preamble language. 

Most commenters noted that the rule does not provide guidance on how “small ornamental 

waters” will be distinguished from medium or large ornamental waters for jurisdiction. The 

example given was ornamental lakes within cities. Commenters were also uncertain about the 

status of large ornamental waters that are not primarily aesthetic, such as those that capture 
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stormwater and are ornamental. Commenters noted that no rationale was given for subjecting 

ornamental waters “not primarily used for aesthetics” to federal jurisdiction, and recommend that 

dry land should be changed to uplands.

In response to comments, the agencies have deleted language that a small ornamental water must 

be created “for primarily aesthetic reasons.” The agencies agree this element introduces a 

“purpose test” that can be difficult to implement and is unnecessary for this exclusion. With 

respect to “small,” rather than focusing on the objective size of the water, it is more important to 

consider whether the water is contributing to the chemical, physical, or biological integrity of

downstream waters. The agencies anticipate that excluded ornamental waters will not provide the 

functions of natural water features. For example, in many circumstances ornamental waters such 

as fountains and reflecting pools and similar features are not part of the tributary system and do 

not connect with downstream waters. If a water is conveying, treating, or storing stormwater, the 

agencies would refer to the exemptions for stormwater which is further explained in the 

summary for Section 7.4.4. Rather than replace “dry lands” with uplands, which itself confused 

many commenters, the agencies have clarified in the preamble that “dry land” refers to areas of 

the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, 

ponds and the like. However, it is important to note that a “water of the United States” is not 

considered “dry land” if it lacks water at a given time. Similarly, an area remains “dry land” even 

if it is wet after a rainfall event. 

Specific Comments

City of Glendale, Arizona (Doc. #15054)

7.303 There are many ornamental lakes within the City of Glendale, such as Coyotes Lakes 

near the hockey arena. It is unclear whether this lake would qualify under the exclusion 

for small ornamental waters. The proposed rule does not provide guidance on how 

"small ornamental waters" will be distinguished from jurisdictional (medium or large) 

ornamental waters. (p. 3)

Agency Response: See summary response above.

Rubber Manufacturers Association (Doc. #15419)

7.304 IV. RMA supports the exemption for small ornamental ponds

Section 122.2(b)(5)(iv) exempts “small ornamental waters created by excavating and/or 

diking dry land for primarily aesthetic reasons.” 76 Fed. Reg. 22268. RMA members’ 

ornamental ponds are not affecting the chemical, physical, or biological integrity of 

waters of the U.S. RMA supports the exemption for small ornamental ponds. (p. 3)

Agency Response: The agencies agreed and retained the exemption for small 

ornamental ponds. See summary response above.

Federal Water Quality Coalition (Doc. #15822.1)

7.305 5. Small ornamental waters.

Small ornamental waters created by excavating and/or diking dry land for primarily 

aesthetic reasons are not jurisdictional. Limiting the exemption to small ornamental 
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waters has created significant uncertainty about the status of large ornamental waters or 

ornamental waters that are not primarily aesthetic, such as waters that both capture 

stormwater and are ornamental. (p. 19)

Agency Response: See summary response for 7.3.4 above.

Northern Arizona Municipal Waters Users Association (Doc. #9730)

7.306 Small ornamental waters created for aesthetic reasons are not included. "Small" is not 

defined and large ornamental waters are not addressed? (p. 1)

Agency Response: See summary response above.

Water Law (Doc. #13053)

7.307 Small Ornamental Waters created by excavating and/or diking dry land primarily for 

aesthetic purposes. The Agencies provide no definition of what constitutes “small”, 

leaving nearly any amount potentially regulated. The Agencies give no rationale for 

subjecting ornamental waters “not primarily used for aesthetics” to federal jurisdiction. 

(p. 9)

Agency Response: See summary response above.

Southern Environmental Law Center et al. (Doc. #13610)

7.308 Same comment as immediately above. [Dry land should be changed to uplands.] (p. 42)

Agency Response: The agencies disagree and instead clarify in the preamble that 

“dry land” refers to areas of the geographic landscape that are not water features 

such as streams, rivers, wetlands, lakes, ponds and the like. See summary response 

above.

7.3.5. Water-filled Depressions Created Incidental to Construction Activity

Summary Response

The agencies have identified Water-filled Depressions Created Incidental to Construction 

Activity as generally not “waters of the United States” in previous preambles or guidance 

documents. The Agencies’ 1986 and 1988 preambles indicated these waters could be determined 

on a case-specific basis to be “waters of the United States.” The 1986 and 1988 Preambles state:

“Water-filled depressions created in dry land incidental to construction activity and pits 

excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the 

construction or excavation operation is abandoned and the resulting body of water meets the 

definition of waters of the United States.”

The final rule expands and clarifies this language by stating that water-filled depressions created 

in dry land incidental to mining or construction activity, including pits excavated for obtaining 

fill, sand, or gravel that fill with water are not considered “waters of the United States”, even 

where they otherwise meet the terms of paragraphs (a)(4) through (8). Codifying these 

longstanding practices supports the agencies' goals of providing greater clarity, certainty, and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

206

predictability for the regulated public and the regulators. In addition, under prior preamble 

guidance the agencies could determine that a particular feature generally considered nonjurisdictional was a “water of the United States.” The rule does not allow for this case-specific 

analysis to be used to establish jurisdiction - these waters are categorically excluded from 

jurisdiction.

The rule includes several refinements to the exclusion for water-filled depressions created as a 

result of certain activities. In addition to construction activity, the agencies have also excluded 

water-filled depressions created in dry land incidental to mining activity. This change is 

consistent with the agencies’ 1986 and 1988 preambles, which generally excluded pits excavated 

for obtaining fill, sand or gravel, and there is no need to distinguish between features based on

whether they are created by construction or mining activity. Several commenters asked that this 

exclusion be broadened to include other types of artificial waterbodies. However, this exclusion 

is not the only one that addresses artificial waters. Paragraph (b) of the regulations excludes a 

number of artificial features, and commenters should see those essays and responses for more 

detail. In particular, the agencies have revised and clarified the exclusion for artificial lakes and 

ponds created in dry land in response to comments. See summary response at 7.3.2 and related 

individual questions in that section. The agencies therefore have not made further changes to 

this exclusion. Some commenters felt this exclusion created confusion by suggesting other 

water-filled depressions would be jurisdictional. The agencies again note the rule includes 

several exclusions for artificial waters, so the agencies disagree this exclusion will form the basis 

of any misinterpretation. Moreover, the examples provided, such as water in tire ruts, are 

typically the types of transitory pooling of water that would be excluded as puddles. Finally, the 

agencies are clear in the final rule that all waters and features identified in paragraph (b) of the 

rule as excluded will not be “waters of the United States” even if they otherwise fall within one 

of the categories in paragraphs (a)(4) through (a)(8). 

It is important to note that this exclusion is limited to features created in dry land. The phrase 

“dry land” appears in the 1986 and 1988 preambles, and the agencies believe the term is well 

understood based on the more than 30 years of practice and implementation. But in keeping with 

the goal of providing greater clarity, the agencies clarify that “dry land” refers to areas of the 

geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds 

and the like. However, a “water of the United States” is not considered “dry land” if it lacks 

water at a given time. Similarly, an area remains “dry land” even if it is wet after a rainfall 

event. In addition, features meeting this exclusion may function as a “point source” under CWA 

section 502(14)), such that discharges of pollutants to waters through these features would be 

subject to other CWA regulations (e.g., CWA section 402). 

Specific Comments

Pennsylvania Fish and Boat Commission (Doc. #4826)

7.309 The PFBC concurs with the exclusion of most specific waters and features from the 

definition of "waters of the United States" including, waste treatment systems, prior 

converted cropland, ditches that are excavated wholly in uplands, artificially irrigated 

areas that would revert to upland, ditches that do not contribute flow, either directionally 

or through another water, artificial lakes/ponds created by excavating or diking dry land 

used exclusively for stock watering, irrigation, settling, etc., reflecting pools, ornamental 
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207

waters used for aesthetic purposes, gullies and rills and non-wetland swales. The PFBC 

suggests that the agencies clarify "water-filled depressions created incidental to 

construction activity" by re-defining this feature as "water-filled depressions created 

temporarily and incidental to construction activity". Such depressions left in the 

landscape under typical climatic conditions will over time develop into wetland habitat 

that may qualify for jurisdictional protection under "other waters". (p. 3)

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that these features could be found to be jurisdictional 

once the construction activity is completed or abandoned and the water feature 

remains.

North Carolina Forest Service, North Carolina Department of Agriculture (Doc. #14122)

7.310 Comment 2

In the portion of the proposed rule which explicitly excludes or exempts certain land 

features from being considered as a WOTUS, [Part (b) of the proposed rule] we suggest 

adding the following text, shown below in underline, added to existing proposed rule 

language:

• "(S)(v) water-filled depressions created incidental to construction, 

agricultural, horticultural, or silvicultural activity;"

Justification for Comment 2:

Incidental water filled depressions can be created by the use of tractors, trucks, and other 

portable machinery used for agricultural, horticultural, and silvicultural activities on the 

land, much in the same way as construction machinery. There is no reason to limit this 

exclusion to only those depressions which are created from construction activity. (p. 2)

Agency Response: See summary response above.

North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

7.311 Another exclusion that has raised concerns for the agriculture community is (b)(S)(v): 

"Water-filled depressions created incidental to construction activity." This wording leads 

to the conclusion that all other water-filled depressions, including those in farm fields, 

could be subject to jurisdiction. This concern could be eased by a change in the wording 

of this exclusion, or addition of a new one. If a new exclusion was added to say, "Any 

water-filled depression that does not meet the definition of a wetland," this would make it 

clear that any wet areas in a farm field would in fact need to meet the definition of a 

regulated wetland in order to be jurisdictional. (p. 3-4)

Agency Response: See summary response above. 

Wisconsin Department of Natural Resource (Doc. #15141)

7.312 ...the agencies should consider adding language to the exceptions for water-filled 

depressions created incidental to construction activity, and groundwater, including 

groundwater drained through subsurface drainage systems. Specifically, the WI DNR 

suggests that the agencies consider adding the language, which is underlined, to the 

exception for water-filled depressions,
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"(v) water-filled depressions created incidental to construction activity created by 

excavating or diking dry land that do not constitute a new normal circumstance 

under the 1987 US Army Corps of Engineers Wetland Delineation Manual." (p. 

3)

Agency Response: See summary response above. The agencies do not agree this 

added language is needed and are concerned it would introduce confusion.

California State Water Resources Control Board (Doc. #15213)

7.313 The following specific comments are provided by the California State Water Resources 

Control Board and the nine California regional water quality control boards (collectively, 

the "Water Boards ") staff regarding the proposed "Definition of 'Waters of the United 

States' Under the Clean Water Act" (Proposed Rule) for 40 CFR 230.3. Specific 

recommended changes to the proposed regulations are shown in strikeout/underline

format. Additional comments are presented as endnotes [see footnote]. 

...

(v) Water -filled depressions created incidental to construction activity that are 

not part of an interconnected network of waters of the United States;

147 (p. 6)

Agency Response: See summary response above. The exclusion is limited to 

depressions created in dry land.

Ohio Department of Natural Resources et al. (Doc. #15421)

7.314 328.3(b)(5)(v) Water-filled depressions created incidental to construction activity

Greater clarification would be needed to exclude these waters. Presumably, "incidental to 

construction activities" would mean the depressions were created unintentionally during 

construction. These types of areas often occur within construction zones and remain on 

the landscape following construction. An example would include tire ruts and large flat 

areas that have not been precisely graded to allow for positive drainage. Many of these 

unintentional water-filled depressions often become sparsely or fully vegetated with 

hydrophytic vegetation and develop hydric soil characteristics over time. Would 

exempted water-filled depressions remain non-jurisdictional even after they have 

developed wetland criteria? Currently, Section (b) of the proposed definition would not 

allow for the recapture of these water-filled depressions under any of the categories listed 

in Section (a) (1)-(7).

For example, a large area in an interchange infield may have been poorly graded when it 

was constructed 40 years ago. The area was relatively flat and did not drain thoroughly. 

The result was that depressions were created unintentionally and incidental to 

construction activities that, over time, have formed areas meeting all three wetland 

criteria. It is apparent that these areas are adjacent to a tributary. Based on the proposed 

 

147 There are cases where after a number of years of inactivity, water-filled depressions created incidental to 

construction activity become habitat for plants and animals and support other designated uses. These water-filled 

depressions may be considered to be waters of the United States if they are interconnected with other waters of the 

United States.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

209

definition, ODOTs interpretation is that these areas would not be jurisdictional waters of 

the U.S. despite meeting all three wetland criteria. Similar scenarios could include areas 

that have been subjected to past mining or other construction activities. These are not 

uncommon features on the Ohio landscape. 

Please confirm ODOT's interpretation of the proposed definition, or provide 

modifications or clarification to the proposed definition to accurately reflect the intent. (p. 

6-7)

Agency Response: See summary response above. The exclusion covers water-filled 

depressions that exhibit wetland criteria, as well as pits excavated in dry land for 

obtaining fill, sand, or gravel.

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

7.315 Greeley proposes the following:

 Incorporate the full Preamble Exclusion for gravel pits into 40 CFR 

§122.2(b)(5)(v) to cover: 

Water filled depressions created incidental to construction activity and pits 

excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and 

until the construction or excavation operation is abandoned and the resulting 

body of water meets the definition of waters of United States.

 Add a provision to 40 CFR §122.2(b) excluding: "Lined sand and gravel pits used 

to store water." The Agencies could define "lined sand and gravel pits" to specify 

state or local performance standards that would adequately sever connectivity for 

purposes of the exclusion. The definition could also require the lined pits to be 

operated pursuant to a state or local program that ensures the lining maintains its 

integrity. 

... (p. 6)

Agency Response: See summary response above. The exclusion applies to pits 

excavated in dry land for obtaining fill, sand, or gravel. The rule does not change 

the agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.

North Carolina Soil and Water Conservation Commission (Doc. #14790)

7.316 Depressions:

(b)(5)(v): “Water‐ filled depressions created incidental to construction activity,” leads to 

the conclusion that all other water filled depressions, including those in farm fields, could 

be subject to jurisdiction. This should be changed to read, “Any water filled depression 

that does not meet the definition of a wetland.” This change would make it clear that any 

wet areas in a farm field would in fact need to meet the definition of a regulated wetland 

in order to be jurisdictional. (p. 2)

Agency Response: See summary response above. 
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210

Minnesota Chamber of Commerce (Doc. #16473)

7.317 C. The Proposed Rule Would Create Other Impediments to the Efficient Operation of 

Minnesota Mining Facilities.

1. Water- Filled Depression Exclusion

Section (b)(s)(v) of the Proposed Rule excludes from the definition of "waters of the 

United States" "Water-filled depressions created incidental to construction activity." Such 

depressions are frequently created at Minnesota mine sites. For example, one of our 

members describes a situation where it excavates sand from one part of its mine site for 

use in its mining operations, and the depression created soon fills with water from 

precipitation. However, because the company often will not need to dig sand again for 

many months, vegetation may begin to grow in and around the depression in the 

intervening months, taking on the appearance of a wetland.

Recommendation:

The Agencies should revise the Proposed Rule to clarify that if a water body qualifies for 

the water-filled depression exclusion, it will not lose its excluded status by the simple 

passage of time or because vegetation grows on or around the depression. Additionally, 

the definition of construction activities should include activities that support mining 

operations, such as the excavation of mine pits, borrow areas, tailings basins, settling 

basins, and water recirculation ponds. (p. 6-7)

Agency Response: See Summary response above. The exclusion applies to 

excavations in dry land for obtaining fill, sand, or gravel. See summary responses at 

7.3.2 and 7.4.2 regarding the exclusions for certain settling basins and wastewater 

recycling features.

Washington State Water Resources Association (Doc. #16543)

7.318 Despite the proposals stated objective to add clarity to the regulatory process, the 

proposal in fact creates great confusion and uncertainty. Some of the unanswered 

questions have been alluded to...Other issues that must be addressed, through 

clarification and in the context of an ongoing dialogue amongst stakeholders, include:

...

 How will the agencies treat water-filled depressions that are incidental to “other 

than” construction activity;

... (p. 17, 18)

Agency Response: See summary response above.

U.S. Chamber of Commerce (Doc. #14115)

7.319 “Water-Filled Depressions”

The Agencies propose to exclude “water-filled depressions created incidental to 

construction activity.” The language of the proposed exclusion is ambiguous. The 

Agencies do not clarify what is meant by “incidental to” or “construction activity.” 

Depressions are commonly created in the course of construction for various reasons, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

211

including borrow pits, retention basins, architectural landscaping, diversion of storm 

water run-off, creation of water storage features, etc. Are these and similar depressions 

excluded if they were created in the course of constructing something other than a 

structure or a facility? Also unclear is whether this exclusion applies for as long as a 

depression exists and continues to apply irrespective of whether it is “water-filled” at all 

times or whether a condition of “construction” ceases to exist. Depressions created 

incidental to construction activity may continue to exist, by design or happenstance, for 

indefinite periods—even beyond the life of the structure or facility with which their 

creation was associated. For instance earthen dikes around storage tanks often accumulate 

rain water over periods of time, particularly in areas of heavy rainfall. (p. 35)

Agency Response: See summary response above. The exclusion applies to 

excavations in dry land for obtaining fill, sand, or gravel. Also see summary 

responses at 7.3.2, 7.3.4, 7.4.2 and 7.4.4 regarding exclusions for certain artificial 

lakes and ponds, small ornamental waters and wastewater recycling and 

stormwater control features. The rule does not change the agencies’ existing 

practice that these features could be found to be jurisdictional once the construction 

or mining activity is completed or abandoned and the water feature remains.

South Carolina Chamber of Commerce (Doc. #14535)

7.320 D. Exemption for "Water-Filled Depressions Created Incidental To Construction 

Activity" (122.2(b)(5)(v)) 

This exemption, carried over from current regulations, is not further defined in the 

Proposed Rule or explained in the Preamble. On its face, this exemption is not limited in 

time, but it has sometimes been interpreted as applying only while construction activity is 

ongoing. That interpretation is inconsistent with the plain language of the exemption, and 

it also is inconsistent with the rationale for the exemption.

First of all, an exemption that only applied while construction activity was underway 

would be of little value. Only once construction is completed will the full extent of any 

such water-filled depressions created by the construction activity be known. A waterfilled depression that is formed either by excavation associated with construction activity 

or by the creation of an area that is poorly drained or not drained at all due to changes in 

land contours and drainage resulting from construction activity, is certainly not a 

traditional navigable water, nor does its existence have a significant effect on traditional 

navigable waters.

Just as importantly, little or no regulatory benefit would result from treating such 

depressions as WOTUS. EPA should make clear, either in the exemption itself or in the 

Preamble, that this exemption is not limited only to the duration of the construction 

activity. EPA also should clarify that a depression excavated as a source of soil, sand, 

gravel, etc. to be used in the construction falls within the notion of "incidental to 

construction activity." Again, these depressions are fundamentally different from, and do 

not warrant application of the same regulatory requirements as, other, natural surface 

water bodies. (p. 7-8)

Agency Response: See Summary response above. The exclusion applies to 

excavations in dry land for obtaining fill, sand, or gravel. The rule does not change 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

212

the agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.

Federal Water Quality Coalition (Doc. #15822.1)

7.321 6. Water-filled depressions.

Water-filled depressions created incidental to construction activity are not jurisdictional. 

Limiting the exemption to depressions created incidental to construction activity has 

raised significant uncertainty about the status of other depressions on the ground that 

could collect water, even tire ruts. (p. 19)

Agency Response: See summary response above.

Lydig Construction Inc. (Doc. #14147)

7.322 ...with this proposed rule, the agencies are effectively shifting the burden to the regulated 

community to prove the application of the limited and ambiguous exclusions on a caseby- case basis. This point is particularly prominent with regard to the exclusions for 

‘water-filled depressions incidental to construction activity’ and ‘water-filled depressions 

excavated on dry land for the purposes of obtaining sand and gravel.’ Old maps and aerial 

photos may be the only sources available to identify historic conditions in order to 

resolve third-party allegations of violations of federal CWA laws; however, these tools 

often lack the level of resolution required to make a proper determination. It will 

ultimately be up to the regulated community to provide compelling evidence that an 

uneven surface area on the land (i.e., man-made wet area) first came about during 

construction activity, or face complicated and layered reviews, costly penalties or even 

citizen suits. (p. 2)

Agency Response: See summary response above. It is the government’s burden to 

demonstrate that a water is jurisdictional.

Associated General Contractors of America (Doc. #14602)

7.323 VIII. Water-Filled Depressions

Summary: The proposed language that would exclude “water-filled depressions created 

incidental to construction activity” from the definition of WOTUS is ambiguous. This is 

particularly problematic for AGC members because it will ultimately be up to the 

regulated community to provide compelling evidence that an uneven surface area on the 

land (i.e., man-made wet area) first came about during construction activity — or face 

complicated and layered reviews, costly penalties, or even citizen suits. 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. However, these tools often lack the level 

of resolution required to make a proper determination.

The proposed revisions to the definition of WOTUS would introduce many new ways for 

the federal government to regulate isolated waters that are normally wet only during 

seasonal rain events. It is likely that new types of waters will be regulated by the federal 

government. In this regard, the public will frequently face the difficult task of proving, on 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

213

a case-by-case basis, that the water or feature at issue qualifies for one of the limited and 

ambiguous exclusions. This point is particularly prominent with regard to the exclusions 

for “water-filled depressions incidental to construction activity” and “water-filled 

depressions excavated on dry land for the purposes of obtaining sand and gravel.” AGC 

notes that this exclusion provides yet another example of this rulemaking being overly 

broad and ambitious in scope, so much so, as to require an exclusion for waters this small 

– the implication being that without this exclusion these waters would be jurisdictional 

WOTUS.

As proposed, the language of the “water-filled depressions” exclusion is ambiguous. The 

agencies do not clarify what is meant by “incidental to” or “construction activity.” 

Depressions are commonly created in the course of construction for various reasons, 

including borrow pits, retention basins, architectural landscaping, diversion of storm 

water run-off, creation of water storage features, etc. Are these and similar depressions 

excluded if they were created in the course of constructing something other than a 

structure or a facility? It is also unclear whether the exclusion survives beyond the period 

of the actual construction activity.

AGC members are also concerned that the burden will fall to the regulated community to 

provide compelling evidence that an uneven surface area on the land (i.e., man-made wet 

area) first came about during a construction activity and should not be regulated. A 

failure to prove this fact would carry important regulatory implications that could 

significantly affect the utility and value of land, as well as the jurisdiction of state and 

federal agencies. Proving that a land depression was created by a construction operation 

will require historical information.

In many instances, a series of old maps and aerial photographs from different dates may 

provide the only opportunity to determine the origin of a particular wet area or water, in 

cases where there is some doubt as to whether or not they were man-made. Old maps 

may include topographic sheets, soil, geology, and land surveys. Even still, they may not 

be sufficient to identify small water bodies, wetlands, and wet soils, or, alternatively, to 

document their absence.

In an outreach meeting with AGC members, the agencies shared the opinion that general 

contractors would have “easy access” to topography maps and aerial photos to 

demonstrate the creation of “water-filled depressions incidental to construction” —

if/when any jurisdictional issues or challenges would arise. AGC disagrees and finds that 

the agencies are oversimplifying what it will take to demonstrate the presence or absence 

of water-filled depressions. Historically, topographic maps and aerial photographs have 

been useful in identifying well-defined areas with wetland characteristics (i.e., true 

wetlands). However, with the proposed rule and the strong potential for the inclusion of 

more isolated depressions, these tools lack the level of resolution required to make a 

proper determination. AGC members have shared reports of former construction, 

industrial, and logging sites where wetland plants have become established within areas 

as shallow as 3 to 4 inches (e.g., tire tracks, poor grading practices, and natural settlement 

of non-compacted areas) from the surrounding landscape. In many instances the wetland 

vegetation is sparse and often comingled with grasses, such as reed canary grass. This 

unique characteristic, in addition to the flat topography that is often associated with 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

214

water-filled depressions, make it nearly impossible to classify some areas using 

topographic maps and/or aerial photos. (p. 17-18)

Agency Response: See summary response above. The exclusion applies to 

excavations in dry land for obtaining fill, sand, or gravel. Also see summary 

responses at 7.3.2, 7.3.4, 7.4.2 and 7.4.4 regarding exclusions for certain artificial 

lakes and ponds, small ornamental waters and wastewater recycling and 

stormwater control features. It is the government’s burden to demonstrate that a 

water is jurisdictional. The rule does not change the agencies’ existing practice that 

these features could be found to be jurisdictional once the construction or mining 

activity is completed or abandoned and the water feature remains.

NAIOP Commercial Real Estate Development Association (Doc. #14621)

7.324 7. §328.3(b)(5)(v). Water-filled Depressions.

Routinely federal regulators, despite guidance in the preamble of the 1986 Final Rule, 

attempt to exert jurisdiction over features such as sediment traps, sediment basins, 

vegetated swales, and stormwater ponds (created for and during construction activities) 

when projects are delayed due to economic conditions (loss of funding, foreclosures, 

etc.). While higher level managers usually intercede, the delays and angst could be 

eliminated by providing more specific and clear language.

Therefore, we recommend that you replace: “Water-filled depressions created incidental 

to construction activity;” with the following subsection:

(v) Depressions that become water filled periodically or permanently with or without 

hydrophytic vegetation or hydric soils created incidental to construction or quarrying 

activity whether actively in use or abandoned. (p. 5)

Agency Response: See summary response above. Also see summary responses at 

7.3.2 and 7.4.4 regarding exclusions for certain settling basins and stormwater 

control features.

O'Neil LLP (Doc. #14651)

7.325 Other Needed Clarifications to the Rule Requiring Revision and Re-Circulation for 

Public Comment Before Adoption

Water-filled Depressions Created Incidental to Construction Activity

With regard to the Agencies' proposed exclusion from regulation for "water-filled 

depressions created incidental to construction activity," the Agencies should address the 

issue of agency alleged "abandonment" of the construction activity and whether there is a 

period of time after which such a feature would no longer qualify under the Rule as 

exempt from CWA regulation if the construction activity has, in fact, been abandoned. 

The Rule should be clear that a claim of "abandonment" by the Agencies should not be 

available unless the Agencies can show that all construction and project development 

activity has been abandoned for at least 10 years and that no efforts were being made 

during that time by any person to resume development activity on that project site. 

Providing a clear time frame, with a l0-year minimum period, would be important for 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

215

both the regulators and regulated public so that there is clarity for features that while 

clearly incidental to construction may have taken on wetland characteristics. (p. 5)

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that pits excavated in dry land for obtaining fill, sand, or 

gravel could be found to be jurisdictional once the construction or mining activity is 

completed or abandoned and the water feature remains.

Reclamation and Abandoned Mine Lands Divisions, Public Service Commission, North Dakota 

(Doc. #12857)

7.326 Many of the hazardous abandoned coal mines we reclaim hold water in final mine pits 

and in mine spoils. It's not clear if these areas would be considered 'water filled 

depressions created incidental to construction activity' which would be exempt from the 

proposed "waters of the United States" definition. We believe the rule needs to clarify 

that such areas are exempt. Otherwise, reclamation work to eliminate hazardous 

conditions will unnecessarily be subject to the lengthy Section 404 permitting process. (p. 

2)

Agency Response: See summary response above.

National Stone, Sand and Gravel Association (Doc. #14412)

7.327 NSSGA is pleased to see that EPA's website on the proposed rule excludes "water filled 

depressions excavated on dry land for the purposes of obtaining fill, sand or gravel" from 

jurisdiction. However, the rule does not expressly include this exclusion but simply refers 

in the preamble to exclusions found in the 1986 preamble. See 79 Fed. Reg. 22218. That 

preamble states the following "generally" will not be considered waters of the United 

States and therefore will not be subject to federal jurisdiction as follows:

Water-filled depressions created in dry land incidental to construction activity and 

pits excavated in dry land for the purpose of obtaining fill, sand, or gravel, unless 

and until the construction or excavation operation is abandoned and the resulting 

body of water meets the definition of waters of the United States.

The jurisdictional status of water bodies incidentally created at the site of aggregate 

mining and production facilities as part of normal mining, processing and reclamation is 

of particular importance to NSSGA members. Aggregate operations often create open 

depressions at mining sites that serve as sediment catch basins and areas that direct 

drainage from the surrounding site so as not to fill the active mining area with water. 

Indeed, the excavation of dry land areas creates the majority of sand pit lakes. As 

excavation commences, water fills the pit. This is due, in large part, to the high water 

table where many companies operate. Not only should the exclusion be in the text of the 

rule, the exclusion should be clear that sites undergoing active reclamation under state 

law have not been "abandoned.” (p. 49-50)

Agency Response: See summary response above. The exclusion applies to 

excavations in dry land for obtaining fill, sand, or gravel. The rule does not alter 

the agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

216

7.328 A. The Rule must clarify that a mining site is not "abandoned" after active mining 

activities cease if the site is still undergoing reclamation activities under State law, and/or 

where an operator can demonstrate that economic conditions resulted in delays in 

completing mining activities.

For many companies, reclamation under state law continues well past cessation of active 

mining operations and the mine site is not considered abandoned under state reclamation 

programs.148 Yet, the interpretation of "abandonment" has never been clarified under this 

exclusion to include sites undergoing reclamation. Since the institution of the 404 

program, controversy has often arisen as to the jurisdictional status of this incidentally 

created water/wetland where a site is still undergoing reclamation under state law.149

NSSGA submits that a site is "not abandoned" if it is still undergoing the reclamation 

process under state law... (p. 50)

Agency Response: See summary response above. The rule does not change the 

agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.

Lyman-Richey Corporation (Doc. #14420)

7.329 Clarifying the Exemption for Active Sand and Gravel Operations

The Guidance presently explains that the following "generally" will hot be considered 

waters of the United States and therefore will not be subject to federal jurisdiction:

Water-filled depressions created in dry land incidental to construction activity and 

pits excavated in dry land for the purpose of obtaining fill, sand, or gravel, unless 

and until the construction or excavation operation is abandoned and the resulting 

body of Water meets the definition of waters of the United States.

Lyman-Richey supports this interpretation, as the majority of sand pit lakes are excavated 

from dryland areas. As excavation commences, water fills the pit. This is due, in large 

part, to the high water table in which Lyman-Richey operates its mining activities. But 

for Lyman-Richey's activities, these pits would not contain any water, much less water 

subject to federal jurisdiction.

Confusion can arise in cases when an active sand and gravel operation expands and 

incorporates an existing wetland or when a small tributary is "mined through" to access 

 

148 Under Cal. Law a mining operations cannot commence without an approved reclamation plan and that plan must 

include a description of how "mining water will be disposed" Cal. Pub. Resources Code §2770(a) and (c) (8) (A). A 

number of other western states require reclamation as part of a mining operation. See Alaska Stat. §27.19.020; Ariz. 

Rev. Stat. §27-921; Mont. Code §82-4-336; Or. Rev. Stat. §517.750; Wash. Rev. Code §78.44.111. In all, at least 37 

states regulate non-coal surface mining on a statewide basis, 35 states require some sort of bond or security from the 

operator, and at least 26 states provide for public comment at permit review. Available at 

http://nssga.org/communications/whoweare.cfm.

149 In Northern Cal. River Watch v. City of Healdsburg, 496 F. 3d. 9931002 (9th Cir) (2007), the corps 

determination that a waste pond had not been abandoned because reclamation activities under state law were still 

underway was overturned by the district court. The Ninth Circuit affirmed holding that the excavation operation 

exemption applies not to ponds undergoing actual extraction."
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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additional upland ground on the other side of the tributary. To be clear, no waste sand is 

placed into the wetland or tributary in these cases, and therefore, there is no discharge in 

violation of Clean Water Act § 404.

Nevertheless, we are aware of instances in which the Corps has asserted jurisdiction over 

an entire mining pit once either circumstance occurs. The Corps apparently relies on 33 

C.F.R. § 328.5 for this jurisdictional assertion, However, this provision only applies to 

permanent changes in the shoreline configuration of the relevant waters, But, this 

regulation should not apply as long as the pit in question is clearly being mined because 

the change is by definition transient.

The agency's assertion of jurisdiction over an entire pit adversely affects ongoing 

operations not otherwise subject to Clean Water Act § 404 by precluding the discharge of 

any process waste sand back into the pit, which is the common industry practice. The 

only viable solution is to deposit all process waste sand onto upland ground. Depending 

on the operation in question, it is possible that no available upland ground exists. And, in 

each case, large upland waste sand deposits can present a nuisance to surrounding 

communities as the sand is exposed to wind and other elements over time. In addition, 

many times, all operation is occurring in a floodway, so depositing waste S31ld upland 

might violate other federal regulations, and the waste sand could not stay upland.

Finally, some consideration should be given to the typical life cycle of a sand and gravel 

pit. Most mining sites are excavated from upland areas located within a floodplain and/or 

floodway. The upland ground is dug out, and the pit fills with water from the surrounding 

groundwater table. The aggregates are removed with a suction dredge, and process waste 

sand is deposited directly back into the pit along the edges of the water. This usually 

results in substantial habitat creation for many species including threatened and 

endangered species. Indeed, in some case, such as interior least terns and piping plovers, 

sand and gravel pits often represent the best remaining habitat available in certain areas. 

See, e.g., Bomberger Brown and Jorgensen, 2010 Interior Least Tern and Piping Plover 

Monitoring, Research, Management, and Outreach Report/at the Lower Platte River, 

Nebraska. Thus, the Guidance should not create any disincentive toward the creation of 

these sensitive areas.

For these reasons, the agencies should make clear in the Guidance that no discharges of 

process waste sand within an active milling pit, when made incident to active sand and 

gravel operations, will be considered subject to Clean Water Act jurisdiction. At a 

minimum, the agencies should explain and define the concept of abandonment (and the 

corollary of permanent change in 33 C.F.R. § 328.5). Lyman-Richey recommends the 

term require a cessation of all active mining operations for a period of five or more years 

without any intent to reinitiate operations... (p. 13-14)

Agency Response: See Summary response above. The exclusion applies to 

excavations in dry land for obtaining fill, sand, or gravel. The rule does not alter 

the agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #14619)

7.330 C. The Agencies Should Clarify That "Old Works" Are Not Jurisdictional

"Old works" are excavations and depressions left from historic mining activities 

conducted prior to the passage of the CWA and SMCRA. These features are generally 

considered non-jurisdictional and are reclaimed according to current SMCRA regulatory 

requirements. Nearly 80% of all surface mining conducted in Virginia involves remining; 

thus, these features are encountered at the majority of mine sites in the SVC. Active 

mining operations in the SVC utilize these "old works" - pre-law relic drainage ditches 

and depressions that have filled with water over time - for drainage and sediment basins, 

slurry impoundments and other operational purposes. Mining operations also frequently 

cross over and impact these features.

For the most part, these "old works" have remained outside of CWA jurisdiction under 

the exemption for "water-filled depressions created incidental to construction activity." 

But the Proposal threatens to erode or eliminate the applicability of this exemption to old 

works. We urge the Agencies to clarify that old works are not jurisdictional, either 

categorically or otherwise. (p. 7)

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.331 Exemption for “Water-Filled Depressions Created Incidental To Construction 

Activity” (122.2(b) (5) (v))

This exemption exists in the current regulations and there is not further discussion or 

explanation in the proposal. While the exemption is not limited in time it has sometimes 

been interpreted as applying only while construction activity is ongoing. That 

interpretation is inconsistent with the plain language of the exemption, and it also is 

inconsistent with the rationale for the exemption. First of all, an exemption that only 

applies while construction activity was underway would be of little value. Only once 

construction is completed will the full extent of any such water-filled depressions created 

by the construction activity be known. A water-filled depression that is formed either by 

excavation associated with construction activity or by the creation of an area that is 

poorly drained or not drained at all due to changes in land contours and drainage resulting 

from construction activity, is certainly not a traditional navigable water, nor does its 

existence have a significant effect on traditional navigable waters. Just as importantly, 

little or no regulatory benefit would result from treating such depressions as WOTUS 

subject to CWA permitting and water quality regulations. Domtar suggest the agencies 

clarify in any final rule that this exemption is not limited to only the duration of the 

construction activity. The agencies also need to clarify that a depression excavated as a 

source of soil, sand, gravel, etc. to be used in the construction falls within the notion of 

“incidental to construction activity.” Again, these depressions are fundamentally different 

from, and do not warrant application of the same regulatory requirements as, other, 

natural surface water bodies. (p. 14)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

219

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains. The exclusion applies to excavations in dry land for obtaining fill, 

sand, or gravel.

Valero Companies (Doc. #15363)

7.332 All of these definitional sections that outline exemptions from “Waters of the United 

States” contain language similar to the following:

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;

Water-filled depressions created incidental to construction activity;

Waters meeting these limitations would not be considered “jurisdictional” under the 

CWA. Regardless of the Agencies final action regarding definitions of “Waters of the 

United States”, the Agencies should expand, amplify, or otherwise provide clarity 

regarding circumstances waters are:

1. Collected in ponds and used for fire control/suppression (i.e. “fire water 

ponds”)

2. Water that has collected and stands within storage tank containment dikes

The proposed definition of “Waters of the United States” does not specifically mention 

such waters as being jurisdictional. However, the exemptions from the definition of 

“Waters of the United States” in all of the citations above are sufficiently unclear as to 

exempting these two circumstances that, under the proposed definitions, there is 

significant risk that fire water ponds and water ponding in storage tank containment dikes 

would, in fact, be construed as jurisdiction. We strongly urge the Agencies to revise the 

exemption language cited above to specifically cite our concerns as non-jurisdictional. 

The language regarding “artificial lakes and ponds” should be broadened beyond those 

activities currently listed and include “fire-water ponds”.

Additionally, the “water-filled depression” language should be broadened in a way that 

makes clear this exclusion applies for as long as a depression exists and continues to 

apply irrespective of whether it is “water-filled” at all times or whether a condition of 

“construction” ceases to exist. Depressions created incidental to construction activity may 

continue to exist, by design or happenstance, for indefinite periods – even beyond the life 

of the structure or facility with which their creation originally was associated. Earthen 

dikes around storage tanks often accumulate rain water for periods of time, particularly in 

areas of heavy rainfall. There is no justification for the exclusion to cease operating due 

to subsequent events. Moreover, a depression may well be water-filled during wet periods 

and virtually empty during dry periods. The exclusion should apply so long as such 

depression occasionally retains water. (p. 2-3)

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that these features could be found to be jurisdictional 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

220

once the construction or mining activity is completed or abandoned and the water 

feature remains. See summary response at 7.3.2 with regard to fire control ponds.

North Carolina Farm Bureau Federation (Doc. #15078)

7.333 Why are only "water filled depressions created incidental to construction activities" 

excluded, but not those created by farm or forestry equipment? All water filled 

depressions created incidental to activities such as construction, farming, forestry and 

such should be excluded. (p. 16)

Agency Response: See summary response above.

Oglethorpe Power Corporation (Doc. #14618)

7.334 Oglethorpe Power generally agrees with the exclusions provided within the Proposed 

Rule, but believes the exclusions should be broader and that the Proposed Rule fails to 

provide requisite specificity in regard to the application of the exclusions. For instance, 

the Proposed Rule excludes from the CWA's jurisdiction "water-filled depressions 

created incidental to construction activity," but fails to define key terms, including 

"incidental to" and "construction activity." The exclusion also does not indicate which 

types of water-filled depressions are excluded (if not all). Oglethorpe Power seeks 

clarification regarding the following question:

• Would a water-filled retention or detention pond built during the construction 

of a facility and for the purpose of collecting storm water runoff constitute a 

"water-filled depression created incidental to construction activity," such that 

the pond would be excluded from the meaning of "waters of the United 

States"? Does the answer remain the same if the facility's construction has 

been completed? (p. 3)

Agency Response: See Summary response above. The rule does not alter the 

agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains. The final rule also excludes stormwater control features created in 

dry land.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.335 C. THE AGENCIES SHOULD CLARIFY THE EXCLUSION FOR WATERFILLED DEPRESSIONS FROM CONSTRUCTION.

The Agencies should clarify their exclusion for “water-filled depressions created

incidental to construction activity.” First, the Agencies should define the terms 

“depression” and “incidental to construction activity.”150 Specifically, the Agencies 

should clarify that such “incidental” depressions includes intentionally-created features 

like temporary erosion ponds, and are not limited to inadvertent features like depressions 

created by construction equipment. Second, the Agencies should clarify that there is no 

 

150 Proposed Rule, 79 Fed. Reg. at 22,263.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

221

time limit following construction of such artificially created water-filled depressions to 

qualify for this exclusion.

While the Proposed Rule retains the exclusion for “water-filled depressions created

incidental to construction activity,” it eliminates the exclusion for “pits excavated in dry 

land for the purpose of obtaining fill, sand or gravel unless and until the construction or 

excavation operation is abandoned and the resulting body of water meets the definition of 

waters of the United States.”151 The WWG understands that “pits excavated in dry land” 

typically refer to mining lakes.152 The Agencies should revise the Proposed Rule to 

explain their reasons for eliminating this exclusion. (p. 27)

Agency Response: See summary response above. Also see summary response at 

7.4.4 with regard to the exclusion for certain stormwater control features. The 

exclusion applies to pits excavated in dry land for obtaining fill, sand, or gravel. 

The rule does not alter the agencies’ existing practice that these features could be 

found to be jurisdictional once the construction or mining activity is completed or 

abandoned and the water feature remains.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

7.336 VI. Unanswered Questions

Despite the proposal’s stated objective to add clarity to the regulatory process, the 

proposal in fact creates great confusion and uncertainty...issues that must be addressed, 

through clarification and in the context of an ongoing dialogue amongst stakeholders, 

include:

...

 How will the agencies treat water-filled depressions that are incidental to “other 

than” construction activity;

...

 How will the agency treat construction detention ponds that ultimately drain to 

navigable waters;... (p. 6-7)

Agency Response: See summary response above. Also see summary response at 

7.4.4 with regard to stormwater control features.

Southern Environmental Law Center et al. (Doc. #13610)

7.337 This exemption should be removed. In major construction projects such as interstate 

highways, extremely large borrow pits are dug with the express purpose of turning these 

 

151 EPA, Draft Guidance on Identifying Waters Protected by the Clean Water Act 20-21 (Apr. 2011), available at

http://www.epa.gov/tp/pdf/wous_guidance_4-2011.pdf.

152 Under the Proposed Rule, it appears that even if an active mining lake lacks a surface-water connection to 

traditionally navigable waters, or tributaries to such traditionally navigable waters, it is possible the mining lake 

would be jurisdictional as “adjacent” waters if it has a “shallow subsurface hydrologic connection to such a 

jurisdictional water.” Proposed Rule, 79 Fed. Reg. at 22,208. Thus, it appears that under the Proposed Rule, 

discharges into active mining lakes would likely require a CWA permit.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

222

“waterfilled depressions” into lake-front property. Under this exemption such amenity 

lakes would not be subject to regulation in the future. This would be a mistake. Other 

constructed depressions turn into wetlands over time and are often connected with 

jurisdictional waters. Again, cutting such waters off from any future protections would be 

a mistake. (p. 42)

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.

Stormwater Management Commission, Lake County, Illinois (Doc. #15381)

7.338 We recommend clarifying the exclusion related to water-filled depressions in 

§328.3(b)(5)(v) to include a timeframe for this exclusion (e.g., abandoned for the past 5 

years). (p. 2)

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that these features could be found to be jurisdictional 

once the construction or mining activity is completed or abandoned and the water 

feature remains.

WaterLegacy (Doc. #18017)

7.339 Permanent Mine Pit Lakes

Mine pit lakes, which are allowed to be created in a natural landscape may become 

extensive permanent waters that are functionally indistinguishable from a contaminated 

natural lake in terms of impacts on birds, wildlife, and hydrological interaction with 

nearby waters. Such mine pits should be regulated as waters of the U.S. WaterLegacy 

proposes language clarifying that mine pit lakes are not exempt from consideration as 

“waters of the United States.” We request a change from EPA’s proposed rule 40 

C.F.R.§230.03(t) as follows:

(t) The following are not “waters of the United States,” notwithstanding whether 

they meet the terms of paragraphs (s)(1) through (7) of this section—

. . .

(5). . .(v) Temporary W water-filled depressions, created incidental to 

construction activity, not including mine pit lakes; (p. 3)

Agency Response: See summary response above.

O'Neil LLP (Doc. #16559)

7.340 Water-filled Depressions Created Incidental to Construction Activity

With regard to the Agencies' proposed exclusion from regulation for "water-filled 

depressions created incidental to construction activity," the Agencies should address the 

issue of agency alleged "abandonment" of the construction activity and whether there is a 

period of time after which such a feature would no longer qualify under the Rule as 

exempt from CWA regulation if the construction activity has, in fact, been abandoned. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

223

The Rule should be clear that a claim of "abandonment" by the Agencies should not be 

available unless the Agencies can show that all construction and project development 

activity has been abandoned for at least 10 years and that no efforts were being made 

during that time by any person to resume development activity on that project site. 

Providing a clear time frame, with a 10-year minimum period, would be important for 

both the regulators and regulated public so that there is clarity for features that while 

clearly incidental to construction may have taken on wetland characteristics. (p. 7)

Agency Response: See summary response above. The rule does not alter the 

agencies’ existing practice that pits excavated in dry land for obtaining fill, sand, or 

gravel could be found to be jurisdictional once the construction or mining activity is 

completed or abandoned and the water feature remains.

Robert J. Goldstein & Associates (Doc. #16577)

7.341 5) Depressions created incidental to construction: As discussed in #4 above, this 

exclusion should be restricted to depressions created incidentally in non-wetlands only. 

(p. 2)

Agency Response: See summary response above. The exclusion applies only to 

water-filled depressions created in dry land.

7.3.6. Groundwater, including Groundwater Drained through Subsurface Drainage Systems

Summary Response

The agencies have consistently interpreted the Clean Water Act to exclude shallow or deep 

groundwater from the geographic scope of the waters of the United States. The final rule 

continues to exclude shallow subsurface water and groundwater, including groundwater drained 

through subsurface drainage systems. This decision reflects current agencies’ practice and 

provides greater clarity.

Many of the commenters were unclear from the proposed rule whether all groundwater is 

excluded including subsurface drainage systems and shallow subsurface connections. A few 

commenters questioned whether groundwater pumped through surface drainage ditches or into a 

pond/reservoir would be excluded and whether a tributary that disappears underground remains a 

“water of the United States” while underground.

Many commenters supported excluding all groundwater since that has been the historical 

interpretation, and stated that groundwater is currently regulated by states and tribes and should 

remain their jurisdiction. Many other commenters argued that the rule should not exclude 

groundwater because of its intrinsic connection with surface water and stated that groundwater 

often has closer hydrological connections to traditionally navigable waters than do jurisdictional 

tributaries and adjacent waters. They argued that no other rule fully protects groundwater and 

that groundwater supports ecologically important water including spring-fed and groundwaterfed streams. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

224

The final rule continues to identify as excluded “Groundwater, including groundwater drained 

through subsurface drainage systems” reflecting the agencies’ interpretation of “waters of the 

United States.” This exclusion applies to all groundwater, including shallow subsurface flow. 

Nothing in this rule limits or impedes any existing or future state or tribal efforts to further 

protect their waters. As many commenters pointed out the close connection of groundwater with 

surface water, this exclusion does not apply when groundwater emerges on the surface, 

contributing surface flow to streams and spring-fed waters. At this point, when groundwater 

emerges on the surface, it is surface water, and the resulting water feature is potentially regulated 

under the Clean Water Act. With this understanding, once groundwater is pumped into surface 

drainage ditches or into a pond/reservoir, the surface feature itself could be subject to 

jurisdiction. In the reverse, when a covered tributary has a segment that disappears underground 

that segment is not a “water of the United States.” However, the covered tributary itself remains 

a “water of the United States” (see discussion in tributary compendium (topic 8) on breaks in 

OHWM). The extent of groundwater protection in other rules is beyond the scope of this 

rulemaking.

Some commenters questioned the use of subsurface hydrologic connections to establish 

jurisdiction when groundwater is excluded from the rule. A few comments requested specific 

limits on shallow groundwater connection distance, rate of groundwater flow, volume of 

groundwater flow, groundwater depth and or other hydrologic information to be used to establish 

jurisdiction. A few commenters supported the use of shallow subsurface/ groundwater as an 

avenue to document significant nexus including the use of subsurface drainage systems as a 

connection to establish jurisdiction to a wetland.

It is important to note the discussion in the rule preamble that while exclusions are not “waters of 

the United States,” they can serve as a hydrologic, nonjurisdictional connection that agencies 

would consider when making case-specific significant nexus determinations. The agencies’ 

decision is consistent with the law and current practice. For example, the agencies’ 2008 

Rapanos guidance states, “Under this definition, the agencies consider wetlands adjacent if one 

of following three criteria is satisfied. First, there is an unbroken surface or shallow sub-surface 

connection to jurisdictional waters. This hydrologic connection may be intermittent.” In addition, 

the science strongly supports the important role shallow subsurface connections can play when 

assessing the effects of surface waters, and it is appropriate to consider them in a significant 

nexus determination. See Technical Support Document Sections II and IX. There is no basis in 

the statute or caselaw to ignore the significant effects a water has downstream waters simply 

because the connection exists through a non-jurisdictional feature. The agencies have made 

determinations since the Rapanos guidance which established jurisdiction using shallow 

subsurface hydrologic connections for adjacency. The preamble identifies a shallow subsurface 

hydrologic connection as lateral water flow over a restricting layer in the top soil horizons, or a 

shallow water table which fluctuates within the soil profile, sometimes rising to or near the 

ground surface but moving quickly through the soil impacting surface water directly within 

hours or days. See also the Technical Support Document, Section IX. Therefore, the agencies 

will continue the current practice of considering whether subsurface connections contribute to 

the type and strength of functions provided by a water or similarly situated waters when making 

a case-specific significant nexus determination. See topic 5 (Significant Nexus). 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

225

Several commenters cited to Hawai’i Wildlife Fund v. County of Maui to argue the agencies 

should include groundwater as “waters of the United States.” The court there held that 

groundwater was a “conduit” through which pollutants were being discharged into the ocean, 

requiring an NPDES permit. This finding is consistent with agency interpretation that discharges 

of pollutants to “waters of the United States” via groundwater with a direct hydrologic 

connection to surface waters are subject to the CWA. See Concentrated Animal Feeding 

Operation Proposed Rule, 66 FR 2960, 3015 (Jan. 12, 2001). The exclusion for groundwater in 

the rule does not affect this longstanding interpretation as the agency has never considered the 

groundwater itself to be a “water of the United States.” While the court analyzed whether a 

discharge of pollutant into groundwater itself would require a permit, the court acknowledged the 

agencies’ interpretation, including citing to the proposed rule. The court further acknowledged 

that if the agencies promulgated a final rule that reflected their interpretation, it would be entitled 

to Chevron deference. 

Specific Comments

Region 10 Tribal Caucus (Doc. #14927)

7.342 ...EPA’s proposed categorical exclusion of groundwater will leave ecologically 

important waters unprotected. The rule appears to be inconsistent with EPA’s 

longstanding and consistent interpretation that the CWA may cover discharges of 

pollutants from a point source to surface water that occur via groundwater that has a 

direct hydrologic connection to the surface water. 

The Tribal Caucus believes that the exclusion of groundwater, particularly the exclusion 

of “groundwater, including groundwater drained through subsurface drainage systems” 

from the definition of “Other Waters” should be revised to include, rather than exclude 

such waters. Groundwater is often hydrologically connected to navigable waters to the 

same extent, if not more, in some cases then waters that the rule has included in the 

definition. (p. 3)

Agency Response: See summary response above. Based on longstanding legal 

interpretation and current practice the agencies disagreed with the request to 

include groundwater as a water of the United States and retained groundwater as a 

categorical exclusion from the definition. However, the agencies agreed that 

subsurface connections can serve as a hydrologic, nonjurisdictional connection that 

agencies will consider when making case-specific significant nexus determinations. 

U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

7.343 Nancy Stoner recently claimed that this rule does not regulate groundwater. Does the 

Clean Water Act give the EPA jurisdiction over groundwater?

a. Please provide a detailed legal rationale and any supporting examples or precedent.

b. If it does not, then does EPA use "ground water" as a means of establishing a 

"connection?" Please provide a detailed legal rationale and any supporting examples or 

precedent. (p. 7)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

226

waters of the United States. The agencies have clarified that subsurface connections

can serve as a non-jurisdictional hydrologic connection that agencies would consider 

when making case-specific significant nexus determinations. 

State of Idaho (Doc. #9834)

7.344 2. Ground Water

"Waters of the United States" under the CWA do not include ground water. Idaho 

appreciates the Proposed Rule's specific exclusion of "ground water, including ground 

water drained through subsurface drainage systems." However, the Proposed Rule's use 

of "shallow subsurface hydrologic connections" to establish jurisdiction of adjacent 

surface waters is less clear even though the preamble states that "nothing ... would cause 

the shallow subsurface connections themselves to become jurisdictional."

The preamble language clarification should be included in the Proposed Rule itself to 

avoid misinterpretations and confusion about the EPA and Corps' intent and the 

jurisdictional status of such waters. Idaho requests the ground water exclusion in section 

40 CFR 328.3(b)(5)(vi) of the rule be amended to state as follows:

"Ground water, including but not limited to ground water drained through 

subsurface drainage systems and shallow subsurface hydrologic connections 

between adjacent surface waters under this section" (changes in italics). (p. 4-5)

Agency Response: See summary response above. The agencies in the final rule 

preamble clearly state, “neither shallow subsurface connections nor any type of 

groundwater, shallow or deep, are themselves ‘waters of the United States’.” The 

agencies disagree that a change to the rule language was necessary.

State of Oklahoma (Doc. #14625)

7.345 a. Jurisdiction over subsurface flows, a.k.a. "groundwater"

Of great significance to Oklahoma, the proposed rule does not go far enough to ensure 

that Oklahoma's groundwater is off limits. While I appreciate that EPA and the Corps 

have added a specific statement in the proposed rule that excludes groundwater, they 

continue to say that shallow subsurface flows could be used to establish jurisdictional 

nexus. In Oklahoma, any subsurface water, no matter how shallow, is considered 

groundwater and thus belongs to private property owners subject only to reasonable 

regulation by the state. As a practical matter, it's hard to fathom how CWA regulations 

can be effectively applied to distinct surface waters connected only through subsurface 

waters without ultimately expanding jurisdiction over the property owner's groundwater 

resource. Any regulation of subsurface flows, or other water under the surface, would be 

a severe encroachment on the private property rights of Oklahoma landowners. (p. 11)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States. The final rule continues to provide an explicit exclusion 

for groundwater, including groundwater drained through subsurface drainage 

systems, and the final rule preamble explicitly states that neither shallow subsurface 

connections nor any type of groundwater, shallow or deep, are ever jurisdictional.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

227

North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

7.346 In the proposed rule, groundwater remains exempt from jurisdiction. However, a shallow 

groundwater connection is proposed to be a factor in determining whether a significant 

nexus exists. The proposed rule does not place any limits on distance, rate of groundwater 

flow, volume of groundwater flow, or any other hydrologic information needed to 

determine whether or not a water body has a significant connection to a navigable water.

Groundwater should be removed from the proposed rule as a tool to determine whether or 

not a significant nexus is present. If groundwater remains in the rule as a significant 

nexus test, specific limits must be enacted to enable consistent determinations of 

jurisdiction. (p. 4)

Agency Response: The science strongly supports the important role subsurface 

connections can play when assessing the effects of surface waters, and it is 

appropriate to consider them in a significant nexus determination. See Technical 

Support Document sections II and IX. Because subsurface connections can vary 

based on geography, topography, and soil type, among other factors, the agencies 

did not identify specific limitations, but rather to allow these hydrologic connections 

to be assessed appropriately for the individual water. In terms of limits, the agencies 

note that case-specific determinations, and thus consideration of subsurface flow, 

are limited to two narrow classes of waters identified in paragraphs (a)(7) and (a)(8) 

of the final rule. See Section IV.H of the preamble.

Wisconsin Department of Natural Resource (Doc. #15141)

7.347 ...the agencies should consider adding language to the exception for groundwater to 

clarify the intent of the exception. If a subsurface drainage system was installed to drain a 

wetland or other aquatic resource, but is not effectively draining that wetland, then that 

wetland or aquatic resource should still be regulated under the Clean Water Act. The 

department suggests adding the following language, which is underlined,

"(vi) groundwater, including groundwater drained through subsurface drainage 

systems. If a subsurface drainage system is not effectively draining a wetland or 

aquatic resource, the wetland or aquatic resource remains a waters of the United 

States and activities to repair or enhance subsurface drainage may require 

approval under Section 404 of the Clean Water Act. (p. 3)

Agency Response: Section IV.H of the preamble clarifies that shallow subsurface 

connections, including subsurface drainage systems, are a factor in case-specific 

significant nexus analyses.

Los Angeles Department of Water and Power (Doc. #15238)

7.348 ...the Agencies' proposed approach seemingly allows for groundwater to be 

inappropriately regulated as a tributary. The Agencies affirm in the preamble that they 

"have never interpreted 'waters of the United States ' to include groundwater and the 

proposed rule explicitly excludes groundwater, including groundwater drained through 

subsurface drainage systems"." LADWP supports the Agencies' exclusion of groundwater 

from the definition of WOUS, and seeks clarification in the final rule that groundwater 

will not be regulated. Groundwater should remain as a Water of the State, regardless of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

228

its source. However, it can be interpreted under the newly proposed rule that groundwater 

is a tributary water.

Considering the above, LADWP suggests that the Agencies clarify the language as 

follows:

...

 Groundwater should remain as Water of the State and exempt from the definition 

of the WOUS, regardless of its source;

 Ephemeral streams: due to their nature, dry for some seasons and wet others, 

should not be deemed WOUS, but only Waters of the State, similar to 

groundwater;

 Dry Lake beds should be excluded from WOUS, since most are isolated and do 

not have a significant nexus to a WOUS; and

 Off-site storage and/or man-made impoundments related to hydroelectric facilities 

are only created for the operations of the plant, and should not be defined as 

WOUS. (p. 3-4)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States.

Information on the following comments can be found in other sections: ephemeral 

stream status see topic 8 (Tributary); dry lake beds see topics 4 (Other Waters) and 

5 (Significant Nexus); hydroelectric facility man-made impoundments see Section 

7.3.2 and topic 2.4 (Impoundments).

New Mexico Environment Department (Doc. # 16552)

7.349 Exclusions from Jurisdictional Determinations are Unclear

In reviewing the proposed rule's exemptions, several clarifications related to the 

exemptions are needed to avoid conflict with other portions of the proposed rule. For 

example, it is unclear why the exemption for groundwater has the proposed language 

"including groundwater drained through subsurface drainage systems." 79 Fed. Reg. 

22,180, 22,199. The Department asserts that all groundwater drains through subsurface 

drainage systems, and as such, the exemption suggests that some groundwater(s) might 

not be excluded. Although the Department presumes that this language was intended to 

clarify that water collected through agricultural tile drains is excluded, as written it only 

adds ambiguity and confusion. The Department requests that the Agencies clarify this 

exemption. (p. 12)

Agency Response: The agencies believe the rule is clear and have added specific 

language to the preamble that neither shallow subsurface connection nor any type of 

groundwater are jurisdictional. See summary response above.

State of Oklahoma, et al. (Doc. # 16560)

7.350 VII. Exempt Groundwater, Including Subsurface Hydrologic Connections 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

229

As noted particularly in the preamble to the draft WOTUS rule, groundwater is outside 

the reach and scope of the CWA. In fact, it's a great example of an equally important 

source of freshwater for our citizens and industries that is well protected and managed 

solely within the purview of States. We appreciate the proposed rule's exclusion of 

groundwater, both in the preamble and now in the regulatory text, including the 

exemption of "groundwater drained through subsurface drainage systems." Still, given 

the proposed rule's use of "shallow subsurface hydrologic connections" as a possible 

means to establish jurisdiction, we believe the regulatory exemption should be extended 

to cover such shallow subsurface water. In Oklahoma and a number of other states, any 

water under the surface, no matter how shallow, is groundwater and is a property right of 

the overlying landowner. While the discussion in the preamble states that subsurface 

hydrologic connections will not become jurisdictional themselves, we remain concerned 

about the fact that preamble language often becomes unplugged from the regulatory 

language upon final codification in the CFR. Accordingly, we propose that the 

groundwater exclusion in paragraph (t)(5) (vi) of the proposed rule be amended as 

follows:

"Groundwater, including but not limited to groundwater drained through subsurface 

drainage systems and shallow subsurface hydrologic connections used to establish 

jurisdiction between surface waters under this section."(proposed changes underlined) (p. 

5)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States. The final rule continues to provide an explicit exclusion 

for groundwater, including groundwater drained through subsurface drainage 

systems, and final rule preamble explicitly states that neither shallow subsurface 

connections nor any type of groundwater, shallow or deep, are jurisdictional. 

State of Idaho (Doc. # 16597)

7.351 2. Ground Water

"Waters of the United States" under the CWA do not include ground water. Idaho 

appreciates the Proposed Rule's specific exclusion of "ground water, including 

groundwater drained through subsurface drainage systems." However, the Proposed 

Rule's use of "shallow subsurface hydrologic connections" to establish jurisdiction of 

adjacent surface waters is less clear even though the preamble states that "nothing ... 

would cause the shallow subsurface connections themselves to become jurisdictional." 

The preamble language clarification should be included in the Proposed Rule itself to 

avoid misinterpretations and confusion about the EPA and Corps' intent and the 

jurisdictional status of such waters. Idaho requests the ground water exclusion in section 

40 CFR 328.3(b)(5)(vi) of the rule be amended to state as follows: "Ground water, 

including but not limited to ground water drained through subsurface drainage systems 

and shallow subsurface hydrologic connections between adjacent surface water-s under 

this section" (changes in italics). (p. 4-5)

Agency Response: See summary response above. The agencies in the final rule 

preamble clearly state, “neither shallow subsurface connections nor any type of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

230

groundwater, shallow or deep, are themselves ‘waters of the United States’.” The 

agencies disagree that a change to the rule language was necessary. 

Office of the Governor, State of Montana (Doc. # 16694)

7.352 However, when the rules are codified, the preamble language regarding shallow 

subsurface hydrologic connections will not be codified with them, leading to possible 

misinterpretations and confusion about your agencies' intent and the jurisdictional status 

of such waters. Therefore, the State of Montana requests that the groundwater exclusion 

in section 40 CFR 230.3(t)(5)(vi) of the rule be amended to restate the intent of the 

language in the preamble that "nothing...would cause the shallow subsurface connections 

themselves to become jurisdictional." (p. 5)

Agency Response: The agencies believe the rule is clear and have added specific 

language to the preamble that neither shallow subsurface connection nor any type of 

groundwater are jurisdictional. The agencies disagree there will be confusion on 

this point. See summary response above.

State of Nevada, Department of Conservation, et al. (Doc. # 16932)

7.353 V. Categorical Exclusions

We appreciate EPA’s attempt to clarify the categorical exclusion of certain types of 

waters. Of fundamental importance are exclusions for ground water and exemptions for 

agricultural activities. The CWA was not intended to be applied to the management of 

ground water. While we applaud the Proposed Rule’s exclusion of ground water, the 

issue becomes blurred when shallow subsurface hydrologic connections are used to 

establish jurisdiction between surface waters. This opens the door to interpretation and 

argument for extension of CWA jurisdiction to groundwater resources.

Ground water should not be part of the CWA, and EPA should follow a more legally 

defensible path as described in the last section, where a clear surface connection is 

required rather than a link through ground water. 

The State agrees with Western States Water Council (WSWC) that the groundwater 

exclusion in paragraph (t)(5)(vi) of the Proposed Rule should be amended to state as 

follows:

“Groundwater, including but not limited to groundwater drained through subsurface 

drainage systems and shallow subsurface hydrologic connections used to establish 

jurisdiction between surface waters under this section” (changes in italics). (p. 5)

Agency Response: See summary response above. The agencies agree that 

groundwater is excluded from the CWA and the rule and preamble are very clear 

on this point; however, the science strongly supports the important role subsurface 

connections can play when assessing the effects of surface waters, and it is 

appropriate to consider them in a significant nexus determination. See Technical 

Support Document sections II and IX. 

State of Alaska (Doc. # 19465)

7.354 1. Groundwater
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231

The regulatory reach of the CWA was not intended to be applied to the management and 

protection of groundwater. As such, the State appreciates the rule’s exclusion of 

“groundwater, including groundwater drained through subsurface drainage systems.”153

Given the rule’s use of “shallow subsurface hydrologic connections” to establish 

jurisdiction between surface waters, the State also appreciates the preamble’s statement 

that “nothing...would cause the shallow subsurface hydrologic connections themselves to 

become jurisdictional.”154

However, once codified, the preamble language regarding shallow subsurface hydrologic 

connections will not be published in the Code of Federal Regulations, leading to possible 

misinterpretations and confusion about your agencies’ intent and the jurisdictional status 

of such waters. Therefore, the State requests that the groundwater exclusion in section 

(t)(5)(vi) of the rule be amended to state as follows:

“Groundwater, including but not limited to groundwater drained through 

subsurface drainage systems and shallow subsurface hydrologic connections used 

to establish jurisdiction between surface waters under this section” (changes in 

italics).

Further, while EPA states it would not regulate the land on which “shallow subsurface 

water” flows, the practical effect would be to regulate both those groundwaters and the 

land on which they rest because it accommodates the flow, and it makes remotely 

connected waters jurisdictional when there may be no significant connection. Simply put, 

the CWA does not provide the federal agencies legal authority to use shallow-subsurface 

waters that are groundwaters regulated by the states as a means to assert CWA 

jurisdiction over waters not directly connected to downstream navigable waters. (p. 31)

Agency Response: See summary response above. The agencies agree that 

groundwater is excluded from the CWA and the rule and preamble are clear on this 

point; however, the science strongly supports the important role subsurface 

connections can play when assessing the effects of surface waters, and it is 

appropriate to consider them in a significant nexus determination. See Technical 

Support Document, particularly sections II and IX. 

California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

7.355 6) Caltrans requests that the exclusion of groundwater from jurisdiction be further 

clarified to identify whether or not groundwater pumped through surface drainage ditches 

would be excluded from jurisdiction. (p. 2)

Agency Response: See summary response above. While groundwater is exempted 

from this rule, once it is pumped into surface drainage ditches or into a 

pond/reservoir, the surface feature itself could be subject to jurisdiction. 

 

153 984 F. Supp. 2d 538 (E.D. Va. 2013).

154 Id. at 22210.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

232

City of Pompano Beach, Florida (Doc. #16438)

7.356 The proposed rule, as written, could include groundwater in the surficial aquifer as 

WOTUS, due to the connection to category 1-3 navigable waters. This definition would 

impact indirect discharges to shallow aquifers and make underground injection 

unfeasible. Groundwater should be excluded from the WOTUS definition. (p. 2)

Agency Response: Groundwater is exempted from the final rule, and does not 

affect the application of other laws including the requirements for underground 

injection wells in the Safe Drinking Water Act in accordance with 40 CFR Parts 

144-147. Additional details can be found in the summary response at 7.4.2.

Maui County, Hawaii (Doc. #19593)

7.357 ...

4. While the proposed rule excludes "groundwater, including groundwater drained 

through subsurface draining systems" there is ambiguity as to the depth of "subsurface 

hydrology" and at what depth groundwater is included or excluded. "Shallow" 

groundwater hydrologically connected to WOTUS appears to be included in definition of 

"other water."

5. Discharges to groundwater of any depth, permitted by an Underground Injection 

Control permit issued pursuant to the Safe Drinking Water Act should be categorically 

exempt. (p. 4)

Agency Response: See summary response above. The agencies in the final rule 

preamble clearly state, “neither shallow subsurface connections nor any type of 

groundwater, shallow or deep, are themselves ‘waters of the United States’.” In 

terms of limits, the agencies note that case-specific determinations, and thus 

consideration of subsurface flow, are limited to two narrow classes of waters 

identified in paragraphs (a)(7) and (a)(8) of the final rule. The final rule does not 

affect the application of other laws including the requirements for underground 

injection wells in the Safe Drinking Water Act in accordance with 40 CFR Parts 

144-147. Additional details can be found in the summary response at 7.4.2.

Association of Drinking Water Administrators (Doc. #15530)

7.358 Role of Groundwater: ASDWA supports the recognition, in the proposed rule, that 

groundwater is not and has never been a jurisdictional water under the definition of 

“waters of the United States” – and, as such, should not be subject to regulation under the 

CWA. However, that recognition should not prevent the continued commitment by EPA 

– together with state and local partners -- to integrate groundwater as part of the planning 

approaches to municipal wastewater and stormwater management. There should be a 

common purpose for protecting drinking water sources under both the CWA and Safe 

Drinking Water Act (SDWA). For instance, if stormwater is redirected to groundwater 

for either disposal or shallow recharge, the two Acts should not be implemented at cross 

purposes. In short, the proposed rule changes should not be interpreted to allow 

groundwater to be contaminated. (p. 2)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

233

Agency Response: The agencies agree although the requirement to protect 

drinking water sources is beyond the scope of this rule. The final rule does not affect 

the application of other laws including the requirements for underground injection 

wells in the Safe Drinking Water Act in accordance with 40 CFR Parts 144-147. 

Additional details can be found in the summary responses at 7.4.2 and 7.4.4. 

Western States Water Council (Doc. #9842)

7.359 D. Groundwater

The regulatory reach of the CWA was not intended to be applied to the management and 

protection of groundwater. As such, the WSWC appreciates the rule's exclusion of 

"groundwater, including groundwater drained through subsurface drainage systems." 

Given the rule's use of "shallow subsurface hydrologic connections" to establish 

jurisdiction between surface waters, the WSWC also appreciates the preamble's statement 

that "nothing...would cause the shallow subsurface connections themselves to become

jurisdictional.,,155 However, once codified, the preamble language regarding shallow 

subsurface hydrologic connections will not be published in the CFR, leading to possible 

misinterpretations and confusion about your agencies' intent and the jurisdictional status 

of such waters. Therefore, the WSWC requests that the groundwater exclusion in 

paragraph (t)(5)(vi) of the rule be amended to state as follows:

"Groundwater, including but not limited to groundwater drained through 

subsurface drainage systems and shallow subsurface hydrologic connections used 

to establish jurisdiction between surface waters under this section" (changes in 

italics). (p. 6)

Agency Response: See summary response above. The agencies agree that 

groundwater is excluded from the CWA and the rule and preamble are clear on this 

point; however, the science strongly supports the important role subsurface 

connections can play when assessing the effects of surface waters, and it is 

appropriate to consider them in a significant nexus determination. See Technical 

Support Document, particularly sections II and IX.

7.360 The report [Connectivity of Stream and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence (September 2013 External Review Draft, EPA/600/R11/098B] should not be used to support a rule that improperly asserts that the scope of the 

CWA is essentially unlimited. We recognize that there are differing interpretations of 

Rapanos, but it is undisputed that the Court rejected the EPA's and the Corps ' preRapanos interpretation of CWA authority. A rule that attempts to return CWA 

jurisdiction to the pre-Rapanos "status quo," using the report 's findings of global 

hydrologic connectivity would be contrary to the limits that Congress and the Court have 

established, and would be an improper use of the report and federal rulemaking authority. 

Moreover, the CWA does not apply to ground waters, which are protected and allocated 

by western states, which recognize the hydrogeologic connections. Any reference to 

 

155 Id. at 22210 [Definition of "Waters of the United States" Under the Clean Water Act, 79 Fed. Reg. 22,269 (April 

21, 2014) (to be codified at 40 CFR Part 230.3)]
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

234

ground waters, including "shallow subsurface flows," is inappropriate in any related 

rulemaking. (p. 30)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States. However, the agencies have clarified that subsurface 

connections can serve as a non-jurisdictional hydrologic connection that agencies 

would consider when making case-specific significant nexus determinations. The 

science strongly supports the important role subsurface connections can play when 

assessing the effects of surface waters, and it is appropriate to consider them in a 

significant nexus determination. See Technical Support Document sections II and 

IX. 

Groundwater Protection Council (Doc. #13055)

7.361 GWPC supports the recognition that groundwater is not and has never been a 

jurisdictional water under the definition of waters of the United States and the proposed 

section of the regulations which exclude from the definition of waters of the United 

States “groundwater, including groundwater drained through subsurface drainage 

systems”. The preamble also states that “The agencies have never interpreted ‘‘waters of 

the United States’’ to include groundwater and the proposed rule explicitly excludes 

groundwater, including groundwater drained through subsurface drainage systems.”

We agree that many states and tribes protect groundwater that is outside the regulatory 

jurisdiction of the CWA. The preamble states that “Nothing in this proposed rule would 

limit or impede any existing or future state or tribal efforts to further protect their 

waters.” However; due to the very broad scope of activities covered under this proposed 

rule, GWPC is concerned that some may interpret the specific exclusion of groundwater 

to affect EPA’s support of existing important provisions contained within 40 CFR 

Sections 106, 305, and 319 that support state and tribal programs in their protection of 

groundwater. The ability of states and tribes to request funding for groundwater 

protection programs from EPA under these provisions of the regulations should not be 

impeded by future grant guidance. GWPC recommends that EPA continue to include 

support for groundwater within the text discussion of future grant guidance for these 

sections. (p. 1-2)

Agency Response: The agencies reiterate that nothing in this rule limits or 

impedes any existing or future state or tribal efforts to further protect their water, 

nor does it change any existing grant guidance. See summary response above. 

Federal Water Quality Coalition (Doc. #15822.1)

7.362 7. Groundwater.

Groundwater, including groundwater drained through subsurface drainage systems, is not 

jurisdictional. We appreciate the affirmation that the CWA does not regulate 

groundwater. However, the frequent use of groundwater in the proposed rule to establish 

a jurisdictional connection has caused significant confusion and concern. For example, 

the definition of “tributary” includes water that disappears underground and recharges 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

235

surface water downstream. It is unclear whether the “tributary” retains its status as a 

water of the U.S. while underground. (p. 19-20)

Agency Response: See summary response above. The agencies believe the rule is 

clear and have added specific language to the preamble that neither shallow 

subsurface connection nor any type of groundwater are jurisdictional. When a 

covered tributary has a segment that disappears underground that segment is not a 

“water of the United States.” However, the tributary itself remains a “water of the 

United States” (see discussion in Tributary compendium on breaks in OHWM).

Minnesota Chamber of Commerce (Doc. #16473)

7.363 The Minnesota Chamber strongly supports the Agencies' codification of the longstanding 

groundwater exclusion in section (b)(S)(vi) of the Proposed Rule. To avoid any 

confusion, the Agencies should make clear - in the preamble to the Final Rule or in the 

Final Rule it self- that the existence of a "shallow sub surface hydrologic connection" is 

relevant only to the question of whether one surface water should be deemed 

jurisdictional on the basis of being adjacent to surface water. The Agencies should 

emphasize that groundwater, including any "subsurface hydrologic connection," shallow 

or otherwise, is outside the scope of the CWA and that discharges directly to groundwater 

do not require an NPDEs permit requirement. Congress intentionally limited the reach of 

the CWA to surface water discharges. However, limiting the reach of the CWA in this 

way does not mean that groundwater will go unregulated. To the contrary, state 

regulation is fully effective and sufficient to regulate discharges to groundwater and 

control, through appropriate conditions in state discharge permits, any attendant impacts 

on hydrologically connected surface waters. (p. 6)

Agency Response: See summary response above. The agencies believe the rule is 

clear and have added specific language to the preamble that neither shallow 

subsurface connection nor any type of groundwater are jurisdictional. EPA’s 

position that discharges to groundwater with a direct hydrological connection to a 

jurisdictional water require an NPDES permit is not changed by the final rule. (See 

summary response at 12.3 with respect to the NPDES program.) 

7.364 The Minnesota Chamber recommends that the Agencies make the following changes to 

the Proposed Rule:

...

3. The Agencies should make clear-in the preamble to the Final Rule or in the Final Rule 

itself-that the existence of a "shallow subsurface hydrologic connection" is relevant only 

to the question of whether one surface water should be deemed jurisdictional on the basis 

of being adjacent to another surface water. The Agencies should emphasize that 

groundwater, including any "subsurface hydrologic connection," shallow or otherwise, is 

outside the scope of the CWA and that discharges directly to groundwater do not require 

an NPDEs permit requirement . (p. 6)

Agency Response: See above response.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

236

Alameda County Cattlewomen (Doc. #8674)

7.365 The agencies’ proposed rule leaves open the question whether they will assert jurisdiction 

over groundwater through contradictory statements and ill-defined terms and phrases. 

While under Section I the agencies have specifically excluded “Groundwater, including 

groundwater drained through subsurface drainage systems” they turn around and find that 

connection through “shallow subsurface” flows can make a water an “adjacent water” 

and therefore jurisdictional. (Proposed Rule at 22207). It is hard for a reasonable person 

to see how “groundwater” is different than “shallow subsurface” flow. It appears that 

“groundwater” includes “shallow subsurface” flow, and the agencies have failed to 

distinguish the two from each other. It is also unclear how a landowner could dig up 

some ground, and seeing water, whether they would know whether they are obstructing 

“shallow subsurface” flow or are at groundwater. EPA official Robert Perciascepe stated 

at a Congressional hearing before the House Science Committee on July 9, 2014 that the 

“shallow subsurface” flow is not jurisdictional. If true, could a landowner not cut off the 

“shallow subsurface flow” and prevent their natural pond from being a “water of the 

U.S.?”

The federal government cannot divert or otherwise control water for its own uses 

regardless of the authority cited without a reserved water right or a state-adjudicated 

water right. Never has it been suggested that the scope of the CWA extends to the 

regulation of groundwater.156 (p. 25)

Agency Response: See summary response above. The agencies clearly state in the 

final rule preamble that “neither shallow subsurface connections nor any type of 

groundwater, shallow or deep, are themselves ‘waters of the United States’.” This is 

a definitional rule and does not address water allocation. Nothing in this rule limits 

or impedes any existing or future state or tribal efforts to further protect their 

water. Not enough information is given to answer the question about a “natural 

pond”. 

Colorado Cattlemen's Association (Doc. #15068)

7.366 The agencies' proposed rule leaves open the question whether they will assert jurisdiction 

over groundwater through contradictory statements and ill-defined terms and phrases. 

While under Section I. the agencies have specifically excluded "Groundwater, including 

groundwater drained through subsurface drainage systems" they turn around and find that 

connection through "shallow subsurface" flows can make a water an "adjacent water" and 

therefore jurisdictional. (Proposed Rule at 22207). It is unclear how a landowner could 

dig up some ground, and seeing water, whether they would know whether they are 

obstructing "shallow subsurface" flow or are at groundwater. (p. 8)

 

156 Rapanos, J. Scalia, at 24 (“First, that the adjacent channel contains a “wate[r] of the United States,” (i.e., a

relatively permanent body of water connected to traditional inter- state navigable waters); and second, that the

wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends 

and the “wetland” begins.).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

237

Agency Response: See summary response above. The agencies clearly state in the 

final rule preamble that “neither shallow subsurface connections nor any type of 

groundwater, shallow or deep, are themselves ‘waters of the United States’.”

North Carolina Farm Bureau Federation (Doc. #15078)

7.367 All groundwater should be excluded under all circumstances, including using 

groundwater to establish shallow subsurface hydrologic connections. (p. 16)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States. However, the agencies have clarified that subsurface 

connections can serve as a non-jurisdictional hydrologic connection that agencies 

would consider when making case-specific significant nexus determinations. The 

science strongly supports the important role subsurface connections can play when 

assessing the effects of surface waters, and it is appropriate to consider them in a 

significant nexus determination. See Technical Support Document sections II and 

IX.

Irrigation Association (Doc. #15217)

7.368 In Nebraska, the highest irrigated state by irrigated acreage (according to the 2013 Farm 

and Ranch Irrigation Survey), agriculture depends on both surface and groundwater for 

its irrigation needs. Sitting on top of the largest aquifer in the U.S. (the Ogallala), 

Nebraska’s farmers and ranchers continue to produce record yields, while keeping the 

aquifer thriving and healthy. The WOTUS rule does not have clarity on the nexus 

between surface and groundwater. Many times, groundwater is pumped on to agricultural 

land (into a pond/reservoir) and later used for irrigation. This was groundwater, not 

subject to the scope of the original Clean Water Act nor the proposed WOTUS rule, but 

once it is pumped for irrigation use, we are concerned that this is now subject for federal 

clean water jurisdiction. (p. 3)

Agency Response: See summary response above.

National Barley Growers Association (Doc. #15627)

7.369 Groundwater. While EPA says that it intends to exclude groundwater, there is language 

in the Proposed Rule that casts doubt on this claim. More specifically, the Proposed Rule 

states that a body of water may be a “water of the United States” if it has a “shallow 

subsurface hydrological connection” to other jurisdiction waters. This language suggests 

that groundwater may serve as a basis for regulation under the Clean Water Act. EPA and 

the CORPS should review and narrow this part of the WOTUS definition. (p. 6)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States. However, the agencies have clarified that subsurface 

connections can serve as a non-jurisdictional hydrologic connection that agencies 

would consider when making case-specific significant nexus determinations. The 

science strongly supports the important role subsurface connections can play when 

assessing the effects of surface waters, and it is appropriate to consider them in a 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

238

significant nexus determination. See Technical Support Document sections II and 

IX.

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)

7.370 4. This comment pertains to Section 328.3 Definitions, (b)(5)(vi), Federal Register page 

22263. “Groundwater drained through a subsurface drainage system” is not clearly 

defined. For example, there is no distinction between tile drainage of agricultural fields 

and a drainage system used by an MS4 for storm drainage. In many cases, our pipe 

systems do accept groundwater drainage, especially when the system is installed at an 

elevation lower than the current ditch, channel or existing pipe system. It will be difficult 

to determine the contributions of groundwater versus surface water to the pipe system. 

Also, surface waters are always the result of a groundwater connection, so where is the 

line drawn between underground drainage of groundwater versus surficial drainage of 

groundwater? CMSWS recommends clarifying the definition of “drainage system” 

and how it would apply to MS4 storm water drainage systems. (p. 2)

Agency Response: See summary response above. The agencies continue to 

exclude groundwater in the final rule. The final rule also provides an exclusion 

from jurisdiction for stormwater control features that are created in dry land;

please see summary response at 7.4.4. 

Upper Niobrara White Natural Resources District, Chadron, Nebraska (Doc. #13562)

7.371 ...if EPA does not intend to regulate groundwater, this should be explicitly stated in the 

rule as not being "waters of the United States" - in section t, definitions. (p. 2)

Agency Response: See summary response above. The final rule explicitly states 

that groundwater, including groundwater drained through subsurface drainage 

systems, is excluded. 

Southern Nevada Water Authority (Doc. #14580)

7.372 The Proposed Rule states "groundwater, including groundwater drained through 

subsurface drainage systems" is excluded from CWA jurisdiction (79 FR 22263). SNWA 

supports this specific exclusion, and agrees it will provide clarity regarding the scope of 

WOTUS. SNWA also recommends groundwater recharge basins be specifically excluded 

from jurisdiction. Groundwater recharge basins are temporary facilities that are isolated 

from other waters and typically periodically dry. They do not contribute flow to 

traditional WOTUS, similar to dry lake beds (playas)... (p. 5)

Agency Response: Wastewater recycling structures created in dry land are 

excluded under the final rule. See summary response at 7.4.2.

Berkshire Hathaway Energy Company (Doc. #14650)

7.373 B. The Agencies Should Clarify the Exemption for Groundwater to More Clearly Exempt 

All Groundwater from the Definition of Waters of the U.S.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

239

The Agencies must also clarify the exemption for groundwater. The Agencies propose 

that groundwater, including groundwater drained through subsurface drainage systems, 

will continue to be exempt from the definition of waters of the U.S.157 However, under 

the proposed rule, groundwater connectivity may be used to create a significant nexus 

with traditional navigable waters and thereby establish a jurisdictional connection.158

Presumably, if such connection is established through groundwater connecting two 

bodies of water, one of which is a traditional navigable water, the groundwater would 

also become jurisdictional. This has the potential to create confusion and uncertainty with 

respect to the treatment of groundwater, which has not historically been nor should be 

regulated under the Clean Water Act. The Agencies should maintain the clear exemption 

for groundwater in the proposed definition. In addition, the Agencies should not use 

groundwater or other isolated surface or shallow subsurface hydrologic connections as a 

means of establishing a significant nexus with traditional navigable waters to establish 

jurisdiction. If a water is not itself jurisdictional, it should not be used to establish 

jurisdiction for any other water. (p. 5)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States. However, the agencies have clarified that subsurface 

connections can serve as a non-jurisdictional hydrologic connection that agencies 

would consider when making case-specific significant nexus determinations. The 

science strongly supports the important role subsurface connections can play when 

assessing the effects of surface waters, and it is appropriate to consider them in a 

significant nexus determination. See Technical Support Document sections II and 

IX.

Eagle River Water & Sanitation District, Vail, Colorado (Doc. #15116)

7.374 ...the District and the Authority support the exclusion of groundwater. However, we are 

concerned that the provision in the new rule stating that "groundwater drained through 

subsurface drainage systems" is not a water of the United States may be construed to 

remove protections for important spring-fed and groundwater-fed streams if flow from 

"subsurface drainage systems" is present. It could also remove subterranean dewatering 

systems from jurisdiction under section 402:

"The following are not ''waters of the United States" notwithstanding whether 

they meet the terms of [those waters of the United States designated by rule]:

...

(vi) Groundwater, including groundwater drained through subsurface drainage 

systems..." (see, e.g., proposed §32.83(b)(5)(vi).

Without clarification, the "no-recapture clause" may be construed to remove protections 

for these important spring-fed tributaries. (See discussion re: features excluded by rule 

 

157 Id. at 22218. [Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. 76 at 22193 

(April 21, 2014).]

158 Id. at 22196.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

240

under subpart (b) cannot be recaptured and considered jurisdictional under any of the 

jurisdictional waters of the U.S. categories by rule, p. 22203, Federal Register, Vol. 79, 

No. 76, April 21, 2014.) (p. 8)

Agency Response: See summary response bove. When groundwater emerges on 

the surface, it is surface water, and surface feature receiving groundwater input 

may be subject to jurisdiction. 

Wyoming State Engineer Office (Doc. #15496)

7.375 Groundwater in Wyoming is not presumed to be connected to surface water unless 

determined by field hydrogeologic surveys. Many western states have similar statutes. 

Varying geological formations, fault conditions and changes in rock structures make 

connectivity and continuity between stream and groundwater flows unpredictable. Using 

groundwater as a means to expand the definition of "waters of the United States," as EPA 

and the Corps have done in the proposed rule, represents an unwarranted and 

unsubstantiated regulation of a resource with questionable continuity to downstream 

navigable waters, particularly in Wyoming.

While EPA and the Corps have attempted to exclude some forms of groundwater from 

being defined as "waters of the United States," the agencies' definitions and treatment of

"neighboring" and "adjacency" undermines the potential groundwater exemption. This is

particularly true where groundwater and shallow groundwater will be used to establish a

"significant nexus" between isolated or other minor bodies of waters and tributaries that 

they are "waters of the United States." Therefore, Wyoming requests that the following 

clarification be added to the proposed rule:

Groundwater, including but not limited to groundwater drained through

subsurface drainage system and shallow subsurface hydrologic connections, shall

not be considered waters of the United States, and may not be used as a means to

demonstrate a significant nexus to adjacent waters. (p. 3)

Agency Response: The final rule eliminates shallow subsurface connectivity as a 

basis for adjacency. However, the agencies have clarified that subsurface 

connections can serve as a non-jurisdictional hydrologic connection that agencies 

would consider when making case-specific significant nexus determinations. The 

science strongly supports the important role subsurface connections can play when 

assessing the effects of surface waters, and it is appropriate to consider them in a 

significant nexus determination. See Technical Support Document sections II and 

IX. Section IV.H of the preamble discusses identifying shallow subsurface 

hydrologic connections.

San Luis & Delta-Mendota Water Authority, Los Banos, California (Doc. #15645)

7.376 C: Groundwater should be clearly excluded from jurisdiction under the proposal

The Agencies have consistently stated that the proposed rule will not regulate 

groundwater. However, concern remains that the proposal could inadvertently envelope 

some groundwater banking and recharge projects. Groundwater banking is a particularly 

critical management tool for members of the Water Authority and California generally. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

241

The Agencies should provide clarity that the rule will not apply to groundwater, shallow 

subsurface aquifers and groundwater banking and recharge projects. (p. 3)

Agency Response: See summary response above. The agencies believe this point 

is clear in the rule and preamble. Also see summary response at 7.4.2 regarding 

exclusion of certain wastewater recycling features.

Northern California Association (Doc. #17444)

7.377 The EPA's Science Advisory Board (SAB) noted in their advice and comments on the 

proposed rule in a letter to EPA dated September 30, 2014 that the CWA excludes 

groundwater, including groundwater drained through subsurface drainage systems, from 

federal regulation. The SAB states that, while the CWA excludes groundwater from 

regulation, a point of law that is reiterated in the proposed rule as well as in the current 

regulation, there is no scientific justification to support such exclusion. The SAB goes on 

to state that "the available science shows that groundwater connections, particularly via 

shallow flow paths in unconfined aquifers, can be critical in supporting the hydrology and 

biogeochemical functions of wetlands and other waters."

While the SAB may conclude that the "available science" may prove that groundwater is 

connected to traditional navigable waters in some circumstances, it is also clear that 

Congress intended that the CWA not address nor regulate groundwater even if connected 

to navigable waters that are regulated under the CWA. As we point out in our issues with 

the new definition of "adjacent"..., subsurface groundwater connections are not subject to 

CWA jurisdiction and are clearly excluded from regulation under the Act. The proposed 

rule should be consistent with this statutory limitation of the CWA on federal regulation 

of groundwater. (p. 5)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater from the geographic scope of the 

waters of the United States. However, the agencies have clarified that subsurface 

connections can serve as a non-jurisdictional hydrologic connection that agencies 

would consider when making case-specific significant nexus determinations. The 

science strongly supports the important role subsurface connections can play when 

assessing the effects of surface waters, and it is appropriate to consider them in a 

significant nexus determination. See Technical Support Document sections II and 

IX.

Center for Small Business and the Environment (Doc. #6981)

7.378 The rule is a good start but needs to cover direct impacts on the groundwater. Since 

groundwater is the source of much of our drinking water, this key issue should not be 

overlooked. Ground water provides drinking water for more than one-half of the 

Nation’s population (Solley and others, 1993), and is the sole source of drinking water for 

many rural communities and some large cities. In 1990, ground water accounted for 39 

percent of water withdrawn for public supply for cities and towns and 96 percent of water 

withdrawn by self-supplied systems for domestic use. The results of research published 

in the online edition of the Proceedings of the National Academy of Sciences (PNAS, 24 

June 2013) lend strong support to the conclusion that toxic chemicals are leaking into 

ground water. Contrary to the popular impression that at least the waters from our 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

242

springs and wells are pure, we’re uncovering a pattern of pervasive pollution there too. 

And in these sources, unlike rivers, the pollution is generally irreversible. The rate of 

groundwater renewal is very slow in comparison with that of surface water. It’s true that 

some aquifers recharge fairly quickly, but the average recycling time for groundwater is 

1,400 years, as opposed to only 20 days for river water. Experts and regulators agree that 

investigating complaints of water-well contamination is particularly difficult, in part 

because some regions also have natural methane gas pollution or other problems 

unrelated to drilling. A 2011 Penn State study found that about 40% of water wells tested 

prior to gas drilling failed at least one federal drinking water standard. According to A 

National Look at Nitrate Contamination of Ground Water by Bernard T. Nolan, Barbara 

C. Ruddy, Kerie J. Hitt, and Dennis R. Helsel [Water Conditioning and Purification, 

January 1998, v. 39, no. 12, pages 76-79.], nitrate pollution generally is a public-health 

threat for children, ingestion in drinking water by infants can cause low oxygen levels in 

the blood, a potentially fatal condition (Spalding and Exner, 1993). There are some 

126,000 groundwater sites in the United States that have not met pollution standards and 

the cost of meeting those goals could range from $US110 billion to $US127 billion, 

according to a report from the National Research Council. Since 1987 the NRC has 

released at least six reports describing the challenges associated with groundwater 

contamination. By not addressing a proactive approach to groundwater, the ruling falls 

short in primarily focusing on surface water. (p. 1)

Agency Response: See summary response above. The agencies have consistently 

interpreted the CWA to exclude groundwater. The requirement to protect drinking 

water sources is beyond the scope of this rule. The final rule does not affect the 

application of other laws. 

Ducks Unlimited (Doc. #11014)

7.379 Finally, with respect to the issue of groundwater, it is scientifically appropriate and 

necessary that groundwater be allowed to be used as an avenue of documenting 

significant nexus. It is among the most important of the types of connectivity that exists 

between adjacent, neighboring, and “other waters” and “waters of the U.S.” However, 

given the abundant existing case law relative to governance of groundwater, it is 

appropriate that the final rule explicitly exclude groundwater from jurisdiction. Given the 

magnitude and importance of that issue to the states and landowners in many parts of the 

country, any change to existing practices with respect to state-based regulation of 

groundwater should come only as a result of Congressional action. (p. 35)

Agency Response: The agencies agree.

Southern Environmental Law Center et al. (Doc. #13610)

7.380 If the agencies do include groundwater as not regulated, the agencies must be very clear 

in explaining that although the Clean Water Act is typically viewed as not regulating 

groundwater, shallow subsurface movement of water can be used to establish a 

connection between a water and a jurisdictional water. (p. 42)

Agency Response: The agencies have clarified that subsurface connections can 

serve as a non-jurisdictional hydrologic connection that agencies would consider 

when making case-specific significant nexus determinations. The science strongly 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

243

supports the important role subsurface connections can play when assessing the 

effects of surface waters, and it is appropriate to consider them in a significant 

nexus determination. See Technical Support Document sections II and IX.

National Wildlife Federation (Doc. #15020)

7.381 We...support the agencies’ express exclusion of groundwater, recognizing that the 

agencies “have never interpreted “waters of the United States” to include groundwater.” 

Id. at 22218. We note, however, that it is scientifically appropriate and necessary that 

groundwater be recognized as among the most important types of connectivity that exists 

between adjacent, neighboring, and “other waters” and tributaries, TNWs, and IWs. The 

agencies must recognize at least shallow groundwater as an avenue of documenting 

significant nexus despite not being jurisdictional waters in their own right. For example, a 

“gully” or “arroyo” connected via ground water to a tributary of a TNW, and which flows 

in response to storm events, likely qualifies as a waters of the United States.159 (p. 102-

103)

Agency Response: the agencies have clarified that subsurface connections can 

serve as a non-jurisdictional hydrologic connection that agencies would consider 

when making case-specific significant nexus determinations. The science strongly 

supports the important role subsurface connections can play when assessing the 

effects of surface waters, and it is appropriate to consider them in a significant 

nexus determination. See Technical Support Document sections II and IX. Section 

VII of the Technical Support Document addresses tributaries with segments that 

flow underground.

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network 

(Doc. #15233)

7.382 Under your newly proposed exclusion, “[g]roundwater, including groundwater drained 

through subsurface drainage systems,” proposed 40 CFR 122.2 (b)(5)(vi) at 79 Fed. Reg. 

22268, is to be deemed not a water of the United States “notwithstanding whether [it 

meets] the terms of paragraphs (a)(1) through (7) of this definition.” Id. at (b). 

Accordingly, even if, on an individual basis, groundwater in a region has “a significant 

nexus” to a traditionally jurisdictional water body, you would deem it not a WOTUS. The 

same would be true under your proposed formulation for groundwater adjacent to a 

traditionally jurisdictional water body. This makes no sense and would invite endless 

abuse of our nation’s waters. See Howard J, Merrifield M (2010) Mapping Groundwater 

Dependent Ecosystems in California. (p. 10)

Agency Response: See summary response above.

Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394)

7.383 Groundwater is excluded under the proposed subsection (t)(5)(vi). However, groundwater 

often significantly influences the chemical, physical and biological integrity of surface 

waters of the U.S. For example, “[i]n the arid and semi-arid lands. . . groundwater is the 

 

159 See, e.g., Quivira Mining, supra.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

244

dominant source of flow to both tributaries and the main stem river segments.” Member 

Comments, Dr. Kenneth Kolm, at 31. The SAB wrote to EPA that “[t]he available 

science. . . shows that groundwater connections, particularly via shallow flow paths in 

unconfined aquifers, are critical in supporting the hydrology and biogeochemical 

functions of wetlands and other waters. Groundwater also can connect waters and 

wetlands that have no visible surface connections.” SAB letter at 3; see SAB Review at 

20 (“[a]n understanding of regional groundwater flow systems is critical to the 

understanding of four-dimensional hydrologic connectivity on both the local and regional 

scales.”); id. at 27 (“the conclusions in the [EPA Connectivity] Report should emphasize 

that dynamic groundwater-surface water connections not only maintain the ecological 

integrity of ephemeral streams, but also connect them structurally and functionally to 

downstream waters, whether or not the upstream channels are perennial”).

These connections mean that protecting groundwater is often essential to protecting 

surface water. As the U.S. Geological Study concluded, “[m]uch of the ground-water 

contamination in the United States is in shallow aquifers that are directly connected to 

surface water. In some settings where this is the case, ground water can be a major and 

potentially long-term contributor to contamination of surface water.” U.S. Geological 

Survey Circular 1139, “Ground Water and Surface Water: A Single Resource,” (1998), at 

VI, attached as Exh. D. The USGS also noted changes in the groundwater and surface 

water connection can impact the aquatic species that depend on the habitats created by 

this interchange. Id. at VII.

The San Pedro River in southeastern Arizona illustrates the critical role that groundwater 

can play in a watershed. The San Pedro and its surrounding riparian habitat supports one 

of the richest areas of biodiversity in the United States and is an important corridor for 

millions of migrating songbirds. The San Pedro supports hundreds of species of birds, 

mammals, reptiles, amphibians, and plants, including three species protected by the 

Endangered Species Act: the western yellow-billed cuckoo, Southwestern willow 

flycatcher, and the Huachuca water umbel, as well as designated critical habitat for the 

umbel. In 1988, Congress recognized that the river is one of the nation’s and the world’s 

environmental crown jewels and protected 36 miles of the river and its surrounding 

riparian habitat through the creation of the San Pedro Riparian National Conservation 

Area (SPRNCA). 16 U.S.C. § 460xx (purpose of SPRNCA is “to protect the riparian area 

and aquatic, wildlife, archaeological, paleontological, scientific, cultural, educational, and 

recreational resources of the public lands surrounding the San Pedro”). The base flows 

for the river segments within the SPRNCA, and the water supply for the surrounding 

cottonwood forest, are provided by groundwater within the Sierra Vista subwatershed. 

See, e.g., Thomas, B.E., and Pool, D.R., “Trends in Streamflow in the San Pedro River, 

Southeastern Arizona, and Regional Trends in Precipitation and Streamflow in 

Southeastern Arizona and Southwestern New Mexico,” U.S. Geological Survey 

Professional Paper 1712 (2006), attached as Exh. E. Thus, the health of the river within 

the SPRNCA – and the health of the riparian habitats supporting hundreds of species –

depends upon the health of the groundwater within the Sierra Vista subwatershed. Due to 

the close groundwater-surface water connection in this subwatershed, both the 

groundwater and the river itself should be protected as waters of the U.S. – not just the 

San Pedro. It would be nonsensical and contrary to the purpose and intent of the Clean 

Water Act to protect the river, but not the groundwater that sustains it.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

245

Similarly, west of the Sierra Vista subwatershed, the Town of Patagonia, Arizona, relies 

on Sonoita and Harshaw Creeks and their subterranean aquifers as their only source of 

potable water. “The Hermosa Mine Proposal: Potential Impacts to Patagonia’s Water 

Supply” (October 2014), at 22-23, attached as Exh. F. “The shallow depth of the aquifers 

combined with the nature of the soils and underlying geology make the relationship 

between the surface and ground water watersheds a particularly close and interconnected 

one.” Id. at 22 (quoting Coronado National Forest Draft Land and Resource Management 

Plan at 137). Isotopic analysis have also confirmed these connections. Id. As noted 

above, both creeks are the site of past and proposed mining operations. The acid mine 

drainage and heavy metals from these operations may seep into the aquifer and then 

contaminate these connected streams, affecting Patagonia’s water supply and potentially 

affecting habitat used by several species protected under the Endangered Species Act, 

including the western yellow-billed cuckoo and Gila topminnow. As with the San Pedro 

River, protecting the surface water of Harshaw and Sonoita Creeks under the Clean 

Water Act – but failing to protect the groundwater that sustains them – is nonsensical and 

contrary to the purpose and intent of the Clean Water Act.

A recent study in California mapped all of the Groundwater Dependent Ecosystems 

(GDE) (seeps, groundwater dependent wetlands and rivers) and provides an excellent 

source of information as to how many “waters of the U.S.” in California are dependent 

upon groundwater. All three types of groundwater-dependent ecosystems studied were 

widely, although unevenly, distributed across California. Although different types of 

GDEs are clustered more densely in certain areas of the state, watersheds with multiple 

types of GDEs are found in both humid (e.g. coastal) and more arid regions. Springs are 

most densely concentrated (high percentage of land area ranking 4) at the HUC12 scale in 

the North Coast and North Lahontan, whereas groundwater dependent wetlands and 

associated vegetation alliances are concentrated in the North and South Lahontan and 

Sacramento River hydrologic regions. The percentage of land area where stream 

discharge is most dependent on groundwater is found in the North Coast, Sacramento 

River and Tulare Lake regions. Howard J, Merrifield M (2010) Mapping Groundwater 

Dependent Ecosystems in California. PLoS ONE 5(6): e11249. 

doi:10.1371/journal.pone.0011249.

A recent court decision recognized that a discharge into groundwater requires a permit 

under the Clean Water Act where the groundwater acts as a “conduit” for pollutants from 

the point of discharge to surface water that is a jurisdictional water. Hawai’i Wildlife 

Fund v. County of Maui, 2014 WL 2341565 (D. Haw. 2014). While some discharges 

may be properly regulated under this “conduit” approach, it is more scientifically and 

legally sound to protect the groundwater itself as a water of the U.S. where the aquifer 

has a significant connection to surface “waters of the U.S.” Defenders urges the agencies 

to include groundwater in the “other waters” category to be evaluated on a case-by-case 

basis under the “significant nexus” test. Because there is no support in the scientific 

literature or the law to exclude groundwater from the jurisdictional scope of the Act, the 

proposed exclusion of groundwater is an unreasonable interpretation of the statute. See 

Chevron, 467 U.S. 837, 842-43. (p. 12-14)

Agency Response: See summary response above. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

246

Waterkeeper Alliance et al. (Doc. #16413)

7.384 VII. THE AGENCIES SHOULD CONFIRM THAT THIS RULEMAKING DOES NOT 

ALTER EPA'S LONGSTANDING AND CONSISTENT INTERPRETATION 

REGARDING DISCHARGES VIA HYDROLOGIC CONNECTION. FURTHER, THE 

AGENCIES SHOULD NOT CATGORICALLY EXCLUDE GROUNDWATER FROM 

THE DEFINITION OFWATERS OFTHE UNITED STATES

B. EPA and the Corps Should Not Categorically Exclude All Groundwater from the 

Definition of Waters of the United States.

The agencies' proposal to include language in the regulation categorically excluding 

groundwater from the definition of waters of the United States is scientifically and legal 

unsound. Many SAB panelists questioned this exclusion.

For example:

 Dr. David Allan questions the exclusion of "Groundwater, including groundwater 

drained through subsurface drainage systems" because "an important pathway for 

some nutrients and contaminants is via subsurface drainage systems to ditches 

that may not have perennial flow, but which may deliver much of the nonpoint 

runoff to downstream waters." Dr. Allan concluded that "this exclusion is a 

concern, and should be recognized as SUCh."160

 Likewise Dr. Robert Brooks stated that this exclusion "seems illadvised because 

of the likely connectivity of surface flows into features such as karst sinkholes, 

with a potential to contaminate groundwater aquifers used for human water 

supplies, plus the possibility of reconnections to surface water a reasonable 

distance away."161

 And following a lengthy analysis, Dr. Kenneth Kolm concluded: "In no cases 

should groundwater that is shown to be connected to 'waters of the US' be 

exempt."162

Courts have also agreed that groundwater can, and in some circumstances should, itself, 

be considered waters of the United States. For example, in the Hawai'i Wildlife Fund v. 

County of Maui case cited above, the court held that "liability arises even if the 

groundwater under the [discharging facility] is not itself protected by the Clean Water 

Act, as long as the groundwater is a conduit through which pollutants are reaching 

navigable-in-fact water."163 However, the court went on to note:

That is not to say that groundwater can never be regulated under the Healdsburg 

test [i.e., under the Ninth Circuit's decision in N. Cal. River Watch v. City of 

Healdsburg, which applied Justice Kennedy's concurrence in Rapanos to find 

CWA coverage based on a subsurface connection]. An aquifer with a substantial 

 

160 Member Comments, supra note 72, compilation of comments of members at 14.

161 Id. at 17.

162 Id. at 49.

163 Hawai'i Wildlife Fund v. County of Maui, 2014 U.S. Dist. LEXIS 74256 *35 (D. Haw. May 30, 2014).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

247

nexus with navigable-in-fact water may itself be protected under the Clean Water 

Act even if it is not necessarily a conduit for pollutants.164

The agencies' proposed categorical exclusion of groundwater will leave ecologically 

important waters unprotected. The groundwater exclusions are scientifically and legally 

indefensible. Given that the proposed rule provides that a significant nexus between two 

surface waters can be demonstrated on the basis of a subsurface hydrologic connection, it 

makes no sense to categorically exclude all groundwater, including the very same 

groundwater that forms the hydrologic connection between the two surface waters and 

establishes that significant nexus. Instead, EPA and the Corps should include 

groundwater as a subcategory of "other waters," and leave its jurisdictional status to be 

determined on a case-by- case basis. (p. 43, 56-58)

Agency Response: See summary response above.

Western Resource Advocates (Doc. #16460)

7.385 WRA supports the proposed rule insofar as it would exclude from jurisdiction 

“groundwater, including groundwater drained through subsurface drainage systems.”165

The preamble to the proposed rule and the appendices have gone to great lengths to 

describe how some (a)(5) tributaries, (a)(6) adjacent waters including wetlands, and 

(a)(7) other waters including wetlands are jurisdictional because they connect to and 

influence (a)(1) through (4) waters via groundwater. This concept is well-captured in the 

language of the proposed rule with new definitions of both “neighboring” that describes 

“adjacent” waters as including those with a “shallow subsurface hydrologic connection” 

79 Fed. Reg. 22263 (c)(2). to (a)(1) through (5) waters, and “tributary” which states,

A water that otherwise qualifies as a tributary under this definition does not lose 

its status as a tributary if, for any length, there are ... one or more natural breaks 

(such as ... a stream that flows underground) so long as a bed and banks and an 

ordinary high water mark can be identified upstream of the break.166

WRA understands the exclusion of groundwater will not exclude these adjacent and 

tributary waters that connect via groundwater to larger waterways, and are defined 

elsewhere in the rule. Moreover, WRA also understands that excluding groundwater from 

Clean Water Act jurisdiction will not mean that activities which pollute surface waters 

via groundwater go unregulated.167 (p. 25)

Agency Response: The agencies appreciate the comment.

Indiana Karst Conservancy (Doc. #6993)

7.386 I apologize if I am missing something here, but in the section on "features" NOT waters 

of the United States, it includes "Groundwater, including groundwater drained through 

subsurface drainage systems". Does this imply waters flowing through natural caves and 

 

164 Id. at *45.

165 79 Fed. Reg. 22263 (b)(5)(vi).

166 79 Fed. Reg. 22263 (c)(5).

167 See supra section IV, “Tributaries connected through another water.”
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

248

karst drainage systems are not considered WOTUS? In the extreme, there are numerous 

examples of significant surface creeks and rivers (e.g., the Lost River in Indiana) that 

"sink" and flow underground, only to resurge later and continue to flow as a surface river. 

So during the time the water flow is subsurface, the water is not considered WOTUS? 

That does not seem consistent. Perhaps the characterization of "subsurface" could be 

better defined (e.g., artificial subsurface drainage systems excluded, but natural 

subsurface drainage that mimics flowing channels are considered WOTUS. Many 

underground karst streams function just like surface streams and should not be excluded. 

(p. 1)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

groundwater. See summary response above. Section IV.F of the preamble clarifies 

that segments of tributaries that flow underground do not sever jurisdiction, while 

Section IV.H identifies hydrologic connections through karst topography as a 

consideration for case-specific significant nexus evaluations.

Earthjustice (Doc. #14564)

7.387 A. Groundwater Should Not Be Categorically Excluded.

Earthjustice strongly objects to EPA’s categorical exclusion of groundwater from Clean 

Water Act protection. EPA’s proposal will leave important waters exposed to pollution. 

The groundwater exclusions are unsupported from a scientific perspective and may lead 

to regulatory confusion. The better-supported approach would be to identify groundwater 

as a subcategory of “other waters” for which jurisdictional status will be determined on a 

case-by-case basis. In that fashion, EPA will ensure that the full purpose and intent of the 

Clean Water Act is realized and that it will not leave waters unprotected.

As noted by various individual members of the SAB, groundwater connections to surface 

water do not separate along ill-defined and fairly unscientific lines such as “shallow” or 

“deep.” Rather, connections occur as a result of topography, geology, geography, and 

time. In late summer and fall, many western rivers are almost entirely dependent upon 

groundwater. Sometimes connections through geographic features such as lava tubes or 

karst formations are very deep, but nonetheless very direct between groundwater and 

surface waters. See Member Comments Aldous at 3 (must definitely include shallow 

unconfined aquifers as providing connections between wetland types and open waters; 

pointing out that inclusion of groundwater in connectivity should not simply be a 

function of distance; and questioning exclusion of shallow subsurface flows); Brooks at 

17 (exclusion of groundwater “seems ill-advised because of the likely connectivity” 

through different features with a potential to contaminate drinking water and connections 

with surface water a reasonable distance away); Gooseff at 21 (strongly questioning 

exclusion of groundwater and giving examples of significant connectivity between 

surface and subsurface waters and problems with EPA’s definitions); Kolm at 31-32 

(“regional ground water flows commonly interact with the surface environment at sinks 

and springs”; giving examples in the Floridian aquifer), at 33 (“In general, the role of 

regional groundwater systems in neighboring systems is not addressed by this Rule and 

leaves the waters of the US vulnerable”), at 34 (“Care should be taken not to imply that 

bedrock is impermeable because ground water flows through bedrock are important 

flowpaths that connect hydrologic landscapes over long distances and often across 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

249

watershed boundaries”), at 39 (“as indicated with the Karst references, deep groundwater 

should be included as well for connectivity and include not only Karst, but certainly 

sedimentary systems, fractured rock systems, and volcanic systems as well...[t]he real 

issue is both temporal and spatial as the SAB has clearly and thoroughly discussed”), at 

43 (pointing out that the role of regional groundwater is inappropriately ignored in the 

proposed rule), and at 46; and Sullivan at 87 (ensuring the mechanism of connectivity is 

protected—even if that is groundwater—is critical). Plainly, EPA’s categorical exclusion 

of groundwater from the protections of the Clean Water Act (or its general exclusion with 

the ill-defined “shallow subsurface connection” exception) is not supported by the 

science and the science advisors.

EPA should therefore revise the proposed rule to provide that groundwater shall be 

protected as a water of the U.S. where it is hydrologically connected to surface water in a 

way that is not de minimis. This approach makes sense given the decision in Hawai‘i 

Wildlife Fund v. County of Maui, __ F.Supp.2d __ (D. Ha. 2014) 2014 WL 2451565, 

where the court found “[t]here is nothing inherent about groundwater conveyances and 

surface water conveyances that requires distinguishing between these conduits under the 

Clean Water Act. Id. at *13. The court found that where treated effluent was injected into 

groundwater and months later emerged from seeps into the ocean, the groundwater 

aquifer served as a conduit for discharges of pollution into the ocean and the discharge 

required a National Pollutant Discharge Elimination System (“NPDES”) permit. Id. at 

*18. At the same time, the court understood that the groundwater aquifer would also meet 

the significant nexus test being used by EPA here, because it has a hydrologic connection 

with the ocean, and the groundwater “significantly affects the physical, chemical, and 

biological integrity of the ocean water.” Id. at *21-23.

While a discharge of pollutants into groundwater may be regulated under the “conduit” 

approach, it makes more sense, consistent with the approach advocated by members of 

the SAB, that the groundwater itself be protected as a water of the U.S. because of its 

hydrologic connection with the ocean. See, e.g. Member Comments, Aldous at 4, Brooks 

at 17, Kolm at 49. The water is plainly hydrologically connected to and affects another 

water of the U.S. and should be protected in its own right both for human consumption 

and for the obvious ultimate impact to aquatic ecosystems. It is nonsensical to protect 

water in a stream, then not protect it if the water molecules change to a subsurface flow, 

and then protect it again when those molecules surface in the ocean or a spring-fed 

stream. And, as the court noted in Hawai‘i Wildlife Fund, “[n]either logic nor case law 

supports distinguishing between ‘shallow’ and ‘deep’ groundwater.” 2014 WL 2451565 

at *17.While groundwater might not in every instance be a water of the U.S., excluding 

groundwater from ever being considered a water of the U.S. would not be a reasonable 

interpretation of the Act, nor would it be reasoned decision-making supported by the 

record. EPA should revise the rule accordingly.

Earthjustice urges EPA to conform the groundwater sections of the proposed rule to the 

existing law and science to ensure that waters of the U.S. are fully protected as intended 

under the Clean Water Act. EPA should revise the rule to remove groundwater as a 

categorical exclusion and either fully include it in the “other waters” analysis of 

subsection (s) or create a new subpart in subsection (s) to ensure that groundwater that is 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

250

connected to surface water, regardless of its “depth,” is protected as a water of the U.S. 

(p. 11-12)

Agency Response: See summary response above.

Columbia Riverkeeper (Doc. #15210)

7.388 Groundwater and surface water are inherently interconnected in most watersheds. 

Groundwater should be protected as a water of the U.S. where it is hydrologically or 

biologically connected to surface waters in any detectable way. (p. 2)

Agency Response: See summary response above.

Raritan Riverkeeper (Doc. #15360)

7.389 Subsection (2) Must be Rewritten to Ensure Jurisdictional Waters are Not Needlessly 

Excluded

... 

Finally, the Agencies should clarify what "groundwater" features will be excluded from 

the definition of Waters of the United States. Under the proposed language, 

§401(1)(2)(v)(f) exempts "Groundwater, including groundwater drained through 

subsurface drainage systems" from the definition. However, in the accompanying 

materials contained in the Federal Register notice, the agencies twice differentiate "deep

groundwater" from shallow groundwater that can be shown to be hydrologically part of 

surface waters (and thus can be deemed jurisdictional). The Agencies should clarify what 

groundwater, if any, they intend to include or exclude from the definition (p. 14-15)

Agency Response: See summary response above.

Delaware Riverkeeper Network (Doc. #15383)

7.390 Exclusion of Groundwater and Shallow Subsurface Connections: Section 

328.3(b)(5)(vi)

There is no scientific justification for the exclusion of groundwater and shallow 

subsurface connections. Groundwater connections, especially those with shallow 

flowpaths in unconfined aquifers, are critical to supporting surface water and biochemical 

processes of wetlands and other waters, and serve to connect wetlands and waters that 

have no apparent surface connections.168 Because of their ability to critically influence 

wetlands, such connections should not be excluded. (p. 5)

Agency Response: See summary response above. The agencies have clarified that 

subsurface connections can serve as a non-jurisdictional hydrologic connection that 

agencies would consider when making case-specific significant nexus 

determinations. The science strongly supports the important role subsurface 

connections can play when assessing the effects of surface waters, and it is 

appropriate to consider them in a significant nexus determination.

 

168 Letter from the Science Advisory Board to The Honorable Gina McCarthy, Administrator of the EPA (Sept. 30, 

2013).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

251

Center for Environmental Law & Policy (Doc. #15431)

7.391 I. GROUNDWATER IS A THREATENED NATIONAL AND LOCAL RESOURCE.

A. Groundwater is an essential national resource.

The protection of groundwater specifically implicates the nation’s environmental health, 

economic growth, and national security. To state the obvious, the enormous quantity of 

water available for all of these essential purposes is of little value if the water is not of 

sufficient quality to support our needs. Our nation’s water supply must be of secure 

quantity and quality to remain a valuable asset.

Unfortunately, the nation’s current fragmented approach to groundwater pollution 

regulation—creating a dizzying array of state and federal standards—is inadequate to 

keep this essential resource safe for current and future generations. Over a decade ago, 

the EPA’s Ground Water Report to Congress noted that piecemeal regulation is 

ineffective because “fragmentation of ground water programs impedes effective 

management.”169 Continued regulatory fragmentation—such as the kind EPA is 

proposing in this rule—would only increase the ineffectiveness. As Robert Hirsch, the 

former Chief Hydrologist for the USGS, wrote, “[e]ffective policies and management 

practices must be built on a foundation that recognizes that surface water and ground 

water are simply two manifestations of a single integrated resource.”170

1. Americans across the country are dependent on groundwater in large amounts

Americans pump 83 billion gallons of groundwater each day, representing roughly 25 

percent of the nation’s total water use.171 Specific use varies by region; California and 

Texas use the most groundwater by volume, while Hawaii depends on groundwater for 

fully 95 percent of its water needs.172 Nationally, groundwater is a key source of potable 

water: roughly 15 million households get their water from domestic wells, and 800,000 

new wells are installed annually.173 Groundwater is also a pillar of our agricultural 

industry; irrigation uses account for 65 percent of groundwater use nationwide.174

Ecologically, groundwater provides essential ecosystem services, the most fundamental 

of which are water-table recharge and sustaining perennial flows in countless streams and 

rivers.175

2. The national groundwater supply faces additional challenges due to climate change

 

169 Environmental Protection Agency, Ground Water Report to Congress iii (2001), available at

http://www.epa.gov/safewater/sourcewater/pubs/rpt-congress_gw_2001.pdf.

170 Ground Water and Surface Water, A Single Resource, U.S. Geological Survey Circular 1139 at 1 (1998),

available at http://pubs.usgs.gov/circ/circ1139/#pdf.

171 Robert Glennon, Unquenchable: America’s Water Crisis and What to Do About It 111 (2009).

172 Dr. Venkatesh Uddameri, Importance of Groundwater to the US Economy, National Ground Water Association

presentation 2, available at http://water.epa.gov/action/importanceofwater/upload/21-Uddameri.pdf .

173 Glennon at 130.

174 Uddameri at 3.

175 Id. at 5.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Although climate change risks to water are most often discussed in the context of surface 

water, climate change will also impact groundwater.176 Climate change will impact 

groundwater both directly (influencing recharge and chemical composition) and 

indirectly (as impacts on surface water are felt in the water cycle).177 The IPCC recently 

reported that “[c]limate change is projected to reduce renewable surface water and 

groundwater resources in most dry subtropical regions...intensifying competition for 

water among sectors.”178 Indeed, author Catherine Hughes reports that “[c]limate is the

major factor driving temporal variability in groundwater recharge.”179 However, a 2011 

report co-authored by the USDA Agricultural Research Service (ARS) cautioned that 

climate-driven recharge patterns also affect the quality of groundwater.180 For example, 

saline encroachment driven by rising sea levels may limit the usefulness of groundwater 

for agricultural, ecosystem, or drinking needs. Thus, even as arid regions experience 

reduced recharge, rising seas will increase recharge of coastal aquifers by up to 15 

percent, correspondingly increasing the level of salinity and dissolved solids in coastal 

groundwater.181

3. Groundwater remains susceptible to many forms of pollution

Due to groundwater’s status as an essential national resource, studies showing the 

deteriorating health of our nation’s groundwater are cause for alarm. For example, the 

USGS Quality of Waters in Domestic Wells Survey revealed that more than one in five 

sampled wells contained one or more contaminants at concentrations greater than EPA 

human health benchmarks.182 The most common contaminant from man-made sources 

was agricultural nitrate,183 which is associated with both ecological impacts and human 

health risks (including infant death). In industrial use areas, the most common pollutants 

were volatile organic compounds (VOCs).184 Other threats vary across the more than 60 

principal aquifers across the country; Floridian agricultural aquifers far exceed 

permissible levels of dissolved arsenic,185 for example, while High Plains wells exhibit 

concerning levels of dissolved atrazine.186

 

176 Timothy R. Green et al., Beneath the Surface of Global Change: Impacts of Climate Change on Groundwater, 

405 Journal of Hydrology 532, 533 (2011).

177 Green et al., at 533.

178 IPCC, Climate Change 2014: Synthesis Report 10 (2014), available at http://www.ipcc.ch/pdf/assessmentreport/

ar5/syr/SYR_AR5_SPM.pdf.

179 Catherine E. Hughes et. al, Climate Change and Groundwater 98 (2011) (emphasis added).

180 Green et al., at 544-5.

181 Id. at 545; see also Priyantha Ranjan, So Kazama and Masaki Sawamoto, Effects of climate change on coastal

fresh groundwater resources, 16 Global Environmental Change 388, 395 (2006), available at

http://espace.library.curtin.edu.au/cgi-bin/espace.pdf?file=/2011/01/25/file_1/135411 (observing that climate change

will impact freshwater globally by increasing coastal aquifer salinity and shifting recharge away from inland arid

zones).

182 Leslie A. DeSimone, Pixie A. Hamilton, and Robert J. Gilliom, Quality of Water from Domestic Wells in the

United States, United States Geological Society (USGS) National Water-Quality Assessment Program,

http://water.usgs.gov/nawqa/studies/domestic_wells/.

183 Id.

184 USGS, Southwest Principal Aquifers Regional Ground-Water Quality Assessment 3 (2009), available at

http://pubs.usgs.gov/fs/2009/3015/pdf/fs2009-3015.pdf.

185 USGS, Comparison of Dissolved Arsenic Concentrations in Select Principal Aquifers,
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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4. Groundwater is an engine of national economic growth

While the ecological and health risks to our nation’s groundwater independently justify 

protection, the economic importance of groundwater further recommends its 

conservation. Benjamin Franklin said, “When the well’s dry, we know the worth of 

water.”187 Discussing groundwater purely as a resource, however, we need not wait: the 

estimated value of groundwater produced annually exceeds $20 billion, sales of 

groundwater-related businesses exceed $15 billion, and sales of related manufacturing

industries exceed $350 million.188 Community water systems alone employ more than 

200,000 workers; adding in associated industries like drilling, environmental services and 

remediation roughly doubles this figure.189

One popular example of a largely groundwater-dependent industry is the bottled water 

business. With certain brands selling twenty ounce bottles for more than the price of a 

gallon of gas—yet spending cents on the dollar to “produce” the water—this industry has 

seen rapid growth in recent decades.190 In 2011, American consumers drank 9 billion 

gallons of bottled water.34 While the increasing privatization of water traditionally held 

in trust for future generations raises its own concerns, on an economically pragmatic level 

it is clear that carefully managing the resource on which these industries rely is a 

prerequisite for, at a minimum, the continued enjoyment of economic benefits from 

resource use.

5. Groundwater is essential to national security

"The groundwater is our strategic reserve. It's our backup, and so where do you 

go when the backup is gone?"191– James Famiglietti

The Department of Defense recently released an “Adaptation Roadmap,” in which the 

Pentagon positively identified climate change as a threat to national security.192 On a 

global scale, the United Nations estimates that more than half of the world’s population 

will live in waterscarce areas.193 In a February 2012 “Global Water Security” report, the 

Director of National Intelligence predicted that water over-use and resulting scarcity will 

be a contributing factor in armed conflict.194 America’s own water infrastructure is also 

vulnerable to attack; with 75,000 dams and reservoirs in constant use—serviced by two 

 

http://water.usgs.gov/nawqa/studies/praq/images/ComparisonGraphics/arsenic.jpg.

186 USGS, Comparison of Dissolved Atrazine in Select Principal Aquifers,

http://water.usgs.gov/nawqa/studies/praq/images/ComparisonGraphics/atrazine.jpg.

187 Glennon at 16.

188 Uddameri at 6-7.

189 Id. at 10.

190 James Salzman, Drinking Water: A History 16 (2013).

191 Suzanne Goldenberg, Why Global Water Shortages Pose Threat of Terror and War, The Guardian, February 8,

2014, available at http://www.theguardian.com/environment/2014/feb/09/global-water-shortages-threat-terror-war

(quoting hydrologist James Famiglietti of the University of California at Irvine).

192 Department of Defense, 2014 Climate Change: Adaptation Roadmap 1 (2014) available at

http://www.acq.osd.mil/ie/download/CCARprint.pdf.

193 Salzman at 71.

194 Defense Intelligence Agency, Global Water Security iii (2012) available at

http://www.dni.gov/files/documents/Newsroom/Press%20Releases/ICA_Global%20Water%20Security.pdf.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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million miles of piping—it is simply impossible to defend it all.195 Enemies both foreign 

and domestic have already sought to exploit infrastructure weaknesses, such as the 2002 

terrorist attempt to poison the water of the American embassy in Rome or the Weather 

Underground’s plot in the 1970s to use the military’s own biological warfare material to 

poison domestic waters.196

In this context, it is a matter of national security to preserve the nation’s groundwater. 

Most obviously, damage to our groundwater would directly impact national security 

because one quarter of our drinking water comes from groundwater. Second, in the 

context of the extreme vulnerability of our (primarily surface) water infrastructure, it 

would be dangerously irresponsible neglect the strategic reserve that America’s 

groundwater represents. Our government stockpiles food, gasoline, and even nuclear 

missiles to gird this country against the possibility of attack—yet these resources are 

ultimately useless without an adequate national reserve of clean water. (p. 3-6)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

groundwater. See summary response above. The requirement to protect drinking 

water sources is beyond the scope of this rule. The final rule does not affect the 

application of other laws. 

7.392 II. THE CWA PROVIDES AN ESSENTIAL FEDERAL SAFETY NET FOR 

GROUNDWATER RESOURCES

Three acts provide the most significant regulation of the nation’s groundwater outside of 

the CWA: the Safe Drinking Water Act (SDWA) of 1974, the Comprehensive 

Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, and the 

Resource Conservation and Recovery Act (RCRA) of 1976. Each act has a limited scope; 

none deals with groundwater comprehensively. Without the crucial gap-filling role of the 

CWA, these three statutes leave vulnerable many of the nation’s important groundwater 

resources.

A. CERCLA and RCRA respond to pollution after-the-fact.

CERCLA and RCRA are, as the agency knows well, restorative rather than preventative 

acts. They focus on remedying groundwater contamination after it occurs, as has been 

long recognized.197 CERCLA enables the EPA to act only once there is a release or a 

substantial threat of release of a hazardous pollutant, which must present an imminent 

and substantial danger to the public health or welfare.198 RCRA implements cleanup 

requirements for the EPA once contamination has occurred.199

Taking a reactive approach to the pollution of our groundwater not only permits 

groundwater to become contaminated, it results in groundwater contamination that may 

not be possible to restore or restoration may take decades. The difficulty or impossibility 

 

195 Salzman at 144.

196 Id. at 143-4.

197 See, e.g., Linda A. Malone, The Necessary Interrelationship Between Land Use and Preservation of Groundwater 

Resources, 9 UCLA J. Envtl. L. Pol'y 1, 16, 26-27, (1990); Mining Contamination of Groundwater: The Need for 

Legislation and Reform, 2 U. Denv. Water L. Rev. 60, 73 (1998).

198 CERCLA, 42 U.S.C. § 9604(a)(1)(A)-(B) (2006).

199 RCRA, 42 U.S.C. § 6973(a) (2011).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

255

of cleaning up groundwater contamination means that many aquifers are permanently lost 

as useful water sources. The EPA has long admitted to the public that some sources of 

groundwater can never be effectively cleaned once contaminated.200 Often, the most a 

cleanup effort achieves is containing the contamination and preventing it from dispersing 

further. And despite many significant advances in groundwater remediation technologies, 

restoring the entire volume of a contaminated aquifer remains an elusive goal, and few 

examples of such restoration have been reported.201

B. SDWA jurisdiction is limited to public water supplies.

The SDWA gives direct, though narrow, coverage to groundwater: the act only applies to 

“public water systems,” not all groundwater.202 Public water systems are defined as 

systems providing water for human consumption to at least fifteen service connections or 

twenty-five individuals.203 Under the SDWA, groundwater used by a single household 

and groundwater utilized for purposes such as agriculture, but not consumption, receives 

no protection.

C. SDWA jurisdiction is limited to pollution by “injection.”

The SDWA regulations of the disposal of wastes into groundwater are very narrow. The

SDWA deals strictly with waste that is “injected” into groundwater.204 So, for example, 

waste from mines that enters groundwater by seeping through the soil is not regulated 

under the act. SDWA’s regulation of groundwater and drinking water supplies is further 

narrowed by the statute’s lack of protection for residents utilizing private wells.

D. SDWA jurisdiction is limited by exclusions.

The proposed categorical exclusion of groundwater under the CWA must be assessed in 

light of other deliberate rollbacks for the protection of groundwater. This proposed rule 

comes at a moment not of strengthening but of weakening of related programs. Twentyfive years ago there were high expectations that attended our laws to protect drinking 

water:205

The 1974 Safe Drinking Water Act (U.S. Public Law 93-523) authorized the [U.S. 

EPA] to establish federal standards to protect the public from harmful 

contaminants of drinking water. The law also provided for the establishment of a 

joint national-state system to ensure compliance with the standards and to protect 

underground water sources from contamination. ... Section 1412(c) of the act and 

its amendments ... mandated that the National Research Council (NRC) conduct 

 

200 see, e.g., Ground Water Cleanup at Superfund Sites, U.S. Environmental Protection Agency,

http://www.epa.gov/superfund/health/conmedia/gwdocs/ brochure.htm (“[t]reatment technologies are limited in their

ability to clean up an aquifer, even if the location of the contaminants is known.”)

201 United States Army Environmental Center, Guidance to Site Managers at Army Installations: Groundwater

Evaluation and Development of Remediation Strategies where Aquifer Restoration may be Technically

Impracticable 3-7 (2002).

202 SDWA, 42 U.S.C. §300f(4)(a) (2012).

203 Id.

204 SDWA, 42 U.S.C. § 300h(d)(1)-(2) (2012).

205 Safe Drinking Water Committee, Drinking Water and Health, V. 9: Selected Issues in Risk Assessment ix (1989

National Academy Press).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

256

studies to identify adverse health effects associated with contaminants in drinking 

water, to identify relevant research needs, and to make recommendations 

regarding such research. Amendments to the law in 1971 requested revisions of 

the NRC studies to report “new information which had become available since the 

NRC’s most recent report, and every two years thereafter.”

These expectations would be difficult to meet under the best of circumstances. 

Circumstances are not the best. In Legal Environmental Assistance Foundation v. U.S. 

EPA,

206 the court held that fracking fluids were subject to the regulatory measures for 

“underground injection” but this case was overruled by the Energy Policy Act of 2005,207

that excludes —

(ii) the underground injection of fluids or propping agents (other than diesel fuels) 

pursuant to hydraulic fracturing operations related to oil, gas, or geothermal 

production activities.

This is an exception, as the agency well knows, to the underground injection regulatory 

regime for not one contaminant but several of them largely unidentified. This loophole 

effectively permits natural gas and chemicals, such as methanol, hydrochloric acid, 

benzene, and quaternary ammonium chloride, to be injected into areas of groundwater 

that provide water to twenty-five or more individuals.208 Many of the chemicals 

qualifying as exempt under SDWA section 300h(d)(1)(b) are the same listed by the EPA 

as carcinogens and provided maximum contaminant levels for primary drinking water 

regulation under the SDWA.209

This protective regime was turned over to the mercies of the common law, with 

consequences predictably perceived by courts that have been called to the rescue210:

By any responsible account, the exploitation of the Marcellus Shale Formation 

will produce detrimental effects on the environment, on the people, their children, 

and future generations, and potentially on the public purse, perhaps rivaling the 

environmental effects of coal extraction. ...

We know that cracks in the legal protective canopy of the SDWA cannot be fixed here. 

But they cannot be ignored here by the proposals that would add another crack in that 

protective legal canopy.

E. SDWA high-level protection for “sole source aquifers” applies to a fraction of the 

nation’s groundwater.

The greatest protection SDWA provides to groundwater is the qualification as “sole 

source aquifers.”211 The designation of sole source aquifer is granted to aquifers that 

 

206 276 F.3d 1253 (11th Cir. 2001).

207 Pub. L. No. 109-58, § 1(a), 119 Stat. 594 (2005) (“underground injection”).

208 What Chemicals are Used, Frac Focus Chemical Disclosure Registry (Nov. 12, 2014, 7:00 PM),

https://fracfocus.org/chemical-use/what-chemicals-are-used.

209 Drinking Water Contaminants, U.S. Environmental Protection Agency (Nov. 12, 2014, 7:00 PM),

http://water.epa.gov/drink/contaminants/#List; SDWA, 42 U.S.C. § 300(f)(1)(c)-(d) (2012)

210 Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901, 976 (Pa. 2013) (public trust under art. 1, §

27 of the Pa. Constitution)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

257

supply at least 50 percent of drinking water consumed in the area overlying the aquifer.212

The designation is not automatically granted, and a party must submit an application 

identifying a protection area for consideration. Once designated as a sole source aquifer, 

the SDWA requires all commitment of federal financial assistance to be considered for 

possible negative effects to the designated aquifer.213 Only 77 designated sole source 

aquifers are designated under the SDWA nationwide.214 The exclusivity of this program 

leaves the majority of the nation’s groundwater without such protection.

F. SDWA enforcement lacks resources and capacity.

In addition to the insufficient coverage by the SDWA to prevent discharge of pollutants 

to groundwater, the act has been poorly enforced. Reports by the U.S. Government 

Accountability Office over the last few years continue to find that the EPA is 

ineffectively implementing and enforcing its responsibilities under the SDWA. In 2011, 

the GAO found that the EPA had not effectively implemented the 1996 amendments’ 

requirement to consider, for regulatory determinations, contaminants that present the 

greatest public health concern.215 A study by GAO in 2014 determined that the SDWA 

needed to permit the monitoring of more contaminants and at increased frequencies as 

part of the EPAs Unregulated Contaminant Monitoring Program.216 The GAO recently 

found that the EPA fails to properly enforce the underground injection control (UIC) 

program of the SDWA.217 (p. 10-13)

Agency Response: See above response. The regulation of groundwater under 

other statutes is beyond the scope of this rule.

7.393 III. THE AGENCY DOES NOT ADEQUATELY EXPLAIN ITS RATIONALE FOR A 

TOTAL GROUNDWATER EXCLUSION.

As the EPA and its Scientific Advisory Board are aware, firm distinctions between 

groundwater and surface water are often empirically false. To take only one prominent 

example: The U.S. Geological Survey reports that the groundwater contribution to all 

streamflow in the United States may be as large as 40 percent.218 Despite this, EPA gives 

scant justification for its groundwater exclusion in the proposed rule, writing simply that 

 

211 SDWA, 42 U.S.C.A. § 300h-3(e).

212 Id.

213 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW § 4.8 (2014).

214 Sole Source Aquifer Protection Program, U.S. Environmental Protection Agency (Nov. 12, 2014, 7:00 PM),

http://water.epa.gov/infrastructure/drinkingwater/sourcewater/protection/solesourceaquifer.cfm.

215 See U.S. Government Accountability Office, Improvements in Implementation are Needed to Better Assure the

Public of Safe Drinking Water GAO-11-803T (2011), available at http://www.gao.gov/products/GAO-11-803T.

216 See U.S. Government Accountability Office, EPA Has Improved Its Unregulated Contaminant Monitoring

Program, but Additional Action Is Needed GAO-14-103 (2014), available at http://www.gao.gov/products/GAO14-103.

217 See U.S. Government Accountability Office, EPA Program to Protect Underground Sources from Injection of

Fluids Associated with Oil and Gas Production Needs Improvement GAO-140-555 (2014), available at

http://www.gao.gov/products/GAO-14-555.

218 United States Geological Survey, Sustainability of Ground-water Resources: U.S. Geological Survey Circular

1186 7 (1999).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

258

the “agencies have never interpreted ‘waters of the United States’ to include 

groundwater.”219 The size of this rationale is too small to justify so large an exclusion.

In its one-sentence explanation, the agency does not sufficiently explain its reasoning for 

creating a CWA permit exemption with the force of law for the entire supply of national 

groundwater. EPA should explain in substantial detail its understanding of the agency’s 

obligations to protecting groundwater under the CWA.

A. Prior Practice Is Not a Sufficient Rationale for Continued Practice

Groundwater should not be excluded simply because it has never been included in EPA’s 

prior definition of waters of the United States. Prior practice is not a sufficient prima 

facie rationale for continued practice. As Supreme Court stated in Chevron, U.S.A., Inc. 

v. Natural Resources Defense Council, Inc., “An agency, to engage in informed 

rulemaking, must consider varying interpretations and the wisdom of its policy on a 

continuing basis.”220

1. Since EPA generally champions its use of the scientific literature in fashioning its 

proposed definition, EPA should explain fully its reasons for excluding deeper 

groundwater and shallow subsurface flows.

CELP applauds EPA’s strong use of science in supporting certain portions of this rule. 

For example, EPA proposes the wholesale inclusion of “adjacent waters” with a sciencebased effort. The proposed “adjacent waters” is boxed in by three outer limits. “Adjacent 

waters” must be within the riparian zone, the floodplain, or have a “shallow subsurface 

hydrologic connection or confined surface hydrologic connection” to a jurisdictional 

water. While the limiting factors are not an entirely accurate representation of the 

scientific understanding, CELP supports EPA’s effort to use scientific literature in 

making these boundaries. EPA also proposes that “other waters” should be examined on a 

“case-specific basis.” In doing so, EPA correctly realizes that certain waters that are not 

easily encapsulated in rigid definitions and can still significantly affect jurisdictional 

waters. Again, CELP agrees with EPA’s championing of science to make these 

determinations.

Yet, in examining shallow subsurface flows and deeper groundwater, EPA does not give 

similar scientific analysis. Indeed, by EPA’s own admission, in advancing the “adjacent 

waters” definition, EPA explicitly states that shallow subsurface flows are not themselves 

waters of the United States.221 There is a clear gap between scientific reasoning and 

EPA’s proposed exclusion of shallow subsurface waters.

2. Use of detailed reasoning and science is good practice and required by case law.

EPA should not simply give prior practice as its reason for exclusion of groundwaters 

(whether they be “shallow subsurface” flows or deeper groundwater) because case law 

expects more than minimal reasoning, consideration of science, and logical consistency. 

 

219 79 Fed. Reg. 22,218 (April 21, 2014).

220 467 U.S. 837, 838 (1984)

221 79 Fed. Reg. 22,208 (April 21, 2014) (“While they may provide the connection establishing jurisdiction [between

adjacent water and the jurisdictional water], these shallow subsurface flows are not ‘waters of the United States.’”).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

259

An agency must give “detailed and reasoned” analysis before it excludes groundwater.222

A rule based on “no scientific judgment” runs the risk of failing to sufficiently meeting 

its statutory mandate.223 EPA has simply provided no detailed analysis of why all 

groundwater is excluded. Its only reason seems to be that it has never interpreted 

groundwater as included. This is not a detailed explanation, as required under Chevron.

EPA lacks scientific support for groundwater exclusion; indeed, EPA’s discussion shows 

scientific support for inclusion, not exclusion. For example, EPA argues “wetlands and 

other waters in landscape settings that have bidirectional hydrologic exchanges with 

streams or rivers . . . are chemically, physical, and biological connected with rivers via 

the . . . temporary storage of local groundwater that supports baseflow in rivers.”224

Elsewhere, EPA states that “[H]eadwater tributaries often depend on groundwater 

inputs.”225 EPA, in excluding groundwater, fails to provide sufficiently detailed and 

reasoned scientific judgment. (p. 13-15)

Agency Response: See summary response above.

7.394 IV. A TOTAL GROUNDWATER EXCLUSION IS NOT WARRANTED AND THE

EPA SHOULD CATEGORIZE QUALIFIED GROUNDWATER AS A WATER OF

THE UNITED STATES.

A. The groundwater exclusion should be removed from the proposed rule.

CELP urges EPA to remove the categorical groundwater exclusion from the proposed

rule.

1. A categorical exclusion does not fulfill the EPA’s broad and aspirational CWA

mandate to protect the nation’s waters.

“It is the intent of the Clean Water Act to cover, as much as possible, all waters of 

the United States instead of just some.”226

The CWA is an aspirational statute, and the Agency’s proposed rule fails to meet the

CWA’s aspirational goals established by Congress in 1972. The declared objective of the 

CWA is to “restore and maintain the chemical, physical, and biological integrity of the 

Nation's waters” and Congress specifically outlined detailed goals, policies, and 

deadlines by which to make the CWA’s aspirations a reality.227

“Hortatory congressional statements” like those in Section 101 of the CWA usually have

limited legal force.228 But statutory goals should be given more weight. Elected officials

carefully craft a statute’s goals in response to constituents’ desires. Statutory goals, 

 

222 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).

223 Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 756 (D.C. Cir. 2000).

224 79 Fed. Reg. 22,223 (April 21, 2014).

225 Id., 22,228.

226 Quivira Min. Co. v. E.P.A., 765 F.2d 126, 129 (10th Cir. 1985).

227 See 33 U.S.C. §1251(a) (2014).

228 Robert W. Adler, The Decline and (Possible) Renewal of Aspiration in the Clean Water Act, 88 Wash. L. Rev.

759, 771 (2014). See also, David M. Dreisen, Purposeless Construction, 48 Wake Forest L. Rev. 97, 98 (2014)

(arguing that “the Supreme Court’s statutory construction has become increasingly ‘purposeless’” and that “the

Court should give more weight to statutory goals, properly identified and conceived, than it has in recent years”).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

260

therefore, “tend to reflect public values to a greater extent than other statutory 

provisions.”229 When a statute is “ambiguous or silent... construing the statute to 

conform to its goals serves democratic values by allowing law to reflect the electorate’s 

desires.”230 The aspirational goals of the CWA reflect the desires of the American public 

to value, maintain, and restore our nation’s waters, and should be given special 

consideration.

The CWA is unique among environmental statutes. The hortatory statements of other

major environmental statutes fail to “articulate affirmative aspirations as clearly, as 

specifically, and as unambiguously as does the CWA.”231 But Congress included 

“specific operative provisions designed to implement the major aspirations in the 

[CWA’s] opening statement, making it more difficult to simply ignore those aspirations 

as the product of lofty legislative pronouncements.”232 Unlike other environmental 

statutes, “[i]t is clear that Congress adopted specific provisions designed to effectuate the 

goals articulated in section 101, rather than leaving them as entirely hortatory 

aspirations.”233

The EPA should give the aspirational goals of the CWA special consideration when

interpreting the CWA and defining the waters of the United States. Given the broad 

opening language of the CWA and the importance of groundwater to surface water, 

groundwater should not be wholly excluded from the proposed definition of waters of the 

United States.

2. The proposed categorical exclusion creates absurd results.

By electing to exclude groundwater from the waters of the United States, the agency

appears to give a permit to pollute to anyone with the capacity to dig a decent hole. A 

discharger need only bury its point source below what the agency considers a “shallow 

subsurface hydrologic connection” to escape CWA regulation. Since only “shallow” 

subsurface connections between waters are protected under the proposed definition, in 

situations where both shallow and deep subsurface connections exist, a party could 

exploit the deep connections and remain legitimately permit-free. For instance, a Section 

402 NPDES permit could be avoided by discharging the exact same pollutants into the 

“deep” part of the subsurface connection rather than the “shallow” part.

Further, by expressly asserting “shallow subsurface flows are not ‘waters of the United

States’” the agency creates another opening for circumventing the CWA.234 A plain 

reading of that explanation is that protection extends only to the waters connected by the 

shallow subsurface connection, and not to the shallow subsurface connection itself. Thus, 

a clever discharger could avoid a 402 permit by carefully pointing the discharge into the 

shallow subsurface connection itself and never directly into one of the waters it connects. 

This would have the same physical impact as discharging into the connected waters, and 

 

229 David M. Dreisen, Purposeless Construction, 48 Wake Forest L. Rev. 97, 98 (2014).

230 Id.

231 Adler at 771.

232 Adler at 771.

233 Adler at 775.

234 79 Fed. Reg. 22,208 (April 21, 2014).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

261

yet it appears that the Agency would have to allow it absolutely. Once the connection 

itself is expressly written out of the waters of the United States, discharge to it requires 

no permit.

Such absurd results are woefully inconsistent with any sound reading of the CWA, its

legislative history, and many Federal District court decisions.

B. Qualified groundwater should be protected using subsection (s) of the proposed rule

Instead of a categorical exclusion, CELP urges EPA to include groundwater within the

list of protected waters in subsection (s) of the proposed rule. Groundwater shares many 

of the same characteristics as the protected waters listed in subsection (s) and fits more 

logically in that subsection than in subsection (t).

The intent and letter of the Act could be met—and the absurd results avoided—if the

EPA were to simply follow one of two routes.

One route would be to include groundwater in the “other waters” category of subsection

(s)(7). This would allow a case-by-case analysis to determine whether any groundwater 

in particular presented a significant nexus to the traditional waters of the United States 

described in subsections (s)(1)-(6).

A second route would be to establish a clear definition in subsection (u) for “tributary

groundwater” and then include tributary groundwater under subsection (s)(5). Professor 

Mary Wood explained this concept in substantial detail in 1988 and that analysis remains 

sound today.235 All that remains is for the agency to add tributary groundwater to the 

acceptable list of tributaries in the definitions in subsection (u) of the rule.

By either route, the agency includes as waters of the United States only groundwater that

flows in some measure to traditional waters of the United States. Beyond that most 

important step, the agency is left to grapple with smaller but still essential differences.

The “other waters” route presumes, by definition, that the groundwater has a significant

nexus to the traditional water (emphasis added). This leaves open a possible reading that

polluted groundwater, to qualify as a water of the United States, must flow to the 

traditional water within a specific time frame and have some specific effect on the 

chemical, physical, or biological integrity of the surface water.

In contrast, the “tributary groundwater” route may require the agency to more strictly

apply the standard established in subsection (s)(5): a proven groundwater tributary would 

be a per se tributary like any other; hence, the 402 or 404 requirement to secure a permit 

would attach to any discharge of pollutants from a point source into the subsurface 

tributary without requiring a threshold of “significance” to the receiving water.236

 

235 Wood, Mary Christina, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under

the Clean Water Act, 12 Harv. Envtl. L. Rev. 569, 586-619 (1988).

236 The tributary groundwater approach better comports with the understanding that “[t]he Clean Water Act creates a

strict liability scheme that “categorically prohibits any discharge of a pollutant from a point source without a

permit,” irrespective of whether that discharge affects the receiving water.” Hawai’i Wildlife Fund v. Cnty. of Maui,

__ F. Supp. 2d __, 2014 WL 2451565, at *15 (D. Haw. May 30, 2014).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

262

CELP believes that groundwater is best treated as a water of the United States in the

sense of “tributary groundwater,” but recognizes that the agency might reasonably 

categorize groundwater under “other waters.”

C. EPA could increase administrative efficiency by developing, under separate rule or

guidance, a classification system for subsurface permeability and accompanying general

permits.

CELP recognizes the administrative burdens that accompany groundwater point-source

regulation. We therefore suggest that the EPA pursue a separate rule or guidance to 

increase the efficiency of groundwater regulation under the CWA. In this separate action, 

the agency could assist the conservation and regulated communities alike by setting a 

default rule that transparently established a presumption either for or against subsurface 

connectivity in specific areas. The presumption could be rebuttable by evidence presented 

by the challenging party.

The recent Hawai’i Wildlife Fund case illustrates the issues well.237 In that case, a group

seeking to show that waste that a county facility was depositing into the ground traveled 

into the ocean via groundwater.238 The plaintiffs conducted a study in which special dye 

was deposited with the waste, and was spotted in the ocean nearly three months later.239

This presented prima facie evidence that the chemicals from the waste facility were 

indeed reaching surface waters, and therefore the discharge should be regulated under the 

CWA.

EPA should draw on this example to develop specific guidance on where the presumption

of hydrological connection lies. The scientific data available in Hawai’i Wildlife Fund is 

not easily obtainable in many other contexts, and involves substantial expense. Moreover, 

the heterogeneous features of various aquifers and other groundwater systems make 

evaluating the scientific data in every groundwater case burdensome on citizens and 

courts alike. Indeed, requiring such expensive data from citizens runs against the spirit of 

the CWA’s citizen-suit provisions.

Therefore, CELP urges EPA to develop a region- or basin-specific classification system

that establishes rebuttable presumptions of hydrological connectivity (or nonconnectivity). EPA would be able to draw on its technical expertise to determine where 

the presumption of hydrological connectivity should apply based on a region or basin’s 

groundwater characteristics. Such a classification system could create a degree of 

certainty for all parties by establishing a shared and transparent baseline assumption of 

connectivity or non-connectivity.

The agency might find additional efficiencies by combining the region- or basin-wide

classification system with a general permit scheme. If a potential permittee sought to 

discharge into the ground, EPA could consult its basin- or region-specific classification 

and then, as appropriate, issue a general permit matched to a set of standardized 

limitations fitting to the permeability of the area at the depth in question. As is the case 

 

237 Id.

238 Id. at 1.

239 Id.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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with existing discharges that use general permit schemes, the agency should realize cost 

savings over preparing project-specific permits. (p. 18-21)

Agency Response: See summary response above.

The River Alliance of Wisconsin (Doc. #16344)

7.395 RECOMMENDATION: River Alliance recommends that EPA consider building a 

process for including groundwater as a WOTUS either by creating an additional category 

under 40 CFR §230.3(s) or by including a mechanism to include it under “Other Waters”.

While we understand this is not a revision to the existing rule, River Alliance strongly 

objects to the categorical exclusion of groundwater from waters of the U.S. and from the 

protections afforded under the Clean Water Act. Recent court decisions in Wisconsin 

have affirmed that groundwater and surface water are inextricably linked and our courts 

have affirmed the mandate that the Wisconsin Department of Natural Resources must 

consider the impacts of groundwater diversions and groundwater contamination on the 

chemical, physical and biological integrity of waters of the state. It is impossible to 

adequately protect the chemical, physical and biological integrity of WOTUS if we 

categorically exclude the connected waters that run below the surface of the ground.

Exclusion of groundwater is not supported by science and the treatment of groundwater 

in this proposed rule revision is inconsistent at best - some kinds of groundwater 

connections are a basis for inclusion as WOTUS, other kinds of groundwater connections 

are not considered an adequate connection and groundwater itself is not considered as a 

WOTUS or capable of affecting the chemical, physical and biological integrity of 

WOTUS. This continues to be one of the major unaddressed weaknesses of the WOTUS 

rule. In Wisconsin the impact of large scale agricultural industry on groundwater quantity 

and quality and the effect that is having on our waters makes this exclusion particularly 

jarring (see http://wisconsinwatch.org/2014/10/judge-blames-toxic-kewaunee-countywells-on-massive-regulatory-failure/). (p. 4-5)

Agency Response: See summary response above. Nothing in the final rule 

precludes state efforts to protect groundwater. 

Water Watch of Oregon (Doc. #16568)

7.396 WaterWatch supports a broad, science-based definition of the waters of the U.S. and 

urges EPA to heed the advice and comments of the EPA Science Advisory Board (SAB) 

to strengthen the rule to ensure full protection of the nation’s waters. Further, 

WaterWatch of Oregon requests that the EPA revise the rule to remove most of the 

categorical exclusions, most especially the exclusion of groundwater, from the definition 

of waters of the U.S., preserving the ability to more fully protect our nation’s waters, 

again consistent with the advice and counsel of the SAB. (p. 1)

Agency Response: See summary response above.

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935)

7.397 The EPA and the ACOE Should Reinstate as “Waters of the U.S.” those that the 

SWANCC/Rapanos Decisions Listed as No Longer Jurisdictional
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

264

...

Surprisingly, the agencies specifically exclude groundwater from the waters that are 

jurisdictional, even on a case-specific basis.240 Even the very short excerpt from the 

DEC’s description of the attributes of ground-waters demonstrates how vital they are to a 

livable, healthy environment. The fact that groundwater can, and often does connect a 

wetland to a “navigable river”, i.e. provide a “nexus”, makes it exclusion even more 

confusing. Groundwater can be, and often is, a vital component of a wetland or stream. 

For example, in times of drought, when stream levels are low, a stream that shares the 

groundwater of a nearby wetland can receive replenishment form that source. The reverse 

may be true when stream levels are high. Clearly, a “significant nexus” exists between 

the stream and the wetland, even though “significance” is not restricted to a surface 

connection, as in the Supreme Court decision.

According to Section 305(b) of the Clean Water Act Amendments of 1977, “Section 

106(e) of the Clean Water Act requests that each State monitor the quality of its ground 

water resources and report the status to Congress every two years in its State 305(b) 

report. To provide guidance in preparing the 305(b) reports, EPA worked with States to 

develop a comprehensive approach to assess ground water quality that takes into account 

the complex spatial variations in aquifer systems, the differing levels of sophistication 

among State programs, and the expense of collecting ambient ground water data. This 

approach incorporates all of the components requested during previous 305(b) reporting 

periods”.241 Yet, contrary to this clear intent of Congress, EPA and ACOE expressly 

propose to exclude from their consideration this vital component of our water resources.

A particularly critical component of groundwater is its hyporheic zone where stream and 

groundwater interact. “The hyphorheic zone can be regarded as the heart of a river. 

Without a healthy, intact hyphoreic zone, river ecosystems could not function 

satisfactorily. The hyphorheic zone is the pore space at the interface between surface- and 

ground- water, and encompasses the areas both beneath, and laterally of, the bed of a 

river or lake. Water in this zone necessarily comprises a mixture of both surface and 

ground water components. Interactions between surface waters and groundwater are 

strongly affected by the composition of the pore system. The hyporheic zone harbors the 

most part of the water bodies’ biomass (animals, micro organisms). Thus, the 

decomposition of organic material, the so-called natural purification, occurs primarily 

within the hyporheic zone”.242

Finally, in addition to bypassing the “intent of Congress”, the agencies are ignoring an 

irrefutable fact of nature – that of the 1% of fresh water available on earth for drinking 

needs, only 4% is surface water; the remaining 96% is groundwater. For the most part, 

the two are inextricably linked together. By ignoring this fundamental fact of nature, the 

Agencies’ proposed regulations will only include a small sub-group of US waters that 

need protection. (p. 6)

 

240 Groundwater: Water found in the spaces between soil particles and cracks in rocks underground located in the 

saturation zone. Cracks in rocks can be due to joints, faults, etc. Groundwater is a natural resource that is used for 

drinking, recreation, industry, and growing crops. (NYS Department of Environmental Conservation)

241 http://water.epa.gov/type/watersheds/monitoring/upload/2003_07_03_monitoring_305bguide_v1ch5.pdf

242 Institute for Groundwater Ecology: info@groundwaterecology.de
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

265

Agency Response: See summary response above. The agencies have clarified that 

subsurface connections can serve as a non-jurisdictional hydrologic connection that 

agencies would consider when making case-specific significant nexus 

determinations.

7.398 The EPA and the ACOE Should Reconsider as “Waters of the U.S.” those that the 

SWANCC/Rapanos Decisions Listed as No Longer Jurisdictional

The agencies should include the following in their list of jurisdictional waters.

...

(e) Groundwater

In round figures, 97% of earth’s water is ocean water – not suitable for drinking or for 

agriculture – and 3% is freshwater. Of this 3%, close to 70% is frozen in glaciers and 

icecaps.

Of the remaining 1%, 96% is groundwater; only 4% is surface water.

In 2010, over 26 % of the total water supply for the nation came from groundwater.

These simple facts alone should make it clear that groundwater must be protected with as 

much diligence as surface water. Yet, the Proposed Rules state clearly that “groundwater, 

including groundwater drained through subsurface drainage systems” will be excluded 

from the definition of “waters of the United States (emphasis added)”. 243

The need to monitor and preserve groundwater in the US has never been more 

compelling. A recent NASA satellite study published on July 24, 2014, shows “shocking 

groundwater loss in the Southwest... 75 percent of the losses were of 

groundwater....which can get so low that it never recovers”.

However, even more compelling – and contradictory - is the EPA’s admission of the 

“hydrologic and biogeochemical interactions occurring in and among surface and 

groundwater flows including hyporheic zones and alluvial aquifers”. How can the EPA 

admit to the interconnection of ground- and surfacewater, yet, at the same time, rule out 

any need to include groundwater, as waters of the United States, under CWA regulations.

The requirement for states to monitor and assess the quality of their groundwater has 

been a federally designated responsibility recognized under Section 305(b) of the Clean 

Water Act of 1977. 

There is some confusion over the definition of groundwater. Here we refer to “Legal 

Groundwater” as discussed in the Oregon Law ReviewVol.91,244 Of the three categories 

of groundwater discussed in the article, the most applicable by the courts is the “subflow” 

from surface streams - the water that forms a bed under and around a stream.

Pollutants in groundwater that do not affect surface water are not subject to CWA.xviii

This is in sharp distinction to the proposal to eliminate groundwater completely from 

consideration under the CWA. (p. 6, 8-9)

 

243 Federal Register/Vol.79, No.76/Monday, April 21, 2014/Proposed Rules.

244 Beneath the Surface of the Clean Water Act: Oregon Law Review, Vol.91, By Anna Makowski.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

266

Agency Response: See above response. The final rule clarifies that subsurface 

connections can serve as a non-jurisdictional hydrologic connection that agencies 

would consider when making case-specific significant nexus determinations. 

Nothing in the final rule precludes state efforts to protect groundwater.

WaterLegacy (Doc. #18017)

7.399 Our comments reflect concerns about regulatory language and interpretations that are 

inconsistent with the purpose of the Clean Water Act and may allow sulfide (hardrock) 

mines to discharge tailings and other wastes into the nation’s rivers, lakes, and wetlands 

and to replace water bodies in natural landscapes with permanent impoundments of 

polluted waters.

Mines have avoided regulation of discharge to groundwater connected with surface 

water, impacting fish, wildlife and drinking water. The proposed “waters of the United 

States” rules, which would apply to all sections of the Clean Water Act, must not provide 

an exemption that further undermines control of polluted discharge through groundwater. 

In addition, both current and proposed interpretations of the Clean Water Act provide 

loopholes where adverse impacts from tailings waste and creation of permanent 

contaminated mine pit lakes evade regulatory controls. These loopholes should be closed 

to protect waters of the U.S.

Groundwater Connected to Surface Water

Regulating discharge to surface water when mining facilities pollute hydrologically 

connected groundwater is a significant regulatory challenge. Rather than containing, 

treating and discharging water directly to surface water, mining facilities may be 

designed to allow or even facilitate seepage of contaminants to surficial groundwater so 

pollutants can be hidden, particularly when monitoring of affected surface waters is 

distant or poorly sited. It is established that groundwater and surface water are often 

hydrologically connected. WaterLegacy believes that the exemption for groundwater 

from the definition of “waters of the United States” is overly broad and would encourage 

evasion of pollution containment, treatment and control. 

We would recommend that no exemption be provided in Rule 40 C.F.R. § 230.3(t) for 

groundwater, and that the question of whether groundwater has a “significant nexus” with 

waters of the U.S. be addressed case-by-case under subsection (s)(7). At the least, in 

order to prevent pollution of surface waters through connected groundwater, the 

following change to the groundwater exemption proposed in 40 C.F.R. § 230.3(t) should 

be made:

(t) The following are not “waters of the United States,” notwithstanding whether 

they meet the terms of paragraphs (s)(1) through (7) of this section—

. . .

(5) The following features. . . (vi) Groundwater, including groundwater drained 

through subsurface drainage systems; that is not diverted from or hydrologically 

connected to surface water. (p. 1-2)

Agency Response: See summary response above. EPA’s position that discharges 

to groundwater with a direct hydrological connection to a jurisdictional water 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

267

require an NPDES permit is not changed by the final rule. (See summary response 

at 12.3 with respect to the NPDES program.)

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.400 Paragraph (b)(5)(vi) exempts groundwater and the CWA jurisdiction clearly does not 

cover groundwater. However, “shallow subsurface hydrologic connection” is used in the 

proposed rule as a jurisdiction nexus. We believe this contradicts the exemption, and we 

request that the proposed rule refrain from reliance on “shallow subsurface hydrologic 

connection." (p. 3)

Agency Response: The science strongly supports the important role subsurface 

connections can play when assessing the effects of surface waters, and it is 

appropriate to consider them in a significant nexus determination. See Sections II 

and IX of the Technical Support Document.

Environmental Technology Consultants (Doc. #2597)

7.401 What features does this apply to? What types of lands are involved, and how does the 

drainage affect the definition of a wetland? If this drainage system reduces the water table 

to the point where the criteria for wetland hydrology is no longer met, what does it do to 

a wetland determination? (p. 1)

Agency Response: See summary response above. Questions regarding wetlands 

delineations are outside the scope of this rule. 

Wetland Science Applications, Inc. (Doc. #4958)

7.402 I agree with placing the exceptions at 33 CFR 328(b) into the rule with the following 

exceptions: 

...

4. Regarding (5)(vi). Ground water is not regulated under the CWA. It is regulated under 

the Safe Drinking Water Act and, therefore, it is correct that it should be excluded from 

waters of the U.S. While there might be some justification for extending channelized 

flows through a very shallow hyporheic zone within the bed of a stream during some 

portions of the year, the Connectivity Study considers "shallow" to be from centimeters 

to tens of meters (p. 2-1, ln 25+). There are many landscapes that not even the EPA or the 

COE under the Regional Supplements would call wetlands that have water tables within 

tens of meters for extended if not perennial timeframes. The Rule must be more explicit 

on groundwater. Is the exclusion total?

... (p. 2)

Agency Response: See summary response above. The agencies in the final rule 

preamble clearly state, “neither shallow subsurface connections nor any type of 

groundwater, shallow or deep, are themselves ‘waters of the United States’.”

Robert J. Goldstein & Associates (Doc. #16577)

7.403 4) Groundwater drained through sub-surface drainage systems: NO !!! This 

exclusion as currently worded could be applied to millions of acres of wetlands that do 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

268

not have surface flow or ponding, including wet savannas, flatwoods, Carolina bays, 

pocosins, bogs, and other environmentally important sub-surface waters. This exclusion 

should be re-written more narrowly. (p. 2)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

groundwater. See summary response above. The agencies have clarified that 

subsurface connections can serve as a non-jurisdictional hydrologic connection that 

agencies would consider when making case-specific significant nexus 

determinations. The science strongly supports the important role subsurface 

connections can play when assessing the effects of surface waters, and it is 

appropriate to consider them in a significant nexus determination.

7.3.7. Gullies and Rills and Non-Wetland Swales

Agency Summary Response

Based on comments additional clarity was provided in the final rule and preamble.

The final rule identifies all erosional features, including gullies, rills, and non-wetland swales as 

non-jurisdictional features. Several commenters expressed concern that “arroyos” and “manmade swales “were absent from the list of erosional feature types. The final rule makes it clear 

that all erosional features would be excluded. Specifically, erosional features are not 

jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c), especially the 

definition of tributary, and would be non-jurisdictional in any case. The Agencies inclusion of 

erosional features in the final rule was aimed to specifically avoid the confusion from previous 

regulatory guidance and at the request of commenters who stated that such exclusions were 

important to maintain.

Several commenters identified the need to clearly differentiate erosional features from 

jurisdictional waters, more specifically intermittent and ephemeral tributaries. The final rule 

clearly states that tributaries would be distinguished from erosional features by the presence of 

bed and banks and an ordinary high water mark. Concentrated surface runoff may occur within 

an erosional feature, but without creating the permanent physical characteristics associated with 

bed and banks and ordinary high water mark, the feature will not be jurisdictional.

Several commenters suggested that ephemeral and intermittent drainages as well as streams that 

are not tributaries should be excluded from the final rule as these features are generally not 

considered jurisdictional waters. The final rule preamble states that some ephemeral streams are 

colloquially called “gullies” or “swales” even when they exhibit a bed and banks and an ordinary 

high water mark. Regardless of the name they are given locally, waters that meet the definition 

of tributary or wetland are not excluded erosional features. Given this variability in terminology, 

and the focus on physical characteristics in the definition of tributary, the agencies did not think 

it necessary to define terms like “gully” or “rill” in the final rule. Similarly, some wetlands are 

given the name swale, regardless of the name given, waters that meet the definition of a wetland 

are not excluded erosional features and are subject to jurisdiction.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

269

Several commenters expressed concern that while the waters listed in the exclusions are never 

“waters of the United States,” they can serve as a hydrologic connection that the agencies might 

consider under a case-specific significant nexus under paragraphs (a)(7) and (a)(8). The final 

rule provides additional clarity in that, for example, while the non-wetland swale itself will 

always be excluded from jurisdiction, the connection of the wetland to the tributary is relevant 

for determining whether the wetland has a significant nexus to downstream traditional navigable 

waters, interstates waters, or the territorial seas.

In addition, several commenters had concerns about how the final rule would impact CWA 402 

permitting as well as the status of man-made swales created expressly for the purpose of 

detention, infiltration and bio-attenuation of pollutants of stormwater runoff. The final rule states 

that these geographic features may function as “point sources” under CWA section 502(14)), 

such that discharges of pollutants to waters through these features would be subject to other 

CWA regulations (e.g., CWA section 402). Please note that the proposed rule did make changes 

to the definition of “waters of the U.S.” for all affected CWA programs, as does the final rule 

(please see summary response at 7.4.4 with respect to stormwater control features). 

The final rule also excludes lawfully constructed grassed waterways. The final rule states that 

once converted to grassed waterways, these former streams segments no longer exhibit a bed and 

banks or ordinary high water mark and are excluded because they no longer meet the definition 

of “tributary.” It should be noted that such conversion does not sever jurisdiction over the entire 

length of the tributary above and below the grassed waterway. Instead, the rule states that the 

grassed waterway is considered a constructed break in the bed and banks and ordinary high water 

mark. This is reflected in the definition of tributary, which specifically addresses natural or manmade breaks in bed and banks and ordinary high water mark.

The final rule also adds an exclusion for puddles. The proposed rule did not explicitly exclude 

puddles because the Agencies have never considered puddles to meet the minimum standard for 

being a “water of the United States,” and it is an inexact term. A puddle is commonly considered 

a very small, shallow, and highly transitory pool of water that forms on pavement or uplands 

during or immediately after a rainstorm or similar precipitation event. However, numerous 

commenters asked that the agencies expressly exclude puddles in a rule. The final rule does 

exclude puddles.

Specific Comments

U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

7.404 In her blog, Acting Assistant Administrator Stoner said that the proposed rule specifically 

excludes erosional features. She was referring to gullies and rills. 

Does EPA believe that the CWA covers erosional features? Please provide a detailed 

legal rationale and any supporting examples or precedent. (p. 16)

Agency Response: The final rule makes it clear that all erosional features would 

be excluded from CWA jurisdiction. Specifically, erosional features are not 

jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c), 

especially the definition of tributary, and would be non-jurisdictional in any case. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

270

The Agencies inclusion of erosional features in the final rule was aimed to 

specifically avoid the confusion from previous regulatory guidance and at the 

request of commenters who stated that such exclusions were important to maintain. 

See summary response 7.3.7 above. 

New Mexico Department of Agriculture (Doc. #13024)

7.405 Erosional Features

The proposed rule lacks a definition for any of the terms: gullies, rills, or non-wetland 

swales. However, the Federal Register notice for this proposed rule does indicate that 

gullies "are ordinarily formed on valley sides and floors where no channel previously 

existed," indicating the relative impermanence thus variability that these erosional 

features contribute in flow into jurisdictional waters.

Arroyos are another type of erosional feature found throughout many western states. 

They are dry the vast majority of the year and are wet only immediately following a 

strong precipitation event. The topography in the arid West, with low-density vegetative 

cover and highly erodible soils, causes arroyos to form in much the same way as gullies.

Arroyos are similar to gullies in their hydrological significance. However, one main 

difference between the two features is that arroyos are typically wide and shallow, 

whereas gullies are relatively deep channels. This difference is inconsequential regarding 

the volume of water either can carry or contribute to a system, especially when 

considering the arid landscapes in which arroyos exist. In these regions, arid top soils are 

more prone to erosion hence erosional features tend to be wider.

NMDA requests that arroyos he added to this exclusion category.

Aside from gullies, rills, and non-wetland swales, how do the Agencies plan on 

differentiating other erosional feature s not specifically excluded from the definition of 

Waters of the U.S.? (p. 9-10)

Agency Response: The final rule makes it clear that all erosional features would 

be excluded from CWA jurisdiction, including “arroyos” and “man-made swales“. 

Specifically, erosional features are not jurisdictional under the terms of paragraph 

(a) and the definitions in paragraph (c), especially the definition of tributary, and 

would be non-jurisdictional in any case. The Agencies inclusion of erosional features 

in the final rule was aimed to specifically avoid the confusion from previous 

regulatory guidance and at the request of commenters who stated that such 

exclusions were important to maintain. See summary response 7.3.7 above.

Tennessee Department of Environment and Conservation (Doc. #15135)

7.406 Gullies, rills and non-wetland swales are notoriously difficult to distinguish as compared 

to what the Corps often classifies as ephemeral streams and/or wetlands. In fact, the 

proposed rule indicates that waters the agencies would consider jurisdictional are often 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

271

confused as these erosional features.245 The distinction is particularly difficult in 

mountainous areas where the concept of an erosional feature and a vertical stream are 

often confused. EPA and the Corps must include greater clarity with regard to how 

gullies, rills and non-wetland swales are defined. Explicit definitions will specifically 

enable crop and livestock production to continue without the concern over potential fines 

that may result without such clarity. Greater specificity will also aid federal and state soil 

and water conservation programs, including EPA's 319 Nonpoint Source Program, by 

avoiding unnecessary permits for the installation of Best Management Practices that 

lessen sediment and nutrient transport into Tennessee's waters. We request the agencies 

also provide more clarity as to what they believe are the driving distinctions between 

these features and waters that would be considered waters of the U.S. (p. 29)

Agency Response: See summary response 7.3.7 above.

West Virginia Department of Environmental Protection (Doc. #15415)

7.407 The WVDEP supports the exclusion of rills and gullies. However, this exclusion may 

create some confusion between what classifies as a non-jurisdictional rill or gully and 

what qualifies as a per se jurisdictional ephemeral tributary. Rills, gullies, and ephemeral 

drainways are all channels through which water only flows following precipitation that 

are otherwise dry. This exclusion should be broadened to eliminate ephemeral drainways 

and, thus, eliminate any confusion that may arise as a result of the proposed regulation's 

disparate treatment of these two classes of drainways. The preamble to the proposed 

regulation also states that puddles that dry up are excluded. 79 Fed.Reg. at 22,218. 

Whether as part of this gullies and rills exclusion or elsewhere, the exclusion of puddles 

needs to be clarified. (p. 14)

Agency Response: See summary response 7.3.7 above. 

Department of Public Health and the Environment, State of Colorado (Doc. # 16342)

7.408 Definitions: As exemplified by the above comments, there is some confusion related to 

the concept and definition of uplands. This may be the basis for some concerns that the 

proposed rule serves to increase CWA jurisdiction over areas that many consider to be 

outside the definition of waters of the US. Additionally, the terms "gullies,"" rills," and 

"non-wetland swales" are proposed to be exempt by rule, but the agencies have also not 

provided definitions of these features. The State recommends that the proposed rule 

clarify what is meant by these terms and in so doing recognize the unique nature of water 

in the West to avoid unnecessary conflicts and/or unintended consequences.

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills, and non-wetlands swales and summary response 6.3 for discussion of uplands. 

 

245 Id. at 22218-19. [79 Fed. Reg. 22188, 22211 (April 21, 2014)] ("It should be noted that some ephemeral streams 

are called' gullies' or the like when they are not 'gullies' in the technical sense ; such streams where they are 

tributaries under the proposed definition would be considered 'waters of the United States,' regardless of the name 

they are given locally"). Id. at 22219.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

272

Board of County Commissioners, Delta County, Colorado (Doc. #14405)

7.409 The gullies and rills exclusion is not adequately defined for livestock producers to 

determine the type of features on their properties, or to determine whether those features 

are jurisdiction or not excluded. While Delta County Commissioners generally agree that 

gullies and rills are the types of features that are far beyond the jurisdiction of the CWA 

and therefore the agencies should make clear they are not "waters of the U.S.," the 

agencies should include in the exclusion water features that have a bed and bank and in 

which water flows only briefly during and following a period of rainfall in the immediate 

locality. (p. 5)

Agency Response: See summary response 7.3.7 above for discussion of gullies and 

rills and summary response 8.1.1 for discussion of the relevance of flow regime for 

the definition of tributary. 

Southern California Water Committee (Doc. #16170)

7.410 The Proposed Rule intends to maintain current exclusions contained within the definition 

of WOTUS, and to also incorporate others that have not been considered WOTUS 

through longstanding practice of the Agencies. However, the current exclusions and the 

proposed new exclusions do not specifically include or incorporate MS4 conveyance 

facilities and other stormwater related facilities. The exclusions need to be revised to 

provide certainty to stormwater managers, state regulators, and the Agencies themselves.

...

D. Swales Exclusion

The Proposed Rule includes an exclusion for “gullies and rills, and non-wetland swales.” 

Within the narrative, the Proposed Rule states further that, “[n]on-wetland natural and 

man-made swales would not be ‘waters of the United States . . . .’ ” (79 Fed. Reg. 22188, 

22219 (April 21, 2014).) The Proposed Rule then appears to limit the stated exclusion by 

indicating that wetland swales could be jurisdictional under the adjacent or other waters 

categories. (Ibid.) To avoid uncertainty, and to ensure clarity with respect to the status of 

man-made swales, SCWC recommends that the exclusion be revised as follows:

Gullies and rills, and non-wetland and man-made swales. (p. 7, 9)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See summary 

response 7.3.7 above for discussion of swales. 

San Bernardino County, California (Doc. #16489)

7.411 Exclusion of Swales: The language pertaining to the jurisdictional exclusion of "swales" 

is confusing. The proposed Rule appears to limit the stated exclusion by indicating that 

wetland swales could be jurisdictional under the "adjacent" or "other waters" categories. 

This is a concern when dealing with man-made swales created expressly as a treatment 

system for detention, infiltration and bio-attentuation of pollutants in stormwater runoff. 

The DPW seeks clarification of this exclusion. (p. 4)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

273

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See summary 

response 7.3.7 above for discussion of swales.

7.412 The Proposed Rule includes an exclusion for "gullies and rills, and non-wetland swales." 

Within the narrative, the Proposed Rule states further that, "[n]on-wetland natural and 

man-made swales would not be 'waters of the United States . . .'."246 The Proposed Rule 

then appears to limit the stated exclusion by indicating that wetland swales could be 

jurisdictional under the "adjacent waters" or "other waters" categories.247 This is a 

concern when dealing with manmade swales (wetland or otherwise constructed) created 

expressly as a treatment system for detention, infiltration and bio-attenuation of 

pollutants in stormwater runoff. In the interest of clarity and to avoid uncertainty, the 

DPW seeks a more precisely worded exclusion regarding the status of man-made swales, 

As such the DPW recommends that the exclusion be revised as follows:

"Gullies and rills, and non-wetland and man-made swales." (p. 20)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See summary 

response 7.3.7 above for discussion of swales.

City of Oceanside, California (Doc. #16509)

7.413 To ensure clarity with respect to the status of man-made swales, CASQA recommends 

that the exclusion be revised as follows: Gullies and rills, and non-wetland and man-made

swales. (p. 5)

Agency Response: See summary response 7.3.7 above.

Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. #19450)

7.414 Gullies, Rills, & Non-Wetland Swales: Erosional features with minimal hydrologic 

impact, such as arroyos, should be excluded alongside gullies, rills, and non-wetland 

swales. (p. 1)

Agency Response: See summary response 7.3.7 above.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

7.415 Paragraph (b)(5)(iii) exempts gullies and rills and non‐ wetlands swales, however, the 

preamble on page 22208 states that a "confined surface connection consist of permanent, 

intermittent or ephemeral flow paths, such as (but not limited to) swales, gullies, rills, and 

ditches.” This narrative contradicts the proposed rule exemption for gullies and rills and 

NAFSMA requests that EPA reaffirm the exemption by clarifying and correcting the 

contradiction. (p. 3)

Agency Response: See summary response 7.3.7 above. 

 

246 Federal Register, at 22218 and 22219.

247 Ibid.
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Indiana Farm Bureau et al. (Doc. #14119)

7.416 There is also concern about whether gullies, rills and non-wetland swales are truly 

exempt from regulation. While the rule states that they are not “waters of the United 

States,” the preamble notes that they “may still serve as a confined surface hydrologic 

connection between an adjacent wetland or water and a traditional navigable water, 

interstate water or the territorial sea, provided there is an actual exchange of water 

between those waters, and the water is not lost to deep groundwater through infiltration 

(i.e., transmission losses). In addition, these geographic features may function as ‘point 

sources,’ such that discharges of pollutants to waters through these features could be 

subject to other CWA authorities (e.g., CWA section 402 and its implementing 

regulations).” 79 Fed. Reg. at 22204. It is incumbent upon the agency to more clearly 

explain the activities that will be allowed in relation to gullies, rills and non-wetland 

swales (i.e., that they can be filled in, excavated or moved without the requirement to 

obtain a permit even if they serve as the confined surface hydrologic connection for an 

adjacent water). Additionally, it would be helpful to note when a section 402 permit may 

be required for gullies, rills and non-wetland swales.

Finally, it appears that the agency has slightly hedged on the statement that gullies, rills, 

and non-wetland swales are not “waters of the United States.” While we are confident 

that we and our members can recognize gullies, rills and non-wetland swales, we have 

learned that the agencies will still want jurisdictional determinations in many cases to 

determine whether the exemption is met. It would appear that the concern here is much 

like that for ditches. If the agency is looking to regulate something that is perennial in 

nature, that should be stated. It is inaccurate and misleading to claim that gullies, rills and 

non-wetland swales are exempt while at the same time intending to perform delineations 

to make sure they meet whatever internal policies the agencies may have. (p. 4)

Agency Response: Gullies, rills, and swales that do not meet the definition of 

tributary are not jurisdictional, regardless of their status as a connection to 

downstream waters. Please see Section 12.3, 402 – NPDES in the Implementation 

Issues Compendium, regarding additional information on the NPDES program. See

summary response 7.3.7 above for discussion of gullies, rills, and swales. 

Southpace Properties, Inc. (Doc. #6989.1)

7.417 The proposed approach stands to cause chaos in the field resulting in confusion and delay 

as regulators struggle to distinguish between jurisdictional ephemeral drainages and 

unregulated gullies, rills, and non-wetland swales. Indeed, if these features are so similar, 

why are erosional features categorically excluded and ephemeral drainages are 

categorically jurisdictional? The agencies should exclude ephemeral drainages from 

jurisdiction as well as erosional features like gullies, rills, and non-wetland swales. (p. 2)

Agency Response: The rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities 

are required to make jurisdictional determinations on a case-specific basis. See 

summary response 7.3.7 above for discussion of gullies and rills and summary 

response 8.1.1 for discussion of the relevance of flow regime for the definition of 

tributary.
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Kerr Environmental Services Corp. (Doc. #7937.1)

7.418 4. 328.3(b)(5)(vii) Gullies and rills and non-wetland swales. The rationale for gullies, 

rills and swales not being waters of the United States should be that they, like ditches, 

when located wholly in uplands and drain only uplands are not jurisdictional as long as 

they have less than perennial flow. As such, the explanation at (b)(5)(vii) should drop the 

reference to non-wetland swales as follows:

"Gullies and rills and swales"

Man-made swales wholly in uplands, and draining only uplands, are constructed to 

concentrate and convey stormwater drainage. There is no distinct "design standard" for 

swales compared to "ditches" and the terminology/differences between swale and ditch 

are simply subjective terms. Swales can, in Coastal Plain, Piedmont and even 

mountain/bedrock environments, accumulate fine materials (clay and silts), which will 

inhibit infiltration, allowing hydrophytic vegetation to predominate and even allow 

marginal hydric soils to begin to form. They also allow additional infiltration and can 

assist in recharging the groundwater table, and are thus a credible part of the "green 

infrastructure" approach to improving water quality. Such a condition should not, by 

definition, cause the United States government to consider such swales to be waters of 

the United States. This would both be inconsistent with the approach of the USACE since 

1986 with regards to wetlands (November 13, 1986 preamble for 328.3, page 41217), and 

inconsistent with USACE/USEPA guidance issued for compliance with the Rapanos

decision. For these reasons the wording of this item needs to be revised accordingly.

Rills and gullies are by definition erosional features that convey runoff, and thus when 

entirely in uplands should not be considered waters of the United States. (p. 4)

Agency Response: See summary response 7.3.7 above. 

NAIOP Commercial Real Estate Development Association (Doc. #14621)

7.419 6. §328.3(b)(5)(vii). Arid Ephemeral Streams.

It is unclear whether EPA intends to regulate ephemeral streams such as arroyos as 

“tributaries”.248 If arroyos are considered tributaries, this would be a dramatic increase in 

regulatory jurisdiction and a burden on landowners, especially in the arid West. These 

arid ephemeral streams typically carry stormwater only during seasonal, and in some 

cases rare, rain events. The truth is that water flows downhill and water in the arid West 

has been carving the landscape for centuries.

We think the more reasonable and justifiable approach is, as a matter of policy, not to 

regulate arid ephemeral streams. However, exceptions to this policy would make sense. 

EPA might determine that a particular ephemeral stream should be opted in because (a) it 

has been proven to flow, at X rate (i.e., that is more than de minimus), into a regulated 

water, for Y number of hours (e.g., 240), for Z number of years (e.g., 5 consecutive), 

based on historic flow, or (b) the Corps has made a case-by-case determination under the 

significant nexus criteria. 

 

248 EPA’s Q&A #6 did not answer this concern.
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7.420 Given the lack of justification for treating ephemeral streams differently than 

gullies and rills, which function similarly in conveying water in response to rainfall 

events, we recommend that you replace:

“(vii) Gullies and rills and non-wetland swales” with:

(vii) Gullies, rills, non-wetland swales and arid ephemeral streams such as 

arroyos. (p. 4-5)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales and summary response 8.1.1 for discussion of historic and final rule 

coverage of ephemeral streams. 

Vulcan Materials Company (Doc. #14642)

7.421 Categorically, exempt ephemeral waters from jurisdictional coverage and establish 

reasonable minimum flow characteristics for a water to be considered subject to CWA 

jurisdiction. (p. 4)

Agency Response: See Technical Support Document section VII and summary 

response 8.1.1. 

Newmont Mining Corporation (Doc. #13596)

7.422 4. Exclusion for Swales, Rills, and Gullies

The Agencies’ Proposal would exclude from the definition of jurisdictional waters all 

“[g]ullies and rills and non-wetland swales.” See, e.g., paragraph (b)(5)(vii) at 79 Fed. 

Reg. 22263. While we applaud the Agencies for including this provision in the Proposal, 

we find it puzzling that the Agencies did not also exclude ephemeral drainages. The flow 

in ephemeral drainages, as is the case with the flow in gullies, rills, and swales, is entirely 

precipitation-based – either snowmelt or rainfall. No groundwater by definition infiltrates 

ephemeral drainages. The amount and duration of flow in ephemeral drainages, when 

located in the arid/semi-arid West, will typically be comparable to that in gullies, rills, 

and swales – that is, there will typically be no flow, or at most a few hours of flow every 

year. Moreover, the chances that the flows in such drainages will reach, by surface or 

shallow subsurface hydrological connection, a tributary network to a TNW is the same as 

rills, gullies, and swales: in the arid and semi-arid West, the chances are slim to none. Yet 

somehow ephemeral drainages are per se jurisdictional if one drop of water ever reaches 

a tributary network, while rills, gullies, and swales are categorically excluded. This 

distinction makes no sense. Where channels or drainages contain only precipitation 

runoff, and are located in areas of the country where evaporation exceeds precipitation, 

then the channels should not be deemed jurisdictional waters. The reason is simple: they 

cannot be deemed capable of, much less actually, having a significant effect on the 

chemical, physical, or biological integrity of a TNW. (p. 37-38)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales and summary response 8.1.1 for discussion of historic and final rule 

coverage of ephemeral streams. 

7.423 6. Suggested Changes to the Proposal
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As discussed above, the Agencies need to amend the Proposal to make plain that 

ephemeral and intermittent drainages that do not constitute “tributaries” are per se nonjurisdictional. Specifically, the Agencies should modify the Proposal to conform to their 

stated understanding and amend Subsection (b) to incorporate a new categorical 

exclusion for: “Ephemeral and intermittent drainages and streams that are not tributaries.”

In addition, any final rule should also categorically exempt from jurisdictional water 

status all ephemeral drainages and intermittent streams that are located in areas where 

annual evaporation exceeds annual precipitation and that do not contribute flow via a 

confined surface hydrology to a TNW or tributary system of a TNW at least in some 

regular fashion, e.g., three weeks per year averaged over 10 years. No such drainages can 

be deemed to significantly affect a TNW. This can be accomplished by incorporating a 

new categorical exception in subsection (b) of the Proposal for “Ephemeral and 

intermittent drainages and streams that: (1) are located in areas where the annual 

evaporation rate exceeds the precipitation rate; and (2) contribute flow to a water 

identified in paragraphs (a)(1) through (a)(4) of this section for less than three weeks per 

year averaged over ten years.” (p. 37-36)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales and summary response 8.1.1 for discussion of historic and final rule 

coverage of ephemeral streams. 

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.424 Proposed Exemption for Gullies, Rills, and Non-wetland Swales

The proposed rule includes an exemption for “gullies and rills and non-wetland swales” 

((122.2)(b)(5)(vii)). The proposed rule does not define “gully,” “rill,” or “swale,” but the 

preamble talks in terms of lacking features such as an Ordinary High Water Mark 

(OHWM) and distinct bed and banks. See 79 Fed. Reg. at 22218-19. That explanation 

must be included in the regulation itself. In addition, the agencies’ statement (79 Fed. 

Reg. at 22219) that a gully or swale may, even if exempt, provide a hydrological 

connection between a wetland and a tributary of a navigable water, so as to make the 

wetland subject to CWA jurisdiction, should only apply if there is a very short distance 

between the wetland and the navigable water. Otherwise, the effect of the wetland on the 

navigable water through the gully or swale is just too theoretical for the basis of CWA 

jurisdiction. (p. 12-13)

Agency Response: See Technical Support Document sections II and IX and 

summary response 7.3.7 above. 

Alameda County Cattlewomen (Doc. #8674)

7.425 The gullies and rills exclusion is not adequately defined for livestock producers to 

determine the type of features on their properties, or to determine whether those features 

are jurisdiction or not excluded. The agencies specifically asked for comments on “how 

they could provide greater clarity on how to distinguish between erosional features such 

as gullies, which are excluded from jurisdiction, and ephemeral tributaries, which are 

categorically jurisdictional. While ACCW generally agree that gullies and rills are the 

types of features that are far beyond the jurisdiction of the CWA and therefore the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

278

agencies should make clear they are not “waters of the U.S.,” the agencies should include 

in the exclusion water features that have a bed and bank and in which water flows only 

briefly during and following a period of rainfall in the immediate locality. The inclusion 

of the features would do exactly what the agencies requested. If landowners cannot 

distinguish these features than they should all be treated the same way, and because they 

do not meet the standard articulated by Justice Scalia in Rapanos, they should be 

excluded.249

The addition of these ephemeral features (those that only hold water during and 

immediately following a rainfall event) would alleviate much of the confusion and anger 

the agriculture community has with the proposed rule. The exclusion of more features 

under the “gullies” definition would allow the agencies to focus on those features that 

more clearly have a significant nexus to larger bodies of water. It would provide clarity to 

the livestock industry that producers’ dry washes and dry ditches are clearly not 

jurisdiction, without being dependent on the definition or an analysis of “uplands.” And it 

would allow the agencies to focus their resources on those bodies of water that have a 

better chance of having a significant nexus with larger downstream waters. (p. 23-24)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales and summary response 8.1.1 for discussion of historic and final rule 

coverage of ephemeral streams. 

Hancock County Farm Bureau, Indiana (Doc. #11980)

7.426 We are also concerned that gullies, rills and non-wetland swales will be considered 

regulated features even though they are generally deemed to be exempt in the rule. First, 

we understand that those features have generally been exempt when they are within 

fields. Those exact same features have been regulated in construction projects, such as 

when roads are built or repaired. It is also our understanding that the agencies may still 

conduct on-site reviews of some gullies, rills and non-wetland swales to determine 

whether they may be declared to actually be a tributary and not an exempt feature or to 

review the amount of flow they may carry. (p. 2)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales and summary response 8.1.1 for discussion of ephemeral streams. 

Bayless and Berkalew Co. (Doc. #12967)

7.427 The ambiguous wording of the rule is ripe for litigation as left to the interpretation of 

agency enforcement and environmental litigants... In section 328.3 (5) (vi) and (vii) 

gullies, rills and shallow subsurface connections are exempt, however on page 22210 of 

the proposed rule it states that “confined surface connections that provide a discrete 

pathway for water to be exchanged between the potentially adjacent wetland or water 

and an (a) (1) through (a) (5) water present the clearest evidence of a hydrologic 

connection... examples of confined surface water hydrologic connections that 

demonstrate adjacency are swales, gullies, and rills.” The proposal states that it can be 

 

249 Supra Note 21. [San Franscisco Baykeeper v. Cargill Salt Division, 418 F.3d 700, 707 (9th Cir. 2007).]
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hard to tell the difference between an erosional feature and an “ephemeral stream”, which 

is regulated (79 Fed. Reg. 22209). (p. 4)

Agency Response: See summary response 7.3.7 above. 

Indiana Farm Bureau, Inc. (Doc. #14124)

7.428 EXCLUSION FOR GULLIES, RILLS, AND NON-WETLAND SWALES

The exemption for “gullies, rills and non-wetland swales” is also one which may have 

little effect in removing features from jurisdiction. We have been made aware of several 

instances over the years in which the agencies claimed jurisdiction over gullies. Based 

upon our inquiries on this particular exception, we are extremely concerned that the 

agencies will still seek to review gullies, rills and non-wetland swales to determine 

whether they are “gullies” or something else that the agencies want to regulate. While we 

are asked to trust the agencies in the statements that these features are excluded and that 

the scope of jurisdiction is consistent with the limited jurisdiction acknowledged by the 

U.S. Supreme Court, history has shown that there is intent to regulate these features as 

something other than “gullies, rills and non-wetland swales.”

The use of “gullies, rills and non-wetland swales” as required connections for adjacent 

waters also raise questions about whether any limits will be placed on those features. As 

excluded features, there would be no requirement to obtain a permit to do anything to or 

within the feature, such as filling in a gully or moving a non-wetland swale. However, 

there is serious concern that efforts will be made by either the agencies or environmental 

groups to limit the ability of someone to remove a feature which also provides the 

requisite connection for an “adjacent water” to be jurisdictional. If the feature is removed, 

the jurisdictional nature of the “adjacent water” would be removed. The “other water” 

would now be an isolated feature and subject solely to state law, not federal. Our 

members are skeptical that the agencies will concede that they no longer have 

jurisdiction. (p. 5)

Agency Response: Gullies, rills, and swales that do not meet the definition of the 

tributary are not jurisdictional, regardless of their status as a connection to 

downstream waters. See summary response 7.3.7 above. 

Kansas Agriculture Alliance (Doc. #14424)

7.429 Again, the terms gullies and rills are completely undefined in the functional part of the 

rule and provide no certainty to the regulated community as to how to apply the terms. 

The term “gully” is defined by Merriam Webster dictionary as: “[A] trench which was 

originally worn in the earth by running water and through which water often runs after 

rains.”250 On its face the term seems to imply that a gully could be an ephemeral stream, 

but this cannot be verified as the term is not defined. The agencies have further muddied 

the water by stating that gullies “are younger than streams in geologic age . . . .”251 This 

puts landowners in the awkward position of determining a feature’s age. In addition, 

 

250 Merriam Webster Online Dictionary, available at http://www.merriam-webster.com/dictionary/gully (last visited 

Nov. 7, 2014).

251 79 Fed. Reg. at 22218.
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280

because the agencies’ age restraint only appears in the preamble it does not have the 

effect of law.

Rills are also undefined in the functional part of the rule. While the agencies state that 

rills are “formed by overland water flows eroding the soil surface during a rain” and are 

“less permanent on the landscape,” the definition would not have the force of law 

because it exists in the preamble.252 The introduction of a permanency component to 

define rills will make it difficult for a landowner to distinguish a rill, from a gully, from a 

ditch, or from an ephemeral stream. (p. 7-8)

Agency Response: See summary response 7.3.7 above. 

LeValley Ranch, LTD (Doc. #14540)

7.430 The gullies and rills exclusion is not adequately defined for livestock producers to 

determine the type of features on their properties, or to determine whether those features 

are jurisdiction or not excluded. (p. 7)

Agency Response: See summary response 7.3.7 above.

Colorado Cattlemen’s Association (Doc. #15068)

7.431 The gullies and rills exclusion is not adequately defined for livestock producers to 

determine the type of features on their properties, or to determine whether those features 

are jurisdiction or not excluded. While CCA generally agrees that gullies and rills are the 

types of features that are far beyond the jurisdiction of the CWA and therefore the 

agencies should make clear they are not "waters of the U.S.," the agencies should include 

in the exclusion water features that have a bed and bank and in which water flows only 

briefly during and following a period of rainfall in the immediate locality. (p. 7)

Agency Response: See summary response 7.3.7 above.

North Carolina Farm Bureau Federation (Doc. #15078)

7.432 ...There is an exclusion for non-wetland swales, but no exclusion for grassed waterways. 

There should be an exclusion for grassed waterways which are essentially manmade 

swales. These should not be considered streams or tributaries or any other type of 

jurisdictional water, and should be automatically excluded from jurisdiction in the same 

manner as swales. (p. 16)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales and summary response 8.1.1 for discussion of historic and final rule 

coverage of ephemeral streams.

Weyerhaeuser Company (Doc. #15392)

7.433 E. The Exclusion for Erosional Features Should be Expanded

 

252 Id.
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The proposed rule categorically excludes several erosional features (gullies, rills, and 

non-wetland swales) from the definition of “waters of United States,”253 and 

Weyerhaeuser agrees that these features should remain non-jurisdictional. The Agencies 

should extend the exclusion to cover ephemeral drainages on the same grounds. Even the 

Agencies seem to acknowledge the similarities between these features and the difficulty 

in distinguishing between excluded erosional features and jurisdictional tributaries. Yet, 

the Agencies are unable to articulate a meaningful justification for the differential 

treatment apart from noting the absence of an ordinary high water mark in the excluded 

features.254 But the ordinary high water mark concept is not a reliable basis for 

distinguishing between jurisdictional and non-jurisdictional features. (p. 12)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales, summary response 8.1.1 for discussion of historic and final rule 

coverage of ephemeral streams, and summary response 8.1.2 for discussion of the 

use of OHWM.

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)

7.434 5. This comment pertains to Section 328.3 Definitions, (b)(5)(vii), Federal Register page 

22263. The difference between a “gully” and a “ditch” is not clear. CMSWS 

recommends defining gullies, rills, and non-wetland swales. (p. 2)

Agency Response: See summary response 7.3.7 above. 

Duke Energy (Doc. #13029)

7.435 d. Ephemeral Streams Should be Excluded from Jurisdiction the Same as Erosional 

Features

Duke Energy is encouraged that the agencies have determined that erosional features 

would be excluded from jurisdiction. However, there is still a significant debate over how 

these features, such as gullies and rills, are any different than ephemeral drainages or 

tributaries, which would be classified categorically jurisdictional as tributaries. 

According the preamble: “Gullies are relatively deep channels that are ordinarily formed 

on valley sides and floors where no channel previously existed.” “Rills are formed by 

overland water flows eroding the soil surface during rain storms.”255 Both of these are 

erosional features that only carry water when it rains, which is also true of ephemeral 

streams. While the proposed rule does not define an ephemeral stream, EPA’s 

Connectivity Report defines it as: “A stream or river that flows briefly in direct response 

to precipitation; these channels are above the water table at all times.”256 Likewise, nonwetland swales, that mainly carry water during rainstorms or snowmelt, are difficult to 

distinguish from ephemeral streams.

 

253 79 Fed. Reg. at 22,263.

254 See id. at 22,218-19.

255 79 Fed. Reg. at 22,218.

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

Evidence (EPA/600/R-11/098B) September 2013, Page A-5.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

282

The agencies, themselves, recognize this difficulty and seek comment on how to clarify 

and differentiate these types of features.257 It seems that if these types of features are so 

similar in function as to be difficult to distinguish one from the other. Therefore, Duke 

Energy believes it would be logical for the agencies to exclude ephemeral streams from 

the proposed definition of “waters of the United States” in addition to gullies, rills and 

non-wetland swales. (p. 49)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales, summary response 8.1.1 for discussion of historic and final rule 

coverage of ephemeral streams, and the TSD section 7.B.6 for discussion of 

intermittent, ephemeral and headwater tributaries on downstream waters. 

Southern Company (Doc. #14134)

7.436 ... the agencies seek to expand the list of non-jurisdictional waters to include gullies, rills 

and non-wetland swales. Once, again, we believe this is an appropriate response and 

commend the agencies for excluding such features from the Act’s reach. Yet the proposal 

fails to provide any meaningful definition or distinguishing criteria between jurisdictional 

ditches and these other excluded features. If the agencies wish to provide clarity and 

predictability, such clarification is absolutely warranted. Otherwise, confusion and 

inconsistency involving jurisdictional and non-jurisdictional features will continue. (p. 

50)

Agency Response: See summary response 7.3.7 above for gullies, rills and swales 

and summary responses 6.0 for ditches. 

National Lime Association (Doc. #14428.1)

7.437 5. “Rills,” “Swales,” and “Upland” are also Words Which the Regulatory Text 

Needs to Define.

a. “Rills”: Ambiguity also exists with respect to the term “rills.” The Merriam-Webster 

online dictionary defines “rill” as a “very small stream.”258 The proposed rule does not 

explain how one is expected to differentiate between a “rill” and a “ditch” or a “gully” 

containing some amount of water. The need to be able to do so will be obviously critical, 

because, under the proposed rule, “gullies” and “rills” are per se not jurisdictional, 

whereas a “ditch” may or may not be. The proposed rule as currently written offers no 

help in this regard. Instead, the proposed rule merely assumes that such a distinction can 

and will be made. NLA submits that such an assumption is not justified. Not only does 

the proposed rule need to define these critical terms, it would be extremely beneficial 

were the rule to also include pictorial examples of these terms.

b. “Swales”: The Merriam-Webster online dictionary defines “swale” as “a low-lying or 

depressed and often wet stretch of land.”259 The proposed rule would exclude a “swale” 

 

257 79 Fed. Reg. at 22,219.

258 See http://www.merriam-webster.com/dictionary/rill.

259 http://www.merriam-webster.com/dictionary/swale. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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as a WOTUS, provided it is in a non-wetland.260 The proposed rule fails, however, to 

provide any meaningful help or insights for identifying a “swale.” (p. 7-8)

Agency Response: See summary response 7.3.7 above for gullies, rills and swales 

and summary responses 6.0 for ditches.

Salt River Project Agricultural and Power District and the Salt River Valley Water Users 

Association (Doc. #14928)

7.438 2. Gullies, Rills and Swales

The agencies propose to exclude gullies, rills, and non-wetland swales, but do not 

propose definitions of those terms. The preamble states that the agencies specifically seek 

comment on how to distinguish between erosional features, such as gullies, which are 

excluded from jurisdiction, and ephemeral tributaries, which would be subject to 

jurisdiction.

Asking field personnel to correctly categorize erosional features is arbitrary at best, and 

will only lead to over-regulation of erosional features that should remain nonjurisdictional. The agencies should exclude erosional features like gullies, rills and nonwetland swales from jurisdiction, particularly when their formation is directly associated 

with active mining, dredging or construction activities. (p. 16)

Agency Response: See summary response 7.3.7 above for gullies, rills and swales 

and summary response 8.1 for discussion of tributaries.

Luminant (Doc. #15100)

7.439 Luminant further believes that the EPA and USACE should revise their proposed 

approach to ephemeral tributaries and erosional features to ensure that ephemeral waters 

that are not tributaries are expressly excluded from jurisdiction. For example, additional 

considerations could have been included for distinguishing between ephemeral tributary 

streams and non-jurisdictional ephemeral features to help exclude gullies, rills, and nonwetland swales from inappropriate jurisdictional designations as contemplated by the 

Proposed Rule. These issues and many other aspects of the Proposed Rule create 

significant uncertainty surrounding the costs and other permitting and operational 

implications to the coal mining and coal-fired electric power generation industry should 

this rule be finalized and fully implemented. (p. 7)

Agency Response: See summary response 7.3.7 above and summary response 8.1 

for discussion of tributaries. 

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407)

7.440 F. The Proposed Rule Provides No Basis for Distinguishing Between Erosional 

Features and Small Ephemeral Features.

...

 

260 See, e.g., proposed regulatory text for section 328.3(b)(5)(vii).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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The proposed approach stands to cause chaos in the field, resulting in confusion and 

delay as regulators struggle to distinguish between jurisdictional ephemeral drainages and 

unregulated gullies, rills, and non-wetland swales.261 Indeed, if these features are so 

similar, there is no rational reason that erosional features are categorically excluded and 

ephemeral drainages are categorically jurisdictional. The agencies should exclude 

ephemeral drainages from jurisdiction as well as erosional features like gullies, rills, and 

non-wetland swales. (p. 7)

Agency Response: See summary response 7.3.7 above for discussion of gullies, 

rills and swales, summary response 8.1.1 for discussion of ephemeral streams, and 

the TSD section 7.B.6 for discussion of intermittent, ephemeral and headwater 

tributaries on downstream waters.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.441 D. THE AGENCIES SHOULD CLARIFY THE EXCLUSION FOR GULLIES, 

RILLS, AND NON-WETLAND SWALES.

The Agencies should clarify their proposal to exclude gullies, rills, and non-wetland 

swales. First, the Agencies should clearly define the terms “gully,” “rill,” and “nonwetland swale.” While the Proposed Rule excludes gullies, it also notes that some 

ephemeral streams are called “gullies” even if they are not technically gullies. A 

definition is needed to clarify the difference between such mis-named streams and 

gullies. Similarly, the Proposed Rule states that in “certain circumstances,”262 swales may 

include areas that meet the regulatory definition of wetlands. The Agencies should define 

“swale” in a way that clearly distinguishes such features from wetlands and tributaries.

Second, the Agencies should reconcile potentially conflicting statements in the Proposed 

Rule about gullies, rills, and non-wetland swales. While the Agencies state that gullies, 

rills, and non-wetland swales will be non-jurisdictional by rule, even if they meet the 

definition of a categorical “waters of the United States,” the Agencies undercut this 

statement elsewhere in the rule:

It is important to note, however, that even when not jurisdictional waters, these 

non-wetland swales, gullies, rills and specific types of ditches may still be a 

surface hydrologic connection for purposes of the proposed definition of adjacent 

under paragraph (a)(6) or for purposes of a significant nexus analysis under 

paragraph (a)(7).263

Thus, it appears that even if a gully, rill, or non-wetland swale is not jurisdictional in and 

of itself, these water features can still be the conduit for the Agencies to assert 

jurisdiction over another water, such as waters in the same floodplain or riparian area. 

With respect to tributaries, the Proposed Rule states that gullies, rills, and non-wetland 

swales will not be considered tributaries even though these water features “may 

 

261 In fact, in practice even the distinction between “swales” and “ditches” is largely limited to a subjective choice of 

terminology rather than any actual difference in design.

262 Id. at 22,219. [Proposed Rule, 79 Fed. Reg.]

263 Id.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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contribute flow to a tributary in systems with steep side slopes.”264 However, in the 

Proposed Rule’s discussion of “adjacent waters,” the agencies state that “[c]onfined 

surface connections that provide a discrete pathway for water to be exchanged between 

the potentially adjacent wetland . . . present the clearest evidence of a hydrologic 

connection.”265 The agencies list swales, gullies, and rills as “[e]xamples of confined 

surface water hydrologic connections that demonstrate adjacency.”266 The Agencies 

should revise the Proposed Rule to reconcile these conflicting statements. (p. 28)

Agency Response: Gullies, rills, and swales that do not meet the definition of 

tributary are not subject to jurisdiction, regardless of their status as a connection to 

downstream waters. See summary response 7.3.7 above. In addition, even where 

these features provide a connection between upstream and downstream waters, they 

remain nonjurisdictional. These statements are not in conflict as jurisdictional 

status never changes. 

Ducks Unlimited (Doc. #11014)

7.442 We are aware that the issues of ditches, swales, gullies, and rills have caused concern 

among the agricultural sector. For example, the rice industry has expressed the concern 

that the changes made to the treatment of ditches and irrigation canals could bring these 

key on-farm infrastructural components of rice production within the new definition of 

“waters of the U.S.” 

Thus, the longstanding exemption for the agricultural drainage ditches and irrigation 

canals (enshrined within past regulatory practices, if not rule) needs to be made perfectly 

clear by the language of the final rule.

We encourage the agencies to consider any revisions to the definitions and language of 

the rule and preamble that help ensure its intentions with respect to these types of waters 

and artificial water conveyances, and the meaning and interpretation of the rule, are clear 

and precise to the public and to their own regulators. (p. 14-15)

Agency Response: Gullies, rills, and swales that do not meet the definition of 

tributary are not jurisdictional, regardless of their status as a connection to 

downstream waters. See summary response 7.3.7 above. In addition, see summary 

response 6.0 for ditches. 

Clean Water Action (Doc. #15015)

7.443 We recommend that gullies, rills and non-wetland swales not be categorically excluded 

from CWA jurisdiction, and suggest the agencies instead classify them as “other waters” 

and evaluate their jurisdictional status on a case specific basis. In the preamble of the 

proposed rule, the agencies address the difficultly of distinguishing gullies from 

ephemeral streams and further note that these water features are often conduits for 

moving water between streams, wetlands and other adjacent waters that are clearly 

jurisdictional. We agree with the SAB panel’s assessment that water features like gullies, 

 

264 Id. at 22,204.

265 Id. at 22,210.

266 Id.
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rills and non-wetland swales can have a significant impact on the physical, biological and 

chemical integrity of downstream waters, and to automatically exclude all of these 

features from CWA protections is not scientifically sound.

267

Such a decision is particularly concerning given that the rule as proposed lacks a 

recapture provision, so if any of these types of water features were in the future found to 

have a significant impact on downstream water quality, the agencies would be unable to 

step in to protect them. We recommend that the agencies take a closer look at the wealth 

of literature on human-modified stream ecosystems, as described by the SAB in it 

comments on EPA’s Connectivity Report.268 This literature could help inform the

agencies as to which human or naturally altered water features have a significant impact 

on downgradient water quality, and which do not. As the science of stream connectivity, 

especially as it relates to impacts caused by human alterations and natural events evolves, 

it is essential that the agencies continue to have the ability to evaluate the potential 

impact of these water features on a case specific basis. (p. 4-5)

Agency Response: See summary response 7.3.7 above, compendium 8 regarding 

tributaries and TSD section 7.A.2.

American Rivers (Doc. #15372)

7.444 2. Allow Gullies and Non-Wetland Swales to Benefit from a Significant Nexus Test

Gullies should not be categorically excluded as a “water of the United States.” Instead 

they should be considered as “other waters” and be subject to a case-specific 

determination of significant nexus. Gullies are formed by the same erosional processes 

that maintain and shape stream channels, particularly headwater streams in steep, 

erodible, landscapes. Headcutting and formation of gullies is the means by which river 

networks extend their reach further in the direction of the headwater landscape. For this 

reason, gullies may be difficult to distinguish from ephemeral tributaries, which are 

jurisdictional. In fact, the Agencies note this difficulty in the proposed rule.269

Additionally, gullies can be a surface hydrologic connection for purposes of the proposed 

definition of adjacent under paragraph (a)(6) and for the purpose of a significant nexus 

analysis under paragraph (a)(7).270 Despite these connections, under the proposed rule 

gullies are categorically excluded as jurisdictional waters. With the absence of a 

recapture provision, gullies that might demonstrate a significant nexus to downstream 

waters could not be deemed jurisdictional. Therefore, we recommend that gullies should 

 

267 Memorandum from Dr. Amanda Rodewald to Dr. David Allen, Comments to the chartered SAB on the 

Adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the United 

States” Under the Clean Water Act.” (September 2, 2014). Available at: 

http://yosemite.epa.gov/sab/sabproducts.nsf/F6E197AC88A38CCD85257D49EDC/$File/Rodewald_Memorandum_

WOUS+Rule_9_2_14.pdf (Hereinafter SAB Review Memo) and SAB Rule Review Letter.

268 U.S. EPA Science Advisory Board, SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands 

to Downstream Waters: A Review and Synthesis of the Scientific Evidence, EPA-SAB-15-001, at 46 (Oct 17, 2014) 

(hereinafter “SAB Connectivity Review”), available at 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF1A28537854F8AB85257D74005003D2/$File/EPA

-SAB-15-001+unsigned.pdf.

269 Id. at 22219. [Definition of WOTUS, 79 Fed. Reg. at 22203.]

270 Id.
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be re-categorized under “other waters” and be subject to the significant nexus test. We 

believe that some gullies can have a significant effect on the chemical, physical, and 

biological integrity of downstream waters and therefore should not be categorically 

excluded.271

Additionally, non-wetland swales should not be categorically excluded from being 

considered a jurisdictional water. Swales are categorized as wetland swales or nonwetland swales. Wetland swales are jurisdictional as adjacent waters or other waters. 

Non-wetland swales are not eligible to receive jurisdictional status under the proposed 

rule. Like gullies, non-wetland swales can be considered a surface hydrologic connection 

for purposes of the proposed definition of adjacent under paragraph (a)(6) and for the 

purpose of a significant nexus analysis under paragraph (a)(7).272 Thus, water may flow 

through them from one jurisdictional water to another, and these connections may 

significantly affect jurisdictional waters. Swales are also used to define ‘river network’ in 

the Connectivity Report, “a hierarchical, interconnected population of channels or swales 

that drain water to a river. Flow through these channels can be perennial, intermittent, or 

ephemeral.”273 This further emphasizes their importance to downstream waters.274 By 

treating non-wetland swales as categorically excluded waters, the Agencies are creating a 

scenario where there is potential for confusing non-wetland swales with the jurisdictional 

ephemeral streams they resemble. The Agencies recognize this similarity in the proposed 

rule and are asking for comments on how to distinguish the two.275 Rather than 

categorically excluding all non-wetland swales, these features should be treated as “other 

waters” and be subject to a significant nexus test to determine their impact on the 

integrity of downstream jurisdictional waters. (p. 29-30) 

Agency Response: See summary response 7.3.7 above, compendium 8 regarding 

tributaries and TSD section 7.A.2.

7.445 3. Clarify the Definition of “Rills”

We recommend that rills remain as non-jurisdictional waters, however the current 

definition in the proposed rule is ambiguous and needs to be modified. Rills are defined 

largely in the context of other features in the proposed rule. For example, they are defined 

as “less permanent on the landscape than streams and typically lack an OHWM.”276 For 

increased clarity, the Agencies should more clearly define “rills,” reflecting their physical 

characteristics as small, shallow, and temporary pathways for water that typically occur 

in areas with no vegetation such as farm fields or construction sites and deemphasize the 

importance of the presence or absence of an OHWM. (p. 30)

Agency Response: The final rule clearly states that tributaries would be 

distinguished from erosional features by the presence of bed and banks and an 

ordinary high water mark. Concentrated surface runoff may occur within an 

 

271 See, SAB review of the proposed rule, supra note 89, at 3.

272 Definition of WOTUS, 79 Fed. Reg. at 22219.

273 EPA Draft Connectivity Report, supra note 22, at A-15.

274 See, SAB review of the proposed rule, supra note 89, at 3.

275 Definition of WOTUS, 79 Fed. Reg. at 22219.

276 Id. at 22218.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

288

erosional feature, but without creating the permanent physical characteristics 

associated with bed and banks and ordinary high water mark, the feature will not 

be jurisdictional. See summary response 7.3.7 above. 

Western Resource Advocates (Doc. #16460)

7.446 Gullies

The agencies propose that “gullies” not be WOTUS.277 While the preamble discusses 

what does and does not constitute a gully,278 the rule itself provides no definition of a 

gully. This lack of detail is insufficient as the basis for categorically excluding these 

waterways from jurisdiction.

For almost three decades, the Tenth Circuit Court of Appeals, whose territory covers a 

large chunk of the arid and semi-arid southwest (Colorado, New Mexico and Utah) has 

found gullies – or arroyos, in the language of southwestern geography – jurisdictional. 

The cases involve waterways connected via groundwater to a tributary of a TNW, but 

also flowing on the surface after storm events.279 In Quivira, a mining company 

challenged case its 402 permit, including on jurisdictional grounds because its pollutant 

discharges were to an arroyo, albeit one whose waters, sometimes on the surface and 

sometimes via groundwater, found their way to more clearly recognizable jurisdictional 

waters, themselves tributaries to TNW.280

Although neither the Arroyo del Puerto nor the San Mateo Creek is navigable-infact, surface flow occasionally occurs, at times of heavy rainfall, providing a 

surface connection with navigable waters independent of the underground flow. . . 

. [T]he record supports the finding that both the Arroyo del Puerto and San Mateo 

Creek flow for a period after the time of discharge of pollutants into the waters 

[and] the flow continues regularly through underground aquifers fed by the 

surface flow of the San Mateo Creek and Arroyo del Puerto into navigable-in-fact 

streams.281

The Court stated, repeatedly, that the Clean Water Act was based on the commerce clause 

and that Congress intended its scope to go far beyond traditionally navigable waters, “it 

was the clear intent of Congress to regulate waters of the United States to the fullest 

extent possible under the commerce clause.”282

As the agencies concede in the preamble to the proposed rule, many “gullies” or 

“arroyos” may in fact be either ephemeral streams, or indirectly connected to waters of 

the US, e.g., via groundwater, as was the case in Quivira and these other Tenth Circuit 

cases. Thus, it is critical that the proposed blanket exclusion of “gullies” be narrowly 

crafted, perhaps by adding a qualifier, so that the rule would exclude only “non-tributary 

gullies.” (p. 25-26)

 

277 79 Fed. Reg. 22263 (proposed 33 C.F.R. § 328.3(b)(5)(vii)).

278 79 Fed. Reg. 22218-19.

279 Quivira, 765 F.2d at 126.

280 Id. at 127-28.

281 Id. at 129.

282 Id. at 130.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

289

Agency Response: The final rule states that some ephemeral streams are 

colloquially called “gullies” or “swales” even when they exhibit a bed and banks and 

an ordinary high water mark. Regardless of the name they are given locally, waters 

that meet the definition of tributary or wetland are not excluded erosional features. 

Given this variability in terminology, and the focus on physical characteristics in the 

definition of tributary, the agencies did not think it necessary to define terms like 

“gully” or “rill” in the final rule. See summary response 7.3.7 above. 

Earthjustice (Doc. #14564)

7.447 EPA also categorically excludes gullies, rills, and non-wetland swales. This is far too 

broad as noted by some members of the SAB. Gullies, rills, and swales are in many 

instances features on the landscape that carry significant flows and amounts of pollutants 

to downstream waters. Instead of categorically excluding these features and waters, it is 

more scientifically supportable to examine their role relative to connections to waters of 

the U.S. under the “other waters” category of subsection (s) and determine whether they 

should be protected on a case-bycase basis. See Members Comments, Kolm at 50; 

Sullivan at 89 (“to exclude these and other variable source areas (e.g., swales) from 

jurisdiction is not fully supported by the available science as they can be important 

components of integrated aquatic systems with measurable impacts to downstream 

systems. . .the agencies should maintain the right to classify specific gullies, rills, and 

swales (either separately or in the aggregate) as jurisdictional when warranted.”)

Again, categorical exclusions are not warranted under the law or science and Earthjustice

urges EPA to revise the proposed rule to ensure that waters that should be protected, at 

least on a case-by- case basis, are not automatically excluded from Clean Water Act 

protection. (p. 13)

Agency Response: See summary response 7.3.7 above, compendium 8 regarding 

tributaries and TSD section 7.A.2

Columbia Riverkeeper (Doc. #15210)

7.448 Ditches, gullies, rills, non-wetland swales, and “artificially” irrigated areas should not be 

categorically exempt from the Clean Water Act. Discharges of pollution or fill into these 

areas can have significant biological and hydrological consequences on site and 

elsewhere in the watershed, as explained by members of the Scientific Advisory Board. 

(p. 2)

Agency Response: See summary response 7.3.7 above and TSD section 7.A.2.

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.449 Paragraph (b)(5)(iii) exempts gullies and rills and non‐ wetlands swales, however, the 

preamble on page 22208 states that a "confined surface connection consist of permanent, 

intermittent or ephemeral flow paths, such as (but not limited to) swales, gullies, rills, and 

ditches.” This narrative contradicts the proposed rule exemption for gullies and rills and 

NAFSMA requests that EPA reaffirm the exemption by clarifying and correcting the 

contradiction. (p. 3)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

290

Agency Response: Gullies, rills, and swales that do not meet the definition of 

tributary are not jurisdictional, regardless of their status as a connection to 

downstream waters. See summary response 7.3.7 above.

Environmental Technology Consultants (Doc. #2597)

7.450 What is the difference between a gully or rill and a seasonal stream? The new definitions 

would appear to find a significant nexus between navigable waters and the seasonal 

streams that feed them, however gullies and rills and non-wetland swales appear to be 

excluded from the definition. We need field actionable definitions for these terms. (p. 1)

Agency Response: See summary response 7.3.7 above and TSD section 7.A.2. 

Wetland Science Applications, Inc. (Doc. #4958)

7.451 I agree with placing the exceptions at 33 CFR 328(b) into the rule with the following 

exceptions: 

... 

5. Regarding (5)(vii). I fully agree that gullies, rills and non-wetland swales should not be 

regulated. However, it is inappropriate and deceitful to say that such features are not 

jurisdictional and then to reach through such features and claim jurisdiction over upslope 

features because a theoretical molecule of water might pass thru them on its way 

downslope. When jurisdiction ends, it should flat-out end, just like it says in 33 CFR 

328.4.

... (p. 2)

Agency Response: See summary response 7.3.7 above and TSD sections 7.A.2, 

8.A. and 9.B. 

Kirk Mantay, PWS, Wetland Ecologist (Doc. #15192.1)

7.452 Regulation of Non-Agricultural Ephemeral Ditches and Gullies

Comment: EPA and USACE staff continue to programmatically regulate actively eroding 

ephemeral channels that exist due to historical and/or ongoing erosive flows during and 

immediately after storms. While EPA correctly notes that they cannot and do not require 

mitigation for activities (like voluntary stream restoration) that occur in these ephemeral 

gullies, the federal agencies require full permit coordination for the sake of 

"documentation," a federal action that requires the project proponent to spend up to 

$200,000 on permit drawings, legal papers, and even public hearings for a voluntary 

habitat project that may only cost $100,000 to construct. Voluntary habitat projects that 

take weeks to construct routinely take a year to permit impacts to ephemeral waters, 

which legally speaking, are not Waters of the US.

My observation has been that the federal agencies administer this policy to encourage 

permit applicants to withdraw their proposal to enter any ephemeral waterway for their 

project. Federal cases are currently underway challenging EPA (notably, Foster vs. EPA) 

on their ability to legally regulate activities in dry, eroding gullies. It is likely that the 

plaintiff, a land developer, will win the case, in which EPA fined him for filling a 

landscape feature that SCOTUS has thrice instructed EPA not to regulate. Other more 
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291

reasonable provisions of CWA are likely to also be stricken during that litigation. As a 

wetland ecologist and a staunch conservationist, I do not view this as a favorable 

outcome, and a very dangerous precedent for future de-regulation of more valuable 

natural resources that must be conserved.

Recommendation: Strike the portion of the New Rule dealing with ephemeral gullies that 

are actively eroding. Replace it with language that requires, as part of any grading 

project's federal water quality certification, that the eroding ephemeral gully must be 

restored to a stable and functional waterway or "stable configuration" that has measurable 

habitat benefits and high stability under storm flows. Specifically, make provisions in 

regulatory language that an individual Section 404 permit (IP) will never be necessary to 

conduct that activity when the primary goal is stream restoration or floodplain 

reconnection, and when the net benefits to Waters of the US can be accurately 

documented and monitored. (p. 3)

Agency Response: The requirements of section 404 permits are outside the scope 

of this rulemaking. See summary response 8.1.1 for discussion of historic and final 

rule coverage of ephemeral streams and summary response 7.3.7 above for 

discussion of gullies. 

Robert J. Goldstein & Associates (Doc. #16577)

7.453 6) Gullies, rills, non-wetland swales: Many of the “gullies” I see in urban and 

agricultural settings are (or were) natural headwater streams, ephemeral or intermittent. A 

stream that has become a “gully” due to land management activities that did not provide 

adequate stormwater management should not be excluded. (p. 2)

Agency Response: Intermittent and ephemeral streams that dramatically incise 

are often called gullies but retain bed and banks and an OHWM, retaining their 

status as tributaries under the final rule. See summary response 7.3.7 above for 

further discussion of gullies. 

7.4. SUGGESTED NEW EXCLUSIONS/LANGUAGE BY COMMENTERS

Summary Response

Introduction

The agencies received a variety of comments requesting new or additional exclusions from 

jurisdiction. As outlined below, the agencies have adopted a number of these suggestions in the 

final rule. The agencies also maintained existing exclusions already found in regulation and 

adopted some existing practices into regulation as exclusions for the first time. A number of 

these exclusions were presented in the proposed rule and revised in the final rule to increase 

clarity and consistency, in part based on the comments received.

Under paragraph (b) of the rule, the agencies identify a variety of waters and features that are not 

“waters of the United States.” Prior converted cropland and waste treatment systems have been 

excluded from this definition since 1992 and 1979, respectively, and they remain substantively 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

292

and operationally unchanged. Comments and the agencies’ responses on these exclusions are 

discussed above in this Compendium.

The agencies also proposed to add a number of exclusions that are adopted (in some cases with 

modifications) in the final rule.

The agencies added exclusions in the final rule for all waters and features identified as generally 

exempt in preamble language from Federal Register notices by the Corps on November 13, 

1986, and by EPA on June 6, 1988. This is the first time these exclusions have been established 

by rule. Note that, under prior preamble language, the agencies could determine that a particular 

feature generally considered non-jurisdictional was a “water of the United States.” The agencies 

do not retain that authority for features excluded under the rule. Comments and the agencies’ 

responses on these exclusions are discussed above in this Compendium.

The agencies for the first time also establish by rule that certain ditches are excluded from 

jurisdiction. Comments and the agencies’ responses on these exclusions are discussed in a 

separate Compendium on Ditches.

The agencies also add exclusions for groundwater and erosional features. Comments and the 

agencies’ responses on these exclusions are discussed above in this Compendium.

A number of comments were made that suggested the addition of new exclusions, some of which 

were identified in public comments as possibly being found jurisdictional under proposed rule 

language where this was not the agencies’ intent.

Adopted exclusions are reflective of current agencies’ practice, and their inclusion in the rule 

furthers the agencies’ goal of providing greater clarity over what waters are and are not protected 

under the CWA. Importantly, under the rule all waters and features identified in paragraph (b) as 

excluded will not be “waters of the United States,” even if they otherwise fall within one of the 

categories in paragraphs (a)(4) through (a)(8). The proposed rule referenced paragraphs (a)(1)

through (a)(8), but the agencies did not intend to exclude any traditional navigable waters, for 

example, and the revision clarifies that.

The exclusions reflect the agencies’ long-standing practice and technical judgment that certain 

waters and features are not subject to the CWA. The exclusions are also guided by Supreme 

Court cases. The significant nexus standard arises from the case law and is used to interpret the 

terms of the CWA. Thus, a significant nexus determination is not a purely scientific inquiry, but 

rather is a determination by the agencies in light of the statutory language, the statute’s goals, 

objectives and policies, the case law, the relevant science, and the agencies’ technical expertise 

and experience. The plurality opinion in Rapanos also noted that there were certain features that 

were not primarily the focus of the CWA. See 547 U.S. at 734. In this section of the proposed 

rule, the agencies are drawing lines and concluding that certain waters and features are not 

subject to the jurisdiction of the Clean Water Act. The Supreme Court has recognized that 

clarifying the lines of jurisdiction is a difficult task: “Our common experience tells us that this is 

often no easy task: the transition from water to solid ground is not necessarily or even typically 

an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

293

swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall 

far short of being dry land. Where on this continuum to find the limit of ‘waters’ is far from 

obvious.” Riverside Bayview at 132-33.

The exclusions are an important aspect of the agencies’ policy goal of providing clarity and 

certainty. Just as the categorical assertions of jurisdiction over tributaries and adjacent waters, as 

defined, simplify the jurisdiction issue, the categorically exclusions will likewise simplify the 

process, and they reflect the agencies’ determinations of the lines of jurisdiction based on 

science, the case law, and the agencies’ experience and expertise. The agencies stated in the 

proposed rule that the exclusions were guided by decisions of the Supreme Court as well. The 

agencies in the proposed rule sought to provide a “full description” of the waters that will not be 

“waters of the United States.” 79 FR at 22218.

It is important to note that while the waters listed in the exclusions are never “waters of the 

United States,” they can serve as a hydrologic connection that the agencies would consider under 

a case-specific significant nexus under paragraphs (a)(7) and (a)(8). For example, a wetland may 

be directly hydrologically connected to a covered tributary via flow through an excluded nonwetland swale. While the swale itself will always be excluded from jurisdiction, the connection 

of the wetland to the tributary is relevant for determining whether the wetland has a significant 

nexus to downstream traditional navigable waters, interstate waters, or the territorial seas. In 

addition, these geographic features may function as “point sources” under CWA section 502(14), 

such that discharges of pollutants to waters through these features would be subject to other 

CWA regulations (e.g., CWA section 402).

Disposition of Requested New Exclusions

The final rule includes new exclusions for stormwater control features constructed to convey, 

treat, or store stormwater that are created in dry land, as well as for wastewater recycling 

structures constructed in dry land. These exclusions were the subject of the majority of 

comments for new exclusions or clarification of provisions of proposed exclusions.

The new exclusion in paragraph (b)(6) is for stormwater control features constructed to convey, 

treat, or store stormwater that are created in dry land. In response to the agencies’ proposal, 

commenters indicated additional clarity was needed. This exclusion responds to numerous 

comments that raised concerns that the proposed rule would adversely affect municipalities’ 

abilities to operate and maintain their stormwater systems, and also to address confusion about 

the state of practice regarding jurisdiction of these features at the time the rule was proposed. 

Comments and the agencies’ responses on the new stormwater control features exclusion are 

discussed below in this Compendium, which includes a summary discussion on the substantive 

provisions, issues, and comments raised, as well as individual responses to comments that refer 

to that discussion and add additional tailored information as appropriate.

The new exclusion in paragraph (b)(7) covers wastewater recycling structures constructed in dry 

land. As with the stormwater provisions, in response to the agencies’ proposal, commenters 

indicated additional clarity was needed. This new exclusion clarifies the agencies’ intent that 

such waters and water features used for water reuse and recycling are not jurisdictional when 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

294

constructed in dry land. This exclusion responds to the many comments that raised concerns that 

the proposed rule would adversely affect the ability of public and other agencies to pursue 

constructed detention and retention basins created in dry land used for wastewater recycling, as 

well as groundwater recharge basins and percolation ponds and distributary structures built for 

wastewater recycling. The agencies recognize the importance of water reuse and recycling, and 

encourage water reuse and conservation while still appropriately protecting the chemical, 

physical, and biological integrity of the nation’s waters under the CWA. Comments and the 

agencies’ responses on the new wastewater recycling structures exclusion are discussed below in 

this Compendium, which includes individual responses to comments with tailored information as 

appropriate.

The agencies also received other suggestions for new exclusions that were not adopted in the 

final rule. These suggested exclusions sought to add general categories (e.g., any ponds used for 

some commercial purpose) or more explicitly enumerate a specific use. The agencies determined 

that it was not necessary to add certain requested exclusions for one or more reasons, including: 

(1) the requested exclusion was too broadly characterized as to have the effect of excluding 

waters that the agencies have determined should be covered as “waters of the U.S.,” (2) the 

requested exclusion was so site-specific or activity-based as to lack illustrative value, or (3) the 

requested exclusion was likely covered by another exclusion in the final rule.

With respect to requested exclusions that are too broad, the agencies’ sought to avoid adding 

exclusions that were so broadly worded they would introduce confusion and potentially exclude

waters that the agencies have consistently covered as “waters of the United States”. Such an 

approach—as with, for example, “all waters used for a commercial purpose”—would have the 

effect of not providing necessary CWA coverage for waters that have been historically protected, 

and would not accomplish the agencies’ goal of providing bright line distinctions of what waters 

are and are not covered under the CWA.

A number of commenters described specific types of activities (not waters), such as the remining of legacy coal ash stockpiles, where the activity may or may not involve jurisdictional 

waters. This rule is a definitional rule defining the scope of “waters of the United States.” It does 

not address implementation of CWA programs nor how various activities are regulated under 

them. 

Many comments requested exclusions for specific industrial features that are linked with the 

management of stormwater run-off. In such circumstances, the agencies determined that if the 

structures associated with stormwater management meet the provisions of the new stormwater 

exclusion in the final rule, those structures are excluded, regardless of the specific industry that 

may be served by those structures.

A key common feature of most of the exclusions in the final rule is that the structure or feature is 

constructed in dry land. In many circumstances, there may be opportunities to convert or impact 

waters for similar structures or features, and such actions have impacts that the agencies 

determine should be evaluated under the provisions of the CWA. When such features are 

constructed in dry land, however, their effects on waters are generally far less, and only if there 

are discharges to waters of the U.S. from such features is evaluation under CWA authorities 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

295

necessary. In addition, it is important to note that the agencies view the lists of excluded waters 

under the stormwater and artificial lakes and ponds exclusions as illustrative and not 

comprehensive. As a result, the agencies did determine that modification to the artificial lakes 

and ponds exclusion, for example, to add log cleaning ponds constructed in uplands, was 

appropriate.

Comments and the agencies’ responses on such requested additional new exclusions are 

discussed below in this Compendium, which includes individual responses to comments with 

tailored information as appropriate. Questions beyond the scope of rulemaking regarding the 

applicability of exclusions may be directed to the agencies’ relevant field staff.

Specific Comments

Waters of the United States Coalition (Doc. #14589)

7.454 1. The plain text of the Clean Water Act precludes treating water supply, waste 

treatment, and flood control channels as waters of the United States.

The Clean Water Act is based on a definition of the term “point source” that includes 

ditches and other conveyances that are part of the nation’s water supply, waste treatment, 

transportation and flood control systems. If the Proposed Rule is adopted without 

revision, it will conflict with the plain text of the Clean Water Act which regulates these 

sources at the point of discharge into the waters of the United States.

The Clean Water Act defines the term “point source” as the following: 

any discernible, confined, and discrete conveyance, including but not limited to, 

any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling 

stock, concentrated animal feeding operation, landfill leachate collection system, 

vessel or other floating craft from which pollutants are or may be discharged. This 

term does not include return flows from irrigated agriculture or agricultural storm 

water runoff. (See § 122.3).283

EPA has adopted similar definitions for the terms “MS4” and “outfall” to allow for 

regulation of the system before discharges to waters of the United States occur:

(8) Municipal separate storm sewer means a conveyance or system of 

conveyances (including roads with drainage systems, municipal streets, catch 

basins, curbs, gutters, ditches, man-made channels, or storm drains):

(i) Owned or operated by a State, city, town, borough, county, parish, 

district, association, or other public body (created by or pursuant to State 

law) having jurisdiction over disposal of sewage, industrial wastes, storm 

water, or other wastes, including special districts under State law such as a 

sewer district, flood control district or drainage district, or similar entity, 

or an Indian tribe or an authorized Indian tribal organization, or a 

designated and approved management agency under section 208 of the 

CWA that discharges to waters of the United States;

 

283 33 U.S.C. § 1631 (14); 40 C.F.R. 122.2.
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(ii) Designed or used for collecting or conveying storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as 

defined at 40 CFR 122.2.

(9) Outfall means a point source as defined by 40 CFR 122.2 at the point where a 

municipal separate storm sewer discharges to waters of the United States and does 

not include open conveyances connecting two municipal separate storm sewers, 

or pipes, tunnels or other conveyances which connect segments of the same 

stream or other waters of the United States and are used to convey waters of the 

United States.284

Aqueducts, water supply canals, storm drains, agricultural drains, and other manmade 

conveyances that were never traditional navigable waters fit squarely within the above 

listed definitions. They cannot be both waters of the United States and a point source. 

The structure of the Clean Water Act prevents it. (p. 26-27)

Agency Response: With respect to the jurisdictional status of storm sewer and 

stormwater control features as waters of the U.S., see summary response at 7.4.4. 

below. Also see the Technical Support Document at I.C., which explains EPA’s 

legal rationale for its position that point sources and waters of the U.S. are not 

mutually exclusive terms.

Peltzer & Richardson, LC (Doc. #16360)

7.455 The proposed rule should exclude groundwater recharge basins and stormwater 

management facilities, together with their infrastructure, because it places them at 

risk.

The Tule and Kaweah Commenters use surface infiltration as a management tool to 

prevent flooding, store excess water for future use, replenish groundwater supplies, or 

abate land subsidence. The most economical manner of groundwater recharge is to 

construct a basin in alluvial material immediately adjacent to a stream, almost all of 

which are intermittent or ephemeral within the boundaries of the Tule and Kaweah 

Commenters. This allows water to rapidly infiltrate through the basin to the unsaturated 

zone where it is added to the aquifer below. In addition to the basins, flood control levies, 

swales and ditches are used to capture and convey stormwater to protect public safety. In 

addition to sometimes being adjacent to “waters of the United States”, all of these 

features may contain hydric soil, wetland vegetation, and have an ordinary high water 

mark. Currently, these facilities have not been deemed to have a significant nexus with 

traditional navigable waters. Under the proposed rule these facilities would meet the 

definition of “waters of United States”. Accordingly, the Tule and Kaweah Commenters 

request that groundwater recharge facilities and stormwater retention basins, together 

with all related infrastructure (including construction, operations, and maintenance), be 

explicitly excluded from the proposed definition of “waters of the United States”. (p. 6-7)

 

284 40 C.F.R. 122.26(b)(8)-(9).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

297

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. Groundwater 

recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling 

structures created in dry land: detention and retention basins built for wastewater 

recycling, groundwater recharge basins, and percolation ponds built for wastewater 

recycling, and water distributary structures built for wastewater recycling.” Please 

note that the final rule does not change the applicability of the Underground 

Injection Control program for Class V injection wells or subsurface fluid 

distribution systems under the Safe Drinking Water Act. See 40 CFR Part 144. 

Coachella Valley Water District (Doc. #16926)

7.456 The proposed rule states currently applicable CWA exemptions for farming and ranching 

will continue to preclude permitting requirements. However, the proposed rule also 

includes ditches and man-made conveyances as jurisdictional waters, many of which are 

used for farming and ranching. In addition, these ditches and man-made conveyances 

could be considered tributary under the proposed rule. The Coachella Canal is a manmade, concrete conveyance that carries Colorado River water 123 miles to supply 

CVWD's agriculture irrigation system. Ditches, manmade canals and water conveyances 

should be specifically excluded from the definition of Waters of the U.S. 

CVWD's 1,000 acres of groundwater replenishment and 330 acres of stormwater 

retention basins, 73 miles of flood control dikes, and over 100 miles of swales and 

ditches are currently not jurisdictional, but under the proposed rule it is our understanding 

that these facilities meet the definition of Waters of the U.S. These facilities are critical to 

life in the desert because they capture and infiltrate water into the drinking water aquifer. 

In addition to capturing and infiltrating storm flows, CVWD's flood control facilities 

protect property and public safety. Groundwater replenishment and flood control 

facilities should be excluded from the definition of Waters of the U.S. (p. 2)

Agency Response: With respect to stormwater control features, please see 

summary response at 7.4.4. Groundwater recharge basins are covered under the 

exclusion at (b)(7) for “wastewater recycling structures created in dry land: 

detention and retention basins built for wastewater recycling, groundwater recharge 

basins, and percolation ponds built for wastewater recycling, and water distributary 

structures built for wastewater recycling.” Please note that the final rule does not 

change the applicability of the Underground Injection Control program for Class V 

injection wells or subsurface fluid distribution systems under the Safe Drinking 

Water Act. See 40 CFR Part 144. 

7.4.1. Stormwater Ponds not Adjacent

Summary Response

Please see the summary response at 7.4.4, which addresses the jurisdictional status of stormwater 

control features, including stormwater ponds, as waters of the U.S. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

298

Specific Comments

City of Glendale, Arizona (Doc. #15054)

7.457 Stormwater Retention Basins

The City of Glendale requires on-site retention of stormwater from a 100-year, 2-hour 

storm event. These retention basins allow sediments to settle out before discharge to the 

municipal separate storm sewer system (MS4). In many cases, retention basins manage

stormwater runoff near its source which is consistent with EPA's low-impact 

development approach.

Artificial lakes and ponds used for settling basins are excluded in the proposed rule. 

However, since stormwater retention basins do not hold water for extended periods of 

time as a lake or pond would, it is unclear whether stormwater retention basins would 

qualify for this exclusion. Stormwater retention basins should be specifically excluded 

from the definition of "waters of the United States."

Without a specific exclusion for stormwater retention basins, additional permits would be 

required in order to perform routine maintenance (discing/blading the basins and removal 

of sediment and vegetation to improve infiltration). The City of Glendale's limited 

financial resources would be spent on permits without additional benefit to the 

environment. (p. 3)

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4.

Boulder County and the City of Boulder, Colorado (Doc. #15495)

7.458 4) Constructed Wetlands. There is language in the Proposed Rule that would appear to 

make a large number of constructed stormwater ponds and constructed wetlands fall 

under the "tributary" definition. Tributary would be defined to include wetlands and other 

waters that do not have ordinary high water marks, provided that the water feature 

contributes flow (directly or indirectly) to a traditional navigable water. Features that 

would otherwise meet the definition of tributary do not lose that status if, for any length, 

there are natural or manmade breaks, provided that there is an ordinary high water mark 

upstream of the break. It seems inappropriate and undesirable to have a large number of 

constructed stormwater ponds and constructed wetlands fall under the "tributary" 

definition and be considered WOTUS.

Recommendation: Boulder County and the City of Boulder request that the Proposed 

Rule be clarified and/or that there be a categorical exclusion for most types of constructed 

stormwater ponds and constructed wetlands. (p. 4)

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4.

County of Los Angeles and Los Angeles County Flood Control District, California (Doc. 

#15620)

7.459 2. Detention Basins
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

299

Similar to groundwater infiltration basins, detention basins serve a specific function. The 

LACFCD owns and operates detention basins that provide a critical flood control 

function of preventing potential flooding by temporarily storing high flows and then 

releasing those flows when the flood threat has ended. In effect, these basins act as “surge 

protectors” during high flow events. See Attachment B for a photo of a typical detention 

basin. Detention basins are usually located along storm drain systems, are restricted from 

public access, and are currently not considered WOTUS. However, under the Proposed 

Rule, detention basins potentially could be designated as “tributaries” to WOTUS or 

impoundments, even though, like the infiltration basins, they serve a specific and crucial 

function. The Proposed Rule should be revised to clearly exclude detention basins in 

order to avoid unnecessary and potentially serious disruptions to flood risk management 

created by the need to treat such isolated, non-public features, as jurisdictional waters.

Given the critical functions of groundwater infiltration basins and detention basins and 

the need for clarity as to nature of WOTUS, any final WOTUS rule should include a 

specific exclusion for these types of facilities. The County and LACFCD propose that the 

following underlined language be added to provision (b)(5)(ii) in the Proposed Rule:

Amendment to Provision (b)(5)(ii)

“(ii) Artificial lakes or, ponds, or basins created by excavating and/or diking 

and used exclusively for such purposes as stock watering, irrigation, settling 

basins, or rice growing, groundwater recharge, or detention of stormwater 

runoff for flood protection;” (p. 7-8)

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4. 

Groundwater recharge basins are covered under the exclusion at (b)(7) for 

“wastewater recycling structures created in dry land: detention and retention basins 

built for wastewater recycling, groundwater recharge basins, and percolation ponds 

built for wastewater recycling, and water distributary structures built for 

wastewater recycling” or under the stormwater control feature exclusion at (b)(6), 

depending on the source of water. In effect, both have the same result, i.e., the 

infiltration basin is not a jurisdictional water as long as it was built in dry land.

Please note that the final rule does not change the applicability of the Underground 

Injection Control program for Class V injection wells or subsurface fluid 

distribution systems under the Safe Drinking Water Act. See 40 CFR Part 144. 

City of Pompano Beach, Florida (Doc. #16438)

7.460 Reclaimed Water and Stormwater Storage Ponds

The proposed change in the WOTUS definition includes the existing exemption for 

"waste treatment systems, including treatment ponds or lagoons, designed to meet the 

requirements of the Clean Water Act." Storage ponds for reclaimed water and water reuse 

that were not constructed to meet treatment requirements, but rather for water resource 

utilization, are not clearly excluded under the current language. The language needs to be 

clarified to include other purposes besides treatment in the exclusion. Our City has a 

Reuse Water Facility and system without a Wastewater Treatment Plant. Therefore, all 

our uses are for water supply and water resource sustainability, and not treatment. (p. 2)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

300

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4. Water 

reuse facilities are covered under the exclusion at (b)(7) for “wastewater recycling 

structures created in dry land: detention and retention basins built for wastewater 

recycling, groundwater recharge basins, and percolation ponds built for wastewater 

recycling, and water distributary structures built for wastewater recycling.” In 

effect, both have the same result, i.e., the infiltration basin is not a jurisdictional 

water as long as it was built in dry land.

Tennessee Department of Transportation (Doc. # 16470)

7.461 Jurisdictional Status of Stormwater Management Systems

The proposed rule would identify as non-jurisdictional by rule "[w]aste treatment 

systems, including treatment ponds or lagoons, designed to meet the requirements of the 

Clean Water Act." (79 Fed. Reg. 22263). The preamble does not contain any explanation 

of this exclusion, so it is not clear how this exclusion would apply to stormwater 

management systems that are constructed as part of transportation facilities to meet 

requirements of the Clean Water Act.

Under Section 402 of the Clean Water Act, States are required to obtain National 

Pollutant Discharge Elimination System (NPDES) permits or equivalent permits under 

State laws, where responsibility for that permitting program has been delegated to States. 

In Tennessee, the permitting requirements increasingly call for natural methods of 

stormwater management, in which wetlands are constructed specifically to receive and 

treat stormwater run-off from roads. The construction of this "green infrastructure" has 

important ecological benefits and has been encouraged by federal and state regulatory 

agencies. 

One of the potential impediments to developing green infrastructure is the concern that 

natural features created to receive stormwater run-off could themselves be deemed 

jurisdictional waters. If a natural feature that is constructed to receive and treat 

stormwater run-off is itself treated as a jurisdictional water, TDOT would be in the 

paradoxical position of needing to obtain Section 404 permits to discharge stormwater 

into facilities constructed to satisfy stormwater permit requirements under Section 402 of 

the Clean Water Act.

TDOT suggests that the final rule (or guidance issued together with the final rule) should 

clarify the circumstances under which the exclusion for "[w]aste treatment systems, 

including treatment ponds or lagoons" applies to stormwater treatment systems 

constructed as part of transportation facilities. More generally, the USACE and EPA 

should work cooperatively with State DOTs and other transportation agencies to ensure 

that concerns about creating jurisdictional waters do not discourage the adoption of 

natural methods of stormwater management. (p. 6-7)

Agency Response: The agencies have identified an exclusion for stormwater 

control features, including green infrastructure, created in dry land-- please see 

summary response at 7.4.4. See summary response at 7.1.with respect to the waste 

treatment system exclusion.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

301

Rubber Manufacturers Association (Doc. #15419)

7.462 II. RMA recommends that EPA expressly exempt permitted stormwater ponds

In the proposed rule, there are three exemptions that could potentially apply to RMA 

members’ stormwater ponds. Section 122.2(b)(3) exempts “ditches that are excavated 

wholly in uplands, drain only in uplands, and have less than perennial flow.” 76 Fed. 

Reg. 22268. Section 122.2(b)(5)(ii) exempts artificial ponds “created by excavating dry 

land ... and used exclusively ... as settling basins.” Id. Additionally, section 122.2(b)(4) 

exempts “ditches that do not contribute flow” to interstate waters and the territorial seas. 

Id. Yet, the key terms “uplands” and “settling basins” are not defined, therefore it is 

difficult to determine if RMA members’ ponds fall under the §§ 122.2(b)(3) and (b)(5)(ii) 

exclusions. As proposed, the § 122.2(b)(4) exclusion is too narrow to exclude RMA 

member stormwater ponds because these ponds may contribute to flow, albeit in an 

attenuated way, to interstate waters. Since it is not clear whether RMA member 

stormwater ponds fall under any of these three exemptions, RMA recommends that EPA 

clarify these exemptions to exclude permitted stormwater ponds.

RMA members’ stormwater retention ponds and detention ponds comply with NPDES 

permits. To meet numeric and non-numeric limits in NPDES permits, RMA members use 

control measures such as baffles, weirs, and skimmers to remove solids, oils, and other 

contaminants. RMA members monitor pH levels, remove chlorine, and control biological 

oxygen demand. These stormwater ponds are also typically lined with an impermeable 

layer of clay or plastic to prevent untreated water from leaching into other waters. 

Stormwater ponds play a vital role treating stormwater, preventing erosion, controlling 

flooding, and collecting water used to fight fires at RMA member facilities.

Because these stormwater ponds are permitted, RMA recommends that EPA explicitly 

exempt stormwater ponds from the rule. If these ponds are considered waters of the U.S., 

there would be a significant regulatory burden with no additional environmental benefit 

because NPDES permits already require RMA members to control floating solids, settled 

solids, suspended solids, oil sheen, and other indicators of stormwater pollution. (p. 2)

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4.

Indiana Manufacturers Association (Doc. #15704)

7.463 ... the proposal does not make clear what is intended to be included within the phrase 

waste treatment system...

... It should be clear that a waste treatment system should include conveyance structures 

flowing to a treatment facility including retention basins for stormwater... (p. 2)

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4. With 

respect to stormwater control features, please see summary response at 7.4.4.

National Association of Home Builders (Doc. #19540)

7.464 iii. Stormwater Treatment Ponds and Other Stormwater Management Facilities are 

not “Waters of the United States.”
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

302

Construction site operators must secure an NPDES stormwater permit (general or 

individual) before discharging stormwater to a surface water of the United States or an 

MS4.285 The most significant component of NPDES construction stormwater permits is 

the Storm Water Pollution Prevention Plan (SWPPP), which identifies sediment and 

erosion control measures necessary to protect water quality. Historically, the preferred 

method of treating stormwater under a SWPPP has been through the use of on-site 

retention or detention ponds, infiltration trenches, or other conveyance systems. These 

man-made ponds and trenches are designed to slow concentrated runoff and trap 

sediment to protect receiving streams, lakes, and other downstream waterbodies. Without 

an explicit exclusion, however, stormwater treatment ponds and conveyances could be 

deemed “waters of the United States” because they meet the Agencies’ overbroad 

“tributary,” “adjacent waters,” and/or “other waters” definitions.

Indeed, without a stormwater exclusion, the courts have on several occasions ruled that 

these features – although they are designed specifically to treat pollutants and protect 

downstream waters – are “waters of the United States.” In Northern California River 

Watch v. City of Healdsburg, 2004 WL 201502 (N.D.Cal.), the district court rejected a 

claim that a pond formed from an abandoned gravel mining pit was a waste treatment 

system exempt from coverage under the CWA. Although the pond served as a percolating 

filter for wastewater received from the defendant’s waste treatment facility, the pond 

“itself was not ‘designed’ to meet the requirements of the Clean Water Act or ‘designed’ 

to be part of the waste-treatment system.”286 Also noteworthy was the fact that the pond 

preexisted both the CWA and construction of the waste treatment plant.287

On appeal, the Ninth Circuit affirmed, holding that the pond fell outside the exemption 

“because it is neither a self-contained pond nor is it incorporated in an NPDES permit as

part of a treatment system.”288 The Court added that the exception “was meant to avoid 

requiring dischargers to meet effluent discharge standards for discharges into their own 

closed system treatment ponds.”289 Stormwater ponds are constructed with an outflow 

and are not closed systems; they contribute flow to downstream waters.

The case of West Virginia Coal Ass’n v. Reilly, 728 F.Supp. 1276 (S.D.W.Va.1989), 

addressed whether sedimentation ponds constructed in streams were “waste treatment 

systems” excluded from the definition of “waters of the United States.” Plaintiffs had 

challenged EPA’s decision to overrule state approval of several NPDES permits 

authorizing in-stream sedimentation ponds.

 

285 33 U.S.C. §§ 1311-1342.

286 2004 WL 201502 at 11.

287 Id.

288 Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1002 (9th Cir. 2007). See also California 

Sportfishing Protection Alliance v. California Annonia Company, 2007 WL 273847, at 6 (E.D.Cal) (holding that the 

“key question” for the court in determining whether stormwater pooling in a manmade detention pond qualifies for 

the waste treatment system exception was whether the pond is a “treatment system covered by a valid NPDES 

permit”).

289 Id. at 1032 (citing 45 Fed. Reg. 48,620 [July 21, 1980]).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

303

EPA claimed that the ponds were inconsistent with the CWA and state water quality 

standards.290 The court deferred to EPA’s interpretation of the CWA and position that 

“the ‘waters of the United States’ over which EPA has regulatory control cannot be 

removed from the purview of the Clean Water Act merely by impounding those 

waters.”291

A general purpose of the “waste treatment system” exclusion is to encourage the 

development of innovative waste treatment technologies and further the goals of the 

CWA. Absent the exclusion, construction site operators would be punished. In addition to 

the required CWA Section 402 NPDES permit covering construction-related stormwater 

discharges exiting a site, construction site operators would be forced to secure a Section 

404 dredged or fill material permit for discharges into their own stormwater control 

systems. Furthermore, stormwater impoundments might be interpreted as artificially 

created “waters of the United States,” imposing additional regulatory burdens on 

construction site operators and surrounding landowners. This perverse outcome is 

inconsistent with the common sense interpretation of the Agencies “waste treatment 

systems” exclusion. 

Additionally, stormwater treatment ponds could be deemed to not be “waters of the 

United States” because they are settling basins and thereby meet exclusion (b)(5)(ii):

“The following are not ‘waters of the United States’ . . . 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.”292

Stormwater ponds and other stormwater management techniques function to slow down 

the flow of water from a development, parking lot, roadway, etc., by collecting the water 

in a basin and governing outflow to the stream network to better mimic natural stream 

hydrology. In the process, runoff is slowed down, and pollutants, including sediment and 

sorbed nutrients (e.g., phosphorus, organic matter) and contaminants (e.g., heavy metals) 

that enter the pond or other treatment facility, settle out. Additionally, biota (e.g., plants,

animals, microorganisms) within the stormwater ponds can account for biological uptake 

of excess nutrients and dissolved contaminants. EPA notes, “[w]et [stormwater] detention 

ponds provide both storm water quantity and quality benefits, and provide significant 

retrofit coverage for existing development. Benefits include decreased potential for 

downstream flooding and stream bank erosion and improved water quality due to the 

removal of suspended solids, metals, and dissolved nutrients.”293 What’s more, saturated 

stormwater pond soils can enhance the reduction of nitrate, otherwise responsible for 

 

290 West Virginia Coal Ass’n, 728 F.Supp. at 1,279.

291 Id. at 1,283. See also Ohio Valley Environmental Coalition v. U.S. Army Corps, 2007 WL 2200686, at 12

(S.D.W.Va.) (rejecting the Corps position that construction of treatment ponds in stream segments previously

classified as “waters of the United States” cause protected waters to temporarily lose that status and qualify for the

“waste treatment system” exception because they assist in the discharge of pollutants).

292 79 Fed. Reg. at 22,263 (emphasis added).

293 EPA, Storm Water Technology Fact Sheet: Wet Detention Ponds. Office of Water. EPA 832-F-99-048. (Sept.

1999) at 1, 2, available at http://water.epa.gov/scitech/wastetech/upload/2002_06_28_mtb_wetdtnpn.pdf
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

304

downstream eutrophication and algal blooms, to inert gaseous nitrogen via 

denitrification.294

According to case law and lacking an explicit exclusion, these ubiquitous treatment 

ponds would not meet the existing waste treatment exclusion. Similarly, because 

exclusion (b)(5)(ii) includes the phrase “used exclusively for such purposes as stock 

watering, irrigation, settling basins, or rice growing,” a stormwater pond used for any 

other purpose (e.g., recreation, aesthetics) may not meet the artificial lakes or ponds 

exclusion. At a minimum, the word “exclusively” must be removed from this exclusion 

for it to have any practical application.

The vast majority of stormwater systems used to control both the quality and quantity of 

stormwater discharges from construction sites form waste treatment systems and function 

as settling basins. These systems are specifically “designed” to be incorporated in an 

NPDES permit as detailed in a site-specific SWPPP. They are man-made, typically 

constructed separate and apart from existing waters of the United States, and do not 

themselves create new waters of the United States.

Conversely, as “waters of the United States,” stormwater ponds would be subject to all 

CWA programs (see Section VII. a.), and routine maintenance would require expensive 

and burdensome CWA permits (e.g., dredging sediment would require a Section 404 

permit and application of mosquito pesticides would require a Section 402 permit). This 

would create regulatory headaches with no ecological benefits.

For these reasons, the Agencies must explicitly exclude stormwater systems from the 

definition of “waters of the United States.” (p. 112-114)

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4. Also see 

the discussion about the waste treatment system exclusion at 7.1. Please note that 

the Agencies’ adoption of a specific exclusion for stormwater control features built 

in dry land does not alter the outcomes of the cases cited by the commenter or any 

other court case.

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

7.465 Constructed Wetlands. There is language in the Proposed Rule that would appear to make 

a large number of constructed stormwater ponds and constructed wetlands fall under the 

"tributary" definition. "In addition, wetlands, lakes, and ponds are tributaries (even if 

they lack a bed and banks or ordinary high water mark) if they contribute flow, either 

directly or through another water to a water identified in paragraphs (a)(l) through (3) of 

this section. A water that otherwise qualifies as a tributary under this definition does not 

lose its status as a tributary if, for any length, there are one or more man-made breaks 

(such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as 

wetlands at the head of or along the run of a stream, debris piles, boulder fields, or a 

 

294 See Groffman, P.M., E.A. Holland, D.D. Myrold, G.P. Robertson, and X. Zou. 1999. Denitrification. In: 

Standard soil methods for long-term ecological research (Robertson, G.P., D.C. Coleman, C.S. Bledsoe, and P. 

Sollins, eds.). Oxford University Press, New York. Soil saturation creates anaerobic conditions that promote 

facultative microbial reduction of nitrate-N to gaseous N (NO, N2O, and N2) in a process called denitrification.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

305

stream that flows underground) so long as a bed and banks and an ordinary high water 

mark can be identified upstream of the break. A tributary, including wetlands, can be a 

natural, man-altered, or man-made water and includes waters such as rivers, streams, 

lakes, ponds, impoundments, canals, and ditches not excluded in paragraph (b)(3) or (4) 

of this section." (Proposed Rule at 40 CFR 230.3(u)(S)) It seems inappropriate and 

undesirable to have a large number of constructed stormwater ponds and constructed 

wetlands fall under the "tributary" definition and be considered WOTUS.

Northglenn requests that the Proposed Rule clarify the rule language and/or provide a 

categorical exclusion for most types of constructed stormwater ponds and constructed 

wetlands. (p. 4)

Agency Response: The agencies have identified an exclusion for stormwater 

control features created in dry land-- please see summary response at 7.4.4.

7.4.2. Groundwater Recharge Ponds

Summary Response

Overall, commenters expressed their desire for the Agencies to include exemptions for 

infiltration and groundwater recharge basins. Several commenters requested that recharge 

facilities be included in specific exclusion categories such as groundwater or artificial lakes or 

ponds.

Additionally, three commenters expressed concerns about any interpretation of the rule that 

might include infiltration basins as waters of the U.S., particularly within the definition of 

"adjacent waters". Another commenter specifically requested that shallow aquifers be exempt 

from the definition of waters of the U.S. One other commenter recommended that waters in a 

watershed in which there is no connection to a traditional navigable water, interstate water or the 

territorial seas not be included in the definition of waters of the U.S.

To address the concerns raised by many of the commenters and to clarify the Agencies’ intent 

with respect to groundwater recharge features, the Agencies developed a new exclusion for 

“Wastewater recycling structures created in dry land” from the definition of “waters of the U.S.” 

at paragraph (b)(7). The following summary describes this new exclusion and addresses the 

many comments related to a wastewater exclusion. Some issues raised in connection with 

wastewater control are also addressed in other compendiums as well, such as the Implementation 

compendium, the Legal compendium, and the Miscellaneous compendium.

Specifically, the Agencies specifically excluded constructed detention and retention basins 

created in dry land that are used for wastewater recycling, including groundwater recharge basins 

and percolation ponds built for wastewater recycling. Infiltration basins are among the features 

covered by the exclusion. The new exclusion also covers water distributary structures that are 

built in dry land for water recycling. The Agencies have not considered these water distributary 

systems jurisdictional where they do not have surface connections back into, and contribute flow 

to, “waters of the United States.” The exclusion in paragraph (b)(7) codifies the long-standing 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

306

agency practice that water reuse and recycling structures are important and beneficial in 

protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

As identified in Section 7.3.6. of this compendium (Groundwater, including Groundwater 

Drained through Subsurface Draining Systems), the final rule continues to identify as excluded 

“Groundwater, including groundwater drained through subsurface drainage systems” reflecting 

the agencies interpretation of “waters of the United States.” This exclusion applies to all 

groundwater, including shallow subsurface flow and shallow aquifers as identified above. 

Nothing in this rule limits or impedes any existing or future state or tribal efforts to further 

protect their waters. Please note that this exclusion does not apply when groundwater emerges on 

the surface and contributes baseflow to streams and spring-fed waters. At this point, when 

groundwater emerges on the surface, it is surface water, and thus potentially regulated under the 

Clean Water Act.

Finally, although the rule does not include an explicit exemption for waters in a watershed in 

which there is no connection to a traditional navigable water, interstate water or the territorial 

seas, waters can only be jurisdictional where they meet one of the jurisdictional categories listed 

in the rule, and these require a significant nexus to traditional navigable waters, interstate waters 

or the territorial sea. In some cases where a case-specific significant nexus is performed the 

absence of a connection may be a sign of the water’s function in relationship to the traditional 

navigable water, interstate water, or the territorial seas. These functional relationships include 

retention of floodwaters or pollutants that would otherwise flow downstream to the traditional 

navigable water, interstate water, or the territorial seas. But in all cases, there must be a 

significant nexus to a traditional navigable water, interstate water, or territorial sea. 

Specific Comments

Board of County Commissioners, White Pine County, Nevada (Doc. #9975)

7.466 [The Rule] Claims to exclude groundwater, but includes certain waters based on a 

subsurface groundwater connection (p. 2)

Agency Response: See the summary response of 7.3.6 Groundwater, Including 

Groundwater Drained through Subsurface Drainage Systems.

Flood Control and Water Conservation District, Riverside County, California (Doc. #14581)

7.467 IV. NEED TO EXCLUDE BASINS USED TO RECHARGE GROUNDWATER

Riverside County, like many counties in California and the Southwest, has an extensive 

program of groundwater recharge to support drinking water supplies. Central to this 

program are "spreading basins", basins located adjacent to flood control channels (which 

may be designated as WOTUS) which collect and percolate water into underground 

aquifers. 

The need to recharge the aquifers with local stormwater, as well as recycled water, is 

becoming even more vital in time of drought. The infiltration basins must be rigorously 

maintained to ensure that they continue to support their infiltration purpose.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

307

The District is very concerned about any interpretation of the rule that might include 

infiltration basins as WOTUS, particularly the definition of "adjacent waters". The 

Proposed Rule expands the scope of "adjacent" from "wetlands" to all waters. 79 Fed. 

Reg. 22206. "Adjacent" waters are waters which are "bordering, contiguous or 

neighboring", including waters "separated from other [WOTUS] by man-made dikes or 

barriers, natural river berms, beach dunes and the like". 79 Fed. Reg. at 22263. 

Additionally, waters which are "neighboring", defined to be "waters located within the 

riparian area or flood plain of a[WOTUS], or waters with a shallow subsurface 

hydrologic connection or confirmed surface hydrologic connection to such a 

jurisdictional water" also meet this definition and would be considered WOTUS. Id. As 

discussed, many infiltration basins are adjacent to channels that are considered WOTUS. 

Basins may also be located within the floodplain of the adjacent channels. Also, the 

exclusion for artificial lakes or ponds in Section b(5)(ii) is limited to specified uses, 

which currently do not include infiltration basins. 79 Fed. Reg. at 22218. Thus, under the 

Proposed Rule, the infiltration basins could be classified as WOTUS (though, as noted 

above, the District opposes the designation of "adjacent" waters based on a subsurface 

hydrologic connection).

However, as the Proposed Rule indicates, "adjacent waters" are distinguished by the fact 

that they "provide similar functions which have a significant nexus to [WOTUS]". 79 

Fed. Reg. at 22207. Infiltration basins do not provide a similar function to the adjacent 

channels. The channels are designed to rapidly convey floodwaters so that they do not 

threaten lives and property. The infiltration basins, by contrast, are designed and 

maintained to percolate waters into groundwater, which is not a WOTUS. This 

characteristic distinguishes infiltration basins from other waters adjacent to a WOTUS, 

such as a wetland, which can influence the character of waters in the WOTUS.

The District supports language in the final rule exempting the designation of infiltration 

basins as WOTUS. (p. 11-12)

Agency Response: See summary response. Infiltration basins created in dry land 

that recharge groundwater are excluded.

City of Glendale, Arizona (Doc. #15054)

7.468 Basins at Aquifer Recharge Facilities 

The City of Glendale operates the West Area Aquifer Recharge Facility to store effluent 

produced at the West Area Water Reclamation Facility for future beneficial use. The 

recharge facility consists of a series of basins where effluent is discharged to soak into 

the ground for storage. Although groundwater, including groundwater drained through 

subsurface drainage systems, is excluded in the proposed rule, it is unclear whether 

recharge facilities would qualify for this exemption. 

...

Recharge facilities should be excluded from the definition of Waters of the United 

States. Recharge facilities are regulated by state laws to protect groundwater quantity and 

quality. The Arizona Department of Water Resources requires extensive studies prior to 

permitting a recharge facility and routine monitoring and reporting of the volume of 

water recharged. The Arizona Department of Environmental Quality requires an Aquifer 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

308

Protection Permit for the facility with permit-specific water quality standards to be met 

for discharges into the recharge basins. Without a specific exclusion for recharge basins, 

additional permits would be required in order to perform routine maintenance 

(discing/blading the basins and removal of sediment and vegetation to improve 

infiltration). The City of Glendale's limited financial resources would be spent on permits 

without additional benefit to the environment. (p. 1-2)

Agency Response: Basins created in dry land that recharge groundwater are 

excluded. See summary response.

County of Los Angeles and Los Angeles County Flood Control District, California (Doc. 

#15620)

7.469 1. Groundwater Infiltration Basins

The LACFCD owns and operates numerous groundwater infiltration basins, designed to 

recharge underground aquifers with stormwater, recycled water, and imported water. 

Each year the basins recharge an average of 290,000 acre-feet of water, which is 

equivalent to the annual water needs of 2.3 million people. The basins represent a vital 

part of the drinking water portfolio in Los Angeles County, where many communities 

obtain the majority of their drinking water (in some communities as much as 80 percent) 

from underground aquifers. A reliable local water supply, whether recycled or from rain, 

is more important than ever as California continues to face one of the most severe 

droughts on record.

The construction of groundwater infiltration basins first began in the early 1930s and 

continued into the 1960s. Modernization and operational enhancements continue today 

under funding partnerships with local water supply entities and the California Department 

of Water Resources. The basins - either excavated or converted from old gravel pits - are 

typically located next to engineered channels (which are considered to be WOTUS) and 

are separated from those channels by levees. Although located adjacent to flood control 

channels, the infiltration basins serve a very different function - to percolate water into 

underground aquifers. Water is diverted from the flood control channel to the basins via a 

headwaters structure and then allowed to percolate into the groundwater aquifer typically 

100 to 200 feet below the ground surface. Optimal percolation capacity is achieved 

through regular and rigorous maintenance, which includes vegetation clearing, debris and 

sediment removal, vector control, and “ripping” of the basin floor to loosen compacted 

soils. Some or all of these activities potentially would require a CWA 404 permit and 401 

certification if conducted in a jurisdictional waterbody. Any interference in such 

maintenance (for example, due to a delay in obtaining a 404 permit or 401 certification, 

or resulting from the permit conditions themselves) can seriously and irreversibly 

degrade a basin’s percolation capacity.

The County and LACFCD are very concerned about any interpretation of the rule that 

might include infiltration basins as WOTUS, particularly the definition of “adjacent 

waters.” The Proposed Rule expands the scope of “adjacent” from “wetlands” to all 

waters. 79 Fed. Reg. 22206. “Adjacent” waters are waters which are “bordering, 

contiguous or neighboring,” including waters “separated from other [WOTUS] by manmade dikes or barriers, natural river berms, beach dunes and the like.” 79 Fed. Reg. at 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

309

22263. Additionally, waters which are “neighboring,” defined to be “waters located 

within the riparian area or floodplain of a [WOTUS], or waters with a shallow subsurface 

hydrologic connection or confirmed surface hydrologic connection to such a 

jurisdictional water” also meet this definition and would be considered WOTUS. Id. As 

discussed, the LACFCD’s infiltration basins are adjacent to channels that are considered 

WOTUS. The basins may also be located within the floodplain of the adjacent channels. 

Also, the exclusion for artificial lakes or ponds in section b(5)(ii) is limited to specified 

uses, which currently do not include groundwater recharge. 79 Fed. Reg. at 22218. Thus, 

under the Proposed Rule, groundwater infiltration basins could be classified as WOTUS, 

even though they are not currently considered as such.

However, as the Proposed Rule indicates, “adjacent waters” are distinguished by the fact 

that they “provide similar functions which have a significant nexus to [WOTUS].” 79 

Fed. Reg. at 22207. Infiltration basins do not provide a similar function to the adjacent 

channels. The destination of the water in infiltration basins is underground aquifers, 

which is not a WOTUS.295 Since the water in the infiltration basins is being rapidly 

percolated into underground aquifers (a process which takes approximately one week 

from entry into the basin), there is not sufficient detention time for the water to make a 

hydrologic connection with adjoining channels. This characteristic distinguishes 

infiltration basins from other waters adjacent to a WOTUS, such as a wetland, which can 

influence the character of waters in the WOTUS. 

Therefore, to avoid ambiguity, we request that Provision b(5)(ii) of the Proposed Rule be 

revised (as shown in Comment 2 below) to include an express exemption for 

groundwater infiltration basins. (p. 6-7)

Agency Response: Groundwater infiltration basins created in dry land are 

excluded. See summary response.

Southeast Florida Utility Council (Doc. #11879)

7.470 SEFLUC understands there is an exemption for groundwater, including groundwater 

drained through subsurface drainage system. However, it is concerned shallow subsurface 

connections referenced in the definition of adjacent waters may be used to establish 

jurisdiction despite this exemption. Arguably, if the groundwater exemption was intended 

to exclude all groundwater, including shallow aquifers, then the adjacent water definition 

would not specifically reference shallow subsurface hydrology connections as being 

included within the definition. Therefore, there must be some reconciliation of the 

exclusion of all ground waters in one section of the Proposed Rule and the inclusion of 

shallow subsurface waters in another. Given the uncertainty with future interpretations of 

this exemption, SEFLUC requests the Proposed Rule specifically exempt shallow 

aquifers from the WOTUS definition. (p. 4)

 

295 In California, groundwater is a “water of the State” (California Water Code § 13050(e)) (“’Waters of the state’ 

means any surface water or groundwater . . . within the boundaries of the state”) and the Los Angeles Regional 

Water Quality Control Board has jurisdiction over groundwater basins in Los Angeles County.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

310

Agency Response: See summary response. See also the summary response of 7.3.6 

Groundwater, Including Groundwater Drained through Subsurface Drainage 

Systems.

San Gabriel Basin Water Quality Authority, California (Doc. #17049)

7.471 WQA respectfully requests that groundwater recharge basins be excluded from 

jurisdiction under the proposed rule. We note that the proposed rule definition of "waters 

of the United States" now includes, "...all waters, including wetlands, adjacent to 

traditional navigable water..." Although EPA has also listed several exceptions, we 

believe the definition should be modified to also allow an exception for groundwater 

recharge basins created specifically for the discharging, capturing and infiltrating of 

groundwater, storm water and non-storm water runoff. Such an exception would allow 

for the efficient discharge and reuse of water in infiltration basins without additional 

layers of onerous regulatory reviews — a scenario, which WQA envisions, could apply to 

discharges throughout the San Gabriel Valley regardless of whether or not the discharges 

are coveted by an NPDES permit. (p. 2)

Agency Response: See summary response.

Center for Water Advocacy et al. (Doc. #15225)

7.472 The Definition of Navigable Waters Should Include Groundwater. While we appreciate 

that the Proposed Rule would restore protections to most streams, regardless of size or 

frequency of flow, and to all wetlands inside of floodplains, we are concerned that it does 

not go far enough. For example, the rule specifically excludes “groundwater, including 

groundwater drained through subsurface drainage systems”[1] from the definition of 

“Other Waters”. This is regardless of the fact that groundwater is often hydrologically 

connected to navigable waters to the same extent, if not more, in some cases then waters 

which the Proposed Rule has included in the definition. 

In addition, while we appreciate that, in many cases, ground water does not contain the 

proper nexus to with navigable waters as to be defined as “Other Waters” under the 

Proposed Rule, the Rule has built in mechanisms that resolve this issue. For example, 

Under the proposed rule, these ‘other waters’ (those which do not fit within the 

proposed categories of waters jurisdictional by rule) would only be jurisdictional 

upon a case-specific determination that they have a significant nexus as defined 

by the proposed rule. Waters in a watershed in which there is no connection to a 

traditional navigable water, interstate water or the territorial seas would not be 

‘waters of the United States’.[2]

This same analysis could be applied to ground water so as to eliminate ground water 

when it does not fit under the definition of Other Waters but to include it when it is 

hydrologically connected and retains a nexus to Waters of the US. Indeed, this same 

rational applies to wetlands which are included in the definition by the Proposed Rule: 

 

[1] https://www.federalregister.gov/articles/2014/04/21 /20 14-07142/definition-of-waters-of-the-united-statesunderthe-clean-water-act#h-13.

[2] Id. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

311

“On a case-specific basis, other waters, including wetlands, provided that those waters 

alone, or in combination with other similarly situated waters, including wetlands, located 

in the same region, have a significant nexus to a traditional navigable water, interstate 

water or the territorial seas.”[3]

Finally, in many cases groundwater, clearly, falls under EPA’s/CORPS’ description of 

“significant nexus”:

“Significant nexus” is not itself a scientific term, The relationship that waters can 

have to each other and connections downstream that affect the chemical, physical, 

or biological integrity of traditional navigable waters, interstate waters, or the 

territorial seas is not an all or nothing situation. The existence of a connection, a 

nexus, does not by itself establish that it is a “significant nexus.” There is a 

gradient in the relation of waters to each other, and this is documented in the 

Report. The agencies propose a case-specific analysis in establishing jurisdiction 

over these “other waters” as consistent with the current science, the CWA, and the 

caselaw. A case-specific analysis allows for a determination of jurisdiction at the 

point on the gradient in the relationship that constitutes a “significant nexus.”[4]

(p. 6-7)

Agency Response: See also the summary response of 7.3.6 Groundwater, 

Including Groundwater Drained through Subsurface Drainage Systems.

7.4.3. Agricultural

Summary Response

Several commenters addressed exclusions for agriculture from the definition of “waters of the 

United States,” both exclusions in the proposed rule and additional exclusions commenters 

would recommend. Note that these comments are in addition to those received on prior 

converted cropland, addressed earlier in this compendium.

Issue: Jurisdiction over discharges into farm or stock ponds, and irrigation features

Several commenters expressed concern that the rulemaking would limit or eliminate current 

exemptions from permit requirements for construction of farm or stock ponds, and construction 

and maintenance of agricultural irrigation features, by extending jurisdiction to cover such 

features. Others called for farm and stock ponds, irrigation ditches, and maintenance of ditches 

be identified as beyond the scope of “waters of the United States.”

In response, the agencies note the proposed and final rules make no change to the permitting 

exemptions under CWA section 404(f)(1) and associated regulations. As a result, construction 

of farm or stock ponds, construction and maintenance of irrigation ditches, maintenance of 

drainage ditches, and other activities addressed under 404(f) will be treated under the final rule 

 

[3] Id.

[4] Id.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

312

exactly as they have been treated for many years: exempt from 404 permitting requirements 

unless recaptured under 404(f)(2). Note that these permitting exemptions apply to discharges of 

dredged or fill material into a water of the U.S. that would otherwise need a section 404 permit; 

they do not speak to the scope of jurisdictional waters. 

The proposed and final rule does speak to the jurisdictional status of upland farm or stock ponds, 

and artificially irrigated areas. This rulemaking adds exclusions to the regulatory definition for 

the first time under (b)(4)(B) for artificial lakes and ponds created in dry land for uses such as 

stock watering, irrigation, settling basins, rice growing, or cooling ponds, and under (b)(4)(B) 

artificially irrigated areas that would revert to dry land should application of water to that area 

cease. In response to public comments, and discussed in section 7.3 above, the final rule 

preamble explains that these exempted areas need not be used exclusively for such purposes 

rather. As a result of these provisions, the agencies believe the final rule helps provide important 

clarity to the scope of excluded waters. For more discussion of these and other exclusions from 

the definition of waters of the US, see section 7.2 of this compendium, the preamble, and the 

Technical Support Document. In addition, Compendium 6 focuses on public comments and 

responses regarding ditches.

Issue: Jurisdiction over ditches, irrigation canals and other water distribution systems

Some commenters indicated an exclusion for ditches wholly in uplands or that do not discharge 

into tributaries is trivial because water inevitably goes somewhere. If the use of drains is 

impaired by this perceived regulatory overreach, commenters assert it would cause unnecessary 

expense for farmers. The cumulative effect of drains on navigable interstate waters should be 

subject to state-based requirements at discharge points that focus on a pollution problem. 

Commenters also noted the Proposed Rule does not expressly exempt irrigation canals, but 

instead defines “tributary” to include canals, and ditches not excluded in paragraph (b). They are 

concerned that many irrigation canals and water detention or delivery systems could become 

newly jurisdictional. Some commenters were concerned that the final rule would create a bias 

against irrigation projects on tribal lands, which (unlike most non-Indian irrigation projects) were 

created since the enactment of the CWA. They recommended the final rule should clearly 

exclude Indian irrigation projects from the definition of WUS.

In response, the agencies note that longstanding agency practice has regulated many but not all 

ditches, and that the agencies are for the first time excluded certain ditches by rule. The agencies 

do not agree the final rule expands jurisdiction over ditches. The agencies have considered 

ditches to be generally non-jurisdictional when they were excavated wholly in uplands, drained

only uplands, and had less than intermittent flow. This approach is, for example, reflected in the 

2008 Rapanos Guidance. The final rule refines the approach to ditches, by clarifying for the 

first time in rulemaking which ditches are excluded from jurisdiction. The final rule is also clear 

that ditches that do contribute flow directly or through another water to a water identified in 

paragraphs (a)(1) through (a)(3) are not jurisdictional. See Compendium 6 on ditches for more 

discussion, as well as the preamble and Technical Support Document.

With respect to commenters’ suggestion that ditches and drains should be addressed as a point

source and not as jurisdictional waters, the final rule is unchanged from the proposal. The 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

313

approach that ditches can be considered both reflects the CWA itself as well as longstanding 

policy. See the final rule preamble and Technical Support Document for more discussion.

The final rule does not exclude all canals from jurisdiction, and as indicated in the preamble and 

rule text, some canals may be waters of the United States where they meet the definition of 

tributary. The agencies do recognize, however, the importance of water reuse and recycling, and 

therefore paragraph (b)(7) clarifies that wastewater recycling structures created in dry land are 

excluded, including water distributary structures built for wastewater recycling. Paragraph (b)(7) 

of the final rule specifically excludes constructed detention and retention basins created in dry 

land used for water recycling as well as groundwater recharge basins and percolation ponds built 

for wastewater recycling. These features are used to collect and store water which then 

infiltrates into groundwater via permeable soils. Though these features are often created in dry 

land, they also often are located in close proximity to tributaries or other larger bodies of water. 

The exclusion also covers water distributary structures that are built in dry land for water 

recycling. These features often connect or carry flow to other water recycling structures, for 

example a channel or canal that carries water to a percolation pond. The agencies have not 

considered these water distributary systems jurisdictional where they do not have surface 

connections back into, and contribute flow to, waters of the United States. In contrast, the 

agencies have consistently regulated aqueducts and canals as waters of the United States where 

they serve as tributaries, removing water from one part of the tributary network and moving it to 

another. The exclusion in paragraph (b)(7) codifies longstanding agency practice and encourage 

water management practices that the agencies agree are important and beneficial.

The purpose and intended effect of the final rule is not to create a bias against irrigation facilities 

developed on tribal lands. As mentioned above, the final rule policies are intended to encourage 

beneficial water management practices with all waters of the United States, including on tribal 

lands. As discussed in the preamble, tribes play a vital role in the implementation of the CWA 

and achievement of its goals. 

Specific Comments

Gila River Indian Community (Doc. #13619)

7.473 By far the most significant impact that the Proposed Rule could have is on the 

Community’s ongoing effort to develop and revamp our irrigation system to convey 

water throughout Community lands. This program, called the Pima-Maricopa Irrigation 

Project (“P-MIP”), has been ongoing for over a decade, and is intended to modernize and 

expand the on-Reservation irrigation system based upon the blueprint of complex 

agricultural waterways that were built by our ancestors. The Community is developing 

the P-MIP system to deliver water throughout the Community through an expansive 

2,400 mile irrigation canal system. The Community’s plans to expand agricultural 

production are directly tied to efforts to restore our traditional way of life and fight many 

of the alarming public health trends in our community. However, additional permitting 

requirements significantly hamper these efforts by additional permitting requirements for 

on-Reservation activities that have not required a CWA permit in the past. The Proposed 

Rule’s broad definition of “waters of the United States” is comprehensive and has the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

314

potential to encompass and extend Agency jurisdiction over the entire P-MIP system, 

which is currently exempt from jurisdiction.

The expansive assertion of jurisdiction that the Agencies’ propose appears to run contrary 

to Congress’ intent in enacting the CWA, at least with respect to agricultural projects, 

such as the Community’s. The legislative history and text of the CWA clearly evince 

Congress’ intent to specifically exempt from permit requirements the construction of 

farm or stock ponds, as well as the construction and maintenance of agricultural irrigation 

features.296 The Community is concerned that the Proposed Rule contravenes 

Congressional intent – a power that regulatory agencies lack - and improperly extends 

agency jurisdiction over these types of features, which are extremely prevalent on the 

Reservation and critical to P-MIP.

The Proposed Rule does not expressly exempt irrigation canals, but instead defines 

“tributary” to include “canals, and ditches not exempted in paragraphs (b)(3) or (4)” of 

the proposed definition of “waters of the United States.”13 These sections define ditches 

but do not define or describe canals. Under this approach, the P-MIP canal system could 

become jurisdictional under a broad interpretation of the Proposed Rule, even if this is 

not the Agencies’ intent at this point in time. This would have deleterious impacts on the 

Community in general and P-MIP canals in particular, and runs contrary to Congressional 

intent underlying the CWA. (p. 3-4)

Agency Response: See summary response above.

7.474 The federal agencies seek input as to which waters “should be determined nonjurisdictional.”297 Below are the Community’s recommendations.

1. The Final Rule should include unambiguous exemptions for all existing irrigation 

projects. These exemptions should clearly confirm that the proposed rulemaking does not 

apply to existing irrigation systems and that irrigation-related canals are not extensions of 

the waters of the U.S.

2. The expansion of these CWA rules discriminates against Indian irrigation projects. 

Most non-Indian irrigation projects were constructed in the latter 19th and first part of the 

20th centuries before such regulations existed. By the latter 20th and early 21st centuries, 

as tribal nations engaged in nation-building by putting their hard-earned water resources 

to use, a plethora of regulations govern, restrict, and unnecessarily add expense to these 

tribal efforts to make beneficial use of their trust water resources. The Final Rule should 

make clear that Indian irrigation projects are exempt from the definition of “waters of the 

United States” and specify that the Agencies’ jurisdiction under the CWA does not 

extend to Indian irrigation projects. 

...

4. The rulemaking should clearly confirm that “canals” related to irrigation are not 

jurisdictional. Absent this clear definition, there appears to be great discretion on the part 

of the EPA and Corps to misapply and misappropriate jurisdiction by declaring 

 

296 S. Rep. 95-370, at 76 (1977); 33 U.S.C. § 1344.

297 Id. at 22193.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

315

jurisdictional all or parts of the P-MIP system, and thus requiring permits for 

maintenance of the system. (p. 9)

Agency Response: See summary response above.

North Carolina Forestry Advisory Council (Doc. #14123)

7.475 There is a list in the proposed rule of features that are not "waters of the US." Farming 

and silvicultural activities are not included on this list, but we feel they should be. 

Agriculture and forestry practices are already exempt under Section 404 of the Clean 

Water Act. It appears that this proposed rule seems to limit and possibly restrict activities 

covered in Section 404. (p. 1)

Agency Response: See summary response above, particularly section discussing 

the 404(f) exemptions from permitting requirements and their relationship to waters 

of the United States.

North Dakota Office of the Governor, et al (Doc. #15365)

7.476 Agriculture drains should not be regulated as WOTUS; rather, states jurisdiction 

should address pollution concerns.

The agriculture drainage exemption conflicts with the inclusion of ditches as tributaries. 

Similarly, exemptions of drains wholly in uplands or that do not discharge into EPA’s 

expansively defined tributaries are trivial. Agricultural waters flow into drains that 

invariably go somewhere. For example, the exemption of subsurface drains as claimed by 

EPA is trivial because subsurface drains generally flow directly into surface drains that 

are claimed jurisdictional in the proposed rule. Very seldom do drains, including tile 

drains, flow into a waterbody that would not be considered tributary under the proposed 

expansive definitions. If use of the drains themselves is impaired by regulatory overreach 

by EPA or others with respect to drains, exemption of water removal at the land location 

will have little meaning 

Agricultural drains should not be regulated as WOTUS. While the cumulative effect of 

drains on navigable interstate waters at discharge points should be subjected to statebased requirements, the oversight should not be on the drain. Instead, states should be 

allowed to focus on the receiving waterbody if there is a pollution problem. (p. 12)

Agency Response: See summary response above.

7.477 The storm water runoff exemption is ill-defined.

EPA needs to clarify if the stormwater runoff exemption refers to tile and surface 

drainage practices that remove those waters. If not, the exemption provides little 

protection to agriculture producers. It is important to understand that EPA’s definition of 

tributary would not only authorize it to regulate water quality or limit discharge of 

agricultural chemicals (as with a TMDL) into a major natural waterway affecting 

downstream interests, but within the drain itself – within which waters would be under 

direct EPA jurisdiction. This offers an opportunity for micromanagement of the land 

itself at the field exit point, discounting downstream dissipation factors within the ditch 

or intervening wetlands.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

316

North Dakota is particularly concerned with the impact to farmers during the current wet 

cycle. Within the wet climate scenario, many depressional areas flood. North Dakota is 

currently dealing with situations that involve the expansion of waters into farmsteads, 

farm fields, and towns. Many of these would be connected naturally under some 

scenarios; others would need to be artificially connected (drained) to protect the flooded 

parties. This authority would offer a powerful tool for federal interests to interfere with 

farmland water management, causing farmers hardship and delay as they are forced to 

spend more money and time on the permitting process. (p. 12-13)

Agency Response: See summary response above. In addition, it is important to 

note that the final rule includes clarifications made in response to public comments 

on stormwater-related features. Comments on regulation of stormwater 

management features and associated responses are discussed in 7.4.4, and in the 

final rule preamble. 

Department of Public Health and the Environment, State of Colorado (Doc. # 16342)

7.478 Agricultural Exemptions:

The agencies have stated that the proposed rule does not change or limit any of the 

multiple exclusions and exemptions from jurisdiction and permit requirements provided 

by the CWA and its regulations. Colorado supports the agencies' decision to retain intact 

all of the CWA agricultural exemptions. Agriculture is one of the largest economic 

sectors in our state; our farmers and ranchers feed the people of Colorado and beyond 

while conserving environmental resources. It is essential that any revisions to the

provisions defining the scope of CWA jurisdiction and its exemptions not create any 

confusion for the agricultural sector, and that the proposed definitions do not impact the 

scope of the agricultural exemptions. Compliance with the CWA must be straightforward 

and reasonable. 

Furthermore, to provide clarity to the regulated community, the exemptions in CWA 

sections 402, 502, and 404 should be specifically included as exemptions in the proposed 

rule to expressly identify what is meant by the statement 9n the Fed. Reg. notice (page 

22193-4) that all statutory exemptions for agriculture from CWA jurisdiction will be 

retained. (p. 2)

Agency Response: See summary response above. The final rule preamble 

expressly indicates that permitting exemptions are unchanged by this rulemaking. 

State of Idaho (Doc. # 16597)

7.479 3. Exclusions

The Proposed Rule should specifically exclude additional waters and features generally 

considered to be outside the scope of CWA jurisdiction, including:

a. Farm ponds, stock ponds, irrigation ditches, and the maintenance of drainage ditches, 

as currently excluded under the CWA's agricultural exemption;

b. Man-made dugouts and ponds used for stock watering or irrigation in upland areas that 

are not connected to surface waters; and

c. Dip ponds that are excavated on a temporary, emergency basis to combat wildfires and 

address dust abatement. (p. 5)
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317

Agency Response: See summary response above. See response 7.3.2 regarding 

artificial lakes and ponds created in dry land. 

Pyramid Lake Paiute Tribe (Doc. # 17472)

7.480 6. Specific examples of agriculture exemptions should be addressed in § 328.3 

Definitions. (p. 2)

Agency Response: See summary response above. Specific examples of 

agricultural activities exempted from permitting requirements typically are 

addressed under program permitting regulations, and thus are outside the scope of 

this rulemaking. However, several types of water features often found on 

agricultural lands are excluded from the definition of waters of the United States 

under this rule, as noted in the preamble, Technical Support Document, and several 

compendiums in the Response to Comments (including this one). 

Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)

7.481 We are also concerned that certain agricultural best management practices, including 

grassed waterways and constructed vegetated beds or wetland treatment systems, could 

be regulated under the proposed definition. Local soil and water conservation districts 

and USDA Natural Resources Conservation Service agents are hard at work to encourage 

local farmers to voluntarily adopt these practices. If there is any possibility that a practice 

might result in the creation of a regulated “Waters of the U.S.,” farmers across the 

country will stop utilizing these practices, which in turn would result in higher nutrient 

and sediment loadings to local streams. We recommend that any agricultural best 

management practice approved by the U.S. Department of Agriculture should be 

excluded from the proposed definition. (p. 2)

Agency Response: The agencies agree that encouraging USDA best management 

practices is desirable. The interpretive rule issued in April 2014 addressing the 

relationship between USDA best management practices and CWA permitting 

requirements has been withdrawn. USDA best management practices and the 

Interpretive Rule are discussed in Compendium #14 at section 14.2.

Land Improvement Contractors of America (Doc. #8541)

7.482 While EPA’s efforts to preserve the agricultural exemptions are critical and wellintentioned, the combined effect of the expansion of jurisdiction, and the framework to 

implement the agricultural exemptions, creates the following legal uncertainties and 

risks: (1) the potential that current non-jurisdictional features, such as on-farm wetlands, 

ditches and ponds will be deemed jurisdictional (e.g., those located in natural streams or 

connected to downstream jurisdictional waters), (2) discharges or fill and dredge 

activities affecting such previously non-jurisdictional features may require a 402 or 404 

CWA permit; and (3) failure to obtain a CWA permit may subject a farmer to CWA 

enforcement, including a citizen suit. (p. 2)

Agency Response: See summary response above, as well as the final rule 

preamble and Technical Support Document.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Annette Schafer (Doc. #2743)

7.483 I oppose the rule for the following reasons:

1: The rule does not explicitly exempt waters that have no potential to directly impact 

human health. 2: The rule does not exempt farm-use water that does not flow into or 

return to navigable waters, aquifers with no potential to be impacted by chemical 

application, surface streams and rivers. 3: Water used for irrigation, supplied through 

canals and ditches that does not return to rivers, streams, and potentially impacted 

aquifers should be exempted. 4: The distribution systems used to convey irrigation waters 

should also be exempted. (p. 1)

Agency Response: See summary response above, particularly the subsection 

addressing jurisdiction over ditches, irrigation canals and other water distribution 

systems. An earlier section of this compendium addresses the fact the final rule 

excludes groundwater from the definition of waters of the United States. As 

discussed in the Technical Support Document, CWA jurisdiction is not based on the 

potential for such waters to directly impact human health.

Grower-Shipper Association of Central California (Doc. #4710.2)

7.484 The EPA has stated that the proposed rule will NOT apply to wet areas on fields or 

erosion features on fields. We are concerned that in the future, the broadening of the 

definitions and jurisdictions of “wetlands”, “ephemeral streams” and “ditches” in this 

document could lead to regulation of retention ponds, a water quality measure that’s been 

widely adopted in our area, to the benefit of our lakes and streams. (p. 2)

Agency Response: See summary response above, particularly the subsection on

jurisdiction over ditches, irrigation canals and other water distribution systems.

Adams Ranch, Inc. (Doc. #4978.2)

7.485 While agricultural operations have listed exemptions, there are situations that may not be 

considered. As an example, water retention has been identified as a "Best Management 

Practice," or an income source with "Dispersed water storage," In either case, agricultural 

lands may take on wetland characteristics. This could be detrimental to the lands under 

lying value, if they could not be converted back to an upland use (prior use). (p. 1)

Agency Response: See summary response above. 

National Farmers Union (Doc. #6249)

7.486 The agencies can alleviate agriculture's concerns by noting that waters not listed under 

section (b) of the proposed rule are not jurisdictional by default and will not be 

considered within CWA jurisdiction unless they fall into one of the categories listed in 

sections (a)(l) to (a)(7). (p. 8) 

Agency Response: Under the final rule, all waters and features identified in 

paragraph (b) as excluded will not be waters of the United States, even if they 

otherwise fall within one of the categories in paragraphs (a)(4) through (a)(8).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Minnesota Agricultural Water Resource Center (Doc. #14284)

7.487 In agricultural settings, we recommend... Farm fields should also be defined as always 

non-jurisdictional. (p. 2)

Agency Response: The CWA and the final rule defining waters of the United 

States only address waters, not dry land in farm fields. As discussed in many of the 

Response to Comments compendiums, the final rule preamble, and Technical 

Support Document, many water features on farm fields are non-jurisdictional. In 

addition, longstanding permitting exemptions for agricultural activities in 

jurisdictional waters are unchanged by the final rule. 

Peltzer & Richardson, LC (Doc. #16360)

7.488 ...the exclusion should be expanded to include agricultural ponding basins that are not 

connected to any other water body. Agricultural operations often have need for temporary 

ponding of irrigation or tail water, and basins for these purposes have no logical or 

functional connection to any navigable waterway, and should simply be excluded by rule. 

Currently, such basins can trigger the need for a full jurisdictional determination, 

requiring costly and lengthy review by USACE. Again, such processes have little to no 

value in meeting the core intent of the CWA (the preservation of the nation’s navigable 

waterways), and therefore a simple exclusion for these basins would serve the public 

interest. (p. 6)

Agency Response: See summary responsive above, as well as responses regarding 

artificial lakes and ponds and wastewater recycling structures.

Glenn-Colusa Irrigation District (Doc. #16635)

7.489 The Proposed Rule intends to maintain current exclusions contained within the definition 

of WOTUS, and to also incorporate other exclusions that have been implemented through 

longstanding practices of the Agencies. However, the current exclusions and proposed 

new exclusions do not specifically address constructed facilities used to convey and 

deliver irrigation supply water, and irrigation and drainage ditches used in agriculture.

...

With respect to constructed facilities used to convey agricultural supply waters, the 

Proposed Rule is silent and arguably no exclusion exists to protect such facilities from 

falling within the definition of WOTUS. Considering the intent and purpose of such 

facilities, and the fact that such facilities were constructed for this sole purpose, it is 

inappropriate for them to be WOTUS by virtue of some “controlled” connection to a 

traditional navigable water. To avoid this result, GCID recommends that a new exclusion 

be created for constructed facilities that convey agricultural supply water. Accordingly, 

we recommend the following new category be added to the list of exclusions:

Constructed facilities that are used solely to convey agricultural supply waters. (p. 

7, 9)

Agency Response: See summary response above, particularly subsection on 

jurisdiction over ditches, irrigation canals and other water distribution systems.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

320

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.490 Irrigation Facilities. The Proposed Rule has significant impacts on irrigation facilities, 

particularly in the western states. The Proposed Rule could be interpreted to allow the 

Agencies or third parties to assert that features such as irrigation and drainage ditches, 

stormwater ditches, and water storage or treatment ponds and reservoirs are jurisdictional 

tributaries, which would put the burden on irrigation water purveyors, farmers, and 

ranchers to prove that their facilities are exempt from CWA jurisdiction. 

The irrigation facilities of the WWG member irrigation districts which receive Central 

Arizona Project (CAP) water cross many dry washes and streams within the Gila River 

Watershed, which ultimately drains into the Colorado River several hundred miles away. 

In constructing, operating, and maintaining its irrigation and electrical systems, the CAP 

Irrigation Districts are constantly crossing and occasionally working in these dry stream 

beds which are often located in flood plains. The CAP’s Irrigation Districts have their

own irrigation water distribution systems which consist of multiple reasonably large 

canals and concrete lined ditches, which deliver irrigation water to the individual farms 

within the districts and are constructed pursuant to Bureau of Reclamation (BOR) designs 

and remain subject to BOR inspection and ownership. The CAP Irrigation Districts 

deliver only irrigation water through these systems to the individual farms of landowners, 

and to a few Indian reservations. Most of these individual farms include man-made dirt 

ditches for irrigation purposes, and tail water or excess flows often drain into one or more 

of the dry washes that the rule would likely treat as “ephemeral tributaries” to the Gila 

River Watershed. In addition, the natural drainage features have been enhanced to 

support flood control channels, which protect fields and irrigation facilities from flash 

flood events. In the very occasional major flood event, these flood control channels will 

divert flood flows into and through the natural drainage system. Historically, 

maintenance work on these flood control channels has been performed on short notice 

and without the need to obtain CWA permits under section 404. The CAP Irrigation 

Districts also operate and maintain hundreds of irrigation wells within these same areas, 

which could be treated as impacting “shallow subsurface” water under the Proposed 

Rule. In short, the Proposed Rule would appear to render most or all of the CAP 

Irrigation Districts’ systems as potentially jurisdictional.

To date, the Agencies’ only response to the many concerns expressed by the irrigation 

community is to state that the rule “keeps intact all [CWA] exemptions and exclusions for 

agriculture that farmers count on,”298 but the Agencies fail to recognize that the Proposed 

Rule would limit the effect of existing exemptions and exclusions by asserting 

jurisdiction over a much wider range of irrigation facilities, and fail to recognize that 

CWA permitting exemptions do not cover many routine activities necessary for 

irrigation. In particular, as noted above, the scope of the proposed jurisdictional 

exclusions for artificially-irrigated areas and irrigation ponds is unclear. Moreover, even 

supporters of the Proposed Rule have admitted that “it is true that certain exemptions 

 

298 Nancy Stoner, Setting the Record Straight on Waters of the US, EPA CONNECT BLOG (Jul. 7, 2014),

http://blog.epa.gov/epaconnect/2014/06/setting-the-record-straight-on-wous/.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

321

only apply to discharges of dredged or fill material, as opposed to pesticides.”299 For 

these reasons, rather than subjecting water purveyors and users to a patchwork quilt of 

vague and narrow jurisdictional exclusions and permitting exemptions, the Agencies 

should categorically exclude all artificial irrigation facilities, as proposed in Section IV 

above. (p. 30-31)

Agency Response: See summary response above, particularly subsection on 

jurisdiction over ditches, irrigation canals and other water distribution systems. 

With respect to jurisdiction over ephemeral streams and certain ditches, see 

Compendium #8 on tributaries. With respect to the CWA section 404(f) permitting 

exemptions applying only to discharges of dredged or fill material, the CWA itself 

limits the exemption to dredged and fill material. 

Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061)

7.491 The proposed definition of tributary includes "A tributary, including wetlands, can be a 

natural, man-altered, or man-made water (emphasis added) and includes...canals and 

ditches...". This definition is so broad that numerous man-made non-stream conveyances 

would constitute tributaries and become subject to unnecessary permitting. As discussed 

above, CLWA relies on water banking programs with agricultural water agencies in the 

San Joaquin Valley. These agencies operate manmade canals, such as the Cross Valley 

Canal in Kern County, to convey water between water banking facilities and the 

California Aqueduct. CLWA joins ACWA's requests that water conveyance systems be 

excluded from the definition of "waters of the U.S." in the proposed rule. (p. 2)

Agency Response: See summary response above.

Kansas Natural Resource Council (Doc. #14599)

7.492 It is understandable that the Kansas agricultural community would be concerned about 

the proposed rule, especially if one looks at the available maps of potential playas and 

tributaries in Kansas. According to Bowen et al. (2010) there are over 22,000 playas in 

western Kansas. However, approximately 80% of these are less than five acres. It is

likely that the majority of playas in Kansas are considered prior converted cropland and 

are therefore exempt from jurisdiction. The EPA, in an effort to further clarify 

jurisdictional waters, should attempt to assess the status of playas in this regard. At this 

juncture it is expected that protection of our remaining playas will come as a result of 

cooperative efforts such as the Playa Lake Joint Venture rather than through an 

application of the proposed rule. Cooperative efforts such as the PLJV should be 

encouraged and supported. It may be that efforts by groups such as PLJV afford playas 

greater protection than imposition of “significant nexus” rulings. As for the tributaries, 

the proposed rule plainly states that there are to be no new jurisdictional waters. The 

agricultural activities that currently take place in the ephemeral waters of the agricultural 

landscape are exempt from regulation. The ephemeral and intermittent tributaries have 

 

299 Natural Resources Defense Council, Analysis of American Farm Bureau Federation Response to EPA Myth Blog 

2, available at

http://switchboard.nrdc.org/blogs/jdevine/Analysis%20of%20AFBF%20response%20to%20EPA%20myth%20blog.

pdf (last visited Nov. 7, 2014).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

322

always been jurisdictional under the Clean Water Act but have been ignored or exempt 

from protection in our highly altered and agricultural landscape. (p. 1-2)

Agency Response: The agencies support state efforts to protect local water 

resources. See also Compendium # 4 on other waters, and Compendium #5 on 

significant nexus. See also the final rule preamble and Technical Support 

Document. 

7.4.4. MS4s and other stormwater management features

Summary Response

Background

A municipal separate storm sewer system (MS4) is a conveyance or system of conveyances that 

is owned or operated by a public entity, designed and used to collect or convey stormwater and 

discharge it to waters of the U.S. This conveyance system includes road drainage systems, catch 

basins, curbs, gutters, ditches, man-made channels, or storm drains. An MS4 is often operated by

a municipality or county government, but other storm sewer systems, such as large public 

institutions (e.g., military bases) and State Departments of Transportation operate MS4s. MS4s 

often rely on a drainage network consisting of jurisdictional waters as well as constructed 

conveyance structures to transport stormwater. Where MS4s incorporate creeks and streams, 

which may be channelized, piped or otherwise modified within their drainage network, the 

creeks and streams remain jurisdictional waters even if they are considered to be a part of the 

MS4. As development has intensified and reduced the infiltration capacity of the land, storm 

sewer systems have become significant pathways for collecting and carrying pollutants to waters 

of the U.S., often causing significant adverse effects on receiving water. To mitigate impacts on 

water quality, MS4s may have constructed stormwater “best management practices” (BMPs) to 

control the volume and/or pollutant loading of stormwater before it is discharged.300

Stormwater discharges from certain MS4s to waters of the U.S. are regulated under the National 

Pollutant Discharge Elimination System (NPDES) permit program under CWA § 402(p). 

Regulated MS4s include those serving a population greater than 100,000, those within Censusdesignated urbanized areas, and others that are designated by the NPDES permitting authority on 

a case-by-case basis. MS4 permits must require controls to reduce pollutant discharges to the 

“maximum extent practicable” and may include other appropriate control requirements, such as 

specific provisions to address water quality. Most states are authorized to implement the NPDES 

 

300 Under the NPDES regulations, “best management practices” or “BMPs” mean schedules of activities, 

prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the 

pollutions of “water of the United States.” BMPs also include treatment requirements, operating procedures, and 

practices to control plant site runoff, spillage or leaks or drainage from raw material storage. 40 CFR §122.2. In the 

stormwater program, a BMP can be structural or nonstructural, and is the term used to describe the varied activities 

undertaken to administer a stormwater management program in order to meet permit conditions. “Practices” in this 

context does not necessarily mean regulated activities; the term can also refer to physical structures built to manage 

stormwater, e.g., a stormwater pond or a constructed treatment wetland. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

323

stormwater program and issue MS4 permits. Permitting authorities have considerable flexibility 

in establishing structural and non-structural BMPs to control stormwater discharges. MS4 

permits typically require implementation of stormwater control practices targeted at reducing 

pollutants in stormwater before it reaches the MS4, such as controlling sediment and erosion at 

construction sites, reducing or treating discharges from new development and redevelopment 

projects, sweeping streets, eliminating illicit discharges to the MS4, and implementing pet waste 

control ordinances. 

Unlike most other NPDES permits, such as industrial plants and sewage treatment works permits 

that establish pollutant limits and monitoring requirements for discharges from each of a 

facility’s discharge pipes, MS4 permits generally do not have specific provisions requiring endof-pipe effluent limitations for specific pollutants or monitoring at each MS4 outfall. CWA § 

402(p)(3)(B)(i) specifically authorizes the issuance of system-wide or jurisdiction-wide permits 

to MS4. Requirements in MS4 permits typically apply to the entire system without reference to 

specific outfalls. MS4s typically implement a monitoring program that relies on representative 

sampling of outfalls and in some cases in-stream monitoring. Monitoring results are typically 

used to inform the MS4 and the permitting authority as to how the existing best management or 

source control practices are performing and how they might be modified to further reduce 

pollutant discharges. 

MS4 NPDES permits require control of discharges to and from their storm sewer systems in 

several ways. They must prohibit non-stormwater discharges into the MS4 unless the nonstormwater discharges have their own NPDES permit coverage. In addition, stormwater 

discharged from certain industrial or construction sites through the MS4 to the receiving water 

(or directly to the receiving water) must be covered by an NPDES permit. The MS4s’ programs 

also need to reduce pollutants in stormwater to the MS4 from construction sites during 

construction and to have controls in place that prevent or minimize water quality impacts from 

post-construction stormwater discharges from areas of new development and redevelopment. 

Larger MS4s are also required to oversee regulated discharges from industrial sites. All MS4 

permits must require reduction of pollutants “to the maximum extent practicable” and may 

include requirements targeting pollutants of concern to address impaired waters and to be 

consistent with the wasteload allocations from an approved total maximum daily load 

calculations. Increasingly, “green infrastructure” is used to achieve water quality objectives for 

urban stormwater and to minimize damage to the biological, physical and chemical integrity of 

the receiving water by reducing the volume of stormwater being discharged. While there is no 

single definition of “green infrastructure,” with respect to stormwater, it generally refers to 

stormwater management systems that mimic nature by infiltrating (and thereby treating), 

evapotranspirating or storing precipitation and runoff. Examples of green infrastructure include 

rain gardens, bioswales, and other infiltration devices, permeable pavement, green roofs, tree 

canopy, and cisterns. Minimizing the creation of impervious surfaces and downspout 

disconnection are also forms of green infrastructure practices to control stormwater.

A fundamental requirement for operators of all regulated MS4s is to develop a map of their 

separate storm sewer systems showing the location of all outfalls and receiving waters. See 40 

CFR §122.26(d)(1)(iii(B)(1) and §122.26(d)(ii) for Phase I MS4s and §122.34(b)(3)(ii)(A) for 

Phase II MS4s. As has been the case with the NPDES permit program in general, identification 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

324

of jurisdictional receiving waters initially is done by the permit applicant by specifying outfall 

locations and the names of receiving waters, either when they apply for a permit or as part of 

complying with permit terms. As noted above, MS4s frequently incorporate existing 

jurisdictional waters into their stormwater systems, though these jurisdictional waters may not be 

explicitly identified as such where they lack outfalls. Issues associated with the jurisdictional 

status of waters are generally resolved through the permit issuance process, rather than as a 

separate or preliminary determination before permit coverage is decided. Mapping of outfalls 

and jurisdictional receiving waters has been an ongoing effort for most regulated MS4s.

Whether they are regulated under § 402(p) or not, MS4s are regulated under the § 404 program 

when the owners/operators undertake activities resulting in the discharge of dredged or fill 

material to jurisdictional waters that form part of their drainage networks. Some activities, such 

as ditch maintenance may be exempt from 404 permit requirements. Other activities may be 

covered by a Nationwide General Permit issued by the U.S. Army Corps of Engineers, e.g., 

NWP 43 for stormwater control structures.

Summary of comments

While EPA did not propose to change the jurisdictional status of various components of an MS4, 

numerous commenters asserted that the definitions of “adjacent water,” “tributary,” or “other 

waters” in the proposed rule would encompass various MS4 features and make them 

jurisdictional waters of the U.S. In some cases, commenters expressed concern that if one 

component of an MS4 were jurisdictional, then the entire system would be considered 

jurisdictional. The result, commenters argued, is that the universe of waters of the U.S. would be 

greatly expanded and require significant state efforts to establish water quality standards and 

TMDLs for these newly created jurisdictional waters, and potentially the adoption of water 

quality-based effluent limitations in MS4 permit for discharges to these waters. An oft-noted 

contention was that MS4 owners/operators would need to obtain § 404 permits for routine 

maintenance of their MS4s even if their systems were already regulated under § 402 permits. 

This in turn could cause delays while waiting for § 404 permit coverage, even in time-sensitive 

or emergency situations. Other concerns listed by commenters included unspecified conflicts 

between § 402 permit requirements and § 404 requirements, possibly inconsistent jurisdictional 

determinations under the two programs, and confusion about the extent to which an MS4 would 

qualify as an excluded “waste treatment system.” Many commenters asserted that regulation of 

MS4s under the § 402 program is sufficient for any waters within their drainage systems and 

regulation under the § 404 program would not add any additional protection for those waters. In 

addition, commenters were concerned that the extent to which MS4s fall under the waste 

treatment system or other exclusions had not been clearly expressed and requested very clear 

guidance on which features are jurisdictional and which are not, particularly where natural 

drainage features had been replaced by or made into engineered drainage features. 

Commenters provided several general and very specific recommendations for exclusions from 

the definition of waters of the U.S. for stormwater control features. Many questioned how 

stormwater facilities fit into the various exclusions listed in paragraph (b) of the proposed rule, 

e.g., settling ponds, artificial ponds, etc. A number asserted that an MS4 and its entire system of 

conveyances and other features, whether currently considered jurisdictional or not, should be 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

325

excluded. Many claimed that MS4s are waste treatment systems and should be clearly identified 

as falling within the existing waste treatment system exclusion. Some commenters observed 

that stormwater control features that do not belong to a regulated MS4 should also be excluded, 

including MS4s not regulated under 402(p), and stormwater control ponds, conveyances and 

similar structures located at industrial and commercial sites. Others suggested that an exclusion 

be only for those MS4s that are permitted, or only MS4s that are owned by municipalities. 

Several commenters supported an exclusion only if the components were not built in waters of 

the U.S. Specifically, this was the recommendation of the Local Government Advisory Group.

Commenters identified numerous physical features of an MS4 that should be excluded. Many 

also expressed concern that green infrastructure and other “natural” practices to improve water 

quality or reduce runoff would be considered waters of the U.S. under the proposed rule. 

According to commenters, making such features jurisdictional would discourage the use of green 

infrastructure practices, contrary to EPA’s promotion of green infrastructure as a way for 

municipalities and others to provide multiple benefits for their communities. 

Final Rule

To address the concerns raised by many of the commenters and to clarify the Agencies’ intent 

with respect to stormwater control features, the Agencies have a new exclusion for “stormwater 

control features constructed to convey, treat, or store stormwater that are created in dry land” 

from the definition of “waters of the U.S.” at paragraph (b)(6). The following summary 

describes this new exclusion and addresses the many comments related to a stormwater 

exclusion. Some issues raised in connection with stormwater control are also addressed in other 

compendiums as well, such as the Implementation compendium (12), the Legal compendium

(10), the Ditch compendium (6) and the Miscellaneous compendium (14).

MS4s often are a complex mix of constructed and natural features. When the EPA first proposed 

regulations for stormwater management to implement the 1987 amendments to the CWA, it was 

careful to distinguish between the constructed conveyance structures and natural (or altered 

natural) waters that are used as part of the MS4’s drainage system. See 53 Fed. Reg. 49442 

(Dec. 7, 1988). Generally, constructed features are not considered jurisdictional, while waters 

that were jurisdictional in the past retain their jurisdictional status as waters of the U.S., even if 

they are physically incorporated into the stormwater drainage network through piping, ditching, 

channelizing, etc. The final rule retains this status quo, but to provide clarity and to respond to 

the considerable confusion expressed by commenters about which stormwater control features 

are jurisdictional and which are not, and widespread calls for a stormwater component 

exclusions, particularly for MS4s, the Agencies developed a specific exclusion for stormwater 

control features at paragraph (b)(6) of the final rule. EPA’s intent is to provide additional clarity 

and certainty. Consistent with the other exclusions in the final rule, as long as a feature qualifies 

for the stormwater control exclusion, i.e., constructed to convey, treat, or store stormwater and 

built in dry land, it cannot become a jurisdictional water by virtue of the definitions of 

jurisdictional waterbodies, such as “adjacent waters,” “tributaries” or “other waters.” 

The new stormwater control exclusion covers all stormwater control features that are built in dry 

land (with one exception noted below). The exclusion is broadly defined to cover stormwater 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

326

control measures that are constructed to convey, treat, or store stormwater built in dry land, and 

does not specify particular control measures that qualify for the exemption. Stormwater 

professionals and NPDES regulation refer to stormwater control features as Best Management 

Practices or BMPs. The Agencies decided not to list specific measures or features because the 

lack of uniform definitions for many of the features could miss some features and fail to 

anticipate future control features that should be captured by the exclusion. While the Agencies 

understand the desire to specify the exact features that qualify for the exclusion in the rule 

language itself, they determined that the better course of action would be to provide a more 

general category of excluded features. Some of the most common stormwater control measures 

include traditional stormwater control structures such as pipes, street gutters, retention basins, 

detention basins, and ponds, as well as the newer types of control that fall generally into the 

category of “green infrastructure” such as rain gardens, bioswales, cisterns, and constructed 

wetlands. Stormwater control features are designed to address runoff that occurs during and 

shortly after precipitation events; as a result, stormwater features that convey runoff are expected 

to only carry ephemeral or intermittent flow. The Agencies also note that the stormwater control 

exclusion applies to all covered stormwater control features, with one exception, regardless of 

whether an NPDES permit for the stormwater discharge from the control feature is required. 

Thus, it covers municipal (regulated and unregulated), industrial, commercial, institutional, and 

residential stormwater control features that are built in dry land. This exclusion does not cover 

transportation ditches; those ditches are addressed under paragraph (b)(3) of the rule For ease of 

implementation, the agencies want water features to be dealt with under only one provision of 

the rule; the agencies do not expect the scope of ditches excluded to be different under (b)(3) and 

(b)(6).

Commenters suggested that stormwater ponds could be covered by the exclusion for ““[a]rtificial 

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 . . . .” Other commenters 

questioned whether stormwater retention or detention ponds built at NPDES regulated 

construction sites would qualify for the exclusion for “water-filled depressions created in dry 

land incidental to ... construction activity.” By creating a separate exclusion that covers 

stormwater control measures not built in dry land, the Agencies avoid uncertainty about 

interpreting other exclusions and enhance consistency in the application of the exclusions. Many 

commenters promoted the idea of using the waste treatment exclusion as the best means for 

excluding stormwater control devices. As others noted though, the waste treatment exclusion 

has limitations, such as being available only for waste treatment systems built to meet Clean 

Water Act (CWA) requirements. Since the CWA only regulates some MS4s, any stormwater 

control measures constructed and used for purposes other than meeting CWA requirements 

would not have qualified for this particular exclusion. This could cause confusion since 

unregulated MS4s often use the same types of stormwater control measures as regulated MS4s, 

but are not building them for purposes of meeting the CWA. In addition, conventional 

stormwater collection control measures may be designed simply to provide flood control and 

stormwater transport, rather than pollutant removal. While some stormwater control features, 

such as bioretention basins and constructed wetlands, clearly provide treatment of pollutants, it 

would be difficult to assert that treatment was actually occurring in some MS4 components, such 

as street gutters. Historically, EPA has considered constructed treatment wetlands that are not 

built in waters of the U.S. to be covered by the waste treatment system exclusion. EPA notes 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

327

that regardless of which exclusion under paragraphs (b)(1) – (b)(7) is applied, the effect is the 

same under the final rule. Any feature that qualifies for an exclusion cannot be a water of the 

U.S., even if it otherwise would fit into the categories of jurisdictional waters specified in 

paragraph (a)(4) – (a)(8). 

The Agencies do not agree with commenters who stated that jurisdictional waters incorporated 

into the drainage or stormwater conveyance system should be excluded by virtue of the fact that 

they are part of the larger stormwater control system. A water does not lose its jurisdictional 

status if it is piped, channelized, ditched or otherwise modified. This has been the case 

historically under the rules that applied prior to today’s action and continues to be the case under 

the final rule. The Agencies note that the Local Government Advisory Council specifically 

recommended not excluding “natural waters.” The Agencies recognize that this means highly 

engineered MS4s that may have replaced natural drainage features with engineered structures 

will likely have jurisdictional waters within their systems. Urban waters provide important 

amenities to communities and aquatic life. Maintaining the jurisdictional status of streams that 

have been piped or altered will encourage stream restoration in urban areas, which has been vital 

in improving water quality. If a stream that has been enclosed in a pipe is jurisdictional only in 

its natural state, becoming a jurisdictional water when it is restored would most likely discourage 

important restoration efforts. By acknowledging through the exclusion that urban stormwater 

drainage systems can contain jurisdictional waters within them even if they have been modified 

or engineered over time, communities may be more likely to appreciate the importance of these 

waters within the larger system and to undertake efforts to restore these waters over time to 

restore water quality.

The Agencies also do not agree with some commenters that “waters of the U.S.” and “point 

sources” are mutually exclusive terms under the CWA. As noted in the preamble, EPA’s 

longstanding position as a legal matter, is that one feature can be both a point source and a 

jurisdictional water. This position is discussed more thoroughly in the Technical Support 

Document. As a practical matter, commenters seem to use the term “MS4” in varying ways. 

Some MS4 owners/operators recognize that certain waters within the drainage network are 

jurisdictional and serve to convey stormwater collected elsewhere in the system further 

downstream; stormwater may enter and leave numerous constructed conveyance features along 

its pathway to a water of the U.S. Other MS4 owners/operators consider all waters within their 

drainage structures to be part of their MS4s because they form a continuous route for channeling 

stormwater to receiving waters. Stating that MS4s can contain waters of the U.S. is not only a 

long-standing position, but also recognizes that different perspectives exist on describing the 

scope of an MS4. 

Several commenters stated that having jurisdictional waters within their regulated municipal 

separate storm sewer systems would cause confusion, especially with respect to the application 

of water quality standards and TMDLs in their NPDES permits. Jurisdictional waters have 

always been subject to requirements for WQS and TMDLs and this is unchanged by the final 

rule. Furthermore, MS4 permits are written on a system-wide basis and do not typically require 

compliance with end-of-pipe numeric effluent limitations at each outfall. Permit writers have a 

great deal of flexibility in how MS4 permits can be written to protect receiving waters from 

stormwater discharges. In addition, states have flexibility to identify the designated use of a 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

328

jurisdictional water and to establish what water quality criteria are necessary to meet that use. 

For example, some states have used narrative criteria rather than numeric criteria to protect 

certain jurisdictional waters within MS4 drainage networks. The final rule does not change these 

existing flexibilities. The Agencies do not share the view that the final rule greatly expands the 

universe of waters requiring the need for states to establish water quality standards and TMDLs. 

As an overall matter, the Agencies have worked diligently to ensure that the final rule does not 

change the jurisdictional status of various components of stormwater systems by creating new 

categories of jurisdictional waters. 

Several commenters cited a policy against using jurisdictional waters for in-stream treatment and 

the prohibition in 40 CFR §131.10 (a) against designating waste transport or waste assimilation 

as a use as reasons against retaining jurisdiction over waters that are part of the overall drainage 

network to manage stormwater. The agencies do not want jurisdictional waters to become 

receptacles for waste. However, on the rare occasions that in-stream treatment is the only 

feasible alternative, usually due to geographical restraints, a permit applicant may apply for a § 

404 permit to create a waste treatment system in a jurisdictional water, thereby converting that 

water to non-jurisdictional status. That a jurisdictional water may transport stormwater along 

with other flows, such as base flows, does not mean that a water cannot have beneficial use other 

than “waste transport.” States are required to designate uses and adopt criteria consistent with 

Clean Water Act requirements. There, the agencies disagree with the commenters’ point that 

waters that a part of a stormwater drainage network cannot be jurisdictional.. MS4 permits 

rarely specify numeric water quality based effluent limits for specific outfalls; more likely, the 

permit would have requirements to use best management practices (BMPs). In those instances 

where an NPDES permit establishes a numerical effluent limitation for a particular MS4 outfall 

and the MS4 is not able to achieve that limitation, further off-stream treatment would need to 

occur. It is important to keep in mind that not every change in a conveyance structure (e.g., 

channelized in concrete to unchannelized) means there is a discharge that would need an NPDES 

permit. See §122.26(b)(9), which explains that in the context of MS4s, open conveyances that 

connect segments of the same stream or other jurisdictional waters that transport waters of the 

U.S. are not outfalls for purposes of MS4 NPDES permits. 

As a general matter, the agencies do not agree that regulation under both § 402 and § 404 of the 

CWA provides redundant protection. These CWA sections protect the nation’s water resources 

in different ways, and standards for determining permit terms and conditions differ under the two 

programs. Permits for “traditional” NPDES discharges (e.g., POTWs and industrial plants) 

contain effluent limitations for pollutants in discharges that are based on the level of pollutant 

control achieved by specified levels of technology, with more stringent effluent limitations 

imposed when they are necessary to attain water quality standards in the receiving water body. 

Permits for MS4 stormwater discharges differ in the applicable standards for permit terms and 

conditions issued for MS4 in that the permit “shall require controls reduce the discharge of 

pollutants to the maximum extent practicable, . . . including such other provisions as the 

Administrator or the State determines appropriate for the control of such pollutants.” § 

402(p)(3)(B)(iii). Permits typically require source control BMPs, rather than end-of-pipe 

effluent concentration limitations. Under the § 404 program, permit conditions may be derived 

from § 404(b)(1) guidelines and may involve an analysis of alternatives to the discharge to 

minimize environmental harm. There may be some overlap between the two programs in terms 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

329

of sites and facilities regulated, but the protections and actions offered by each program differ. 

The two programs are not interchangeable in how they protect waterbodies or in how they are 

implemented.

Many commenters said that having jurisdictional waters within an MS4 drainage network would 

mean that discharges to the MS4 would also have to be regulated, implying that this would 

change the current situation. To support this assertion, some commenters cited a discussion in 

the preamble to the 1990 Phase I stormwater regulations that covers large/medium MS4s and 

stormwater discharges associated with industrial activity. This discussion distinguishes between 

direct discharges to a Waters of the U.S. and discharges through an MS4. EPA notes that while 

not every source of pollutants that enter an MS4 is regulated under federal law, controlling 

sources and preventing pollutants from entering the MS4 has always been a significant focus of 

the MS4 program. CWA § 402(p)(3)(B)(ii) requires that permits for MS4s “shall include a 

requirement to effectively prohibit non-stormwater discharges into the storm sewers.” In 

addition, stormwater discharges associated with certain industrial activity must be covered under 

an NPDES permit regardless of whether they discharge directly to waters of the U.S. or through 

an MS4. For this reason, the preamble to the 1990 Phase I regulation explained that discharges 

to waters of the U.S. via an MS4 are still discharges subject to the NPDES permit program. 

EPA’s explanation of discharges through an MS4 does not support a conclusion that MS4s 

cannot have jurisdictional waters within their systems and has nothing to do with the location of 

jurisdictional waters. The permitting authority may designate additional stormwater discharges 

that are discharged via an MS4. It is also important to note that the MS4 owners/operators must 

develop and implement controls for certain stormwater discharges like sediment from 

construction sites and controls related to post-construction stormwater in new and 

redevelopment. Contrary to the assertions made by these commenters, the NPDES program for 

stormwater discharges does regulate discharges of pollutants that enter an MS4. 

Implementation of the stormwater program under CWA § 402(p) does not change as a result of 

the final rule. The stormwater control feature exclusion is designed to reflect the status quo with 

respect to MS4 components. Commenters raised a number of questions about implementation 

of the rule with respect to stormwater, but implementation issues are outside the scope of this 

rulemaking. These types of issues may be addressed in outreach materials.

Specific Comments

State of Hawaii Department of Transportation (Doc. #10184)

7.493 The State of Hawaii Department of Transportation (HDOT) respectfully recommends the 

following changes to the Proposed Rule at 33 CFR Part 328.3 (Federal Register Vol. 79, 

No. 76 p. 22263 column I paragraph 3) and similar sections in 40 CFR Parts 110, 112, 

116, 117, 122, 230,232,300, 302, 401, and Appendix E to Part 300 as follows:

[Note: underlined section is to be added and bracketed section with strikeout is to be 

deleted]

"(b) The following are not 'waters of the United States' notwithstanding whether

they meet the terms of paragraphs (a)(I ) through (7) of this definition-

"(1) Waste treatment systems, including treatment ponds, lagoons, or 

Clean Water Act regulated municipal separate storm sewer systems
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

330

and the component conveyances within such systems." [designed to 

meet the requirements of the Clean Water Act.]”

Rationale

Since stormwater management activities are not explicitly exempt under this proposed 

rule, HDOT is concerned that its Municipal Separate Storm Sewer System (MS4s) 

infrastructure could now be classified as a "water of the U.S." This infrastructure includes 

many HDOT MS4 conveyances, including ditches, channels, pipes and gutters that flow 

into a water of the U.S. and are already regulated under the Clean Water Act (CWA) 

Section 402 stormwater permit program...(p. 1)

Agency Response: Please see summary response to 7.4.4.

Pyramid Lake Paiute Tribe (Doc. #17472)

7.494 The rule explains that connectivity to a traditional navigable water is considered criteria 

for waters of the United States. There isn't any language in the rule that defines 

geographic limit. The rule states that tributaries have a significant nexus to traditional 

navigable waters, but the nexus test is inapplicable to MS4s, since they are already 

regulated under CWA Section 402. To address this matter, we suggest that the rule 

clearly delineates that components of the MS4 are not waters of the United States. MS4s 

should be specifically defined as exempt from waters of the United States. (p. 2)

Agency Response: Please see summary response at 7.4.4.

State of Alaska (Doc. #19465)

7.495 Finally, further clarity is needed in a newly proposed rulemaking that explicitly excludes 

stormwater collection and treatment systems from broad CWA jurisdiction. EPA already 

regulates discharges from certain stormwater systems to navigable waters under CWA 

402. (p. 32)

Agency Response: Please see summary response at 7.4.4

California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

7.496 3) Caltrans requests that the exclusions listed in section (b) of the proposed rule 

specifically exclude stormwater facilities created in uplands, and designed to meet the 

requirements of an MS4 program, from jurisdiction under the CWA. (p. 2)

Agency Response: Please see summary response at 7.4.4

Florida Department of Transportation (Doc. #18824)

7.497 Jurisdictional Status of Stormwater Management Systems

The proposed rule identifies as non-jurisdictional “waste treatment systems, including 

treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." 

However, the agencies do not provide an explanation of this exclusion, so it is not clear 

how or if this exclusion would apply to stormwater management systems that are 

constructed as part of transportation facilities to meet requirements of the Clean Water 

Act (CWA). 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

331

The rule should clarify that the exclusion for “waste treatment systems, including 

treatment ponds or lagoons" specifically applies to stormwater management systems that 

are constructed as part of transportation facilities to meet state and federal regulatory 

requirements of the National Pollutant Discharge Elimination System (NPDES) pursuant 

to Section 402 of the CWA. The exclusion should specifically extend to all stormwater 

management facilities, including stormwater collection, conveyance, treatment and 

discharge systems that are or may be regulated as Municipal Separate Storm Sewer 

Systems (MS4s) under the NPDES permitting program pursuant to Section 402 of the 

CWA. Without such exclusion for stormwater management systems, many MS4 

regulated entities, including state transportation agencies such as FDOT, will no longer 

be able to appropriately manage and treat stormwater consistent with CWA requirements 

prior to discharge to Waters of the United States (WOTUS) as the MS4 itself would 

likely be deemed WOTUS under the proposed rule.

Even though USACE and USEPA do not propose to make conforming changes to the 

existing definitions of WOTUS for the various CWA programs to have the same 

language with respect to the "waste treatment system" exclusion, there is uncertainty as to 

whether canals, ditches and or any feature that may be part of a permitted facility will 

now be deemed a WOTUS and subjected to additional permitting. In transportation 

facilities, linear flow features such as swales, ditches, canals and culverts provide 

additional treatment to stormwater. Extending WOTUS jurisdiction within the treatment 

train of a stormwater management system may have the unintended consequence of 

giving stormwater management systems a regulatory status that is at best unclear. This is 

a chance to clarify that uncertainty by expressly exempting these facilities. (p. 1-2)

Agency Response: Please see summary response at 7.4.4. Also please note that the 

proposed rule made changes to the definition of “waters of the U.S.” for all affected 

CWA programs, as does the final rule.

Lee County, Florida (Doc. #1346.1)

7.498 Without further guidance, by defining ditches and their contents to be “Waters of the 

US,” local governments will lose the ability to use existing ditches for treatment to 

improve water quality. Under existing MS4 permits, stormwater systems are authorized 

to accept and treat pollutants in the system as a whole which allows an opportunity for 

the pollutants to be assimilated prior to the stormwater being discharged into “Waters of 

the US.” These conveyance systems provide “treatment trains” which reduce nutrient 

loading and are physically separated from what has historically been considered “Waters 

of the US.” This loss will place a much greater burden of achieving water quality on the 

system operator in treating the source, as there is no provision for treating in “Waters of 

the US.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)

7.499 We are concerned that the “adjacent waters” definition could be interpreted to include 

stormwater retention ponds. To maintain their functionality, accumulated sediment must 

be cleaned from these ponds over time. This standard maintenance item would become 

exceptionally difficult to complete if retention ponds were to be regulated under the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

332

proposed Waters of the U.S. definition. Clermont County recommends that the definition 

specifically exclude stormwater management basins, as the more appropriate place to 

regulate these is under EPA’s municipal separate storm sewer system (MS4) regulations. 

(p. 2)

Agency Response: Please see summary response at 7.4.4.

New Hanover County, North Carolina (Doc. #5609)

7.500 Under section Ill. A. Summary of Proposed Rule, the list of specific waters excluded 

under the Clean Water Act does not include man-made, engineered stormwater systems. 

Irrigation, artificial water bodies, swimming pools, waters created for aesthetic reasons, 

depressions, groundwater and erosional features were addressed. Ditches, swales, 

retention ponds, piping, infiltration areas, Low Impact Development (LID) techniques

and all other stormwater management systems for the control of runoff were not 

specifically excluded. These integral parts of stormwater systems perform water quality 

and quantity functions prior to discharging to downstream waters but should not by 

themselves be considered under the Clean Water Act. The presence or absence of a 

significant nexus for waters, especially those that do not have a hydrologic connection, 

appears to lump all waters together within a watershed. Once a significant nexus is made 

within a watershed, all other similarly situated waters could also be found to have a 

significant nexus. Ditches could also be considered subject to the Clean Water Act under 

this proposed legislation even when not declared jurisdictional water. Most of the 

stormwater conveyances in New Hanover County are maintained by the property owner 

of record so numerous permits would have to be issued to maintain them. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Carroll County Department of Land Use, Planning & Development, Maryland (Doc. #6266.1)

7.501 County-maintained, man-made conveyances and ditches, used to treat or mitigate 

stormwater in particular, should not be subject to a Section 404 permit. Ephemeral flows 

in these ditches are already captured through the CWA Section 402 NPDES MS4 permit 

process... All local streets, gutters, man-made ditches, and any other facilities 

covered under the NPDES MS4 permit should be explicitly excluded from the 

definition of waters of the U.S. If this recommendation is not taken, at the very least, the 

federal agencies should clarify whether ditches will be considered in segments or only in 

whole.

Since stormwater activities are not explicitly exempt under the proposed rule, we are 

concerned that MS4 ditches could be classified as “waters of the U.S.” If these facilities 

flow into a “water of the U.S.,” they are already regulated through the Section 402 

NPDES MS4 permit process. Doubling up on the permit coverage and requirements 

will just create a more cumbersome, expensive, and lengthy process for local 

jurisdictions, with greater cost to taxpayers and slower progress toward Bay clean 

up. In addition, the implementing agencies would be in a potential position of enforcing 

conflicting conditions or overlapping responsibilities. Even if this is not the current 

intention of the agencies, they may be forced to do so through citizen and interest group 

lawsuits. These additional requirements in the process will also create a need for 

additional staff for the federal agencies. For these reasons, stormwater management 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

333

activities, as well as green infrastructure, should be explicitly exempt from the 

Section 404 permit requirements. These facilities already provide a water quality 

function to mitigate or eliminate the impacts of ephemeral flows to "waters of the U.S." 

(p. 2-3)

Agency Response: Please see summary response at 7.4.4.

City of Westminster, Colorado (Doc. #7327.2)

7.502 Under the existing rules, the 2012 Nationwide Permit 43: Stormwater Management 

Facilities states that these facilities could be excluded by USACE determination. 

However, the proposed rule is vague about the exemption. The City possesses numerous 

stormwater management facilities for flood control and water quality purposes. The City 

feels these facilities are in compliance with the CWA, and should be exempt from 

USACE jurisdictional rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Transportation and Storm Water Department, City of San Diego, California (Doc. #7950.1 and 

#7950.2)

7.503 Key implications of the Proposed Rule that cause concern for the City are summarized 

below and specific comments are found in the attached table:

...

 Storm water facilities, storm water basins, and capture and treatment systems may 

or may not be subject to the Proposed Rule. Water bodies that are waste treatment 

systems designed to comply with the Clean Water Act are still categorically 

exempt. However, it is unclear how much of the MS4 infrastructure would be 

considered as "waste treatment". In California, waters designed to store or 

infiltrate water that could be discharged to surface water or land without further 

treatment as part of a municipal wastewater treatment plant are not considered 

part of the treatment train and are not exempt.

 The language specifying other WOTUS definition exclusions (both old and new), 

such as that for swales and ditches, does not clearly exclude MS4 conveyance 

facilities and other storm water related facilities. 

Because of these issues, the City requests that the US Environmental Protection Agency 

and US Army Corps of Engineers (together referred to as the Agencies) incorporate a 

clear categorical exemption for MS4 systems into the final rule. The Agencies must 

ensure that the definition of MS4s and the explicit exclusion for MS4s included in the 

pertinent sections of CFR 33 and CFR 40 are broad enough to exempt the full range of 

conveyances, green infrastructure, and treatment, storage, and infiltration facilities

contemplated in California to achieve compliance with MS4 permits and integrated 

planning for storm water management and water supply reliability. The definitions and 

exclusions must ensure that the design and siting of storm water BMPs can remain 

consistent with the goals of storm water management, and not be compromised by the 

need to avoid federal jurisdiction. (Doc. #7950.1, p. 2)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

334

7.504 Comment Number: 2

Section: 22201-F

Topic: Tributaries

Comment: The proposed rule states that some channels would not be considered “waters 

of the U.S.” if the channels are excavated wholly in uplands, drain only uplands and have 

less than perennial flow or channels that do not contribute flow either directly or through 

water.

ACOE dredge and fill policies would be applicable in WOTUS. Therefore, storm water 

attenuation ponds (with no water quality treatment) and drainage ditches that are in the 

floodplain would be required to meet jurisdictional requirements – even during routine 

maintenance activities, unless an exemption is granted by the ACOE. This will lead to 

significant permitting and possibly mitigation costs for routine maintenance of essential 

public infrastructure (e.g. ditches, MS4).

Recommendation: Identify exemptions for storm water infrastructure maintenance 

activities. (Doc. #7950.2, p. 1)

Agency Response: Please see summary response at 7.4.4. Also, please note that 

the final rule concerns the definition of which waterbodies are protected by the 

Clean Water Act. 

7.505 Comment Number: 5

Section: 22206

Topic: Exemptions

Comment: Since, storm water management activities are not exempt under the proposed 

rule, the man-made conveyances and facilities for storm water management could 

potentially be classified as a “water of the U.S.” This broad term and reach has 

implications for adding increased cost for maintenance operations in the form of permits 

and required studies to prove the jurisdiction of the conveyance structure.

Recommendation: Provide exemption for storm water conveyance system. (Doc. 

#7950.2, p. 2)

Agency Response: Please see summary response at 7.4.4.

Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986)

7.506 Stormwater Infrastructure (MS4)

The Municipal Separate Storm Sewer System (MS4) is the city's stormwater conveyance 

system to the WOTUS, and has water quality compliance points where the MS4 

discharges into the WOTUS. The proposed rule includes a very broad definitional of 

"tributary", which could be interpreted to include the City's entire MS4 infrastructure, 

including constructed ditches, pipes, storm water basins, water infiltration basins, upgradient interceptor ditches or channels, and other facilities. The rule could be interpreted 

to include the rainwater collecting and running in the city streets, which could change the 

water quality compliance points from MS4 discharges to the MS4 itself, making it almost 

impossible to meet water quality standards. Therefore, we respectfully request the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

335

inclusion of the "MS4" in the list of features identified as "not waters of the United 

States" in §328.3 (b). (p. 2)

Agency Response: Please see summary response at 7.4.4.

Board of Douglas County Commissioners, Colorado (Doc. #8145)

7.507 MS4 facilities can include ditches, swales, ponds and other features which are authorized 

under Section 402 of the CWA to treat and discharge concentrated stormwater. The 

extent of Waters of the U.S. is relevant to MS4 permittees because there are a variety of 

regulatory requirements that may be triggered when MS4 facilities are located adjacent 

to, or within, Waters of the U.S. For example, MS4 facility maintenance required under 

CWA Section 402 which results in a change in the elevation of the ground within a 

jurisdictional area (through sediment and vegetation removal, regarding to restore flow, 

etc.) may trigger regulatory permitting requirements under Section 404 of the CWA.

Currently, stakeholders and regulators evaluate Waters of the U.S. using an EPA and 

USACE joint agency guidance title Clean Water Act Jurisdiction following the U.S. 

Supreme Court Decision in Rapanos v. United States & Carabell v. United States (2008), 

hereafter referred to as “Current Guidance”. Under the Current Guidance, hydrologic 

features may be considered Waters of the U.S. depending on a variety of factors, 

including connectivity to downstream Traditional Navigable Waters (TNW), presence of 

wetlands or an Ordinary High Water Mark (OHWM), and possibly qualification for a 

waste treatment facility exclusion (Waste Treatment Exclusion), to name a few.

If adopted, the Proposed Rule would obviate the Current Guidance (which is not a law 

but rather a guidance document that provides recommended practices based on law). 

Although the Proposed Rule includes a variety of changes and clarifications, the most 

relevant changes to MS4 facilities appear to include the requisite connectivity to 

downstream TNWs and the definition provided for tributaries. Also relevant to MS4 

permittees is that the Proposed Rule maintains (without substantial revision) an exclusion 

which states that waste treatment systems that are constructed to meet other CWA 

requirements (e.g., MS4 permitting requirements) are not Waters of the U.S. (Waste 

Treatment Exclusion). Although the Waste Treatment Exclusion is not proposed to be 

changed substantially under the Proposed Rule, its current interpretation by EPA and 

USACE staff is variable and WWE has encountered resistance in having this exclusion 

applied to MS4 facilities in various parts of the United States. Based on this, the Waste 

Treatment Exclusion is evaluated alongside the Proposed Rule. Application of the Waste 

Treatment Exclusion to different types of MS4 facilities is a topic that should be 

discussed with the USACE and EPA to gain an understanding of how it will be applied to 

MS4 features. (p. 21-22)

Agency Response: Please see summary response at 7.4.4

Aurora Water (Doc. #8409)

7.508 3. Since stormwater activities are not explicitly exempt under the proposed rule, 

temporary Best Management Practices (BMPs), such as diversion ditches and 

sedimentation basins, and constructed green infrastructure used to comply with
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

336

Municipal Separate Storm Sewer System (MS4) permits could now be classified as a 

"WOTUS".

Since many of these temporary BMPs are often constructed adjacent to a "tributary" of a 

WOTUS, the proposal could be interpreted to now include these features as a WOTUS. 

As a result, maintenance activities to ensure continued effectiveness of the BMP may 

require permitting under CWA Section 404. Some counties and cities, such as Aurora, 

own MS4 infrastructure including ditches, channels, pipes and gutters that flow into a 

WOTUS and are therefore regulated under the CWA Section 402 stormwater permit 

program. Additional water quality standards (including total maximum daily loads) 

would apply should these stormwater ditches become classified a WOTUS. Not only 

would the discharge leaving the system be regulated, but all flows entering the MS4 

infrastructure could be regulated under NPDES as well.

In addition, "green" infrastructure is not exempt under the proposed rule. A number of 

local governments are using green infrastructure as a stormwater management tool to 

lessen flooding and to protect water quality by using vegetation, soils and other natural 

processes. The proposed rule could inadvertently impact a number of these sites by 

requiring Section 404 permits for non-MS4 and MS4 green infrastructure construction 

projects. It is unclear under the proposed rule whether a Section 404 permit will be 

required for maintenance activities on green infrastructure once established.

Recommendation: MS4 stormwater features, such as related Best Management Practices 

and constructed green infrastructure should be clearly exempted from the definition of 

WOTUS. (p. 3)

Agency Response: Please see summary response at 7.4.4

Alameda Countywide Clean Water Program, California (Doc. #8417)

7.509 Our concern is that the Proposed Rule’s suggestion that some types of storm water 

facilities, infrastructure projects and associated facilities could be regulated within the 

scope of a definitional WOTUS poses significant uncertainty and potential confusion 

among the regulated entities, and may increase the regulatory burden associated with 

implementation of MS4 permit requirements.

We concur with and support the comments filed by the California Stormwater Quality 

Association (CASQA) in this regulatory water docket process which 1) recommends that 

the Agencies revise the Proposed Rule to clarify that MS4s are not WOTUS; 2) that the 

new definition of “Tributary” could improperly include MS4 facilities; 3) that the new 

definition of “Adjacent” could improperly include MS4 and other water resources 

facilities; ... and 5) that certain types of storm water related facilities discussed in the 

CASQA comments are also not considered to be WOTUS. Specifically, we concur with 

the CASQA recommendation that certain exclusions within the Proposed Rule be 

expanded to include MS4 conveyance facilities and other related facilities. Exclusions 

needing expansion include: waste treatment system, artificial lakes, ditches, and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

337

swales.301 We specifically refer to and support the revisions to the Proposed Rule that are 

provided in section II of the CASQA comments. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Southern California Association of Governments, et al (Doc. #8534.1)

7.510 The Proposed Rule will have real impacts for transportation and other critical 

infrastructure. Road cuts and underpasses can impact high water tables that keep storm 

drains perennially wet. These drains are not natural in any sense and Congress did not 

intend them to be subject to the Clean Water Act's fishable, swimmable standards. 

Likewise, at the encouragement of EPA and its sister agencies at the state level, our 

agencies are installing structural treatment controls that mimic natural wetlands. These 

treatment controls are installed within the stormwater discharge system and ultimately 

drain to traditional navigable waters. They are likewise planted with wetland plant 

species and if they are working properly, will provide habitat for various aquatic and 

wetland species.

Under the Proposed Rule this infrastructure that provides a substantial environmental 

benefit will now be classified as a Water of the United States. As such these treatment 

controls would require 404 permits for maintenance and could be subject to Total 

Maximum Daily Loads (TDML).

This was not the intent of Congress and the EPA and Army Corps need to draft specific 

exclusions for this type of infrastructure into the Proposed Rule. (p. 3-4)

Agency Response: Please see summary response at 7.4.4.

Anne Arundel County, Maryland (Doc. #8574)

7.511 Where these roadside ditches to come under the definition of a Water of the US, it would 

severely curtail the ongoing maintenance of roadside ditches and other manmade 

conveyances. Similarly, though there is an exemption for "waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act," the revised definition of "waste treatment systems" should include explicit 

language indicating that stormwater management facilities (e.g., ponds, constructed 

wetlands, bioretention facilities, etc.) constructed as part of development projects or as 

part of a local jurisdiction's restoration requirements associated with its MS4 are 

categorically excluded from coverage as a Water of the US. There is a broad-based 

acknowledgement that the aforementioned storm drainage and stormwater quality 

features require regular maintenance and adaptive management, and that any regulatory 

hurdles placed in the way of accomplishing that important, ongoing work, are only like to 

result in their eventual deterioration and failure to function properly. (p. 1-2)

Agency Response: Please see summary response at 7.4.4.

 

301 The exclusion should be revised to include gullies and rills, and non-wetland and man-made swales, and other 

storm water treatment measures.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

338

City of Portland, Maine (Doc. #8659)

7.512 While we support the goals of the proposed rule-making and as we continue to better 

understand the objectives by EPA with the Waters of the US, we have the following 

questions and concerns:

- The final rule must clarify that municipal separate storm sewer systems (MS4's) are 

covered by the waste treatment system exemption and will not be jurisdictional under 

the CWA above any existing point of permitted discharge, including any ditches that 

are part of MS4. 

- EPA has verbally stated that the proposed rule is not intended to make green 

infrastructure (GI) installations jurisdictional, indicating that any Gl installation or Gl 

practice designed to meet CWA obligations or achieve water quality goals is not 

meant to be included. However, EPA and the Army Corp of Engineers need to 

specifically clarify this in the final rule. The City of Portland is expanding plans for 

green infrastructure projects as a means to enhance water quality as part of our 

approved Tier III LTCP for CSO abatement projects, and does not want added 

regulations under the new proposed Rule as a means to mandate CWA results. 

- The rule fails to provide intended level of clarity, certainty and predictability. 

Appears to increase the EPA's reach in an unpredictable way. Are drainage ditches, 

catch basins, swales, and other man made Ponds (such as the Deering Oaks Pond) 

exempt from the Rule?

...

- Waste treatment systems are excluded so clarity is needed if MS4's are covered under 

“systems" and thus exempt? (p. 1-2)

Agency Response: Please see summary response at 7.4.4. In this response to 

comments, the Agencies cannot address whether or not a particular feature 

(Deering Oaks Pond in this instance) is a jurisdictional water of the U.S. Please 

consult the relevant permitting authority

Carroll County Board of Commissioners, Maryland (Doc. #8667)

7.513 All local streets, gutters, man-made ditches, and any other facilities covered under the 

NPDES MS4 permit should be explicitly excluded from the definition of waters of the 

U.S. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Chesapeake, Virginia (Doc. #9615)

7.514 2. The Rule states that a tributary, including wetlands, can be a man-made water and 

includes waters such as impoundments and ditches. The City of Chesapeake does not 

support the inclusion of man-made impoundments or ditches as WOUS, and the 

exemptions provided within the Rule for impoundments and ditches are too narrow to 

address the unique hydrology of the City of Chesapeake and neighboring jurisdictions. 

All man-made purpose built stormwater management facilities, not just ditches and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

339

impoundments excavated from uplands and with less than perennial flow, should be 

explicitly exempt from regulatory oversight under the CWA. (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.515 4. The Rule provides an exemption for artificial lakes or ponds used exclusively as 

settling basins, ditches that are excavated wholly in uplands, and ditches that do not 

contribute flow to a traditional navigable water. These exemptions are not 

comprehensive. Specifically, the Rule should have an exemption specifically for 

construction, maintenance and/or retrofitting of purpose built stormwater management 

facilities. Without such an exemption, the City's efforts to comply with its Section 402 

National Pollution Discharge Elimination System (NPDES) requirements (MS4) and 

compliance with future TMDL allocations will be severely limited. In addition, if these 

features are not exempt to the Rule, additional cumbersome reporting and resource 

intensive water quality standards may be applied to new WOUS under the Section 303 

program. (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.516 Most of the stormwater ditches within the City of Chesapeake are ephemeral or 

intermittent and many of them have bed and bank and contribute flow to a WOUS during 

rain events; therefore, under the proposed Rule, most of Chesapeake's stormwater ditches 

could be considered WOUS and subject to regulatory oversight under the CWA. These 

are the same stormwater ditches that require preventative maintenance and retrofitting to 

comply with the City's MS4 permit under Section 402 of the CWA. If stormwater 

management ditches become WOUS, would they then become subject to TMDL 

requirements? Would the EPA propose a TMDL for an impaired ditch? Would the 

Virginia Department of Environmental Quality (DEQ) then need to develop water quality 

standards for a ditch? Without more specific exemptions provided for purpose built 

stormwater management facilities including, but not limited to stormwater ditches and 

ponds, the proposed Rule may have unreasonable, burdensome and unintended 

consequences. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.517 ...the City of Chesapeake has identified a significant number of concerns and problems 

with EPA's proposed waters of the US Rule; however, the City does support streamlining 

regulatory oversight by the EPA and the Corps through various sections of the CWA. 

Other than the regulatory provisions already contained within Section 402 of the CWA 

(NPDES & MS4), stormwater management facilities which have been constructed 

specifically for the purposes of conveyance, management, retention, and treatment of 

stormwater should be specifically excluded from regulatory oversight under the CWA 

including, but not limited to stormwater management ponds, lakes, swales, dry or wet 

detention basins, constructed wetlands, bio-retention areas, rain gardens and 

intermittent/ephemeral ditches regardless of their proximity to a waters of the US or a 

traditional navigable water; regardless of being ephemeral, intermittent, perennial; 

regardless of having shallow subsurface groundwater connections or confined surface 

hydrologic connections; regardless of contributing to WOUS in storm events; and 

regardless of being excavated from uplands, wetlands, or agricultural lands. Without 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

340

these exclusions, there may be unintended consequences for local governments subject to 

MS4 regulation as well as private property owners. (p. 7)

Agency Response: Please see summary response at 7.4.4.

Pasco County, Florida (Doc. #9697)

7.518 Many stormwater management facilities, even those designed primarily for conveyance, 

have been "designed with nature" in which they would intentionally function as a natural 

wetland, pond or stream. In addition to its many ecosystem and hydrologic benefits, it is a 

design concept that has been strongly encouraged by State and Federal Agencies. 

Moreover, these facilities are designed and permitted to provide flood control and water 

quality treatment benefits, and it is not appropriate to regulate them as WOTUS.

Recommendation: The final rule should explicitly state that stormwater 

management facilities are excluded from being considered WOTUS. More 

generally, USACE and EPA should work to ensure that concerns about creating 

jurisdictional waters do not discourage the implementation of green infrastructure 

or natural methods of stormwater management. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.519 Waste Treatment Systems - The proposed rule would identify as non-jurisdictional by

rule "waste treatment systems, including treatment ponds or lagoons, designed to meet 

the requirements of the Clean Water Act" (79 FR 22263). The preamble does not contain 

any explanation of this exclusion, so it is not clear how this exclusion would apply to 

stormwater management systems that are constructed to meet requirements of the CWA. 

One of the potential impediments to developing green infrastructure is the concern that 

wetlands created to receive stormwater runoff could themselves be deemed jurisdictional.

Recommendation: The final rule should clarify that the exclusion for waste 

treatment systems, including treatment ponds or lagoons also applies to stormwater 

management facilities. More generally, the USACE and EPA should work to ensure 

that concerns about creating jurisdictional waters do not discourage the adoption of 

natural methods of stormwater management. (p. 4-5)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, White Pine County, Nevada (Doc. #9975)

7.520 How will local jurisdiction public improvements such as new street, gutter, and humanmade ditches that direct water flows in weather conditions be excluded from such 

definitions to becoming a tributary artery and require 404 permitting processes? (p. 2)

Agency Response: Please see summary response at 7.4.4.

Board of Supervisors, Imperial County, California (Doc. #10259)

7.521 Uplands: The proposal exempts ditches cut into uplands from CWA jurisdiction but does 

not clearly state whether other features cut into uplands - including municipal and private 

storm drain systems - are similarly exempt. Additionally, the proposed rule does not 

include a definition of the term “upland,” though does provide new definitions for several 

other terms. (p. 1-2)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

341

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. The preamble 

to the final rule explains why the term “upland” is no longer used in the final rule 

and clarifies what “dry land” means.

Board of Supervisors, Imperial County, California (Doc. #10259)

7.522 Water Quality Treatment Features: Any constructed feature built for the purpose of 

water quality treatment or runoff control as required by any agency should be exempt 

from regulation under the CWA. It is important that counties are able to construct these 

features in a manner that is consistent with the overall goal of stormwater management 

without subjecting themselves to federal regulation. (p. 5)

Agency Response: Please see summary response at 7.4.4.

7.523 Impact on MS4

The proposed rule does not discuss the interrelationship of WOTUS and municipal 

separate storm sewer systems (MS4). The interconnected nature of storm drain systems 

regulated under MS4 permits and the broad nature of the definitions in the proposed rule 

could lead to legal uncertainty and regulatory confusion. It is especially important for the 

Agencies to provide clear guidance on where an MS4 ends and WOTUS begins for 

counties in the Southwest, where engineered drainage systems have mostly replaced the 

natural drainage patterns in urbanized watersheds.

The current definition of tributary states that “a water that otherwise qualifies as a 

tributary...does not lose its status if, for any length, there are one or more man-made 

breaks (such as bridges, culverts, pipes, or dams)...so long as a bed and bank with an 

ordinary high water mark can be identified upstream of the break.” (79 Fed. Reg. at 

22263) The proposed rule would render a number of open channels per se jurisdictional 

under the broad definition of tributary and subject local agencies to further regulation. In 

addition, due to the proximity of WOTUS channels, it is possible that MS4 channels 

could be considered “adjacent” waters and therefore jurisdictional.

All told, the proposed rule could subject local agencies to the 404/401 permit process; 

result in high costs for repairing or upgrading infrastructure when it is already covered by 

the MS4 permit process; and, potentially expose local agencies to citizen suits. 

Accordingly, we believe that the Agencies should include language that exempts MS4 

from CWA regulation even if it otherwise qualifies as a “tributary” under the proposed 

rule. The exemption language should explicitly address: stormwater conveyances, 

bioswales, green projects, and infiltration basins used to comply with an MS4 permit as 

these facilities are necessary to comply with the CWA. (p. 5-6)

Agency Response: Please see summary response at 7.4.4.

Kendall County Board, Illinois (Doc. #10965)

7.524 We object to the definition of waters of the US that does not specifically exclude 

stormwater management facilities and man-made conveyances created for the purpose of 

preventing, limiting or controlling flooding. (p. 2)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

342

City of Escondido, California (Doc. #11116)

7.525 The expansion of the definition of Waters of the U.S. is seen in the last three bullets of

the definition (page 22913) relating to:

• All tributaries of a traditional navigable water, instate water, the territorial seas or

impoundment;

• All waters, including wetlands, adjacent to a traditional navigable water, interstate 

water, the territorial seas, impoundment or tributary; and

• On a case-specific basis other waters, including wetlands, provided that those waters 

alone, or in combination with other similarly situated waters, including wetlands, 

located in the same region, have a significant nexus to a traditional navigable water, 

interstate water or the territorial seas.

The current definition provides a disincentive to construct structural stormwater BMPs if 

there is a risk that a permit would be required for maintenance. Bullet 2 should be 

revised to exclude basins and other structures for water quality treatment or flow 

control from the definition. (p. 1-2)

Agency Response: Please see summary response at 7.4.4.

Urban Drainage and Flood Control District, Denver, Colorado (Doc. #12263)

7.526 Excluded Waste Treatment Facilities. Waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of the Clean Water Act, are not 

Waters of the U.S. The 2012 Nationwide Permits language clarifies that stormwater 

management facilities that are determined to be waste treatment systems and under 

current regulations are not Waters of the U.S. The proposed rule does not significantly 

change the language regarding the excluded waste treatment facilities. Additional 

clarification is required to identify types of facilities that qualify for this exclusion. Any 

facility designed and operated to treat stormwater runoff to meet the requirements 

of the Clean Water Act should be included in this exclusion. If municipal 

stormwater is to continue to be regulated as wastewater, lack of consistency in this 

exclusion is not defensible. (p. 2)

Agency Response: Please see summary response at 7.4.4. Also see the summary 

response at 7.1 with respect to waste treatment systems.

Board of County Commissioners, Mesa County, Colorado (Doc. #12713)

7.527 Waste treatment systems: Under the Proposed Rule, the reference to "waste treatment 

systems" introduces some confusion regarding the types of features excluded. Mesa 

County requests additional clarifying language that extends the exclusion of waste 

treatment systems to include various components of MS4 systems that are constructed 

under requirements of CWA Section 402. Examples of the components include 

stormwater detention ponds, and ditches which collect the stormwater and transport it to 

stormwater detention ponds. (p. 3-4)

Agency Response: Please see summary response at 7.4.4. Also see the summary 

response at 7.1 with respect to waste treatment systems.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

343

City of Palo Alto, California (Doc. #12714)

7.528 Palo Alto owns and operates its municipal separate storm sewer system (MS4) and is a 

co-permittee of the San Francisco Bay Municipal Regional Stormwater NPDES Permit. 

We strongly recommend that because MS4s are already permitted under the Clean Water 

Act and are regulated as point sources, they and their component features should be 

exempt from definition as waters of the U.S. The existing Section 402(p) permit program 

mandates the management and discharge of storm water in our community. The proposed 

definition of tributaries creates the prospect of MS4 features being defined as waters of 

the U.S., resulting in uncertainty at best and ultimately complex and costly new 

regulatory requirements for storm water. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Vermont League of Cities and Towns (Doc. #13075)

7.529 How will municipal separate storm sewer systems (MS4) infrastructure or infrastructure 

related to reducing stormwater runoff to Lake Champlain in compliance with that lake’s 

total maximum daily load be treated? We urge the EPA to exempt such infrastructure 

from the definition of Waters of the United States. A Waters of the United States 

determination for MS4s and other stormwater systems – including drains, roads, pipes,

curbs, gutters, ditches, and other components that channel runoff – will have a 

tremendous cost impact on local governments. (Examples include permit application 

costs, wetlands and stream mitigation costs, and project delay, redesign, and relocation 

costs.) (p. 1-2)

Agency Response: Please see summary response at 7.4.4.

MS4 NPDES Steering Committee, Palm Beach County, Florida (Doc. #13218)

7.530 Palm Beach County's MS4 Program will be crippled upon implementation of the 

proposed WOTUS rule, as the majority of the components of the MS4 system in Palm 

Beach County will be considered WOTUS under the currently proposed rule language, 

despite the fact that Palm Beach County's current MS4 permit defines them as outside 

WOTUS jurisdiction. This reality necessitates an explicit exemption from jurisdiction 

within the proposed WOTUS rule for man-made stormwater treatment systems that have 

been previously permitted under MS4 or EPA approved state permitting programs. 

...If man-made stormwater treatment systems became WOTUS, water quality 

requirements would have to be met prior to discharge into these systems. But these 

systems are intended to provide treatment. Under current State law, these systems are 

exempt from meeting state water quality requirements, and only discharges from the 

stormwater treatment systems are subject to the State water quality requirements. If our 

stormwater treatment systems become WOTUS, then how do we provide treatment? The 

proposed WOTUS rule contains an exception for wastewater treatment systems; we 

believe there should also be an exception for stormwater treatment systems. (p. 1-2)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

344

Natural Resources Division, Public Works Department, Pinellas County, Florida (Doc. 

#14426.1)

7.531 Holding man-made stormwater management systems to the same water quality, TMDL, 

NPDES, and other CWA requirements as natural systems causes a burden on the local 

governments that construct and maintain these systems for flood control and water 

quality improvements. The rule will essentially shift the point of compliance for MS4s 

further upstream and in the case of Pinellas County will include the majority of 

stormwater ditches, canals, and stormwater treatment ponds. Applying water quality 

standards to infrastructure designed to reduce flooding, protect public safety, and treat 

stormwater pollutants will cause the County unnecessary costs and decrease the funds 

available for protection and restoration of downstream natural systems.

The rule should include an explicit exemption for man-made permitted stormwater 

management facilities constructed for flood control and/or water quality improvements. 

(p. 5)

Agency Response: Please see summary response at 7.4.4.

Bangor Area Storm Water Group, Hampden, Maine (Doc. #14543.1)

7.532 MS4 Stormwater Controls should be listed under waste treatment system exemptions. 

While there has been discussion with EPA that has assured MS4s that traditional 

stormwater practices (e.g. stormwater detention pond and green infrastructure) are not 

intended to be jurisdictional, the current wording does not provide this assurance.

Request: The BASWG requests that specific terms, such as “stormwater control 

measures” or “Stormwater best management practices” should be formally included 

under this section on exemptions to reduce debate and legal action over this issue. (p. 

1)

Agency Response: Please see summary response at 7.4.4.

7.533 3. Designation of “all tributaries” that have an Ordinary High Water Mark connecting 

them to a traditional water of the U.S. as jurisdictional is excessively broad. This 

definition brings into question whether EPA intends (or would be able) to consider 

stormwater conveyance facilities, treatment wetlands and infiltration projects to be 

Waters of the U.S. Natural and manmade ponds and wetlands could be considered 

tributaries under this definition. This would lead to regulation of stormwater conveyance 

or treatment systems that are already regulated under the NPDES permit.

Request: The BASWG requests that the definition of tributary explicitly exclude MS4 

facilities and clarify that MS4 facilities are not “Waters of the US.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Buckeye, Arizona (Doc. #14591)

7.534 Added to PART 32eDEFINITION OF WATERS OF THE UNITED STATES § 

328.3 The following are not "waters of the United States" notwithstanding whether 

they meet the terms of paragraphs (a)(1) through (7) of this section - (5) The 

following features;" (and other similar sections)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

345

(viii) Fully-constructed stormwater control measures.

(ix) Roadside ditches.

Comment Directly Related to the New Recommended Revised Rule Language 

Provided Above...

...

4. Specific exclusion language is needed for urban SCMs [stormwater control measures]. 

If, as has been stated publicly, it is EPA's intent that most of these waters and structures 

are not to be considered WOTUS, this should be clearly stated in the rule. Such a clear 

statement would formalize and clarify EPA's intent.

5. The current draft of the rule is almost silent about urban stormwater, in the preamble 

and the proposed rule language. This recommended revision language would rectify a 

portion of that deficiency. Adding exclusion language for urban SCMs to this rule would 

be appropriate, historic, and significant.

6. Because EPA is driving construction of MS4 SCMs and BMPs as part of its regulatory 

function, EPA has a responsibility to define clearly the jurisdictional status of most urban 

SCMs in the new WOTUS rule. This is part of the reason why an explicit exclusion for 

most urban SCMs is needed... 

...

9. The approach with this new recommended revised rule language is to provide a broad 

exclusion for most types and the vast majority of urban stormwater SCMs, BMPs, and 

roadside ditches. The authors recognize that it may be appropriate that some types of 

urban SCMs are determined to be WOTUS, on a case-by-case basis. To this end, the new 

recommended revised language includes "exceptions to the exclusion" in the definition 

for "fully-constructed SCMs" (see the last three sentences). We urge EPA and the Corps 

to consider this approach for the final rule language. This approach allows for a 

categorical exclusion for most urban SCMs but also allows for some types of urban 

SCMs to be determined to be WOTUS, on a case-by-case basis. If additional exceptions 

are needed and appropriate for "fully-constructed SCMs" or exceptions are needed and 

appropriate for some types of roadside ditches, we urge EPA and the Corps to use this 

approach and add exceptions as needed.

10. We urge EPA to add explanatory language to the preamble to clarify its approach for 

urban SCMs. The preamble should be as clear for urban SCMs and roadside ditches as it 

is for agricultural waters, flows, practices, and ditches.

11. The exclusion language in the current proposed rule (" Waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act. ") is inadequate for urban SCMs. Many urban SCMs were constructed for and 

serve purposes other than "waste treatment". Many urban SCMs were designed for 

purposes other than meeting "the requirements of the Clean Water Act". For example, 

this language does not cover many SCMs constructed in non- permitted MS4s. This 

language would not cover urban SCMs and roadside ditches constructed before the 

passage of the CWA The new recommended revised rule language is intended to address 

these deficiencies... (p. 2, 3-4)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

346

Agency Response: Please see summary response at 7.4.4.

Public Works, City Golden, Colorado (Doc. #14617)

7.535 The potential for inclusion ofMS4 stormwater facilities would result in redundant 

regulation and oversight, as MS4 agencies would be regulated under both NPDES and 

WOTUS where maintenance of stormwater features is concerned. This would be 

burdensome to general operations and maintenance of our stormwater system in our 

effort to comply with MS4 requirements. Because EPA is mandating construction of 

BMPs within MS4s as part of its regulatory function, EPA has a responsibility to define 

clearly the jurisdictional status of BMPs.

If the intent of the proposed rule is to not include MS4 storm water facilities under 

WOTUS, the proposed rule must provide clear and broad exclusions so stating, much the 

same as the rule does for agricultural considerations. Without clear exclusions, operation 

and maintenance of BMPs will become complicated, difficult, and expensive for those 

responsible, without any corresponding environmental benefit. (p. 1)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, Larimer County, Colorado (Doc. #14741)

7.536 The proposed rule would apply to other Clean Water Act programs which would then be 

subject to increasingly complex and costly federal regulatory requirements. For example, 

Larimer County has a Municipal Separate Storm Sewer System (MS4) General Permit 

from the Colorado Department of Public Health and Environment. We are concerned that 

man-made conveyances and facilities for stormwater management could now be 

classified as jurisdictional under the proposed rule, potentially making them subject to 

additional permitting requirements and water quality standards (including total maximum 

daily loads). It seems inappropriate and unnecessary to require additional water quality 

regulations on this type of manmade infrastructure that is constructed to meet the 

requirements of the MS4 regulations under the Clean Water Act. Larimer County 

suggests that any facilities designed and operated to detain and treat stormwater runoff to 

meet the requirements of the Clean Water Act should not be considered waters of the 

U.S." and should be excluded under the existing Waste Treatment Facilities Exclusion. 

This exclusion should be the national standard that is followed by all local EPA and 

USACE offices. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, Marion County, Florida (Doc. #14979)

7.537 The proposed regulations expand key definitions that have potentially far-reaching 

effects. "Tributaries" may now include stormwater management features such as 

treatment ponds, swales, and ditches. These facilities are already constructed in 

accordance with Florida's longstanding environmental resource permitting program. 

Stormwater facilities, required to be maintained under state, as well as, federal (Section 

404) rules, will now have another layer of regulation. Marion County recommends that: 

Stormwater conveyance systems, including upland cut ditches and swales, should be 

excluded from the definition of WOTUS with limited exceptions.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

347

Stormwater facilities including constructed ponds and created wetlands should be 

excluded specifically from the proposed definition of WOTUS. (p. 1)

Agency Response: Please see summary response at 7.4.4.

City of Glendale, Arizona (Doc. #15054)

7.538 Municipal Separate Storm Sewer System

The City of Glendale operates a MS4 in accordance with an Arizona Pollutant Discharge 

Elimination System permit issued by the Arizona Department of Environmental Quality. 

The MS4 consists of a series of open channels (gutter/curbs, roadside ditches, concrete 

channels) and underground piping to convey stormwater to Skunk Creek, New River, 

Agua Fria and other MS4s. It is unclear whether portions or all of the MS4 would be 

considered a "tributary" under the proposed rule. 

Green infrastructure or low-impact development stormwater management methods 

control and utilize stormwater near its source. For example, instead of directing 

stormwater immediately into the underground stormwater pipe conveyance system, 

swales could be constructed and planted with vegetation to utilize stormwater before the 

excess water makes its way to the conveyance system. Under the proposed rule, these 

swales may be considered a "waters of United States.”

The proposed rule excludes ditches that are excavated wholly in uplands, drain only 

uplands, and have less than perennial flow. Glendale's storm sewer system has less than 

perennial flow, however it is unclear whether portions or all of the system would be 

considered excavated in uplands or drain only uplands. Although the addition of a 

definition for uplands may provide clarity for the proposed rule, municipal separate 

storm sewer systems and associated green infrastructure should be specifically 

excluded from the definition of "waters of the United States."

Without a specific exclusion for MS4s, additional permits would be required. The City of 

Glendale's limited financial resources would be spent on permits without additional 

benefit to the environment. (p. 3-4)

Agency Response: Please see summary response at 7.4.4.

National Association of Counties (Doc. #15081)

7.539 Counties Need Clarity on Stormwater Management and Green Infrastructure 

Programs

Under the CWA Section 402 National Pollution Discharge Elimination System (NPDES) 

permit program, all facilities which discharge pollutants from any point source into 

“waters of the U.S.” are required to obtain a permit; this includes localities with a 

Municipal Separate Storm Sewer System (MS4). An MS4 is defined as a conveyance or 

system of conveyances (including roads with drainage systems, municipal streets, catch 

basins, curbs, gutters, ditches, man-made channels, or storm drains)” owned by a state, 

tribal, local or other public body, which discharge into “waters of the U.S.”44 They are 

designed to collect and treat stormwater runoff.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

348

Since stormwater management activities are not explicitly exempt under the proposed 

rule, NACo is concerned that man-made conveyances and facilities for stormwater 

management could now be classified as a “water of the U.S.”

In various conference calls and meetings over the past several months, the agencies have 

stressed that municipal MS4s will not be regulated as “waters of the U.S.” However, EPA 

has indicated that there could be “waters of the U.S.” designations within a MS4 system, 

especially if a natural stream is channelized within a MS4. This means an MS4 could 

potential have a “water of the U.S.” within its borders, which would be difficult for local 

governments to regulate.

MS4s are subject to the CWA and are regulated under Section 402 for the treatment of 

water. However, treatment of water is not allowed in “waters of the U.S.” This 

automatically sets up a conflict if an MS4 contains “waters of the U.S.” Would water 

treatment be allowed in the “waters of the U.S.” portion of the MS4, even though it’s 

disallowed under current law? Additionally, if MS4s contained jurisdictional waters, they 

would be subject to a different level of regulation, requiring all discharges into the 

stormwater system to be regulated along with regulating discharges from a NPDES 

system.

The definitional changes could easily be interpreted to include the whole MS4 system or 

portions thereof which would be a significant change over current practices. It would also 

potentially change the discharge point of the MS4, and therefore the point of regulation.

Not only would MS4 permit holders be regulated when the water leaves the MS4, but 

also when a pollutant enters the MS4. Since states are responsible for water quality 

standards of “waters of the U.S.” within the state, this may trigger a state’s oversight of 

water quality designations within an MS4. Counties and other MS4 permittees would 

face expanded regulation and costs as they will now have to ensure that discharges from 

outfalls to these new “waters of the U.S.” meet designated water quality standards.

This would be problematic and extremely expensive for local governments to comply 

with these requirements. Stormwater management is often not funded as a water utility, 

but rather through a county or city general fund. If stormwater costs significantly increase 

due to the proposed rule, not only will it potentially impact our ability to focus available 

resources on real, priority water quality issues, but it may also require that funds be 

diverted from other government services such as education, police, fire, health, etc. Our 

county members cannot assume additional unnecessary or unintended costs.

Further, by shifting the point of compliance for MS4 systems further upstream, the 

proposed rule could reduce opportunities for establishment of cost effective regional 

stormwater management systems. Many counties and stormwater management agencies 

are attempting to stretch resources by looking for regional and integrated approaches for 

managing stormwater quality. The rule would potentially inhibit those efforts. Even if the 

agencies do not initially plan to treat an MS4 as a “water of the U.S.,” they may be forced 

to do so as a result of CWA citizen suits that attempt to address lack of clarity in the 

proposed rule.

EPA has indicated these problems could be resolved if localities and other entities create 

“well-crafted” MS4 permits. In our experience, writing a well-crafted permit is not 

enough—localities are experiencing high levels of litigation from outside groups on 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

349

approved permits that have been signed off by both the state and the EPA. A number of 

Maryland counties have been sued over the scope and sufficiency of their approved MS4 

permits.

In addition, green infrastructure, which includes existing regional stormwater treatment 

systems and low impact development stormwater treatment systems, is not explicitly 

exempt under the proposed rule. A number of local governments, as well as private 

developers, are using green infrastructure as a stormwater management tool to lessen 

flooding and protect water quality by using vegetation, soils and natural processes to treat 

stormwater runoff. The proposed rule could inadvertently impact a number of these 

facilities by requiring Section 404 permits for green infrastructure construction projects 

that are jurisdictional under the new definitions in the proposed rule. Additionally, it is 

unclear under the proposed rule whether a Section 404 permit will be required for 

maintenance activities on green infrastructure areas once the area is established.

While jurisdictional oversight of these “waters” would occur at the federal level, actual 

water quality regulation would occur at the state and local levels, becoming an additional 

unfunded mandate on our counties and agencies.

Recommendations:

 Explicitly exempt MS4s and green infrastructure from “waters of the U.S.” 

jurisdiction (p. 15-16)

Agency Response: Please see summary response at 7.4.4.

Attorney’s Office, Harris County, Texas (Doc. #15097)

7.540 Since stormwater activities are not explicitly exempt under the Proposed Rule, Harris 

County is concerned that MS4 ditches could now be classified as Waters of the U.S...

...the Proposed Rule designates all tributaries, not otherwise excluded, as jurisdictional if 

they have an OHWM connecting them to a traditional Water of the U.S. This has the 

potential to include stormwater conveyance facilities, treatment wetlands, and infiltration 

projects within jurisdictional waters. This potentially expansive reading attempts to 

regulate MS4 infrastructures under both Section 402 and 404, which is an untenable 

reading of the CWA. It completely ignores the concept that MS4s are a point source 

distinct from and not coextensive, with Waters of the U.S. [The MS4 conveyance system 

is conceptually tied to the definition of "discharge" from the MS4, which occurs only 

when water is discharged from an outfall into the Waters of the U.S. Attempting to 

include MS4 infrastructures within the definition of a Water of the U.S., in effect, alters 

the current outfall locations of our MS4 permitting program and potentially eliminates

our MS4 altogether. Accordingly, Harris County requests that the Proposed Rule 

unequivocally state that the definition of a tributary does not include MS4 facilities, and 

MS4 facilities are not a water of the U.S. (p. 3)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

350

City of Stockton, California (Doc. #15125)

7.541 The proposed rule defines a tributary as a water characterized with a bed and banks and 

ordinary high water mark, which directly or indirectly contributes flow to other waters of 

the U.S. Wetlands, lakes, and ponds can also be a tributary if they contribute flow to 

other waters yet may not have an ordinary high water mark. The rule continues by 

clarifying that a tributary does not lose its status as water of the U.S. if, for any length, 

there are natural breaks (such as wetlands, debris piles, boulder fields, or streams that 

flow underground) or man-made breaks (such as bridges, culverts, pipes, or dams). These 

provisions seem expressly intended to cover storm water systems because the definition 

could be traced upstream from a storm water discharge point to any MS4 feature that 

collects rain water or runoff, including surface ditches and channels that are part of a 

storm water system. These features have beds, banks, and ordinary high water marks that 

conduct flow to a water of the U.S. Likewise, upstream detention basins could be 

jurisdictional because they hold water that drains through ditches and pipes to a water of 

the U.S. Because much of the MS4 is constructed in the 100- or 500-year floodplain, it 

could be defined as waters of the U.S. since the rule proposes to cover all "water"-not just 

wetlands-that are in a floodplain and thus adjacent to jurisdictional waters.

We strongly recommend that because MS4s are already permitted under Section 402(p) 

of the Clean Water Act requiring NPDES permits, they should be exempt from 

characterization as waters of the U.S. Similarly, features that make-up the MS4 should 

also be exempt in order to ensure the continued functioning of the system; existing 

regulation prohibits treatment of water within waters of the U.S., thus rendering a system 

unmanageable if a component part of the system is redefined as water of U.S. It would be 

infeasible to construct a storm water system that escapes the proposed definition of 

"tributary" because the very nature of storm water itself requires the collection of runoff, 

and sometimes storage, to adequately manage the flow of storm water and avoid 

flooding. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Arvada, Colorado (Doc. #15153)

7.542 The City of Arvada is dedicated to protecting water quality through our efforts as a Phase 

II Separate Storm Sewer System NPDES Permit holder and fully supports the goals of the 

Clean Water Act. However, we are very concerned about the ultimate consequences of 

the Proposed Rule in its current form and its significant effects to the Arvada community, 

specifically as it relates to identified stormwater infrastructure.

Under the connectivity criteria, stormwater features such as swales, detention ponds, 

retention ponds, constructed wetlands, and green infrastructure could be considered 

WOUS. Further, roadside ditches that show connectivity could now fall under this 

Proposed Rule requiring significant permitting to conduct basic maintenance activities. 

Language defining and excluding all man-made stormwater facilities and their required 

maintenance must be added to the Proposed Rule. (p. 1)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

351

Board of Commissioners, Carroll County, Maryland (Doc. #15190)

7.543 All local streets, gutters, man-made ditches, and any other facilities covered under the 

NPDES MS4 permit should be explicitly excluded from the definition of waters of the 

U.S. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

7.544 D. Exclusion for Municipal Separate Storm Systems ("MS4s")

Please confirm that MS4s are non-jurisdictional under the waste treatment system 

exclusion or as point sources, or create a specific exclusion for MS4s in 40 CFR 

§122.2(b). It appears that certain components of MS4s could constitute Tributaries, 

Adjacent Waters, or Other Waters. Treating such components as jurisdictional would 

hinder the water quality functions that the systems provide, and squander local 

government resources. (p. 7)

Agency Response: Please see summary response at 7.4.4.

Utilities Department, City of Santa Maria, California (Doc. #15487)

7.545 Santa Maria is concerned that the Proposed Rule will undermine its efforts to implement 

its Integrated Plan. Specifically, Santa Maria is concerned that its manmade drainage 

infrastructure ("MS4"), which is not natural or located where a natural surface water 

previously existed, may be considered to be a WOTUS under either the definition of 

"tributaries" or "adjacent" waters. Further, Santa Maria is concerned that the per se 

exclusion from WOTUS for certain ditches is not sufficiently clear to apply to the City's 

MS4. Therefore, Santa Maria is concerned that the Proposed Rule will transform its MS4 

into a WOTUS.

Santa Maria believes that treating the MS4 as a WOTUS is inconsistent with the CWA 

and, most importantly for the City, will hinder improvements to water quality. As pointed 

out in the Waters of the U.S. Coalition comment letter and in the California Stormwater 

Quality Association ("CASQA") letter, MS4s are not WOTUS. (See, e.g., 40 CFR § 

122.26(b)(8) (defining MS4); CWA § 402(p)(3)(B) (establishing requirements for MS4 

permits for discharges from MS4s to WOTUS).) In addition, treating the MS4 as 

WOTUS would prevent the City from moving forward with a watershed-based approach 

to solving water quality problems because the City would have to focus on each 

individual discharge into the MS4, rather than investing in comprehensive, integrated 

ways to achieve better water quality results using its system of detention and retention 

basins. Such an approach might force the City to only worry about its urban contributions 

into the MS4 rather than allowing the City to address the larger water quality problem on 

a broader, more effective scale. The City believes that its concerns could be addressed 

through a narrowly tailored exclusion to the WOTUS definition that applies to the MS4. 

The Waters of the U.S. Coalition has suggested language for such an exclusion, as has 

CASQA. Such an exclusion is vital to allowing the City to move forward with its 

integrated planning efforts. (p. 2-3)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

352

Boulder County and the City of Boulder, Colorado (Doc. #15495)

7.546 2) Stormwater - Since stormwater management activities are not explicitly exempt under

the proposed rule, we are concerned that required (under an MS4 permit) man-made 

conveyances and facilities for stormwater management could now be classified as 

WOTUS. The County and City both have MS4 permits which require infrastructure 

including ditches, channels, pipes and gutters that flow into a WOTUS and are therefore 

regulated under the CWA Section 402 stormwater permit program. There is a significant 

potential threat for cities and counties that own and maintain MS4 infrastructure because 

they would be subject to additional water quality regulations if their stormwater ditches 

and otherMS4 infrastructure are considered a WOTUS. Not only would the discharge 

leaving the system be regulated, but all flows, including uncontrolled flows entering the 

MS4, would be regulated as well. Even if the agencies do not initially plan to regulate an 

MS4 system as a WOTUS, they may be forced to do so through CWA citizen suits, 

unless MS4 infrastructure is explicitly exempted from the requirements. Additionally, 

any change to the definition of WOTUS directly affects existing State and Federal 

programs that support the Clean Water Act such as the State of Colorado Water Quality 

Control Division, Water Quality Standards program, and the National Pollutant 

Discharge Elimination System program. These changes will add complexity to required 

stormwater BMPs that are required under MS4 permits to protect stormwater quality and 

downstream WOTUS.

Recommendation: The final rule should explicitly state that any stormwater 

management facility designed and operated to treat stormwater runoff to meet permit 

requirements or local regulations for managing stormwater be excluded from 

consideration as a WOTUS. More generally, the Corps and EPA should work to ensure 

that concerns about creating jurisdictional waters do not discourage the implementation 

of green infrastructure or natural methods of stormwater management. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.547 3) Clarification regarding exclusion for waste treatment systems. Waste treatment 

systems, including stormwater treatment ponds or lagoons designed to meet the 

requirements of the CWA, or requirements of an MS4 permit, are not WOTUS under the 

current rule. Language in the 2012 Nationwide Permits and Current Guidance clarifies 

that permanent BMPs that are determined to be waste treatment systems under current 

regulations are not WOTUS. The Proposed Rule does not significantly change the 

language regarding the excluded waste treatment facilities. However, it does not include a 

categorical exclusion for stormwater BMPs and additional clarification is required to 

identify the types of facilities that should qualify for this exclusion.

Recommendation: Any facility designed and operated to treat stormwater runoff to meet 

the requirements of the CWA, local regulations or MS4 permit requirements for 

managing stormwater should be considered an excluded waste treatment system. (p. 3-4)

Agency Response: Please see summary response at 7.4.4.

Anderson County, South Carolina (Doc. #15514)

7.548 Stormwater treatment facilities, best management practices, and MS4 infrastructure 

should be exempted just as wastewater treatment facilities are exempted. (p. 1)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

353

Agency Response: Please see summary response at 7.4.4.

County of Los Angeles and Los Angeles County Flood Control District, California (Doc. 

#15620)

7.549 B. NEED TO EXPRESSLY RECOGNIZE THE DISTINCTION BETWEEN MS4 

AND WOTUS

...a significant portion of the waters within the urbanized areas of Los Angeles County

are either man-made or man-altered channels serving a flood control function. Most of 

these engineered channels, including the main stem of the Los Angeles River and its 

major tributaries, have been determined by EPA, the USACE, or the Los Angeles 

Regional Water Quality Control Board to be WOTUS and are so listed and mapped in the 

Water Quality Control Plan for the Los Angeles Region. We reiterate that it is not the 

intent of the County or the LACFCD to advocate for the de-designation of these existing 

jurisdictional waters. Our concern is for an unintended expansion of the reach of 

jurisdictional waters in relation to MS4s, where waterbodies that are currently MS4s 

could become jurisdictional WOTUS. This concern is rooted in the definition of 

“tributary” and the absence of any discussion, in the Proposed Rule or its Preamble, 

clarifying the relationship of MS4 and WOTUS. To avoid confusion in stormwater 

regulations, as has been expressed by many commenters, the Proposed Rule should be 

revised to clearly recognize the delineation between MS4 and WOTUS.

Both the CWA and its implementing regulations distinguish between an MS4 (which is a 

point source) and a WOTUS (which is the “receiving water” into which the MS4 point 

source discharges). CWA Section 402(p) requires that MS4s discharging into WOTUS 

must, as a “point source” discharge, obtain a National Pollutant Discharge Elimination 

System permit.... 33 U.S.C. § 1342(p)(3)(B)(iii). ”Municipal separate storm sewer” is 

defined to mean “a conveyance or system of conveyances (including roads with drainage 

systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or 

storm drains)”. 40 CFR § 122.26(b)(8). Moreover, “outfall” is defined to mean “a point 

source as defined by 40 CFR 122.2 at the point where a municipal separate storm sewer 

discharges to waters of the United States and does not include open conveyances 

connecting two municipal separate storm sewers, or pipes, tunnels of other conveyances 

which connect segments of the same stream or other waters of the United States and are 

used to convey waters of the United States.” 40 CFR § 122.26(b)(9) (italicized emphasis 

in original). The phrase “open conveyances connecting two municipal separate storm 

sewers” means that open channels or other conveyances linked on either end by storm 

sewers cannot be a WOTUS, since there is no “outfall” to a WOTUS when the upstream 

storm sewer discharges into the open conveyance. Such an open conveyance only links 

MS4 components and remains a part of the MS4.

In Los Angeles County, some isolated open channel segments that are fed by MS4 pipes 

and discharge into MS4 pipes are currently considered part of the MS4 but could become 

jurisdictional WOTUS based on the definition of “tributary”. Similarly, the detention 

basins previously described would, under high-flow circumstances, constitute open-water 

features within the MS4. These channels and basins are limited in length and are secured 

from public access for safety reasons. Under the Proposed Rule, however, such isolated 

features, because they have bed and banks and “ordinary high water mark”, could 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

354

arguably be construed as WOTUS, even though they have never been viewed or treated 

by the EPA, USACE, or the Los Angeles Regional Water Quality Control Board as 

anything other than a component of the MS4.

The regulatory definitions of both an “MS4” and an “outfall” plainly distinguish between 

an MS4 and a WOTUS, which is the water into which the MS4 discharges. By definition, 

an MS4 discharges “to” a WOTUS, and it necessarily ends at the point of discharge to the 

WOTUS. 40 CFR 122.26(b)(8). An “outfall” exists only where a MS4 discharges “to” a 

WOTUS. 40 C.F.R. § 122.26(b)(9). Indeed, in litigation involving the County and the 

LACFCD, the United States Court of Appeals for the Ninth Circuit has held that “[a]s a 

matter of fact and law, the MS4 is distinct from the two navigable rivers [the Los Angeles 

and San Gabriel Rivers].” Natural Resources Defense Council, Inc. v. County of Los 

Angeles, 673 F.3d 880, 899 (9th Cir. 2011), reversed on other grounds, Los Angeles 

County Flood Control Dist. v. Natural Resources Defense Council, Inc., 568 U.S. ___, 

133 S.Ct. 710 (2013).

The distinction between MS4 and WOTUS has been recognized both by EPA and the 

United States Supreme Court. In the preamble to the original version of the MS4 

regulations, EPA drew a clear distinction between waters in an MS4 and a WOTUS: 

“[W]aters of the United States are not storm sewers for purposes of this rule.” 53 Fed. 

Reg. 49416, 49442 (Dec. 7, 1988). This distinction was affirmed by the United States 

Supreme Court in Los Angeles County Flood Control Dist. v. Natural Resources Defense 

Council, Inc., supra, in which the Court held that no “discharge” from an MS4 had 

occurred when waters flowed from an engineered portion of the Los Angeles River into 

another portion of that same river. 133 S.Ct. at 712.

The absence of any discussion, in the Proposed Rule or its Preamble, to acknowledge the 

distinction between MS4s and WOTUS could potentially lead to regulatory confusion. 

Though EPA representatives have indicated that “well-crafted” MS4 permits may 

minimize confusion, this assumes that permitting agencies can and are willing to limit 

liability to only certain discharges into WOTUS and could, by permit, so immunize MS4 

operators from the threat of citizen suits. Without clarification, the rule could have the 

unintended consequence of expanding the reach of jurisdictional waters and force MS4 

permittees to re-evaluate watershed-based best management practices, which are aimed at 

addressing pollutants in the MS4 as close to the receiving water as possible. This benefit 

would be lost if MS4 operators were forced to address each “upstream” discharge into an 

open conveyance. Finally, clarifying the demarcation between MS4 and WOTUS would 

not contradict the Proposed Rule’s emphasis on designating waters as jurisdictional 

where they would have a significant effect on the chemical, physical, and biological 

integrity of a WOTUS; the impacts of MS4 discharges into WOTUS are addressed under 

CWA Section 402(p) through NPDES permits.

It is thus important that the final WOTUS rule leave no confusion as to where the MS4 

ends and a WOTUS begins. At a minimum, the Agencies should include clarifying 

language in the Preamble to the final WOTUS rule. Additionally, the County and 

LACFCD propose the following language to be added to the exclusions in the Proposed 

Rule:

New Provision (b)(6)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

355

“Storm water conveyances or systems of conveyances that meet the definition 

of “municipal separate storm sewer system” as defined at 40 CFR 

122.26(b)(8), are located upstream of an “outfall,” as defined in 40 CFR 

122.26(b)(9), and are required to obtain a National Pollutant Discharge 

Elimination System permit pursuant to Section 402(p) of the CWA. Any 

man-made or man-altered waters conveying storm water previously 

designated as a water of the United States are not subject to exclusion.” (p. 9-

12)

Agency Response: Please see summary response at 7.4.4. See also the Technical 

Support Document at Section I.C.

Public Works Department, Contra Costa County, California, et al. (Doc. #15634)

7.550 Municipal separate storm sewer systems (MS4), including stormwater conveyances 

(storm drain systems), bioswales, and green projects that are already regulated under 

NPDES should be excluded from designation as a Water of the U.S. and should be 

exempted from Clean Water Act regulation, even if they may otherwise qualify as a 

tributary under the proposed rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Village of Wellington, Florida (Doc. #15654)

7.551 Wellington is a 34,000-acre residential/equestrian community with some commercial 

areas and has been an MS4 NPDES permittee since 1997. Our man-made MS4 (110 

miles of canals, 170 acres of lakes, 400 acres of wetland/marsh preserves) is both a 

conveyance system and a stormwater treatment system. Our current MS4 NPDES permit 

defines WOTUS as the receiving water bodies that accept discharges from the MS4. Our 

primary concern is that under the proposed definition of Waters of the United States, our 

MS4 would become WOTUS. If these made-man treatment systems become WOTUS, 

then in accordance with the proposed rule, these systems will be required to meet water 

quality requirements themselves. This will set our permitted state and federal stormwater 

water quality programs back fifteen years and we will have wasted tax payers +$40 

million dollar investment. This necessitates our request for an exemption from 

jurisdiction within the proposed WOTUS rule for man-made stormwater treatment 

systems that have been permitted under MS4 or EPA approved state permitting programs. 

(p. 1-2)

Agency Response: Please see summary response at 7.4.4. Also note that the final 

rule does change the implementation of the 402 program. See the summary 

response at 12.3. 

Town of Shady Shores, Texas (Doc. #15709)

7.552 Proposed rule does not specifically exempt Municipal Separate Storm Sewer 

Systems (MS4s)

Since stormwater management activities are not explicitly exempt under the proposed 

rule, the Town is concerned that man-made conveyances and facilities for stormwater 

management could now be classified as a "water of the U.S.". The Town owns MS4 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

356

infrastructure including ditches, channels, pipes and gutters that flow into a "water of the 

U.S." and are therefore regulated under the CWA Section 402 stormwater permit 

program. There is a significant potential threat for municipalities that own MS4 

infrastructure because they would be subject to additional water quality standards 

(including total maximum daily loads) if their stormwater ditches are considered a "water 

of the U.S." Not only would the discharge leaving the system be regulated, but all flows 

entering the MS4 would be regulated as well. Even if the EPA and Corps do not initially 

plan to regulate an MS4 as a "water of the U.S.", they may be forced to do so through 

CWA citizen suits, unless MS4s are explicitly exempted from the requirements. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.553 Proposed rule will hamper beneficial development such as green infrastructure

Green infrastructure is often utilized as a stormwater management tool to lessen flooding 

and protect water quality. Green infrastructure uses vegetation, soils, and natural 

processes to manage water and create healthier urban environments. Green infrastructure 

is not explicitly exempt under the proposed rule. The proposed rule could inadvertently 

impact the number of these types of storm water management systems built by 

developers, property owners and municipalities by requiring Section 404 permits for nonMS4 and MS4 green infrastructure construction projects. Additionally, it is unclear under 

the proposed rule whether a Section 404 permit will be required for maintenance 

activities on green infrastructure areas once the area is established. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Southern California Water Committee (Doc. #16170)

7.554 A. New definition of Tributary could improperly include MS4 Facilities

In the Proposed Rule, all “tributaries” are considered jurisdictional if it is a water 

physically characterized by the presence of a bed and banks and ordinary high water 

mark, which contributes flow (including on an ephemeral or intermittent basis), either 

directly or indirectly through another water, to a more “traditional” WOTUS.302 Further, 

wetlands, lakes, and ponds may be a tributary even if they lack beds and bank and an 

ordinary high water mark. A tributary can be natural, man-altered, or man-made water 

and includes rivers, streams, lakes, ponds, wetlands, impoundments, canals, and ditches 

that are not otherwise excluded. Man-made or natural breaks (e.g., pipes, culverts, 

boulder fields) do not disqualify upstream reaches as tributaries.

Considering the expansive nature of this proposed definition, and unless otherwise 

excluded by rule, stormwater conveyance facilities, treatment wetlands, and/or infiltration 

projects could be considered tributaries. Although the Proposed Rule attempts to clarify 

that tributaries are waters that have a bed, bank, and high water mark, more than likely 

disagreement will result with respect to the occurrence of such characteristics in a natural 

 

302 Notably, the map prepared by EPA and included in the National Hydrography Database identifies even the 

washes in much of the Mohave Desert in southeastern California as “intermittent” and, under the Proposed Rule, 

would be a WOTUS. (See http://science.house.gov/epa-maps-state-2013#overly-context.)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

357

or man-made channel, canal, ditch, or swale. For example, some MS4 conveyance 

facilities have open channels that ultimately enter a WOTUS through an outfall.303 Under 

the federal regulations, an outfall is defined to mean “a point source . . . at the point 

where a municipal separate storm sewer system discharges to waters of the United 

States.”3 (40 C.F.R. § 122.26(b)(9).) However, under the Proposed Rule, these open 

channels could be considered a WOTUS even though they have been viewed and 

regulated as being part of the MS4, and are considered to be part of the point source 

itself. If these facilities were found to be a tributary to a WOTUS, they would become 

subject to CWA section 404 requirements, and current maintenance activities could 

require a section 404 permit as well as section 401 certification from the state. Further, 

water quality standards would apply in the open channels rather than after the discharge 

into a “traditional” navigable water. Such a result is nonsensical considering that 

discharges from these types of open channels to traditional navigable waters are currently 

regulated under the MS4 permit program pursuant to section 402(p) of the CWA.

In addition to capturing open conveyance channels under the definition of tributary, other 

types of stormwater facilities may also be captured by this definition. For example, 

stormwater treatment or capture basins that have an “open water” feature could be 

jurisdictional under the tributary definition, if there is some form of connectivity to a 

traditional navigable water, or connectivity to a tributary to a traditional navigable water. 

The Proposed Rule has no geographical limit with respect to such connectivity. Thus, 

e.g., a constructed stormwater treatment system located miles from a traditional navigable 

water could be a WOTUS.

The Proposed Rule claims that it is appropriate to include tributaries “by rule” because it 

summarily concludes that tributaries have a significant nexus to a traditional navigable 

water, and that they affect the physical, chemical, and biological integrity of a traditional 

navigable water. With respect to MS4 facilities, the significant nexus test is inapplicable 

because MS4 facilities are already regulated under CWA section 402. Specifically, to the 

extent that MS4 facilities may significantly affect traditional navigable waters, they are 

regulated like other point source discharges to a WOTUS, and are subject to extensive 

NPDES permit requirements. Since they are so regulated, it is not necessary to capture 

such facilities under the definition of tributary because their physical, chemical, and 

biological impacts to traditional navigable waters are addressed through the terms of the 

applicable NPDES permit.

In light of these concerns, SCWC recommends that the Proposed Rule be revised to 

clearly indicate the definition of tributary does not, and is not intended to, include MS4 

facilities. The Agencies can accomplish this by ensuring the exclusions (discussed below 

in section II) are clear, concise, and specifically address stormwater management 

facilities. The Agencies also need to include text within the descriptive portion of the 

 

303 SCWC recognizes that in some cases waters that are considered to be traditional navigable waters, or waters 

previously identified as jurisdictional, have been modified for flood control and other purposes. SCWC’s comments 

are not intended to imply that these waters are no longer WOTUS due to their use for flood control purposes and to 

the extent that these waters convey stormwater. Rather, SCWC is stating that stormwater facilities connected to

these traditional navigable waters or waters previously identified as jurisdictional, and that are regulated under the 

MS4 permit program, are not WOTUS, and should not be converted to being WOTUS due to their connectivity.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

358

final rule that clearly and definitively states that MS4 facilities are not a WOTUS. Such a 

clarification is consistent with previous EPA findings. (See 53 Fed. Reg. 49416, 49442 

(Dec. 7, 1988) [“[W]aters of the United States are not storm sewers for purposes of this 

rule.”].) (p. 3-5)

Agency Response: Please see summary response at 7.4.4.

7.555 II. The exclusions for waters that are not WOTUS must be revised to incorporate 

MS4 conveyance and other related facilities

The Proposed Rule intends to maintain current exclusions contained within the definition 

of WOTUS, and to also incorporate others that have not been considered WOTUS 

through longstanding practice of the Agencies. However, the current exclusions and the 

proposed new exclusions do not specifically include or incorporate MS4 conveyance 

facilities and other stormwater related facilities. The exclusions need to be revised to 

provide certainty to stormwater managers, state regulators, and the Agencies themselves.

A. Waste Treatment System Exclusion

With respect to the waste treatment system exclusion, it does not adequately address the 

range of facilities constructed in California to convey, capture, treat, or infiltrate 

stormwater. At most, one would have to show that the stormwater facility was “designed 

to meet the requirements of the Clean Water Act.” However, considering the iterative 

nature of stormwater BMPs and MS4 permits in general, considerable discretion will be 

given to the Agencies, and ultimately the courts, in determining if a specific stormwater 

BMP was designed to meet the requirements of the CWA. Further, based on information 

presented in public workshops since the Proposed Rule was published, the Agencies have 

been unable to provide clear direction with respect to stormwater facilities, and how they 

are covered by the waste treatment system exclusion. Accordingly, there is significant 

uncertainty with maintaining the waste treatment system exclusion, as it currently exists. 

To ensure stormwater facilities are properly included in the waste treatment system 

exclusion, SCWC recommends that it be revised as follows:

Waste treatment systems, including treatment ponds, or lagoons, or stormwater 

capture and treatment systems designed to meet the requirements of the CWA 

(including permits issued pursuant to CWA section 402(p)) are not waters of the 

United States. This exclusion applies only to manmade bodies of water that 

neither were originally created in waters of the United States (such as disposal 

area in wetlands) nor resulted from the impoundment of waters of the United 

States . . .

B. Artificial Lakes Exclusion

The Proposed Rule would also exclude waters that have the features of being “[a]rtificial 

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 . . . .” Many 

stormwater related facilities have similar features to those that are included within this 

exclusion. Examples of such facilities could include infiltration basins, bioswales, 

spreading grounds, detention basins, green infrastructure projects, and others. Further, 

many of these facilities were created in dry land and thus clearly meet the intent of the 

exclusion provided here. However, as currently proposed, this exclusion does not 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

359

specifically include stormwater related facilities and thereby creates uncertainty as to 

where such facilities would fall under the Proposed Rule. To ensure that stormwater 

related facilities that meet the intent and purpose of this exclusion are properly included, 

SCWC recommends that this exclusion be revised as follows:

Artificial lakes, or ponds, or basins created by excavating and/or diking dry land 

and used exclusively for such purposes as stock watering, irrigation, settling 

basins, stormwater infiltration, groundwater recharge, or rice growing . . . (p. 7-

8)

Agency Response: With respect to stormwater control features, please see 

summary response at 7.4.4. Groundwater recharge basins are covered under the 

exclusion at (b)(7) for “wastewater recycling structures created in dry land: 

detention and retention basins built for wastewater recycling, groundwater recharge 

basins, and percolation ponds built for wastewater recycling, and water distributary 

structures built for wastewater recycling” or under the stormwater control feature 

exclusion at (b)(6), depending on the source of water. In effect, both have the same 

result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in 

dry land. Please note that the final rule does not change the applicability of the 

Underground Injection Control program for Class V injection wells or subsurface 

fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part 

144.

7.556 To ensure that MS4 conveyance facilities that otherwise qualify as ditches are properly 

excluded, SCWC recommends that a third category of “ditches” be added to the 

exclusions. Accordingly, we recommend the following category be added:

Ditches that are created or maintained as part of a municipal separate storm 

sewer conveyance system and that are managed as part of a municipal separate 

storm sewer conveyance system subject to requirements under section 402(p) of 

the CWA. (p. 9)

Agency Response: Please see summary response at 7.4.4. 

Department of Environmental Services, Clark County, Washington (Doc. #16455)

7.557 While we support rulemaking to help define "Waters of the U.S." to help provide 

certainty to the jurisdictional scope of the Clean Water Act, we believe that the rule 

making falls short for governmental entities that have a Municipal Separate Storm Sewer 

System (MS4) permit, and attempt s to recapture jurisdiction reach and rulemaking that 

had previously been stricken down by the Supreme Court.

We urge you to specifically exempt MS4 infrastructure from regulatory coverage under 

Section 404 of the Act and limit the regulatory governance to Section 402. (p. 1)

Agency Response: Please see summary response at 7.4.4. 

City of Beaverton, Oregon (Doc. #16466)

7.558 We recognize that EPA and the Corps may claim these outcomes are unanticipated. 

However, there is so much gray area in the proposed rule that the rise of third-party 

citizen suits are likely to define all these described waters as WOTUS. The agency's so-
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

360

called intent will not matter, because where there is gray, there will be a lawyer to file a 

lawsuit. Ultimately, the aggressive reach of this rule and its ambiguous provisions and 

terminology introduces uncertainty, requires more agency analysis and intervention, and 

will create increased litigation.

With that in mind, the rule must include the following provisions that are priority 

concerns for local governments:

 Separate municipal storm sewers will continue to be regulated and permitted 

under Section 402 of the Clean Water Act, and shall not be considered, either in 

their entirely or any individual feature thereof, waters of the U.S.;

... (p. 2-3)

Agency Response: Please see summary response at 7.4.4.

City of Oceanside, California (Doc. #16509)

7.559 ...the City recommends that certain exclusions within the Proposed Rule be expanded to 

include MS4 conveyance facilities and other related facilities. Key implications of the 

Proposed Rule that cause concern for the City are summarized below:

The Proposed Rule identifies human-altered channels and human-made structures, 

including potentially storm water (MS4) infrastructure, as a WOTUS. MS4s are highly 

regulated, and NPDES permits provide legal authority for discharges from MS4s to 

WOTUS They are not themselves WOTUS, and MS4s are required, at a minimum, to 

implement controls to reduce the discharge of pollutants to WOTUS to the maximum 

extent practical (MEP). The consequence is that water quality standards (including Total 

Maximum Daily Loads) would have to be met within the MS4 and would undermine how 

the system is operated; the potential for beneficial capture, treatment and reuse of dry and 

wet weather flows would be diminished; and it would be more difficult for the City to 

comply with the requirement to reduce pollutants discharged from the MS4 to the 

"maximum extent practicable". Unfortunately, the Proposed Rule fails to specifically 

exclude MS4s (and related infrastructure and associated facilities) from being a WOTUS. 

Thus, many of the newly proposed definitions create significant uncertainty, and could be 

interpreted in a manner that would find an MS4 and/or its related facilities to e aW0TUS. 

These new definitions identify waters by category, and include tributaries, jurisdictional 

ditches, adjacent waters, and "other waters" with significant nexus to an existing 

WOTUS. The type of storm water facilities and o her related infrastructure projects that 

are potentially vulnerable to jurisdiction under these new categories, include, but are not 

limited to:

 MS4 conveyance facilities

 Detention and settling basins

 Storm water treatment systems

 Infiltration facilities

 Bioswales

 Groundwater recharge facilities
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

361

 Green infrastructure projects (p. 2)

Agency Response: Please see summary response at 7.4.4. Groundwater recharge 

basins are covered under the exclusion at (b)(7) for “wastewater recycling 

structures created in dry land: detention and retention basins built for wastewater 

recycling, groundwater recharge basins, and percolation ponds built for wastewater 

recycling, and water distributary structures built for wastewater recycling” or 

under the stormwater control feature exclusion at (b)(6), depending on the source of 

water. In effect, both have the same result, i.e., the infiltration basin is not a 

jurisdictional water as long as it was built in dry land. Please note that the final 

rule does not change the applicability of the Underground Injection Control 

program for Class V injection wells or subsurface fluid distribution systems under 

the Safe Drinking Water Act. See 40 CFR Part 144.

7.560 Tributaries to WOTUS are now broadly defined, including man-made structures (dams, 

culverts), and are Jurisdictional by Rule. MS4 systems may be defined as tributaries and 

become subject o WOTUS regulation. In the Proposed Rule, all "tributaries" are 

considered jurisdictional if it is a water physically characterized by the presence of a bed 

and banks and ordinary high water mark, which contributes flow (including on an 

ephemeral or intermittent basis), either directly or indirectly through another water, to a 

more "traditional" WOTUS. Further, wetlands, lakes, and ponds may be a tributary even 

if they lack beds and bank and an ordinary high water mark. A tributary can be natural, 

man-altered, or man-made water and includes rivers, streams, lakes, ponds, wetlands, 

impoundments, canals, and ditches that are not otherwise excluded. Man-made or natural 

breaks (e.g., pipes, culverts, boulder fields) qualify upstream reaches as tributaries. 

Considering the expansive nature of this proposed definition, and unless otherwise 

excluded by rule, storm water conveyance facilities, treatment wetlands, and/or 

infiltration projects could be considered tributaries. Although the Proposed Rule attempts 

to clarify that tributaries are waters that have a bed, bank, and high water mark, more 

than likely disagreement will result with respect to the occurrence of such characteristics 

in a natural or man-made channel, canal, ditch, or swale. City recommends that the 

Proposed Rule be revised to clearly and explicitly indicate that the definition of tributary 

does not, and is not intended to, include MS4 facilities. (p. 2-3)

Agency Response: Please see summary response at 7.4.4.

Palm Beach County, Florida (Doc. #16647)

7.561 Given the unique topography and high water table in South Florida, stormwater treatment 

mechanisms are necessary parts of the conveyance system of an MS4 that are integrated 

throughout the system to ensure water quality benefits are achieve prior to discharge 

through a control structure into a receiving "water of the State" at the downstream end of 

the MS4 system. If stormwater treatment mechanisms and their accompanying MS4 

systems become "Waters of the US," the points of discharge would be required to move 

upstream of the stormwater treatment system, resulting in the almost total elimination of 

the MS4 jurisdictional area. State water quality requirements would have to be met inside 

the systems, or DEP would be forced to adopt additional standards for those water bodies. 

For privately owned stormwater management systems (also referenced below), this 

would directly contradict established and EPA approved state law and regulatory regimes 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

362

that consider the systems "waters" only for the purposes of discharge. For local 

government systems, this would practically eliminate the ability to provide treatment 

within the systems prior to discharge. As an example, the lead permittee on the Palm 

Beach County MS4, Northern Palm Beach County Improvement District, will see its 

MS4 area reduced from 36,000 acres to less than 1,000 acres (a 97% reduction) under the 

proposed rule. The Village of Wellington, one of the larger municipalities in the County, 

will see a reduction in its MS4 area from 20,000 acres to 6,000 acres (a 70% reduction).

Under the proposed rule, an overwhelming majority of existing stormwater management 

systems will become "tributaries" or "adjacent waters," rendering the ability of permittees 

to the Palm Beach County MS4 Permit to implement Stormwater Management Programs 

almost non-existent. Maintenance activities that are required to be undertaken within the 

systems by State ERPs and the PBC MS4 Permit will be subject to permitting under 

Section 404 of the CWA, requiring additional time and resources from both local 

governments and the US Army Corps of Engineers. Delays in procuring required permits 

will impact the permitted systems flood protection and water supply benefits, and can 

expose local governments to legal liability regardless of whether the delay is attributable 

to a federal agencies failure to issue a permit. Additionally, businesses will not be able to 

rely on the rule to prevent a backlog in permitting that could have a negative impact on 

the construction schedule for redevelopment.

All stormwater systems permitted under Florida law and regulatory programs are 

designed to provide retention, conveyance and treatment prior to discharge into "waters 

of the State." EPA Region IV's guidance on the treatment of wastes, including the 

treatment of stormwater, finds that such treatment in "Waters of the US" is inconsistent 

with provisions of the Clean Water Act.304 Simply put, if stormwater management 

systems are considered jurisdictional "Waters of the United States" as contemplated 

under the proposed rule, the ability of local governments in South Florida to provide 

treatment will be eliminated. This will result in deleterious water quality impacts to the 

water resources of the region, a result not contemplated by the agencies. As articulated 

below, Palm Beach County recommends that the federal agencies include language in the 

final rule explicitly excluding, as part of the waste treatment system exclusion, those 

man-made stormwater management systems that have been previously permitted under 

existing federal or federally approved state permitting programs. (p. 11-12)

Agency Response: Please see summary response at 7.4.4.

7.562 To avoid regulatory uncertainty, legal deficiencies and the practical consequences that 

will result from finalization of the proposed rule, Palm Beach County proposes the 

following amendments to the rule language:

...

4) Clarify the waste treatment exemption to clearly include man-made storm water 

management and treatment systems that have been previously permitted under the MS4 

permitting program or a federally approved state permitting program. Exempted man-

 

304 See Final Region 4 Guidelines for Reconciling Storm Water Management and Water Quality and Resource 

Protection Issues (11/14/01).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

363

made storm water features should include ditches, canals and conveyances, wetlands, 

inflow basins, and other features that should be clearly articulated in the rule. 

Alternatively, the proposed rule should be amended to include a new exemption for 

stormwater management facilities and features. 

... (p. 13, 14)

Agency Response: Please see summary response at 7.4.4.

City of Portland, Bureau of Environmental Services (Doc. #16662)

7.563 1) BES requests that EPA specifically exclude MS4 activities and permitted facilities and 

other constructed green infrastructure facilities from the definition of "Waters of the US." 

Many municipalities are required to obtain Municipal Separate Storm Sewer System 

(MS4) permits for discharge of collected stormwater into Waters of the US. Green 

infrastructure, such as roadside ditches, stormwater swales and green street facilities, is a 

key component of many MS4 systems. Because the appropriate regulatory controls and 

adequate oversight already apply to these discharges, all components of these systems 

should be clearly exempted from the definition of Waters of the US. The MS4 permits 

and oversight however do not apply to the surface water components of natural drainages 

upstream or downstream. Those sections should continue to be jurisdictional under the

proposed rule. In addition, constructed green infrastructure facilities that are not part of 

an MS4 system should also be excluded from the definition of Waters of the US. Without 

this clear exclusion, EPA could be inadvertently discouraging the use of green 

infrastructure because of the perception that they could be subject to additional oversight 

and regulation. (p. 1-2)

Agency Response: Please see summary response at 7.4.4.

Board of Supervisors, Lassen County, California (Doc. #17461)

7.564 The rule must clarify the impacts on MS4 permits to avoid double regulation of permitted 

entities 

As it stands, the proposed rule provides no clarification on ditches used as conveyance 

for runoff in municipal storm water activities. Ditches are commonly used by 

municipalities for storm water discharge under the Municipal Separate Stormwater Sewer 

Systems (MS4) program, and such activities are already regulated as waste treatment 

systems under Section 402(p) of the CWA. The proposed rule would reclassify those 

ditches as Waters of the U.S., whereby the applicable control standard would no longer 

be maximum extent practicable under Section 402(p) , but the attainment of water quality 

standards thereby requiring the imposition of numeric effluent limits.

California has imposed stricter standards on all storm water permittees, including MS4 

permit holders, and the proposed rule as it stands would only serve to exacerbate the 

already difficult task of compliance for rural counties in our State by causing 

jurisdictional confusion and dramatically increased compliance costs. Many rural 

California counties have either recently been required to comply with the MS4 permit, or 

will be required to comply within the next permit cycle. The implementation costs for 

new permittees would increase exponentially if the proposed rule is not modified to 

include clarification and exemptions for MS4 permit holders.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

364

RCRC recommends that, should you choose to proceed with the rulemaking, you 

specifically include ditches and other conveyance methods used to comply with MS4 

permits under the exemption for waste water treatment systems. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Board of Supervisors, Amador County, California (Doc. #17450)

7.565 Changes to the terms "navigable water" or "waters of the United States" will likely alter 

the way many water bodies arc regulated and trigger new unfunded mandates on local 

governments. Additionally, the expanded definition will subject counties to additional 

enforcement actions, including civil and criminal penalties, and place local governments 

at great risk of third-party litigation. Some examples include:

...

 Ditches used to convey municipal storm water discharge under the Municipal 

Separate Storm Water Sewer System (MS4) program could be reclassified as 

Waters of the U.S. The reclassification would change the control standard from 

the "maximum extent practicable under Section 402(p) of the CWA to the 

attainment of water quality standards requiring the imposition of numeric effluent 

limits. Unless specifically exempted, the costs from new permits will rise 

exponentially for local governments.

...

Rather than codify what the agencies have practice for the past few decades, this 

rulemaking is an opportunity to re-examine legislative direction and provide corrective 

measures where needed. The two key words to focus on are "navigable" and 

"significant". We urge the agencies to narrow the scope of jurisdiction to waters suitable 

for vessels and waters that have a significant nexus to those waters, consistent with the 

CWA and Justice Kennedy's standard. At a minimum, we urge the agencies to clarify and 

specifically exclude water re-use facilities, roadside and MS4 ditches, and floodwater 

control systems from the definition of "waters of the U.S.". (p. 2, 3)

Agency Response: With respect to stormwater control features, please see 

summary response at 7.4.4. Groundwater recharge basins are covered under the 

exclusion at (b)(7) for “wastewater recycling structures created in dry land: 

detention and retention basins built for wastewater recycling, groundwater recharge 

basins, and percolation ponds built for wastewater recycling, and water distributary 

structures built for wastewater recycling” or under the stormwater control feature 

exclusion at (b)(6), depending on the source of water. In effect, both have the same

result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in 

dry land. Please note that the final rule does not change the applicability of the 

Underground Injection Control program for Class V injection wells or subsurface 

fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part 

144.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

365

Department of Public Works, County of San Diego, California (Doc. #17920)

7.566 The County requests that the new rule exempt the full range of conveyances, green 

infrastructure, treatment, storage, and infiltration facilities necessary to comply with MS4 

permits. The proposed rule should explicitly and categorically exclude from the definition 

of a Water of the US multiple separate storm sewer systems (MS4s), conveyances, and 

related infrastructure designed for stormwater management. MS4s are not mentioned in 

the proposed rule. This is a glaring omission. Without a clear exemption, many features 

of MS4s could be potentially considered Waters of the U.S. Although there is an existing 

exemption for "waste treatment systems," it is not clear if all features of MS4s would 

qualify for this exemption.

An exemption is needed for MS4s because the new rule redefines treatment and the 

definition of tributaries in a way that could allow many MS4 facilities to be considered 

Waters of the U.S. because they contribute flow downstream. This presents a conflict in 

complying with sections 402 and 404/401 of the CWA. MS4 facilities and conveyances 

require maintenance to sustain their proper water quality function; however, Sections 404 

and 401 could trigger a need for permits to conduct the maintenance if these facilities are 

considered Waters of the U.S. Clearly, clarification is needed to exempt infrastructure 

and BMP features that are built and maintained to comply with MS4 permits. As 

explained above, the new definition of tributaries appears more expansive, which would 

reduce available water quality treatment options and make it difficult to locate such 

facilities, as Waters of the U.S. cannot be treated directly. As such, the new broad 

definition of tributaries would increase the cost of compliance, reduce treatment options, 

and make it more difficult to comply with Section 402 of the Clean Water Act.

Conveyances should be explicitly defined as drainage facilities other than sanitary sewers 

by which urban runoff may be conveyed to receiving waters, including, but not limited 

to, roads, streets, constructed channels, aqueducts, storm drain. pipes, street gutters, inlets 

to storm drains or pipes and catch basins. The rule should specifically exempt stormwater 

conveyances, bioswales, green streets, and infiltration basins that are necessary to comply 

with an MS4 permit. Additionally, the exemption should include structures and features 

designed in pursuit of watershed-based compliance options and integrated planning for 

stormwater management and water supply reliability. The definitions and exclusions 

must ensure that the design and location of stormwater BMPs can remain consistent with 

the goals of stormwater management without these areas being considered Waters of the 

U.S.

EXAMPLE: The San Diego Regional MS4 Permit requires plans to address pollutants 

and impairments in jurisdictional water bodies, The Regional Water Quality Control 

Board has identified Chollas Creek as impaired by dissolved metals. Expanding the 

definition of Waters of the U.S. to include ditches and other "offline" MS4 conveyances 

with connectivity to the Creek would significantly limit opportunities to treat stormwater 

before it reaches the receiving water. (p. 2-3)

Agency Response: Please see summary response at 7.4.4. In this response to 

comments, the Agencies cannot address whether or not a particular feature (Chollas 

Creek in this instance) is a jurisdictional water of the U.S. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

366

7.567 Any constructed feature built for the purpose of water quality treatment and/or runoff 

control as required by any federal, state, or local agency, including those with wetland 

indicators, connectivity and/or within a floodplain or riparian area, should be specifically

defined as being non-jurisdictional by rule. In the Federal Register posting, the agencies 

request comment on which waters should be determined non-jurisdictional by rule; this is 

an important example of such. It is imperative that the County, and other local agencies, 

be able to construct and maintain water quality treatment facilities to ensure that the 

design and location of such facilities can remain consistent with the goals of stormwater 

management. If these facilities are left undefined, counties and stakeholders would be 

vulnerable to broad application of federal jurisdiction as these facilities would be open to 

being considered jurisdictional by local regulators. If these water quality treatment 

features are considered jurisdictional, then lengthy permitting and possible costly 

mitigation would be required to construct and maintain these features.

EXAMPLE: The County implements bridge replacement projects administered by the 

Federal Highway Administration. These bridge replacement projects are commonly 

located at stream crossings and typically include an increase in impervious surface to 

bring the bridge up to current standards. The increase in impervious surface area would 

trigger a requirement to install detention basins or a similar water quality treatment 

facility pursuant to Clean Water Act Section 402 and the corresponding MS4 permit. In 

this scenario, the water quality treatment facility must be installed adjacent to the new 

impervious surface in order to filter the water, which would also be adjacent to the 

stream. Thus, such a water quality treatment system would likely have direct 

connectivity, be within the floodplain, and within the riparian area. This example 

illustrates the importance of insuring that such facilities can be constructed and 

maintained unimpeded by potentially being considered to impact Waters of the U.S. by a 

significant nexus, wetland, or other determination. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, Marion County, Florida (Doc. #18868)

7.568 The proposed regulations expand key definitions that have potentially far-reaching 

effects. "Tributaries" may now include stormwater management features such as 

treatment ponds, swales, and ditches. These facilities are already constructed in 

accordance with Florida's longstanding environmental resource permitting program. 

Stormwater facilities, required to be maintained under state, as well as, federal (Section 

404) rules, will now have another layer of regulation. Marion County recommends that: 

Stormwater conveyance systems, including upland cut ditches and swales, should be 

excluded from the definition of WOTUS with limited exceptions.

Stormwater facilities including constructed ponds and created wetlands should be 

excluded specifically from the proposed definition of WOTUS. (p. 1)

Agency Response: Please see summary response at 7.4.4.

Stormwater Advisory Committee, DeSoto County, Mississippi (Doc. #19473)

7.569 There is a risk that portions of our MS4s could be considered a WOTUS even before 

discharging into a jurisdictional water such as a river or a stream, which could lead to 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

367

significant new and duplicative regulations and costs. The DeSoto County Stormwater 

Advisory Committee believes that the proposed rule should clarify that MS4s are covered 

by the water treatment system exemption and will not be jurisdictional under the Clean 

Water Act above any existing point of permitted discharge, including any ditches that are 

a part of the MS4. (p. 1)

Agency Response: Please see summary response at 7.4.4.

Maui County, Hawaii (Doc. #19593)

7.570 Municipal Separate Storm Water Systems

1. The rule's new definitions for "tributaries" and "other waters" are abstract and 

contingent on variable field conditions. Under the proposed rule many stormwater 

systems and features could be considered WOTUS.

2. Waters associated with storm water infrastructure should be specifically excluded from 

the WOTUS definition.

3. Under the proposed rule, these stormwater channels could be considered jurisdictional 

even though they are part of the MS4 and regulated under an NPDES permit. Regulating 

such waters under both an NPDES permit and Section 404 of the CWA is overly 

burdensome and unworkable from a regulatory and compliance standpoint.

4. If stormwater conveyances are deemed WOTUS, they will be subject to water quality 

standards. The costs of complying with water quality standards could be extreme.

5. Stormwater or stream channels could be considered "tributaries" or "roadside ditches" 

under the proposed rule, and including tributaries by rule is not practical. The proposed 

rule should be revised to state unequivocally that the definitions of tributary and roadside 

ditch do not include MS4 facilities, and MS4 facilities are not "waters of the U.S."

6. Waste treatment systems, excluded under 40 CFR 122.3, should include stormwater

management and treatment systems. The lack of such language leaves the rule open to 

interpretation as to whether stormwater controls are considered jurisdictional.

7. Infrastructure used to treat, manage, infiltrate or retain urban stormwater runoff should 

be specifically included in the "waste system treatment" exclusions.

8. The rule should define the systems to which the exemption applies, including 

manmade structures and devices as well as treatment measures to improve water quality, 

reduce stormwater volume, control flow rate and flooding, convey stormwater, or a 

combination of these purposes. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Board of Supervisors, Navajo County, Arizona (Doc. #19569)

7.571 Since storm water management activities are not explicitly exempt under the proposed 

rule, Navajo County is concerned that man-made conveyances and facilities for storm 

water management could now be classified as a “water of the U.S.” Some counties and 

cities own Municipal Separate Storm Sewer System (MS4) infrastructure including 

ditches, channels, pipes and gutters that flow into a “water of the U.S.” and are therefore 

regulated under the CWA Section 402 storm water permit program. There is a significant 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

368

potential threat for counties that own MS4 infrastructure because they would be subject 

to additional water quality standards (including total maximum daily loads) if their storm 

water ditches are considered a “water of the U.S.” Not only would the discharge leaving 

the system be regulated, but all flows entering the MS4 would be regulated as well. Even 

if the agencies do not initially plan to regulate an MS4 as a “water of the U.S.,” they may 

be forced to do so subsequently through CWA citizen suits, unless MS4s are explicitly 

exempted from the requirements.

This concern is validated with the Science Advisory Board (SAB) Panel for the Review 

of the EPA Water Body Connectivity stating in its report that “the Panel members noted 

that many of the exclusions in the proposed rule do not have strong scientific justification 

and, rather, reflect policy decisions that account for stakeholder concerns and / or 

historical practices” (p. 6).

Storm water management is often not funded as a water utility, but rather through a 

county general fund. If storm water costs significantly increase due to the proposed rule, 

not only will it potentially impact the counties ability to focus available resources on real, 

priority water quality issues, but it may also require that funds be diverted from other 

government services such as education, police, fire, etc.

By shifting the point of compliance for MS4 systems further upstream, the proposed rule 

could reduce opportunities for establishment of cost effective regional storm water 

management systems. Many counties and storm water management agencies are 

attempting to stretch resources by looking for regional and integrated approaches for 

managing storm water quality. The rule would potentially inhibit those efforts. (p. 4-5)

Agency Response: Please see summary response at 7.4.4.

Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. #19619)

7.572 Certain categories of waters need to be specifically excluded from WOTUS status:

 Urban stormwater control measures and BMPs within a regulated MS4 should be 

excluded as they are already regulated through the NPDES communities

 Constructed wetlands (constructed in uplands) are a waste treatment facility and 

should not be considered WOTUS

 MS4 conveyance facilities and other stormwater related facilities such as roadside 

ditches, gutters, culverts, swales, and flood control features, etc. 

... (p. 2)

Agency Response: Please see summary response at 7.4.4.

Association County Commissioners of Georgia (Doc. #5912)

7.573 Since stormwater management activities are not explicitly exempt under this proposed 

rule, we are concerned that Municipal Separate Storm Sewer System (MS4s) 

infrastructure could now be classified as a “Water of the U.S.”
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

369

This infrastructure includes many county MS4 conveyances, including ditches, channels, 

pipes and gutters that flow into a water of the U.S. and are already regulated under the 

CWA Section 402 stormwater permit program.

We are concerned that not only would the discharge leaving the stormwater system be 

further regulated, but all flows entering the MS4 could be regulated as well.

In various conference calls with the National Association of Counties, EPA staff have 

stressed that they do not “intend” to regulate an MS4, as a “water of the U.S.”

We take them for their word on their intentions.

However, EPA and the Corps may be forced to do so through citizen/environmental 

group CWA lawsuits as these ditches, pipes and channels, under the rule’s “tributary” 

and “adjacency” definitions, could very well be interpreted to be “Waters of the U.S.”...

Proposed Action: In order to avoid this, ACCG respectfully recommends that MS4 

activities be explicitly exempted under the proposed rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

California State Association of Counties (Doc. #9692)

7.574 The ramifications of...plausible scenarios are: subjecting local agencies to the CWA 

404/401 permit process, high costs for repairing or upgrading such infrastructure when it 

is already covered by the MS4 permit process, and potential liability to citizen suits. It 

should be noted the EPA has previously determined that storm drains cannot be WOUS. 

The agencies should therefore include language that exempts MS4 from CWA regulation 

even if it otherwise qualifies as a "tributary" under the proposed rule. The exemption 

language should explicitly exempt: stormwater conveyances, bioswales, green projects, 

and infiltration basins used to comply with an MS4 permit as these facilities are 

necessary to comply with the CWA. (p. 9)

Agency Response: Please see summary response at 7.4.4. 

Association of California Water Agencies (Doc. #12978)

7.575 The proposed rule places groundwater recharge facilities and stormwater management 

at risk.

Many arid western states use surface infiltration as a management tool to prevent 

flooding, store excess water for future use, replenish groundwater supplies, mitigate salt 

water intrusion, or abate land subsidence. The most economical manner of groundwater 

recharge is to construct a basin in alluvial material immediately adjacent to a perennial or 

ephemeral stream. This allows water to rapidly infiltrate through the basin to the 

unsaturated zone where it is added to the aquifer below. In addition to the basins, flood 

control dikes, swales and ditches are used to capture and convey stormwater to protect 

public safety. In addition to being adjacent to a “waters of the United States”, all of these 

features may contain hydric soil, wetland vegetation, and have an ordinary high water 

mark. Currently, these facilities have not been deemed to have a significant nexus with 

traditional navigable waters. Under the proposed rule these facilities would meet the 

definition of “waters of United States”. ACWA requests that groundwater recharge 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

370

facilities and stormwater retention basins (including construction, operations, and 

maintenance) be excluded from the proposed definition of “waters of the United States”. 

(p. 15)

Agency Response: With respect to stormwater control features, please see 

summary response at 7.4.4. Groundwater recharge basins are covered under the

exclusion at (b)(7) for “wastewater recycling structures created in dry land: 

detention and retention basins built for wastewater recycling, groundwater recharge 

basins, and percolation ponds built for wastewater recycling, and water distributary 

structures built for wastewater recycling” or under the stormwater control feature 

exclusion at (b)(6), depending on the source of water. In effect, both have the same 

result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in 

dry land. Please note that the final rule does not change the applicability of the 

Underground Injection Control program for Class V injection wells or subsurface 

fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part 

144.

Colorado Stormwater Council (Doc. #12981)

7.576 The CSC respectfully requests exclusions for MS4 features including roadside ditches, 

detention facilities, and detention outfalls. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.577 Excluded Best Management Practices. Waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of the CWA are not WOTUS under 

the current rule. Language in the 2012 Nationwide Permits and Current Guidance 

clarifies that permanent Best Management Practices (BMPs) that are determined to be 

waste treatment systems under current regulations are not WOTUS. The Proposed Rule 

does not significantly change the language regarding the excluded waste treatment 

facilities. However, there is not a categorical exclusion for BMPs. Additional clarification 

is required to identify the types of facilities that should qualify for this exclusion. EPA, as 

the regulatory authority driving the construction of many BMPs under the MS4 

Stormwater Program, should have a responsibility to make the jurisdictional status of 

these features clear in the rule language.

The CSC requests that any facility designed and operated to treat stormwater 

runoff to meet the requirements of the CWA or local regulations for managing 

stormwater should be included in this exclusion. (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.578 Furthermore, the existing regulations include exclusions for waste treatment facilities that 

are constructed to meet CWA requirements and are constructed in uplands. Currently, 

this exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff 

at the national offices and regional regulatory field offices level. Clearly, additional 

language is necessary to restore the intent of this exclusion.

The CSC requests that language be included in the Proposed Rule to state that 

treatment of stormwater runoff from rural and urban settings conforms to the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

371

exclusion and that the exclusion applies to all necessary and constructed 

components of the stormwater treatment system. (p. 4)

Agency Response: Please see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

7.579 The broad definitions in the proposed rulemaking, especially the definition of Tributary 

in conjunction with Adjacent, can lead to the conclusion that MS4s would be deemed 

Waters of the US. The distinction between MS4s and WOTUS is critical and begs the 

question of how CWA Sections 303 and 402 will be applied to historic MS4s deemed to 

be WOTUS. NAFSMA requests that the EPA clearly define what is considered to be an 

MS4 and what is determined to be a WOTUS, and reaffirm that an MS4 cannot be 

WOTUS.

The proposed rulemaking is also silent on Low Impact Development (LID). Many LID 

features will fit the definitions outlined in the proposal and NAFSMA requests that EPA 

explicitly exempt LID / green infrastructure features from WOTUS. The vague language 

in the proposed rule could contradict the existing waste water treatment exemption and 

inadvertently recapture MS4s, including treatment BMPs, back under WOTUS. 

Commingling MS4s and WOTUS will forcibly misapply costly compliance requirements 

intended for 2 receiving water bodies to the vast water collection and conveyance 

network. One of the many unanticipated consequences will be deterring the regulated 

community from implementing green infrastructure. NAFSMA acknowledges permit 

requirements for new construction activities, however, the maintenance of LID, green 

infrastructure, and MS4 features should all be explicitly exempt from WOTUS. (p. 1-2)

Agency Response: With respect to stormwater control features (including green 

infrastructure), please see summary response at 7.4.4. 

Western Coalition of Arid States (Doc. #14407)

7.580 The agencies proposed rule also directly contradicts longstanding EPA guidance 

regarding the jurisdictional status of MS4s. In the 1990 preamble to the Phase I 

stormwater regulations, EPA made clear that storm water runoff into municipal sewers 

(roads, ditches, storm drains, etc.) is not a discharge of a pollutant into a water of the 

United States.305 Recently, the agency also confirmed that MS4s are “by definition” not 

CWA navigable waters.306 And under agency guidance issued by the Arizona Department 

of Environmental Quality for their §402 Construction General Permit project, the state 

asserts that, “Man-made structures such as retention basins, storm sewer systems or city 

storm drains are not [CWA] receiving waters.307

From interpretations made by both EPA and several state agencies under their respective 

stormwater programs, it is obvious that roadside ditches, especially those that are 

associated with a MS4 permit are not jurisdictional waters. They are, however, point 

 

305 55 Fed. Reg. 47990, 47991, Nov. 16, 1990.

306 In a memo from Ann R. Klee, Former General Counsel, and Benjamin H. Grumbles, Former Assistant

Administrator for Water, EPA, to Regional Administrators, August 5, 2005.

307 2013 Construction General Permit Fact Sheet, Page 17 of 71, June 3, 2013.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

372

sources under the CWA. And any person who discharges a pollutant to a roadside ditch 

or to a MS4 that, in turn, results in a discharge of pollutants under §301(a), must obtain a 

permit. The physical act of discharging pollutants to a roadside ditch or MS4 does not 

automatically trigger CWA jurisdiction. This is a practice that has been enforced 

throughout the history of the CWA and needs to be reflected in the Final Rule. (p. 12)

Agency Response: The commenters appears to misunderstand the meaning of the 

1990 preamble discussion. Please see summary response at 7.4.4. Also see the 

Technical Support Document at Section I.C. The EPA August 5, 2005 memorandum 

from Ann R. Klee, and Benjamin H. Grumbles, does not address whether or not 

MS4s are jurisdictional. That memorandum addresses only the question of whether 

transfers of water from one jurisdictional waterbody to another without an 

intervening use of that water is an “addition” of pollutants under the CWA, and 

therefore is a discharge that requires an NPDES permit. While the 2005 

memorandum did take note of the waste treatment system exclusion, an MS4 is not 

necessarily a waste treatment system, as explained in the summary response at 7.4.4. 

EPA statements about the waste treatment system exclusion in the definition of 

waters of the U.S. do not equate to statements about MS4s. 

Georgia Municipal Association (Doc. #14527.1)

7.581 EPA and Army Corps should provide a clear exemption for MS4s, other stormwater 

systems and features, and green infrastructure. GMA requests that EPA and the Corps 

clearly state that MS4s and the conveyances within these systems, as regulated under the 

NPDES program, are categorically excluded from the Waters of the U.S. jurisdiction.

7.582 MS4s are defined under 40 CFR 122.26(b)(8) as "a conveyance or system of 

conveyances, including roads with drainage systems, municipal streets, catch basins, 

curbs, gutters, ditches, man-made channels, or storm drains." MS4s and their component 

parts are waste treatment systems that manage and control pollutants conveyed by 

stormwater and currently regulated under CWA's Section 402{p), and therefore they 

should be categorically excluded from the scope of the "Waters of the U.S." (p. 4)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. 

Florida Rural Water Association (Doc. #14897)

7.583 Community storm sewer systems (MS4s) should be excluded from the final rule in a 

similar manner as waste treatment systems. Some communities’ storm sewer system 

conveyance facilities include channels that may discharge to traditional “Waters of the 

U.S.” (p. 4)

Agency Response: Please see summary response at 7.4.4.

Kentucky League of Cities (Doc. #15227)

7.584 The language in the proposed rule regarding MS4s is ambiguous at best. Without a 

specific exemption for MS4 systems including drains, roads, pipes, curbs, gutters, ditches 

and other conveyances that channel runoff, local governments will be left open for 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

373

potential litigation and citizen lawsuits in an effort to determine the jurisdiction of an 

MS4 as a "Water of the U.S." This could create additional regulatory red tape as local 

governments and their MS4 systems could now be subject to 404 permitting and state 

water quality standards. (p. 2)

Agency Response: Please see summary response at 7.4.4.

NC League of Municipalities (Doc. #15358)

7.585 Many aspects of a MS4 system (ditches, channels, conveyance, etc.) are not explicitly 

exempt and could therefore be considered jurisdictional. This is a significant concern 

because if considered jurisdictional, these aspects of the MS4 system would be subject to 

Section 404 permits, as well as state Water Quality Standards. The Section 404 permit 

process can be extremely cumbersome and expensive. Without a specific exemption for 

MS4 system components that channel runoff, EPA and the Corps open the door for 

litigation and citizen suits that could determine that these components are jurisdictional 

waters and thereby subject to Section 404 permitting and state Water Quality Standards. 

The League believes that MS4s and their component man-made parts are systems that 

manage and control pollutants conveyed by stormwater that are regulated under the 

NPDES program and should be categorically excluded from the definition of a “waters of 

the U.S.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

South Carolina Association of Counties (Doc. #15573)

7.586 Since stormwater management activities are not explicitly exempt under the proposed 

rule, the Counties are concerned that municipal conveyances and facilities for stormwater 

management could now be classified as a "water of the U.S." A number of South 

Carolina counties maintain large systems of Municipal Separate Storm Sewer System 

(MS4) infrastructure including ditches, channels, pipes, and gutters that may directly or 

indirectly flow into a "water of the U.S." and are therefore regulated under the CWA 

Section 402 stormwater permit program. There is a significant potential threat for 

counties that own MS4 infrastructure because they would be subject to additional water 

quality standards, including total maximum daily loads, if their stormwater ditches are 

considered a "water of the U.S." Not only would the discharge leaving the system be 

regulated, but all flows entering the MS4 would be regulated as well. Even if the agencies 

do not initially plan to regulate an MS4 as a "Water of the U.S.," they may be forced to 

do so through CWA citizen suits, unless MS4s are explicitly exempted from the 

requirements. (p. 5)

Agency Response: Please see summary response at 7.4.4.

The United States Conference of Mayors et al. (Doc. #15784)

7.587 Under the NPDES program, all facilities which discharge pollutants from any point 

source into a "waters of the U.S." are required to obtain a permit, including local 

governments with Municipal Separate Storm Sewer Systems (MS4s). Some cities and 

counties own MS4 infrastructure that flow into a "waters of the U.S." and are therefore 

regulated under the CWA Section 402 stormwater permit program. These waters, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

374

however, are not treated as jurisdictional waters since the nature of stormwater makes it 

impossible to regulate these features. 

It is this distinction that creates a conflict between the stormwater program and the 

definition of "waters of the U.S." in the proposed rule and opens the door to citizen suits. 

Water conveyances including but not limited to MS4s that are purposed for and servicing 

public use are essentially a series of open ditches, channels and pipes designed to funnel 

or to treat stormwater runoff before it enters into a "waters of U.S." However, under the 

proposed rule, these systems could meet the definition of a "tributary," and thus be 

jurisdictional as a "waters of the U.S." The language in the proposed rule must be 

clarified because a water conveyance cannot both treat water and prevent untreated water 

from entering the system.

Additionally, waterbodies that are considered a "waters of the U.S." are subject to state 

water quality standards and total maximum daily loads, which are inappropriate for this 

purpose. Applying water quality standards and total maximum daily loads to stormwater 

systems would mean that not only would the discharge leaving the system be regulated, 

but all flows entering the MS4 would be regulated as well. This, again, creates a conflict 

between the stormwater program and the definition of "waters of the U.S." in the 

proposed rule. 

Request:

 Provide a specific exemption for water conveyances including but not limited to 

MS4s that are purposed for and servicing public use from the "waters of the U.S." 

definition. (p. 5)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. 

League of Oregon Cities (Doc. #16546)

7.588 While the proposed rule maintains the exclusion for wastewater treatment systems, 

including treatment ponds and lagoons, the rule fails to exempt other types of treatment 

systems for both wastewater and stormwater. We ask the EPA and Corps to consider 

adopting an explicit exemption for stormwater treatment facilities and green 

infrastructure investments for wastewater systems, This would include bioswales that 

filter water and discharge to downstream waterways, stormwater wet retention ponds, and 

engineered wetlands for wastewater facilities: Stormwater facilities and technologies are 

adequately regulated under NPDES MS-4 permits, and engineered wetlands for 

wastewater treatment are additionally permitted through the NPDES program. Additional 

regulation or uncertainty around the permitting of such projects could serve as an 

unfortunate deterrent for projects that have proven to be highly effective and more 

environmentally beneficial than traditional grey infrastructure investments. (p. 2)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

375

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. 

Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613)

7.589 1. Failure to specifically exclude stormwater facilities may discourage use of green 

infrastructure. 

The primary concern for ACWA is the failure to categorically exclude MS-4 activities 

and facilities, especially green infrastructure solutions (including but not limited to 

swales, filter strips, detention ponds, constructed wetlands and similar vegetated 

facilities) from the definition of "waters of the United States." First, stormwater facilities 

are already subject to NPDES MS-4 permits, so regulatory controls and adequate 

oversight already applies to these discharges. Second, the backbone of EPA's push for 

green infrastructure, low impact development and stormwater retrofits - - which ACWA 

members have whole-heartedly supported - - is implemented, in large part, through the 

stormwater program. Quite frankly, subjecting stormwater facilities to additional 

oversight may result in project delays and cost increases, discouraging green 

infrastructure and making grey infrastructure a more viable alternative. Examples of the 

types of environmentally beneficial projects that may be discouraged by the new rule 

include, for instance, 

1) retrofitting an existing piped stormwater system to construct a vegetated flow-through 

bioswale that collects and filters storn1water runoff prior to discharging it to a 

downstream creek; and 

2) daylighting an existing pipe outfall in an existing developed area in combination with 

the construction of a flow-through vegetated swale to filter stormwater runoff prior to 

discharging to a downstream creek.

ACWA requests that EPA specifically exclude MS-4 activities and stormwater facilities 

from the definition of "waters of the United States" in Section 40 CFR 230.3(t) and 

related provisions. 

This would be consistent with EPA's verbal representation that the proposed is not 

intended to make green infrastructure facilities jurisdictional, stating that green 

infrastructure designed to meet CWA obligations or are intended to advance water quality 

goals are excluded. This needs to be made explicit in the final rule. (p. 1-2)

Agency Response: Please see summary response at 7.4.4. With respect to the 

projects mentioned by the commenter, the jurisdictional status of pipes structures 

depends on whether or not they were built in dry land and otherwise meet the 

definition of jurisdictional waters.

Maine Municipal Association (MMA) (Doc. #16630)

7.590 For example, municipal separate stormwater sewer system (MS4) infrastructure is 

currently covered by the waste treatment system exemption, but the new definitions could 

make MS4 stormwater drainage ditches jurisdictional under the CWA above existing 

permitted discharge points. This should be clarified; an EPA administrator has verbally 

committed to the MMA and Maine municipalities that existing permits will stand yet the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

376

proposed rule casts a shadow on the reliability of that commitment. The definition of 

"tributary" ought to explicitly exclude MS4 stormwater conveyance and treatment 

systems that are already regulated under the National Pollutant Discharge Elimination 

System permit program.

MMA respectfully suggests that your agencies consider removing non-wetland 

waterbodies with a surface or shallow subsurface hydrologic connection to jurisdictional 

waters from the definition of "neighboring" and clarify that drainage ditches, catch 

basins, swales, settlement ponds and other low impact development infrastructure, as well 

as MS4 permitted discharges, continue to be exempt. (p. 2, 3)

Agency Response: With respect to stormwater control features, please see 

summary response at 7.4.4. Additionally, in order to provide more certainty to the 

public, the rule does not include a provision defining neighboring based on shallow 

subsurface flow, though such flow may be an important factor in evaluating a water 

on a case-specific basis under paragraph (a)(8), as appropriate. See Preamble at 

Section III.

NC League of Municipalities (NCLM) (Doc. #17443)

7.591 Related to the issue above and also of specific concern to League members is the 

proposed rule's effect on Municipal Separate Storm Sewer Systems (MS4). Many aspects 

of a MS4 system (ditches, channels, conveyance, etc.) are not explicitly exempt and 

could therefore be considered jurisdictional. This is a significant concern because if 

considered jurisdictional, these aspects of the MS4 system would be subject to Section 

404 permits, as well as state Water Quality Standards. The Section 404 permit process 

can be extremely cumbersome and expensive. Without a specific exemption for MS4 

system components that channel runoff, EPA and the Corps open the door for litigation 

and citizen suits that could determine that these components are jurisdictional waters and 

thereby subject to Section 404 permitting and state Water Quality Standards. The League 

believes that MS4s and their component man-made part s are systems that manage and 

control pollutants conveyed by stormwater that are regulated under the NPDES program 

and should be categorically excluded from the definition of a "waters of the U.S.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

Iowa League of Cities (Doc. #18823)

7.592 ...without a specific exemption for MS4 systems including drains, roads, pipes, curbs, 

gutters, ditches and other components that channel runoff, as well as non-MS4 stormwater systems and features/components, EPA and Army Corps open the door for 

litigation and citizen suits that could determine that they are considered a "Waters of the 

U.S." and thereby subject to Section 404 permitting and state Water Quality Standards.

EPA has stated repeatedly in public meetings and conference calls that it is not the 

intention of the rule to further impact waste water and storm water systems. However, 

during the Point Source Stakeholder call on June 17 the Agency representatives stated 

that the rule could impact new waters within MS4 collection systems but could not 

provide details as to how these determinations would be made. We understand that this 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

377

discussion is likely focused on western cities but without more explanation this provides 

uncertainty for Iowa cities trying to determine the potential impact to their systems. 

...

Request for EPA Response: Plainly state how this rulemaking will Impact storm-water 

collection systems and clearly exempt those parts of the systems that EPA does not wish 

to include.

Example Language:

"(2) The following are not 'waters of the United States' notwithstanding whether they 

meet the terms of paragraphs (1)(1)(i) through (viii) of this definition-

"(i) Waste treatment systems, including treatment ponds, lagoons, or Clean Water 

Act regulated municipal separate storm sewer systems and the component 

conveyances within such systems regulated under the National Pollutant 

Discharge Elimination System.” [designed to meet the requirements of the Clean 

Water Act.]”

(p. 3-4)

Agency Response: Please see summary response at 7.4.4.

Virginia Municipal Stormwater Association (VAMSA) (Doc. #19517)

7.593 This proposed rule should clarify beyond all doubt that stormwater treatment and 

conveyance systems are not jurisdictional waters of the United States. A local 

government should not, for example, have to be concerned that a regulator or citizen suit 

plaintiff may assert that an NPDES permit is required to discharge stormwater into its 

MS4 system. Likewise, it should be clear that a Clean Water Act § 404 permit is not 

required to perform maintenance work on a BMP. 

We understand that EPA and the Army Corps of Engineers do not intend for stormwater 

management systems to be regulated as waters of the United States. The final rule should 

express this intent with a greater degree of clarity. To this end, MAMSA and VAMSA 

make the following two recommendations on the proposed rule:

I. Add an Exclusion for Stormwater Treatment and Conveyance Systems

Many common features of MS4s and other stormwater treatment and conveyance 

systems— including many stormwater conveyance ditches and settling basins—are 

expressly excluded from regulation under the proposed definition of waters of the United 

States. However, the jurisdictional status of some stormwater management features is far 

from clear under the proposal. One example is constructed wetlands. These BMPs often 

are virtually indistinguishable from natural wetlands, notwithstanding that they are 

constructed in uplands and carefully engineered to perform important stormwater 

management functions. It is not clear which, if any, exclusion would apply to constructed 

wetlands when they are used as BMPs. That ambiguity must be resolved in the final rule. 

Stormwater management systems are vitally important to public safety and water quality. 

They deserve an express and unambiguous exclusion in the rule. The exclusion should 

clarify that no purposefully constructed stormwater management feature should be 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

378

regulated as a water of the United States. The exclusion should apply whether the feature 

is part of a larger stormwater system or is a standalone BMP, and irrespective of whether 

it is part of an MS4. The definition must also be broad enough to encompass all 

purposefully constructed stormwater conveyances and the many different and innovative 

types of stormwater BMPs. To meet these objectives, MAMSA and VAMSA propose 

that the following exclusion (italicized text) be added to the rule: 

(2) The following are not ‘‘waters of the United States’’ notwithstanding whether they 

meet the terms of paragraphs (1)(i) through (vii) of this definition

. . . . 

(vi) Stormwater management systems or features, including all portions of a municipal 

separate storm sewer, constructed in uplands and designed or used for the purpose of 

collecting, treating, infiltrating, evaporating, or conveying stormwater.

This definition would add much needed clarity to the rule. (p. 2-3)

Agency Response: Please see summary response at 7.4.4.

Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

7.594 The PA Chamber also requests that, should this rulemaking be amended, specific 

exemptions be made for stormwater conveyance and treatment systems. Otherwise, 

stormwater retention basins might be unnecessarily categorized as waters of the United 

States. The PA Chamber also requests that, should this rulemaking be amended, specific 

exemptions be made for stormwater conveyance and treatment systems. Otherwise, 

stormwater retention basins might be unnecessarily categorized as waters of the United 

States. (p. 4)

Agency Response: Please see summary response at 7.4.4.

California Building Industry Association et al. (Doc. #14523)

7.595 VIII. CWA 402 PROGRAM: MANY PERMITTED MS4 FEATURES WOULD BE 

RENDERED WATERS OF THE UNITED STATES, MAKING OPERATION OF 

THE MS4, AS PERMITTED, ILLEGAL

Perhaps nowhere is the conflict and consequence – intended or otherwise – of the 

Proposed Rule more dramatically illustrated than in the context of the nation’s 

innumerable multiple separate storm sewer or “MS4” systems. Regulated and permitted 

under Section 402 of the CWA, MS4s exist for the purpose of channelizing (as opposed 

to surface sheet flows) and transporting storm water runoff and the various pollutants and 

waste that inevitably get swept up into such flows.

MS4s are composed of everything from highly engineered treatment facilities to pipes to 

concrete-lined channels to ditches. It is indisputable that with the broad and inclusive 

definitions of “tributary” and “adjacent waters” in the Proposed Rule, component features 

of MS4s nationwide will be deemed jurisdictional waters of the United States.

This is not a mere labeling exercise or circumstance without consequence. Quite to the 

contrary, the Code of Federal Regulations expressly prohibits utilization of a water of the 

United States as a conveyance feature for an MS4 system: “[I]n no case shall a state 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

379

adopt waste transport . . . as a designated use for any water of the United States.” 40 

C.F.R. § 131.3(i).

As discussed in greater detail below, in California, the water quality control program is 

carried out by the State Water Resources Control Board and nine Regional Water Quality 

Control Boards. They implement both federal and state water quality control statutes and 

regulations primarily via adoption and enforcement of regional Basin Plans. It is in the 

Basin Plans that beneficial uses, water quality standards, and total maximum daily loads 

(TMDLs) are specified. The noted regulation, 40 C.F.R. § 131.3(i), prohibits Basin Plans 

from acknowledging waste transport as an appropriate use for designated waters of the 

United States.

But the very purpose of an MS4 is the capture and transportation of waste in storm water 

so that it is directed to appropriate treatment points and not allowed to sheet flow directly 

into receiving waters. Designating a component feature of a permitted MS4 system as a 

jurisdictional tributary renders operation of the MS4 illegal. In such an instance, you 

would have a system permitted under one provision of the CWA, Section 402, and at the 

same time its operation would violate CWA Section 404 and section 131.3(i) of the 

regulations.

Accordingly, any component feature of a functioning MS4 system under CWA section 

402 should be explicitly excluded from the Proposed Rule and recognized as nonjurisdictional. (p. 28-29)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. 

South Carolina Chamber of Commerce (Doc. #14535)

7.596 ... Similarly, there should be no question that constructed stormwater control measures 

(SCMs) should be excluded from regulation except in very specific well-defined 

situations. SCM means man-made structures, devices, measures, or Best Management 

Practices (BMPs) that are constructed for the purpose of water quality treatment, 

stormwater volume reduction, stormwater rate control, flood control, stormwater 

conveyance, or any combination of these purposes. SCM may be owned and operated by 

subdivisions of the state, such as municipalities, counties, or other governmental bodies; 

agencies of the state government such as Departments of Transportation; public business 

entities; or private business entities. Regardless of the owner/operator, SCM should be 

excluded from the definition of WOTUS except in the very limited circumstances 

described below.

SCMs include the following man-made features: constructed stormwater ponds, 

constructed stormwater wetlands, rain gardens, infiltration devices and structures, 

groundwater recharge facilities, stormwater reuse facilities, swales, bioswales, Low 

Impact Development structures and BMPs, pipes, streets, curbs, gutters, roadside ditches, 

man-made channels, storm drains, and other constructed stormwater control and 

conveyance structures, devices, and features.

SCMs that have been built at the approximate location of similar types of natural waters 

(such as stormwater ponds constructed at the location of natural lakes or natural wetlands, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

380

ditches constructed at the location of natural streams or creeks, or stormwater channels 

constructed at the location of natural rivers) shall be excluded from this exemption and 

may be WOTUS. Natural lakes, natural ponds, and natural wetlands with stormwater 

conveyance pipes discharging to them and with constructed outlets shall be excluded 

from this exemption and may be WOTUS, although the stormwater conveyance pipes or 

channels are not WOTUS. (p. 4-5)

Agency Response: Please see summary response at 7.4.4.

Greater Houston Partnership (Doc. #14726)

7.597 GHP supports the exemptions outlined in the proposed rule, however, as described 

elsewhere in this letter, we suggest the rule include some additional explicit exemptions. 

GHP also urges that the rule be modified to explicitly include an exemption for 

stormwater detention and retention basins and related constructed drainage channels and 

drainage storm sewers designed for flood damage reduction or water quality 

improvement. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Institute of Scrap Recycling Industries, Inc. (Doc. #15041)

7.598 2.3 Significance of Ditches, Pipes, and Storm Sewers Conveying Stormwater Discharges 

as Waters of the U.S.

The possibility that the Proposed Rule could cause ditches, pipes, and storm sewers 

conveying regulated stormwater discharges to be “waters of the U.S.” themselves and 

thus subject to additional CWA regulation would be a surprising regulatory outcome and 

is almost certainly not what Congress intended or expected via the CWA. If the purpose 

of identifying waters as “waters of the U.S.” is to be able to use the CWA to protect such 

waters, which are assumed to lack CWA protection in the first place, then it would be 

unnecessary to declare waters that are already regulated by the CWA (e.g., NPDES 

permits for stormwater discharges) as “waters of the U.S.” because the CWA would 

already apply to them and enable their protection.

Making such ditches, pipes, and storm sewers and/or the regulated stormwater discharges 

conveyed by them “waters of the U.S.” would theoretically require, among other things, 

designating uses, setting water quality standards, and establishing total maximum daily 

loads for those ditches, pipes, and storm sewers and/or regulated stormwater discharges. 

Those would be pointless exercises and wastes of EPA’s limited resources, especially 

when CWA authority could have been used already to address any issues posed by such 

regulated stormwater discharges. Furthermore, such ditches, pipes, and storm sewers 

would become new or additional receiving waters, and such stormwater discharges would 

effectively be their own receiving waters! This would be a particularly surprising 

outcome.

Another potential surprising outcome is related to the storage of oil in containers at 

industry facilities. For this discussion, the facility has also developed and implemented an 

SPCC plan, as required by 40 CFR §112, to prevent the “discharge [of] oil in quantities 

that may be harmful, as described in part 110 of this chapter, into or upon the navigable 

waters of the United States...” (40 CFR §112.1(b)). An oil discharge is “harmful” if it 
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381

“(a) [v]iolate[s] applicable water quality standards; or (b) [c]ause[s] a film or sheen upon 

or discoloration of the surface of the water or adjoining shorelines or cause[s] a sludge or 

emulsion to be deposited beneath the surface of the water or upon adjoining shorelines” 

(40 CFR §110.3). If the ditches, pipes, or storm sewers that convey stormwater 

discharges from the facility to receiving waters were “waters of the U.S.” under the 

proposed definition, then it would seem that any released oil that touches such ditches, 

pipes, or storm sewers would be “harmful”, whether or not the released oil would have 

affected or did affect the receiving water in a “harmful” way. Providing notice of a 

harmful release (40 CFR §110.3) would be required immediately, and the notice would 

potentially have to identify two or more receiving waters as being harmed (e.g., the pipe, 

ditch, and receiving water in flow order). This would be a surprising outcome.

To prevent these surprising regulatory outcomes and any resulting pointless and resourceconsuming regulatory endeavors, the proposed definition should specifically exclude 

water discharges subject to NPDES permits (e.g., industrial stormwater discharges), 

which are already regulated under the CWA, and any conveyances of such NPDESpermitted discharges (e.g., ditch, pipe, and storm sewer) from being or becoming “waters 

of the U.S.” subject to additional CWA regulation. (p. 7-8)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. See also 

responses to SPCC comments at 12.5. 

Federal StormWater Association (Doc. #15161)

7.599 Stormwater Program Implications

The proposed rule includes exemptions from the current regulations, but those 

exemptions are based on clarifications of the scope of federal jurisdiction in those prior

rulemaking preambles. Unfortunately, the explanations from the preambles of prior rules 

are no longer valid because the agencies have changed the underlying basis for defining 

waters of the U.S. This oversight could alter the applicability of the exemptions to the 

agencies’ determinations regarding what is a jurisdictional water. And, while we agree 

that there are many waters that are not the primary focus of the CWA, the agencies have 

not established a rational basis for drawing the line between water that is federally 

regulated and water that is left to state jurisdiction or otherwise exempt. This has led to 

significant uncertainty.

Many facilities regulated by the CWA stormwater permit program rely upon various 

exemptions to ensure that existing treatment ponds, drainage areas, or other “water” 

features are not the regulated point of discharge into a water of the U.S. For example, 

current regulations include exemptions for waste treatment systems, including 

impoundments “designed to meet the requirements of the Clean Water Act.” While the 

words of the wastewater treatment exemption are not being changed, the agencies are 

proposing to add a comma before the “designed to” clause, thus applying that clause to 

all waste treatment systems, not just impoundments. This change would create significant 

uncertainty about the scope of the long-standing waste treatment system exemption. The 

agencies must be clear that facilities with fully compliance stormwater treatment systems 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

382

today do not have parts of those systems deemed waters of the U.S. as a result of any 

final rule resulting from this proposal.

Municipal Separate Storm Sewer Systems (or MS4s) play important roles in collecting 

and treating stormwater discharges from industrial and commercial operations. In 

addition, some large manufacturing plants have drainage systems that may mirror or are 

included in larger MS4 systems. The status of these drainage systems under the agencies 

proposed rule is critical, yet unclear.

In the comprehensive and exhaustive proposed rule, nowhere do the agencies mention 

MS4s – much less the elaborate CWA regime that governs and regulates these systems 

across the United States. Municipal pollutant discharges from MS4s are one of three 

categories of stormwater permits authorized by CWA Section 402(p).308 For over 20 

years, EPA has implemented Congress’s plan for a “phased” approach to regulate 

municipal runoff based on the size of the population served by an MS4.309 NPDES 

permits must be obtained for all stormwater discharges from “large” and “medium” MS4s 

under so-called “Phase 1” rules,310 and from regulated “small” MS4s under Phase 2 

rules.311

The CWA’s overriding regulatory objective is to prohibit pollutant discharges without a 

permit – such as a permit issued under the NPDES program.312 Stormwater that conveys 

pollutants”313 from a “point source”314 into waters of the U.S. are a type of “discharge”315

 

308 42 U.S.C. § 1342(p)(2). The other categories are discharges associated with “industrial activity” (including land 

disturbing construction activities), and certain other discharges that, as EPA determines on a case-by-case basis, 

contribute to a water quality violation or other significantly pollutants to waters of the U.S.. See EDC, 344 F.3d at 

841-842.

309 See 33 U.S.C. § 1342(p)(2)-(4), (6) (two-phase approach for stormwater regulation). MS4s can be “large,” 

“medium,” or “small.” Large MS4s serve a population of 250,000 or more (40 CFR § 122.26(b)(4)), while medium 

MS4s serve a population of 100,000 or more but less than 250,000. (Id. § 122.26(b)(7)). Large and medium MS4s 

have been subject to NPDES regulation since 1990 under the so-called “Phase 1” rules, see 55 Fed. Reg. 47,990 

(Nov. 16, 1990) (codified at 40 CFR pts. 122-124). Small MS4s (defined id. § 122.26(b)(16) have been regulated 

since 1999 under the “Phase 2” rules, see 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at 40 CFR pts. 9, 122, 123, 

and 124). The phased approach for the NPDES stormwater permit program, including MS4 discharge permits, is 

discussed at EDC, 344 F. 3d at 841-842.

310 See, e.g., 40 CFR §§ 122.26(a)(3), (4).

311 See, e.g., id. § 122.26(a)(5).

312 33 U.S.C. §§ 1311(a), 1342(a); see Envt’l Def. Ctr. v. EPA, 344 F. 3d 832, 841 (9th Cir. 2003) (“EDC”) (the 

CWA “prohibits the discharge of pollutants from a ‘point source’ into the waters of the United States without a 

permit issued under the terms of the National Pollutant Discharge Elimination System ....”).

313 While Congress exempted most discharges “composed entirely of stormwater” (i.e., not mixed with wastewater 

or other regulated discharges) (33 U.S.C. § 402(p)(1), it specifically identified certain MS4 and industrial 

stormwater pollutant sources for permitting to control pollutants discharged in stormwater from those point sources. 

The CWA defines “pollutants” to mean wastes like “dredged spoil, solid waste, ... sewage, garbage sewage sludge, 

... chemical wastes, biological materials, ... heat, ... rock, sand, cellar dirt, and industrial, municipal and 

agricultural waste discharged into water.” 33 U.S.C. § 1362(6). See LA Cnty. Flood Control Dist. v. NRDC, 133 S. 

Ct. 710, 712 (2013) (“Because stormwater is often heavily polluted, ... the CWA and its implementing regulations 

require the operator of an MS4 ... to obtain a [NPDES] permit before discharging storm water into navigable 

waters”); EDC, 344 F.3d at 840-841 (“Storm sewer waters carry suspended metals, sediments, algae-promoting 

nutrients (nitrogen and phosphorous), floatable trash, used motor oil, raw sewage, pesticides, and other toxic 

contaminants ....”) In Virginia DOT v. EPA, 2013 WL 53741 (E.D. Va., Jan. 3, 2013), the court held that EPA did 

not have the statutory authority to establish a Total Maximum Daily Load (TMDL) based on “stormwater flow rate” 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

383

that triggers NPDES permitting requirements. Regulations define MS4s as “a conveyance 

or system of conveyances ... designed or used for collecting or conveying storm 

water.”316 The component “conveyances” within a larger MS4 “system” collect and 

channel runoff through “roads with drainage systems, municipal streets, catch basins, 

curbs, gutters, ditches, man-made channels, or storm drains.”317 The MS4 definition 

closely tracks the separate definition of “point source”318– thus confirming that “’[s]torm 

sewers are established point sources subject to NPDES permitting requirements” within 

section 402’s regime.319 All of the municipally owned or operated pipes, curbs, gutters, 

ditches, drains and other conveyances that comprise an MS4 system collect and carry 

stormwater to an “outfall” – specifically designated by EPA’s regulations as a “point 

source” because it is “the point where a municipal separate storm sewer discharges to 

[waters of the U.S.].”320

EPA’s pronouncements in developing NPDES regulations have long distinguished 

between MS4s as “point sources” on the one hand, and the “waters of the United States” 

on the other hand. In the 1990 preamble to the Phase 1 regulations, EPA stated that 

stormwater runoff into municipal sewers (including MS4-controlled ditches, roads, storm 

drains, etc.) is not a discharge of a pollutant into a waters of the U.S.

In the context of the Phase 1 regulations, a municipality commented to EPA “that neither 

the term ‘point source’ nor ‘discharge’ should be used in conjunction with industrial 

releases into urban storm sewer systems because that gives the impression that such 

systems are navigable waters.”321 EPA responded that it, “[A]lways addresses such 

 

as a “surrogate” or “proxy” for sediment. Id. at *2, *3. For purposes of the CWA, the court stated “sediment is a 

pollutant, ... but stormwater is not. “ Id. at *3. In short, stormwater is subject to NPDES permit requirements to the 

extent such runoff discharges “pollutants” into waters of the U.S.

314 “The term ‘point source’ means any discernible, defined and discrete conveyance, including but not limited to, 

any pipe, ditch, channel, tunnel, conduit, well ... [or] container ... from which pollutants are or may be discharged.”

33 U.S.C. § 1362(14); 40 CFR § 122.2.

315 The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point 

source ....” 33 U.S.C. § 1362(12) (emphasis supplied). Thus, in the “discharge” definition, Congress distinguished 

between “navigable waters” (defined to mean waters of the U.S. at 33 U.S.C. § 1362(7)) on the one hand, and “point 

sources” on the other hand. EPA regulations likewise specify that “discharge of a pollutant” includes “additions of 

pollutants into [waters of the U.S.] from ... discharges through pipes, sewers, or other conveyances owned by a 

State, municipality, or other person which do not lead to a treatment works ...” 40 CFR § 122.2. Thus, “point 

sources” (like MS4s) serve the function to convey and carry pollutants, and are features from which pollutants are 

discharged into waters of the U.S. . But “point sources” are not themselves waters of the U.S. Congress did not give 

the Agencies broad authority over “point sources” as conveyances per se -- but only conferred limited federal 

permitting authority over the activity of a “discharge” when a “point source” adds a pollutant to waters of the U.S.. 

See S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-110 (2004) (emphasizing that CWA permits 

are required for “any addition” of pollutants to waters of the U.S., not the movement of pollutants within the same 

waterbody).

316 40 CFR § 122.26(b)(8) (emphasis supplied).

317 Id.

318 See supra note 15.

319 EDC, 344 F.3d. at 841 (citing NRDC v. Costle, 568 F.2d 1369, 1379 (D.C. Cir. 1977)).

320 40 CFR § 122.26(b)(9). A “major” MS4 outfall discharges from a single pipe with an inside diameter of 36 

inches or more; or an inside diameter of 12 inches in the case where an MS4 receives stormwater from lands zoned 

for construction and other types of industrial activity. Id. § 122.26(b)(7).

321 Id.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

384

discharges as ‘discharges through municipal separate storm sewers’ as opposed to 

‘discharges to waters of the United States.”322 In addition, implementing regulations 

require MS4 permit applicants to identify and list “water bodies” that receive discharges 

from municipal storm systems – further making plain that EPA does not consider MS4s 

as jurisdictional water bodies under the CWA.323

But, as stated above, the overly broad proposed definition of “tributary” may improperly 

treat MS4s not as conveyance systems but as jurisdictional waters. Pursuant to the 

proposed rule, a “tributary” is a waterbody that has a bed, bank and ordinary high water 

mark (OHWM), and contributes flow to waters that are used in interstate commerce, 

territorial seas, interstate waters, and their impoundments. The agencies further explain 

that ponds and wetlands are “tributaries” as long as they also contribute flow. In addition, 

“tributaries” can be manmade; their flow may be ephemeral, intermittent, or perennial; 

and they may be broken by features such as pipes, culverts and dams.324

MS4 systems often include ditches and other manmade structures that have a bed, bank 

and OHWM. Moreover, as they are designed to convey and treat stormwater, MS4s will 

contribute flow (directly or indirectly) to traditionally jurisdictional waters. Under the 

proposed tributary definition, these common MS4 components – owned and controlled by 

municipalities, and already subject to NPDES permit requirements – could be 

confusingly and unnecessarily layered with more federal regulation as a jurisdictional 

water. Certainly, Congress never envisioned a circumstance where a “water of the U.S.” 

could be located within a “point source.”

Further, CWA Section 303 requires States to adopt and submit to EPA water quality 

standards (WQSs) which “consist of a designated use or uses for the waters of the United 

States ....”325 If MS4s were waters of the U.S., then state-developed and EPA-approved 

WQSs would need to designate “uses” for storm sewer systems. However, “in no case 

shall a State adopt waste transport ... as a designated use for any water of the United 

States.”326 Yet one of the very purposes of an MS4 and the ditches, drains and gutters 

within these systems is, in fact, to transport waste. It would be impossible to designate a 

WQS for an MS4 for any other reason but to convey and treat stormwater – in plain 

violation of EPA’s regulations for water quality standards.327

 

322 Id. (emphasis supplied). Indeed, the CWA’s “discharge” definition drives home the point that Congress did not 

intended MS4s and other permitted “point sources” to be waters of the U.S. See supra notes 15-16. For purposes of 

these comments, the CORE Associations maintain that permitted MS4s are categorically not waters of the U.S. We 

do not address here whether, or under what circumstances, other “point sources” can ever be considered waters of 

the U.S.

323 40 CFR § 122.26(d)(1)(iv).

324 See, e.g., id. at 22,202, col. 3 (“[T]ributaries that have been channelized in concrete or otherwise have been 

human altered, may still meet the definition of tributaries under the agencies’ proposed regulation so long as they 

still contribute flow to an (a)(1) through (a)(4) water. The agencies’ proposed definition of tributary provides a nonexclusive list of the types of waters, natural, man-altered, and man-made, that may be tributaries: .... [P]onds, 

impoundments, canals, and ditches not excluded in paragraphs (b)(3) or (4) of the proposed rule.”

325 33 U.S.C. § 1313; 40 CFR § 131.3(i). 

326 40 CFR § 131.10(a).

327 In the context of industrial discharges into MS4s, EPA has explained that the discharger’s obligation to satisfy 

WQSs is “at the boundary of a State established mixing zone ... located in the receiving waters of the United 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

385

Moreover, if an MS4 were somehow deemed a water of the U.S., then the MS4’s NPDES 

permit becomes an approval to discharge pollutants from one jurisdictional water into 

another jurisdictional water. Of course, Congress required permits for discharges from 

point sources into waters of the U.S. – not for discharges from a water of the U.S. to a 

water of the U.S.328 To avoid such an untenable result within the Act’s structure and the 

agencies’ own regulations, they should thus clarify that MS4s are not waters of the U.S.. 

Without such clarification, MS4s could be forced to break up their MS4 permit programs 

into smaller pieces so that each permit is limited to each discharge into a water of the 

U.S., further confusing and adding complexity when the agencies’ intent was the 

opposite. (p. 7-11)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. Also see the 

Technical Support Document at I.C.

National Association of Home Builders (Doc. #19540)

7.600 a. The Waste Treatment Systems Exclusion Should Explicitly State that Municipal 

Separate Storm Sewer Systems (MS4s), Green Infrastructure, and Stormwater 

Management Facilities are Excluded.

The proposed rule’s waste treatment systems exclusion falls short of explicitly excluding 

municipal separate storm sewer systems (MS4s) and other infrastructure designed to treat 

stormwater. Off the record, the Agencies have stated that these features are not “waters of 

the United States,” but unofficial statements carry no regulatory weight.329 Instead, 

specific language should be included in the regulation itself. (p. 105-106)

Agency Response: Please see summary response at 7.4.4.

Federal Water Quality Coalition (Doc. #15822.1)

7.601 2. Point source conveyances.

Water in a point source conveyance is not a water of the U.S. Rather, such water may be 

discharged to a water of the U.S. from the conveyance. That discharge may carry 

pollutants that are regulated under section 404 or 402 (or may be exempt by statute). 

However, the water itself is not regulated until it is discharged and enters a channel that is 

a water of the U.S.330

 

States.” 55 Fed. Reg. at 48,037. That is, the industrial discharger’s obligation to satisfy WQSs does not pertain to 

such standards for the very storm sewer system itself.

328 Moving pollutants within the same waterbody is not a “discharge” because no pollutants are added, and hence do 

not trigger CWA permitting obligations. See, e.g., LA Cnty. Flood Control Dist. v. NRDC, 133 S. Ct. 710, 733 

(2013); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. (2004) (both cases quoting Catskill Mountains 

Chapter of Trout Unlmtd., Inc. v. New York, 273 F.3d 481, 492 (2nd Cir. 2001)).

329 EPA and U.S. Army Corps of Engineers, Questions and Answers – Waters of the U.S. Proposal (Sept. 9, 2014), 

http://www2.epa.gov/sites/production/files/2014-09/documents/q_a_wotus.pdf (hereinafter, September 2014 Q & 

A).

330 See, e.g., National Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011) (water in a lagoon is not 

regulated under the CWA until it is discharged); American Iron and Steel Inst. v. EPA, 155 F.3d 979, 996 (D.C. Cir.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

386

For example, EPA has long recognized that collected stormwater is not a water of the 

U.S. Thus, all of the municipally owned or operated pipes, curbs, gutters, ditches, drains, 

and other conveyances that comprise an MS4 system collect and carry stormwater to an 

“outfall,” which is specifically designated by EPA’s regulations as a “point source” 

because it is “the point where a municipal separate storm sewer discharges to 

[WOTUS].”331 Industrial stormwater, including runoff from many construction sites, also 

is collected and discharged through an outfall.332 If stormwater collection systems 

themselves were considered waters of the U.S., then EPA would have no authority to 

regulate the discharge from the collection system to a river or stream.181 Runoff into 

municipal and industrial stormwater collection systems would be unregulated nonpoint 

sources, and the collection systems themselves would be waters of the U.S. that merely 

transfer water to another water of the U.S. The result would leave stormwater 

unregulated, undermining the objectives of Congress in section 402(p) of the CWA and 

reducing the protection of the environment.

A reproposal that limits tributaries to natural streams, as suggested above, would add 

certainty by making make it clear that conveyances, such as MS4 systems, are not waters 

of the U.S. As noted by one of the SAB Panel members, the agencies must distinguish 

between infrastructure and waters of the U.S.333 (p. 67-68)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. 

American Society of Civil Engineers (Doc. #19572)

7.602 Clarify Potential Jurisdiction Over Municipal Separate Storm Sewer Systems (MS4)

Nearly a third of the ASCE members surveyed on the proposed rule expressed significant 

concern about the potential impacts of the rule on managing Municipal Separate Storm 

Sewer Systems (MS4s). Nowhere in the proposed rule is the term “MS4” mentioned, yet 

the rule applies to all sections of the Clean Water Act including the NPDES program. The 

agencies must address the relationship between MS4 stormwater programs and 

jurisdiction over ditches. We recommend that the final rule either expressly exclude 

 

1997) (“The statute is clear: The EPA may regulate the pollutant levels in a waste stream that is discharged directly 

into the navigable waters of the United States through a "point source"; it is not authorized to regulate the pollutant 

levels in a facility's internal waste stream.”).

331 40 C.F.R. § 122.26(b)(9). A “major” MS4 outfall discharges from a single pipe with an inside diameter of 36 

inches or more; or an inside diameter of 12 inches in the case where an MS4 receives stormwater from lands zoned 

for construction and other types of industrial activity. Id. § 122.26(b)(7). For a further discussion of the distinction 

between MS4s and waters of the U.S. see the August 8, 2014 comments of the Coalition of Real Estate (“CORE”) 

Associations.

332 According to EPA’s Phase 1 stormwater rules an “industrial activity” includes construction activity (such as land 

clearing, grading and excavation) on sites larger than five acres, but may also include land clearing activities on 

smaller lots in a common plan or development (like a subdivision) that is five acres or more. 40 C.F.R. § 

122.26(b)(14)(x). Under the Phase 2 rules, “small construction activity” on sites between one and five acres must 

also obtain NPDES permit coverage for stormwater discharges. Id. § 122.26(b)(15).

333 See 40 C.F.R § 122.3(i) (the transfer of water from one water of the U.S. to another does not require a permit 

even if the water carries pollutants).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

387

MS4s from jurisdiction under §(t) or provide additional guidance on their potential 

jurisdiction. Broadly read, the proposed rule MS4s could qualify as “waste treatment 

systems” under §(t)(1).

Many of our members manage MS4 systems. There is concern that if a MS4 becomes 

jurisdictional in addition to the current regulation under 402(p) that locations of outfalls, 

and therefore the point of regulation could change. MS4 permit holders would then not 

only be regulated at the point of discharge into a water of the U.S., but also when a 

pollutant initially enters the stormwater conveyance system. MS4 systems should 

continue to be regulated as point sources and not considered “waters of the U.S.” since 

they cannot be both. (p. 9)

Agency Response: Please see summary response at 7.4.4.

Coalition of Real Estate Associations (Doc. #5058.2)

7.603 In the comprehensive and exhaustive Proposed Rule, nowhere do EPA and the Corps (the 

“Agencies”) mention the term “MS4” – much less the elaborate Clean Water Act 

(“CWA”) regime that governs and regulates these systems across the United States. The 

CORE Associations believe that the Agencies must address the interplay between the 

MS4 stormwater program and WOTUS coverage. Indeed, the Proposed Rule’s “strong 

intent to provide as much certainty to the regulated public and the regulators”334 requires 

clarification on the jurisdictional status of MS4s. Moreover, while EPA’s recent “Ditch 

the Myth” campaign335 states that the Proposed Rule “cuts through the red tape” to offer 

greater certainty and consistency on WOTUS determinations – with an emphasis on 

ditches – nowhere does EPA specifically address ditches that are components in 

permitted MS4s. Respectfully, this is a glaring omission in the agencies’ otherwise 

exhaustive proposed treatment of WOTUS matters. Consistent with EPA Administrator 

McCarthy’s commitment to address key issues of concern in the WOTUS context,336 the 

jurisdictional status of MS4s and their component conveyances is the very kind of issue 

that warrants the agencies’ careful deliberation and clear explanation.

Accordingly, the Agencies should state in plain language whether CWA permitted MS4 

systems and their component conveyances are “in” or “out” of the scope of WOTUS. The 

CORE Associations suggest there is little room for gray area or case-by-case field 

determinations on this point. We believe that:

 “Waste treatment systems” have long been excluded from WOTUS jurisdiction

under EPA and Corps regulations – including the regulations implementing the 

permit program for the National Pollutant Discharge Elimination System 

(“NPDES”) authorized by CWA section 402.337 MS4s are “waste treatment 

 

334 77 Fed. Reg. at 22,189, col. 2.

335 See http://www2.epa.gov/uswaters/ditch-myth.

336 “I commit to you that if you raise an issue of concern, I will address it.” Administrator Gina McCarthy, Remarks 

at the Agricultural Business Council of Kansas City on Clean Water Proposal, As Prepared (July 10, 2014) 

(“McCarthy Remarks”). Available at 

http://yosemite.epa.gov/opa/admpress.nsf/8d49f7ad4bbcf4ef852573590040b7f6/aa42d63b31d4b1fa85257d1100661

68b!OpenDocument.

337 See 40 C.F.R. § 122.2 (exclusions from WOTUS definition at subsection (b)(1)).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

388

systems” and, accordingly, should be categorically excluded from the reach of 

WOTUS.

 The CORE Association’s proposal to exclude MS4s from WOTUS jurisdiction as 

waste treatment systems is not to avoid CWA regulation. Rather, our proposal is 

intended to avoid double regulation. MS4s – and the drains, roads, pipes, curbs, 

gutters, ditches and other component parts of these systems that channel runoff –

are regulated “point sources” that discharge pollutants conveyed in stormwater. 

Though section 402(p), Congress required MS4s to obtain NPDES permits for 

stormwater discharges.338 Thus, because MS4s and all identified components of 

these systems are already subject to NPDES permitting requirements, excluding 

them for WOTUS jurisdiction as waste treatment systems is wholly consistent 

with the Act’s objective to “restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters.”339...

 ...Deeming permitted MS4s and their components as WOTUS would also 

contravene the plain language of the CWA and implementing regulations, and 

lead to strained and illogical regulatory results. For example, if a ditch within an 

NPDES-permitted MS4 system was somehow deemed jurisdictional, then a 

“water of the United States” would be located within a regulated “point source.” 

That result would upend the Act’s entire regulatory structure. Similarly, if an MS4 

was a WOTUS, then States and EPA would be compelled to establish water 

quality standards, criteria, and total maximum daily loads for municipally-owned 

storm sewers. Nothing in the CWA’s language, structure, or legislative history 

supports such interpretations. These and other untenable results would be easily 

avoided by the Agencies’ express clarification that the exclusion for waste 

treatment systems captures MS4s.

Ditches are a common component in MS4s to convey and channel stormwater runoff. 

The Proposed Rule suggests that some ditches are excluded from WOTUS coverage, 

while other ditches are “tributaries” and thus within CWA jurisdiction. These comments 

do not opine on the jurisdictional treatment of ditches outside of permitted MS4s. But to 

the extent that ditches (and other system components) are mapped and identified as part 

of an MS4, and subject to an NPDES permit governing the MS4 of which they are a part, 

then such ditches (and components) should not be WOTUS under the exclusion for waste 

treatment systems.340 The CORE Associations thus recommend modest – but important –

changes to the Proposed Rule, as follows:

“(b) The following are not ‘waters of the United States’ notwithstanding whether 

they meet the terms of paragraphs (a)(1) through (7) of this definition—

 

338 33 U.S.C. § 1342(p)(1). See also id. § 1342(p)(3)(B) (establishing contours of “permit requirements” for 

“discharges from municipal storm sewers ....”

339 Id. § 1251(a).

340 This comment letter focuses on regulated MS4s. However, there are other stormwater systems and conveyances 

not covered by NPDES permits that the Agencies should also exempt from the WOTUS definition. Certain CORE 

members will comment on those systems separately.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

389

“(1) Waste treatment systems, including treatment ponds, lagoons, or 

Clean Water Act regulated municipal separate storm sewer systems and 

the component conveyances within such systems.”

341 [designed to meet 

the requirements of the Clean Water Act.]”

342 (p. 2-4)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. Also see 

Technical Support Document at Section I.

7.604 II. MS4s AND THEIR COMPONENT CONVEYANCES SHOULD BE 

EXPRESSLY EXCLUDED FROM WOTUS JURISDICTION.

The Proposed Rule is intended to offer “greater clarity to regulated entities as to whether 

[or not] individual water bodies are jurisdictional” under the CWA.343 The Agencies’ aim 

of improved regulatory predictability is to “minimiz[e] the number of case specific” 

WOTUS determinations in the field.344 Because of the “strong intent to provide as much 

certainty to the regulated public and the regulators as to which waters are and are not

jurisdictional,” EPA and the Corps have specifically requested comment on “which 

waters should be determined non-jurisdictional.”345

In this regard, the CORE Associations respectfully urge the Agencies to clarify that 

WOTUS jurisdiction does not reach MS4s and the component conveyances that comprise 

these systems. Any final rule should state that MS4s fall within the “waste treatment 

systems” exclusion from WOTUS, at 40 C.F.R. § 122.2 of the NPDES program 

regulations.346 The CORE Associations thus recommend modest – but important –

changes to the Proposed Rule, as follows:

“(b) The following are not ‘waters of the United States’ notwithstanding whether 

they meet the terms of paragraphs (a)(1) through (7) of this definition—

“(1) Waste treatment systems, including treatment ponds, lagoons, or 

Clean Water Act regulated municipal separate storm sewer systems 

and the component pollutant conveyances within such systems.

designed to meet the requirements of the Clean Water Act”

 

341 The last sentence of the “waste treatment systems” exclusion reads: “This exclusion applies only to manmade 

bodies of water which neither were originally created in waters of the United States (such as disposal areas in 

wetlands,) nor resulted from the impoundment of waters of the United States.” 40 C.F.R. § 122.2(b). Since 1980, 

EPA has “suspended” this last sentence. See 45 Fed. Reg. 48,620 (July 21, 1980); 48 Fed. Reg. 14,153 (Apr. 1, 

1983). The Proposed Rule continues this longstanding suspension, with which the CORE Associations agree. See 79 

Fed. Reg. at 22,268 col. 3.

342 The condition in the last clause that waste treatment systems be “designed to meet the requirements of the Clean 

Water Act” unnecessarily narrows the exclusion. Certain waste treatment systems are designed to meet state and 

local (as opposed to federal) requirements, but should still be excluded from the WOTUS definition. Some members 

of the CORE Associations will provide separate comments concerning this issue.

343 Proposed Rule, 79 Fed. Reg. at 22,188, col. 3.

344 Id.

345 Id. at 22,189, col. 2 (emphasis supplied).

346 Conforming changes should be made to all relevant WOTUS definitions in the “List of Subjects” in the Code of 

Federal Regulations set forth in the Proposed Rule at 79 Fed. Reg. 22,262, cols. 2-3.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

390

A categorical WOTUS exclusion of MS4s and their component conveyances is warranted 

for the following reasons:

A. MS4s are “waste treatment systems” – which have never been considered 

WOTUS. No lessened protections for aquatic resources would result by 

clarifying that MS4s are not WOTUS.

As explained above, MS4s are systems that treat wastes transported by stormwater. This 

fact is amplified by Congress’s direction that MS4s must control stormwater pollutants 

“to the maximum extent practicable” by deploying a suite of best management practices, 

control techniques, and engineering methods designed to treat pollutants in runoff.347 A 

2005 memorandum from EPA’s General Counsel and Assistant Administrator for Water 

confirms that “waste treatment systems” are “by definition” not WOTUS.348

Excluding MS4s from WOTUS jurisdiction will not lower protection of aquatic 

resources, because pollutant discharges from these systems are fully covered by the 

comprehensive and exhaustive NPDES regime. Direct or indirect discharges – from MS4 

outfall points into WOTUS – must be permitted under all of the section 402 authorities 

and implementing regulations controlling additions of pollutants from point sources.349

Furthermore, when an industrial activity results in a discharge into an MS4, EPA has 

“always addressed such discharges as discharges through [MS4s] as opposed to 

‘discharges to waters of the United States’ ....”350 EPA thus provides an exhaustive 

online library of resources for MS4 operators to detect, eliminate, and take action against 

“illicit discharges” into their systems.351 Indeed, a municipal program to fully address 

“illicit discharges” is a prerequisite to Section 402 permit coverage for any municipal 

storm sewer.352 As EPA’s guidance manual for MS4s explains:

Provisions of the Clean Water Act (1987) require National Pollutant Discharge 

Elimination System (NPDES) permits for storm water discharges. Section 402 

(p)(3)(B)(ii) requires that permits for municipal separate storm sewers shall 

include a requirement to effectively prohibit problematic non-storm water 

discharges into storm sewers. Emphasis is placed on the elimination of 

inappropriate connections to urban storm drains. This requires affected Agencies 

to identify and locate sources of non-storm water discharges into storm drains so 

they may institute appropriate actions for their elimination.353

 

347 33 U.S.C. § 1342(p)(3)(B).

348 Memorandum from Ann R. Klee, General Counsel, and Benjamin H. Grumbles, Assistant Administrator for 

Water, Environmental Protection Agency, to Regional Administrators, Regarding Agency Interpretation on 

Applicability of Section 402 of the Clean Water Act to Water Transfer, at 18, n. 18 (Aug. 5, 2005) (available at 

http://www.epa.gov/ogc/documents/water_transfers.pdf). 

349 See supra notes 34-44.

350 Preamble to Phase 1 Rule, 55 Fed. Reg. 47,900, 47,997 (Nov. 16, 1990) (emphasis supplied).

351 See http://cfpub.epa.gov/npdes/stormwater/idde.cfm.

352 See supra notes 40-44.

353 Center for Watershed Protection, et al., “Illicit Discharge Detection and Elimination: A Guidance Manual for 

Program Development and Technical Assessments,” (October 2004) at p. i, available at 

http://www.epa.gov/npdes/pubs/idde_manualwithappendices.pdf
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

391

In short: Because MS4s and their component parts are waste treatment systems that 

manage and control pollutants conveyed by stormwater, they should be categorically 

excluded from the scope of WOTUS. (p. 11-13)

C. Treating MS4s (and their component conveyances) as WOTUS would undermine 

longstanding EPA interpretations and practice.

EPA’s pronouncements in developing NPDES regulations have long distinguished 

between MS4s as “point sources” on the one hand, and the “waters of the United States” 

on the other hand. In the 1990 preamble to the Phase 1 regulations, EPA stated that 

stormwater runoff into municipal sewers (including MS4-controlled ditches, roads, storm 

drains, etc.) is not a discharge of a pollutant into a WOTUS. In the context of the Phase 1 

regulations, a municipality commented to EPA “that neither the term ‘point source’ nor 

‘discharge’ should be used in conjunction with industrial releases into urban storm sewer 

systems because that gives the impression that such systems are navigable waters.”354

EPA responded that it:

“[A]lways addresses such discharges as ‘discharges through municipal separate 

storm sewers’ as opposed to ‘discharges to waters of the United States.”355

In addition, implementing regulations require MS4 permit applicants to identify and list 

“water bodies” that receive discharges from municipal storm systems – further making 

plain that EPA does not consider MS4s as jurisdictional water bodies under the CWA.356

A contrary interpretation – whereby an MS4 and its component conveyances could 

possibly be swept within the scope of WOTUS – would yield unintended and 

unreasonable results. The proposed rule explains that the term “navigable waters” 

(defined by statute to mean WOTUS)357 “is used in a number or provisions of the 

CWA”358 including “the water quality and total maximum daily load programs under 

section 303, and the section 401 state water quality certification process.” Application of 

these programs to MS4s and their conveyances – a result that would follow upon 

deeming these storm sewer systems as WOTUS – would lead to strained agency

interpretations and likely cause increased litigation.

For example, section 303 requires States to adopt and submit to EPA water quality 

standards (“WQSs”) which “consist of a designated use or uses for the waters of the 

United States ....”359 If MS4s were WOTUS, then State-developed and EPA-approved 

WQSs would need to designate “uses” for storm sewer systems. However, “in no case 

shall a State adopt waste transport ... as a designated use for any water of the United 

 

354 Id. [SWANCC, 531 U.S. at 173.]

355 Id. (emphasis supplied). Indeed, the CWA’s “discharge” definition drives home the point that Congress did not 

intended MS4s and other permitted “point sources” to be WOTUS. See supra notes 15-16. For purposes of these 

comments, the CORE Associations maintain that permitted MS4s are categorically not WOTUS. We do not address 

here whether, or under what circumstances, other “point sources” can ever be considered WOTUS.

356 40 C.F.R. § 122.26(d)(1)(iv).

357 33 U.S.C. § 1362(7) (“The term ‘navigable waters’ means the waters of the United States, including the territorial 

seas”).

358 79 Fed. Reg. at 22,191, col. 2.

359 33 U.S.C. § 1313; 40 C.F.R. § 131.3(i).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

392

States.”360 Yet one of the very purposes of an MS4 and the ditches, drains and gutters 

within these systems is, in fact, to transport waste. It would be impossible to designate a 

WQS for an MS4 for any other reason but to convey and treat stormwater – in plain 

violation of EPA’s regulations for water quality standards. To avoid such an untenable 

result within the Act’s structure and the Agencies’ own regulations, EPA and the Corps 

should thus clarify that MS4s are not WOTUS.361

Furthermore, WQSs contain both designated uses for a waterbody and water quality 

criteria (“WQC”) which protect the designated use.362 If a waterbody is not meeting its 

WQC then the state must develop a pollutant-specific total maximum daily load 

(“TMDL”) for the waterbody.363 Interpreting the CWA in a manner that construes MS4s 

to be WOTUS would force states to develop WQC and TMDLs for storm systems 

designed to treat pollutants. Aside from the sizeable resource commitment (which the 

states would bear) to develop WQCs and TMDLs for every MS4 and all of the ditches, 

drains, and pipes that comprise these systems, such an interpretation adds unnecessary 

layers of regulation. The MS4’s section 402 permit would already regulate pollutants that 

the operator may discharge from the storm sewer into receiving waters; concurrently, any 

WQC and TMDL would regulate pollutants entering the MS4 from third party releases, 

and pollutant loads within the system itself. Because any WQC and TMDL would control 

pollutant levels in the MS4, there would be no need for an NPDES permit because the 

pollutant levels within the MS4 would be at the same levels allowed for the discharge 

into the receiving water.

Moreover, if an MS4 were somehow deemed a WOTUS, then the MS4’s NPDES permit 

becomes an approval to discharge pollutants from one jurisdictional water into another 

jurisdictional water. Of course, Congress required permits for discharges from point 

sources into WOTUS – not for discharges from a WOTUS to a WOTUS.364 Such an 

absurd result can be avoided by excluding MS4s from the definition of CWA 

jurisdictional waters.

The specific, detailed statutory and regulatory provisions regarding the treatment of 

MS4s as NPDES “point sources” must trump the more general provisions that define 

“waters of the United States.”365 Under the rule of statutory construction that specific 

provisions supersede general ones, the Agencies should avoid any possible regulatory 

 

360 40 C.F.R. § 131.10(a).

361 In the context of industrial discharges into MS4s, EPA has explained that the discharger’s obligation to satisfy 

WQSs is “at the boundary of a State established mixing zone ... located in the receiving waters of the United 

States.” 55 Fed. Reg. at 48,037. That is, the industrial discharger’s obligation to satisfy WQSs does not pertain to 

such standards for the very storm sewer system itself.

362 40 C.F.R. § 131.11(a).

363 33 U.S.C. § 1313(d).

364 Moving pollutants within the same waterbody is not a “discharge” because no pollutants are added, and hence do 

not trigger CWA permitting obligations. See, e.g., LA Cnty. Flood Control Dist. v. NRDC, 133 S. Ct. 710, 733 

(2013); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. (2004) (both cases quoting Catskill Mountains 

Chapter of Trout Unlmtd., Inc. v. New York, 273 F.3d 481, 492 (2nd Cir. 2001)).

365 “However inclusive may be the general language of a statute, it will not be held to apply to a matter specifically 

dealt with in another part of the same enactment.” Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228 

(1957) (internal quotes omitted).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

393

interpretation that MS4s and their component conveyances are somehow penumbral to 

the WOTUS definition. The CORE Associations thus request EPA and the Corps to state 

clearly that MS4s – and the conveyances within these systems – as regulated under the 

NPDES program are categorically excluded from WOTUS jurisdiction. (p. 15-17)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. Also please see 

the Technical Support Document at Section I.3. with respect to “point source” and 

other legal issues.

7.605 III. CONCLUSION

The CORE Associations submit that MS4s should be categorically excluded from the 

definition of WOTUS because:

 For decades, the Agencies have interpreted the CWA to exclude “waste treatment 

systems” from WOTUS coverage. MS4s and the ditches, pipes, ponds and other 

conveyances that make up these storm sewer systems are indeed “waste treatment 

systems.” The Agencies should accordingly clarify that their longstanding 

jurisdictional exclusion captures MS4s.

 The WOTUS exclusion for MS4s should apply to storm sewer systems and their 

components that are mapped, identified and governed by a duly issued section 

402 permit for the discharge of pollutants. Aquatic resources are thus fully 

protected, and the CWA’s objectives are furthered, by virtue of the panoply of 

NPDES program requirements that apply to MS4 permits...

 ...Somehow deeming MS4s as jurisdictional WOTUS would disserve key 

definitions of, and upset the overall structure of, the CWA and the Agencies’ own 

regulations. For example, EPA’s obligations to establish water quality standards, 

criteria, and TMDLs would prove to be illogical and unworkable as applied to 

MS4s and the conveyances within these systems.

 Express exclusion of MS4s from the WOTUS rule is warranted to provide 

regulatory clarity and prevent improper interpretations that municipal storm 

sewers and their components could somehow be deemed jurisdictional 

“tributaries” or “adjacent waters.” (p. 19-20)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. 

Southpace Properties, Inc. (Doc. #6989.1)

7.606 Rather than labeling ditches as “waters of the U.S.,” the agencies should rely on existing 

CWA programs which require permits for discharges to navigable waters and stormwater 

management systems rather than labeling ditches themselves as jurisdictional waters. In 

addition to their necessary function to channel water away from dry features on 

commercial properties, ditches are a common component in Municipal Separate 

Stormwater Systems (MS4s). The proposed rule suggests that some ditches are excluded 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

394

from WOTUS coverage, while other ditches are “tributaries” and thus within CWA 

jurisdiction. To the extent that ditches (and other system components) are mapped and 

identified as part of an MS4, and subject to a National Pollutant Discharge Elimination 

System (NPDES) permit governing the MS4 of which they are a part, then such ditches 

(and components) should not be WOTUS. (p. 2)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. 

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. #7938.1)

7.607 ...the exclusion for waste treatment systems and non-wetland swales is not clear in that it 

fails to encompass the full an-ay of green infrastructure devices (e.g., rain gardens), 

stormwater treatment systems (e.g., MS4s) and other features installed on private 

property that gain little benefit from federal oversight. (p. 2)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. 

Lydig Construction Inc. (Doc. #14147)

7.608 I also oppose any regulatory language that would extend CWA jurisdiction to stormwater 

control basins and ponds of any size or function that ultimately drain to an otherwise 

regulated ‘water of the United States.’ It is unclear whether or not such stormwater 

controls would qualify for any of the exclusions in the proposal. On a majority of 

regulated construction sites, current NPDES permit requirements have led contractors to 

build temporary basins to hold rainwater that has ‘run off’ the surrounding jobsite and 

slowly release it to receiving waters via an outlet control structure and/or under-drainage 

system. EPA is now pushing cities to require that contractors build permanent structural 

controls to treat, store, and infiltrate runoff onsite before it enters the municipal storm 

sewer system. These stormwater control systems would, under this proposed regulation, 

become ‘waters of the United States,’ forcing construction site operators to create 

federally jurisdictional waters on their property to meet other requirements of the CWA. 

(p. 2)

Agency Response: Please see summary response at 7.4.4.

Associated General Contractors of America (Doc. #14602)

7.609 V. MS4s Are Point Sources, Not WOTUS

Summary: AGC maintains that MS4s should not be WOTUS, as they are already 

regulated under CWA Section 402 NPDES permits. To avoid double regulation, and 

shifting the point of compliance from the MS4 outfall to the roads and ditches at the 

system’s periphery, MS4’s should be categorically excluded from being WOTUS.

MS4s play important roles in collecting and treating stormwater discharges from 

industrial and commercial operations. In the entire proposed rule, nowhere do the 

agencies mention MS4s — much less the elaborate CWA regime that governs and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

395

regulates these systems across the United States. Regulations define MS4s as “a 

conveyance or system of conveyances ... designed or used for collecting or conveying 

storm water.”366 The component “conveyances” within a larger MS4 “system” collect and 

channel runoff through “roads with drainage systems, municipal streets, catch basins, 

curbs, gutters, ditches, man-made channels, or storm drains.”367

As stated in Section III above, AGC is very concerned that the overly broad proposed 

definition of “tributary” may improperly treat MS4s not as conveyance systems, but as 

jurisdictional waters. AGC urges the agencies to clarify that WOTUS jurisdiction does 

not reach MS4s and the component conveyances that comprise these systems, as further 

detailed in the comment letter already submitted by the Coalition of Real Estate 

Associations (an informal group that includes AGC).

• Lead to illogical results

Classifying any components of an MS4 — but ditches and stormwater control 

basins/ponds, in particular — as WOTUS would yield illogical results (see related 

discussions in Sections III and VI). As explained other sections of this letter, maintaining 

the conveyances within the MS4 (including clearing vegetation, removing silt/sediment, 

and stabilizing banks, draining ponds, etc.) would require a Section 404 permit. 

Stormwater discharges into the ditches may require Section 402 permitting or, in 

combination with other discharges, trigger area-wide TMDL requirements under Section 

303.

Specifically, if MS4s were WOTUS, then states would need to develop EPA-approved 

WQSs and “designate uses” for storm sewer systems, as well as water quality criteria 

(WQC) that protect the designated use.368 If a waterbody is not meeting its WQC then the 

state must develop a pollutant-specific total maximum daily load (TMDL) for the 

waterbody.369 Interpreting the CWA in a manner that construes MS4s to be WOTUS 

would force states to develop WQC and TMDLs for storm systems designed to transport 

stormwater. Moreover, if an MS4 were somehow deemed a WOTUS, then the MS4’s 

NPDES permit becomes an approval to discharge pollutants from one jurisdictional water 

into another jurisdictional water. Of course, Congress required permits for discharges 

from point sources into WOTUS — not for discharges from a WOTUS to a WOTUS.370

It is also important to note that MS4 operators have NPDES permit liability for 

implementing their stormwater programs to control their point source discharges into 

WOTUS. If the MS4 system itself becomes “waters of the United States,” then the point 

of compliance would shift from the nearby surface water to the ditch on the side of the 

roadway. For reasons such as these, the structure of CWA Section 402 and EPA’s 

regulations make clear that MS4s are point sources and not WOTUS.

 

366 40 C.F.R. § 122.26(b)(8) (emphasis supplied). 

367 Id. 

368 40 C.F.R. § 131.11(a).

369 33 U.S.C. § 1313(d).

370 Moving pollutants within the same waterbody is not a “discharge” because no pollutants are added, and hence do 

not trigger CWA permitting obligations. See, e.g., LA Cnty. Flood Control Dist. v. NRDC, 133 S. Ct. 710, 733 

(2013); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. (2004) (both cases quoting Catskill Mountains 

Chapter of Trout Unlmtd., Inc. v. New York, 273 F.3d 481, 492 (2nd Cir. 2001)).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

396

Excluding MS4s from WOTUS jurisdiction will not lower protection of aquatic 

resources, because pollutant discharges from these systems are fully covered by the 

comprehensive and exhaustive NPDES regime. Direct or indirect discharges — from 

MS4 outfall points into WOTUS — must be permitted under all of the Section 402 

authorities and implementing regulations controlling additions of pollutants from point 

sources.

Any agency interpretation or field determination that subjects MS4s and the conveyances 

within them to WOTUS jurisdiction would enormously disrupt state and local 

government programs and responsibilities to maintain, manage, and treat stormwater 

discharges under Section 402(p). It would federalize a vast network of storm sewer 

systems within state and local control — plainly upsetting the goal and policy of federalstate balance that Congress announced in CWA Section 101(b). (p. 11-12)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. Also please see 

the Technical Support Document at Section I.C.

7.610 VI. Stormwater Control Basins & Ponds

Summary: AGC is opposed to any regulatory language that would extend CWA 

jurisdiction to stormwater control basins and ponds that contractors build to satisfy 

another section of the Clean Water Act — for example, the NPDES permitting 

requirements within Section 402’s regime. It is unclear whether or not such stormwater 

controls would qualify for any of the exclusions in the proposal. On a majority of 

regulated construction sites, current NPDES permit requirements have led contractors to 

build temporary or permanent basins to hold rainwater that has “run off” the surrounding 

jobsite and slowly release it to receiving waters via an outlet control structure and/or 

under-drainage systems. EPA is now pushing cities to require contractors to build 

permanent structural controls to treat, store, and infiltrate runoff onsite before it enters the 

municipal storm sewer system. Increasingly common biofiltration and bioretention 

systems — all designed to control the velocity and volume of stormwater and settle out 

particles to reduce pollutant discharges — could become WOTUS. Under the proposal, 

construction site operators would be forced to create federally jurisdictional waters on 

their property to meet other requirements of the CWA.

Under the proposed rule, CWA jurisdiction would arguably extend to stormwater control 

basins and ponds of various sizes and function that ultimately drain to an otherwise 

regulated WOTUS. This result would stem from the agencies’ finding that all 

“tributaries” and “adjacent waters including wetlands” have a significant nexus to 

WOTUS by definition and are thus jurisdictional by rule. Specifically, as discussed 

above, the proposed rule defines “tributary” based on some evidence of flow, however 

indirect, to a traditional navigable water, interstate water, or territorial sea. The origin of 

the water, whether natural, man-altered, or manmade, expressly does not matter. 

Similarly, waters and wetlands adjacent to tributaries (e.g., a seasonally wet pond or 

swale) are categorically jurisdictional. An “adjacency” determination includes waters and 

wetlands with a confined surface or shallow subsurface connection to jurisdictional 

water. The agencies’ proposed “other waters” category would give the agencies the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

397

discretion to capture any wet feature (even geographically isolated ones) that cannot be 

found jurisdictional under the “tributary” or “adjacent water” categories, as discussed in 

Section VII below.

• NPDES Program calls for contractors to build basins, ponds

EPA’s NPDES permit for active construction sites (which serves as a model for the 

nation) requires contractors to “design, install, and maintain erosion and sediment 

controls that minimize the discharge of pollutants from earth-disturbing activities.” 

Contractors also are required to “control stormwater volume and velocity” to minimize 

pollutant runoff and streambank/channel erosion. On a large majority of regulated 

construction sites, these requirements have led contractors to build temporary basins to 

hold rainwater that has “run off” the surrounding jobsite and slowly release it to receiving 

waters via an outlet control structure and/or under-drainage systems. At present time, 

ponds and basins are the most reliable and proven way of containing sediment-laden 

water on a construction site. Ponds and basins are a “best management practice” (BMP) 

to protect surface water. (Prior to 2012, the federal Construction General Permit 

mandated sediment basins on all construction sites where the total disturbed drainage area 

at any given time was 10 acres or more.) After the soil disturbance (earth-moving) phase 

of the project, it is quite common for the property owner or contractor to clean out and 

modify the basin to function as a permanent stormwater management pond for the 

completed site, either as a detention pond or a retention pond. Additionally, the 

permanent pond must be maintained on a life-cycle basis to ensure that it is functioning 

properly.

It is worth noting that EPA’s 2012 Construction General Permit for Stormwater371 does 

not consider “stormwater control features” (MS4s and parts thereof) as “surface waters” 

for purposes of the 50-foot natural buffer requirement.

Recently, there has been an explosion in the number of ponds dotting the suburban 

landscape. Most have been created to satisfy local government requirements to 

retain/infiltrate stormwater discharges (onsite) at newly developed and redeveloped sites. 

Requirements that municipalities (MS4s) use so-called “green infrastructure” as part of 

their stormwater management programs are becoming more common in local and state 

permitting procedures and regulations, administered by the NPDES program.372

Most filtration basins have under-drain systems; they may also have outlet control 

structures and emergency spillways, depending on the variety and purpose. The underdrain gradually dewaters the sand bed and discharges the runoff to a nearby channel, 

swale, or storm sewer. Infiltration basins would be the only instance where all outflow 

goes back into the ground. This type of system does not normally have a structural outlet 

 

371 See http://www.epa.gov/npdes/pubs/cgp2012_finalpermit.pdf (CGP Part 2.1.2.1 Provide Natural Buffers or 

Equivalent Sediment Controls – noting that EPA does not consider stormwater control features (e.g., stormwater 

conveyance channels, storm drain inlets, sediment basins) to constitute “surface waters” for the purposes of 

triggering the requirement to comply with this Part).

372 See

http://cfpub2.epa.gov/npdes/stormwater/menuofbmps/index.cfm?action=browse&Rbutton=detail&bmp=66&minme

asure=4. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

398

to discharge runoff or an under-drain system. It is very challenging to apply on most 

sites, however, because it is only effective in relatively small drainage areas with 

permeable soils. Therefore, infiltration basins are typically combined with an extended 

detention basin to provide additional runoff storage for both stormwater quality and 

quantity management. Detention basins, which need to be cleaned out on a regular basis, 

trap sediment and deleterious maters before entering the infiltration system, thereby 

extending the life of the system.

Under the proposed regulatory framework outlined above, there would be many 

opportunities for Corps field staff and EPA inspectors to assert federal control over 

ephemeral ponds and basins that were built to serve as stormwater control devices, 

merely because those devices drain (e.g., via a shallow groundwater flow or a seasonally 

wet ditch that may flow a great distance, etc.) to a navigable water only in storm events.

• Not otherwise exempt

The proposal excludes the following from the “waters of the United States” definition:

o Waste treatment systems, including treatment ponds or lagoons, designed to meet 

the requirements of the Clean Water Act.

o 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.

Unfortunately, these exclusions are too amorphous to address AGC’s serious concerns. It 

is highly questionable and open to interpretation whether or not stormwater control 

basins/ponds would meet the criteria for these listed exclusions on a consistent or 

occasional basis.

Stormwater control basins/ponds are designed to help protect areas from flooding by 

reducing how fast runoff enters nearby surface waters. Most ponds (and certainly 

temporary or permanent sediment basins) also function to trap pollutants in runoff such 

as sediment nutrients and metals. Pollutant reduction is achieved through settling, capture 

by indigenous wetland plans and vegetation, and filtration through soil. The basins/ponds 

must be cleaned out in order to remove the captured pollutants. It is unclear whether 

stormwater control basins/ponds would qualify as “waste treatment systems.” No 

“treatment” (chemical or otherwise) is typically occurring, as is the case with other waste 

management programs. What is more, stormwater (e.g., rain, snowmelt) is not the same 

as wastewater (sewage); each is covered under a separate NPDES permit program.

Moreover, the basins/ponds that contractors build on active construction sites, and later 

modify to serve as permanent stormwater control structures, are not “used exclusively 

for... settling basins.” While all types of “green infrastructure” effectively retain and 

infiltrate rainfall, these practices also can simultaneously help filter air pollutants, reduce 

energy demands, mitigate urban heat islands, provide wildlife habitat and sequester 

carbon while also providing communities with aesthetic and natural resource benefits.373

• Lead to illogical results

 

373 See http://water.epa.gov/infrastructure/greeninfrastructure/index.cfm. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

399

Extending CWA jurisdiction to stormwater control basins and ponds would lead to 

illogical results (see related discussions in Section V). In meeting the goals of the NPDES 

program, contractors build stormwater control basins and ponds to protect WOTUS both 

during construction and for permanent, long-term water resource protection. Does EPA 

intend to regulate these features as WOTUS, or are they intended to be exempted? As 

explained above, AGC finds that they would not meet the proposed exemption criteria on 

a consistent or occasional basis.

Stormwater control basins/ponds are a widely used BMP that must be designed, 

constructed and maintained to function properly. Basin/pond maintenance is often 

dictated by local laws and is necessary to prevent downstream pollutant loadings, erosion, 

and flooding. Yet, under the proposal, contractors and property owners/managers would 

need to obtain a Section 404 permit to authorize them to repair outlet structures, clear 

vegetation, remove sediment, stabilize the pond banks, or drain the pond. (They would 

also need a Section 404 permit to convert a temporary basin to a permanent pond.) In 

addition, the stormwater discharges into the basin/pond may require a separate NPDES 

Section 402 permit. Further, CWA Section 303 requires states to adopt and submit to 

EPA water quality standards (WQSs) which “consist of a designated use or uses for the 

waters of the United States ....”374 If stormwater control basins/ponds were WOTUS, 

then state-developed and EPA-approved WQSs would need to designate “uses” for those 

basins/ponds. In turn, the state would need to develop a pollutant-specific TMDL for any 

basin/pond that failed to meet its use.375

Where maintenance of stormwater BMPs is hampered, the BMPs may fail to function as 

designed. Flood control structures will lose flood storage, and infiltration BMPs installed 

for water quality will fail to treat runoff as designed, which could in turn cause MS4s to 

be out of compliance with their MS4 permits. What is more, in a case where the 

basin/pond fails to meet a CWA water quality standard, a construction contractor in a 

design-build contract scenario could be held responsible for design or construction flaws 

or defects.

Some state NPDES construction stormwater permits require contractors to direct turbid 

or sediment-laden waters to a temporary or permanent sedimentation basin or pond. For 

example, the Minnesota Construction Stormwater Discharge General Permit (MNR 

100001, issued August 1, 2013) states: “The permittee(s) must discharge turbid or 

sediment-laden waters related to dewatering or basin draining (e.g., pumped discharges, 

trench/ditch cuts for drainage) to a temporary or permanent sedimentation basin on the 

project unless infeasible.” See Exhibit 1 below.

Finally, if construction activity in/around a basin/pond causes a sheen on surface 

(possibly because of fuel and fluid in earth moving equipment), the construction site 

operator would need to immediate report an oil spill to the National Response Center —

pursuant to EPA rules in place for a discharge of oil into waters of the United States. (p. 

12-16)

 

374 33 U.S.C. § 1313; 40 C.F.R. § 131.3(i).

375 33 U.S.C. § 1313(d).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

400

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. See also 

responses to SPCC comments at 12.5. 

NAIOP Commercial Real Estate Development Association (Doc. #14621)

7.611 5. §328.3(b)(1) MS4s.

The proposed definitions of tributary could be construed to include municipal separate 

storm sewer systems (MS4s) and their components. The Agencies’ overly broad 

definition of “tributary” may improperly treat MS4s as WOTUS and clarification is 

needed to proclaim that MS4s are excluded from jurisdictional coverage. EPA and the 

Corps propose that any waterbody that meets the definition of a tributary is “by rule” a 

WOTUS. Pursuant to the Proposed Rule, a “tributary” is a waterbody that has a bed, bank 

and ordinary high water mark (OHWM), and contributes flow to waters that are used in 

interstate commerce, territorial seas, interstate waters, and their impoundments (“(1)-(4) 

waters”).

Under this proposed definition, MS4s and their system components could be deemed 

jurisdictional WOTUS. MS4 systems often include ditches and other manmade structures 

that have a bed, bank and OHWM. Moreover, as they are designed to convey and treat 

stormwater, MS4s will contribute flow (directly or indirectly) to the categories of socalled (1)-(4) waters. These common MS4 components are already subject to National 

Pollutant Discharge Elimination System (NPDES) permit requirements and could be 

confusingly and unnecessarily layered with more federal regulation as a WOTUS.

EPA and the Corps should thus clarify for its field offices, state and local governments, 

and the regulated community that MS4s and their component conveyances are not 

considered WOTUS under the proposed rule.

The following change is recommended:

“(b) The following are not ‘waters of the United States’ notwithstanding whether they 

meet the terms of paragraphs (a)(1) through (7) of this definition—

“(1) Waste treatment systems, including treatment ponds, lagoons, or Clean Water Act 

regulated municipal separate storm sewer systems and the component conveyances 

within such systems.” (p. 4)

Agency Response: Please see summary response at 7.4.4.

Vulcan Materials Company (Doc. #14642)

7.612 Add language to the rule that clearly exempts from jurisdictional status water 

management systems, including associated collection, conveyance, and treatment systems 

that are permitted under NPDES or delegated state storm water and/or process water 

discharge permitting authority. Similarly, water management systems associated with 

zero discharge facilities should be clearly exempted from jurisdictional status permitting 

authority. Similarly, water management systems associated with zero discharge facilities 

should be clearly exempted from jurisdictional status. (p. 4-5)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

401

Agency Response: With respect to stormwater control features, please see 

summary response at 7.4.4. See also summary response at 7.4.2

Maryland Chapters of NAIOP (Doc. #15837)

7.613 We are among those concerned that the overly broad definition of tributary may 

improperly identify channels and conveyances, environmental site design (ESD) features 

and structures that are subject to NPDES or MS4 permits as regulated waters and request 

that a the final rule contain a clarification that stormwater and ESD structures are not 

WOTUS. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Ames Construction, Inc. (Doc. #17045)

7.614 I also oppose any regulatory language that would extend CWA jurisdiction to stormwater 

control basins and ponds of any size or function that ultimately drain to an otherwise 

regulated 'water of the United States.' It is unclear whether or not such stormwater 

controls would qualify for any of the exclusions in the proposal. On a majority of 

regulated construction sites, current NPDES permit requirements have led contractors to 

build temporary basins to hold rainwater that has 'run off" the surrounding jobsite and 

slowly release it to receiving waters via an outlet control structure and/or under-drainage 

system. EPA is now pushing cities to require that contractors build permanent structural 

controls to treat, store, and infiltrate runoff onsite before it enters the municipal storm 

sewer system. These stormwater control systems would, under this proposed regulation, 

become 'waters of the United States,' forcing construction site operators to create 

federally jurisdictional waters on their property to meet other requirements of the CWA. 

(p. 2)

Agency Response: Please see summary response at 7.4.4.

National Association of Home Builders (Doc. #19540)

7.615 i. MS4s are not “Waters of the United States.”

Municipal separate storm sewer system (MS4) infrastructure is defined as “a conveyance 

or system of conveyances (including roads with drainage systems, municipal streets, 

catch basins, curbs, gutters, ditches, man-made channels, or storm drains)” owned and 

operated by a state or municipality which “discharges to waters of the United States” and 

is “[d]esigned or used for collecting or conveying storm water.”376 The National Pollutant 

Discharge Elimination System (NPDES) program regulates stormwater discharges from 

MS4s, construction activities, and industrial activities. The Phase I MS4 requirements, 

issued in 1990, direct medium and large cities and certain counties with populations of 

100,000 or more to obtain NPDES permit coverage for their stormwater discharges. 

There are approximately 750 Phase I MS4s. Phase II MS4s whose requirements were 

issued in 1999, include small MS4s in urbanized areas, as well as small MS4s outside the 

urbanized areas that are designated by the permitting authority. Like Phase I MS4s, they 

 

376 40 C.F.R. § 122.26(b)(8).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

402

too must obtain NPDES permit coverage for their stormwater discharges. There are 

roughly 6,700 Phase II MS4s.377

In the comprehensive and exhaustive proposed rule, nowhere do the Agencies mention 

MS4s, much less the elaborate CWA regime that governs and regulates these systems 

across the United States. The Agencies must address the interplay between the MS4 

stormwater program and waters of the United States coverage. Indeed, the proposed 

rule’s strong intent to provide as much certainty to the regulated public and the regulators 

demands clarification on the jurisdictional status of MS4s.

NAHB urges the Agencies to clarify that MS4s are “point sources” regulated under CWA 

Section 402, and are not also waters of the United States.378 Additionally, MS4s are waste 

treatment systems and, accordingly, should be categorically excluded from the reach of 

waters of the United States. The CWA’s regulatory scheme, for all its detail, is quite 

simple: the Act prohibits the discharge of pollutants from point sources to navigable 

waters unless authorized by a permit.379 The term “‘point source’ means any discernible, 

confined and discrete conveyance, including but not limited to any pipe, ditch, channel, 

tunnel, . . . from which pollutants are or may be discharged. . . .”380 The CWA further 

provides that “‘discharge of a pollutant’ . . . means . . . any addition of any pollutant to 

navigable waters from any point source. . . .”381 The Act thus contemplates that point 

sources are not themselves “navigable waters,” but instead are “discrete conveyances” for 

conveying pollutants to navigable waters.382 The proposed rule ignores this distinction 

and may potentially and improperly define some well-recognized point sources as waters 

of the United States.

Similarly, the Agencies should clarify that no permit is necessary to contribute pollutants 

that are conveyed to a local government-owned MS4.383 Otherwise, the Agencies will 

upset the CWA framework by requiring a permit for “discharging” pollutants to a “point 

source,” which is well beyond the Agencies’ CWA authority.384 For example, the 

proposed rule defines tributaries in such a broad manner as to potentially cover ditches 

 

377 See http://water.epa.gov/polwaste/npdes/stormwater/Municipal-Separate-Storm-Sewer-System-MS4-MainPage.cfm.

378 Similarly, any ditch or other feature upstream of the MS4 or any other NPDES outfall should also not be 

considered a jurisdictional “water of the United States.”

379 33 U.S.C. § 1311(a) (prohibiting the “discharge of any pollutant[s]” unless permitted elsewhere in the CWA).

380 33 U.S.C. § 1362(14) (emphasis added).

381 33 U.S.C. § 1362(12) (emphasis added).

382 See also Rapanos, 547 U.S. at 735 (“The definitions thus conceive of ‘point sources’ and ‘navigable waters’ as

separate and distinct categories;” “Most significant of all, the CWA itself categorizes the channels and conduits that

typically carry intermittent flows of water separately from ‘navigable waters,’ by including them in the definition of 

‘point source.’”).

383 These systems are owned and operated by public entities, including states, local governments, and special 

governments created under state law, such as sewer districts, flood control districts, or drainage districts.

384 The Act authorizes the Agencies to control “discharges” of pollutants to navigable waters. A “discharge” covers 

only the “addition of any pollutant to navigable waters from any point source;” not a discharge from a point source 

to a point source. 33 U.S.C. § 1362(12) (emphasis added).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

403

that flow into MS4s, which Congress designated as point sources subject to CWA Section 

402(p).385

Treating MS4s, and the ditches that convey runoff to them, as waters of the United States 

would mark a 180-degree turn from the Agencies’ traditional practice. For example, in 

the 1990 preamble to EPA stormwater regulations, EPA made clear that stormwater 

runoff into municipal sewers (roads, ditches, storm drains, etc.) is not a discharge of a 

pollutant into a water of the United States.386 EPA has “always addresse[d] such 

discharges as ‘discharges through municipal separate storm sewers’ as opposed to 

‘discharges to waters of the United States.’”387

Similarly, in 2005, EPA confirmed that MS4s are “by definition” not CWA “navigable 

waters.”388 The Agencies must continue that trend. 

Moreover, the case law makes clear that “a two-permit regime is contrary to the statute 

and the regulations ... [and] would cause confusion, delay, expense, and uncertainty in 

the permitting process.”389 The Supreme Court concluded “that, when a permit is required 

to discharge fill material, either a § 402 or a § 404 permit is necessary.”390 The same 

principle holds true here – where a point source like an MS4 (including ditches flowing 

to the MS4) is regulated under Section 402 of the Act, it is contrary to the statute, the 

case law, and common sense to also treat that ditch as a water of the United States. While 

off the record the Agencies assert it is not their intent to regulate MS4s as waters of the 

United States, the proposed rule is broad enough to create confusion.391

As point sources, MS4s are local government-owned systems that are required to control 

the volume of stormwater while reducing the discharge of pollutants therein. Congress 

conceived of this framework so that, “[r]ather than regulate individual sources of runoff, 

such as churches, schools and residential property, . . . the NPDES permitting 

 

385 Congress amended the CWA in 1987 and added section 402(p) which, among other things, required EPA to 

develop regulations for an MS4 permit program regarding stormwater discharges. See 33 U.S.C. § § 1342(p)(3)(B), 

(4). The history of the MS4 permit program and its phased approach for regulation of municipalities based on their 

population size is summarized in Envtl. Def. Ctr., Inc. v. U.S. EPA, 344 F.3d 832, 841-42 (9th Cir. 2003). According 

to EPA, approximately 70 percent of the nation’s population lives within an urbanized area subject to EPA’s MS4 

regulations. See U.S. EPA, Fact Sheet 2.2 (EPA 833-F-00-004), Storm Water Phase II Final Rule, Urbanized Areas: 

Definition and Description (Dec. 1999, rev. Dec. 2005), available at 

http://cfpub.epa.gov/npdes/stormwater/swfinal.cfm.

386 55 Fed. Reg. 47,990, 47,991 (Nov. 16, 1990) (“[M]ost urban runoff is discharged through conveyances such as 

separate storm sewers or other conveyances which are point sources under the CWA. These discharges are subject to 

the NPDES program.”).

387 Id. (emphasis added).

388 Memorandum from A. Klee, Former General Counsel, and B. Grumbles, Former Assistant Administrator for 

Water, EPA, to Regional Administrators at 18 n.18 (Aug. 5, 2005) (“Agency Interpretation on Applicability of 

Section 402 of the Clean Water Act to Water Transfers”), available at http://www.epa.gov/ogc/documents.htm.

389 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S.Ct. 2458, 2474 (2009) (Op. by Kennedy, J.).

390 Id. (emphasis added).

391 September 2014 Q and A at 5. (“Question 13: Will stormwater management systems permitted under the CWA, 

commonly called MS4s, become “waters of the US” under the proposed rule? ANSWER: No. The proposed rule 

does not change the status of an MS4 under the CWA. The proposed rule does not regulate any types of waters that 

are not regulated under the current rule. We are eager to work with stakeholders and the public to ensure the final 

rule reflects this intent.”)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

404

requirement [operates] at the municipal level to ease the burden of administering the 

program.”392 Because states and local governments are already charged with controlling 

stormwater volume and reducing pollution from urban runoff through the NPDES 

program, there is no benefit or administrative efficiency gained by treating the same 

drainage systems as jurisdictional waters. Classifying MS4s as waters of the United 

States would disrupt state and local government programs that maintain, manage, and 

treat stormwater discharges under CWA Section 402(p).

Case law and the Agencies’ long-standing position on MS4s are also consistent with how 

these systems operate. MS4s are waste treatment systems for sediment and other 

pollutants, and thus they should be excluded from the definition of waters of the United 

States. Under EPA regulations and the proposed rule, waste treatment systems are not 

waters of the United States.393 Instead, they are “manmade bodies of water which neither 

were originally created in waters of the United States . . . nor resulted from the 

impoundment of waters of the United States.”394 Because MS4s collect stormwater runoff 

and remove pollutants, including sediment, from stormwater runoff, they operate as waste 

treatment systems and are, therefore, not jurisdictional waters.

Even more problematic, if MS4s are treated as waters of the United States, all CWA 

programs will apply to them. States will then be required, among other things, to monitor 

water quality, designate beneficial uses, establish water quality standards, and establish 

TMDLs for any part of an MS4 under the jurisdiction of the CWA. Additionally, a 

Section 404 permit could be required to perform necessary maintenance and repair on 

MS4s that are wrongly deemed waters of the United States. The time and money it will 

take to obtain Corps permits to repair or maintain ditches and conveyances within an 

MS4 will cost local governments extra time and money while simultaneously 

jeopardizing public infrastructure and safety.

A more common sense approach is to treat MS4s and those entities that release pollutants 

through them like publicly owned treatment works (POTWs) and to treat those that 

introduce pollutants into them as part of the POTW. Under this approach, discharges 

from the point source (i.e., the MS4) are appropriately permitted under Section 402, and 

no permit is required for persons to discharge into the point source, as is consistent with 

the Act. Those entities who introduce pollutants to the MS4, which then discharges the 

pollutants to navigable waters, must then comply with the requirements that the MS4 

establishes. Indeed, this is the basic structure EPA has created within the Section 402 

program and there is no need to change it now.

Because conveyances within an MS4 or that convey pollutants through an MS4 could 

readily meet the proposed rule’s broad tributary definition, many MS4s and/or other 

components could be treated as waters of the United States rather than as point sources. 

 

392 Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles, 636 F.3d 1235, 1247 (9th Cir. 2011). The Ninth Circuit 

quoted Senator Wallop, who called the alternative approach an administrative nightmare: “‘[T]he regulations can be 

interpreted to require everyone who has a device to divert, gather, or collect stormwater runoff and snowmelt to get 

a permit from EPA as a point source. . . . Requiring a permit for these kinds of stormwater runoff conveyance 

systems would be an administrative nightmare.’” Id. (citing 131 CONG. REC. 15616, 15657 (Jun. 13, 1985)).

393 40 C.F.R. § 122.2 (defining waste treatment systems); 79. Fed. Reg. at 22,263.

394 40 C.F.R. § 122.2 (defining waste treatment systems).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

405

The Agencies must confirm that point sources, such as MS4s, that are regulated by CWA 

Section 402 are not “waters of the United States.” One way to do so is to specifically 

include MS4s in the waste treatment system exclusion. (p. 106-109)

Agency Response: Please see summary response at 7.4.4. Also see the Technical 

Support Document at Section I.C.

North American Meat Association and American Meat Institute (Doc. #13071)

7.616 The CWA stormwater program requires the construction of retention ponds to manage 

stormwater.395 Treating stormwater as waters of the U.S. will create a never-ending cycle 

of regulation. Similarly, Federal Emergency Management Agency flood control 

provisions require stormwater management, drainage, and flood control.396 Municipal and 

county codes also require stormwater management and drainage, often with EPA 

guidance. Likewise, the Corps manages and administers national flood control and 

drainage of stormwater, including ditches that would qualify as waters of the United 

States.

Rather than designating ditches as “waters of the U.S.,” the agencies should continue to 

utilize and rely on existing CWA Section 402 requirements for discharges to navigable 

waters and stormwater management systems. The agencies should affirmatively state that 

point sources covered by National Pollutant Discharge Elimination System (NPDES) 

permits are not waters of the U.S. Such an assertion would help provide the certainty “to 

the regulated public and the regulators” that the agencies contend is the purpose of the 

proposed rule. (p. 3)

Agency Response: Please see summary response at 7.4.4. 

The Mosiac Company (Doc. #14640)

7.617 In addition to the list above, however, Mosaic urges the agencies to expand the list to 

NPDES systems, both industrial and stormwater (MS4), to provide clarification and 

assurance to the regulated public and stakeholders that systems designed to provide water 

treatment for the benefit of waters of the U.S. won't become jurisdictional themselves. 

Similar to the exemption for waste treatment systems (including treatment ponds or 

lagoons) already stated in the proposed rule, waters that are a part of NPDES systems 

convey water to, from, and through areas used for treatment and discharge from a 

regulated outfall structure. The discharge location is the point where water from the 

NPDES system enters waters of the State or waters of the U.S. and is the point where all 

applicable water quality standards must be met. Waters upstream of the discharge 

location are not currently required to meet these limits or they would cease to be able to 

provide their treatment function. Therefore, the same exemption provided for waste 

treatment systems should apply to NPDES systems (stormwater and industrial). While it 

 

395 See generally Comments of the Coalition of Real Estate Associations on the proposed rule, “Definition of 

‘Waters of the United States’ Under the Clean Water Act,” Docket ID No. EPA-HQ-OW-2011-0880 (August 8, 

2014) (addressing the impact of any revised definition of “waters of the U.S.” on MS4s, and the component 

conveyances within these systems that channel and discharge stormwater runoff).

396 See, e.g., 40 CFR Part 213.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

406

is known that these features are not proposed to be considered jurisdictional if excavated 

solely in uplands, in central and south Florida and other areas with generally flat terrain 

and high water tables, it is not practicable to construct such systems solely in uplands.397

Providing an express exemption in the proposed rule for these waters would alleviate this 

concern. (p. 5)

Agency Response: Please see summary response at 7.4.4.

Packaging Corporation of America (Doc. #15515)

7.618 The preamble in the Proposal indicates that the Agencies do not intend to change the 

waste treatment system exemption under the current regulations (79 Fed. Reg. at 22,189).

Changes or Clarifications Needed Regarding the Exemption

There should be no question that any stormwater management facilities (e.g., green 

infrastructure, detention ponds, etc.) that are part of an industrial stormwater pollution 

prevention plan required under an NPDES stormwater permit or required by conditions in 

an NPDES stormwater permit are clearly covered by the waste treatment system 

exemption and not subject to Section 402 or 404 permit requirements. Nonetheless, due 

to the expansive definitions and other provisions previously discussed, the preamble to 

any final rule should specifically state that this is the case to remove any doubt among all 

stakeholders. The preamble should make clear that ditches that are conveying stormwater 

to or from stormwater management facilities also are covered by the exemption. (p. 4-5)

Agency Response: Please see summary response at 7.4.4.

Hampton Roads Planning District Commission, Virginia (Doc. #9612)

7.619 1. All man-made purpose built stormwater management facilities should be 

explicitly excluded from the definition of WOTUS. If stormwater management 

facilities are not explicitly excluded in this Rule, then they may be classified as tributaries 

to WOTUS. Because a stormwater management facility is designed to drain and treat the 

runoff within its drainage area, under the definition of "adjacent" in this Rule, most of the 

water draining to the stormwater facility could be classified as WOTUS and subject to the 

CWA. The Rule should include exemptions specifically for construction, maintenance

and/or retrofitting of purpose built stormwater management facilities. Without such 

exclusion, the Hampton Roads localities' ability to comply with its Section 402 National 

Pollution Discharge Elimination System (NPDES) requirements (MS4) and compliance 

with TMDL allocations will be limited. (p. 2)

Agency Response: Please see summary response at 7.4.4. . Please note that the 

proposed rule did not address which activities are regulated under the CWA; rather 

it addressed which waterbodies are jurisdictional. Comments about activities such 

as maintenance, construction and/or retrofitting are outside the scope of this rule.

 

397 Water Environment Federation webinar: Potential Impacts of Waters of the U.S, Rulemaking on Stormwater

Infrastructure. Online Webcast, November 6th, 2014.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

407

Division of Transportation, Kane County, St. Charles, Illinois (Doc. #9831)

7.620 Since stormwater management activities are not explicitly exempt under the proposed 

rule, we are concerned that man-made conveyances and facilities for stormwater 

management could now also be classified as a "water of the U.S." We are concerned that 

municipal separated storm sewer infrastructure within our right-at-way may be subject to 

additional water quality standards (including total maximum daily loads) if our 

stormwater ditches are considered a "water of the U.S." Not only would the discharge 

leaving the system be regulated, but all flows entering the system would be regulated as 

well. Unless municipal separated storm sewers are explicitly exempted from the 

requirements, we may be forced to regulate them as a "water of the U.S.," through Clean 

Water Act citizen suits. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Roads and Drainage Department, DeKalb County, Georgia (Doc. #13572)

7.621 Since stormwater management activities are not explicitly exempt under this proposed 

rule, we are concerned that Municipal Separate Storm Sewer System (MS4) infrastructure 

could now be classified as a "water of the U.S." This infrastructure includes many county 

MS4 conveyances, including ditches, channels, pipes and gutters that flow into a water of 

the U.S. and are already regulated under the CWA Section 402 stormwater permit 

program. We are concerned that not only would the discharge leaving the stormwater 

system be further regulated, but all flows entering the MS4 could be regulated as well. In 

communications to-date, EPA staff have stressed that they do not "intend" to regulate an 

MS4, as a "water of the U.S." We take them for their word on their intentions.., however, 

they may be forced to do so through citizen/environmental group CWA lawsuits as these 

ditches, pipes and channels, under the rule's "tributary" and "adjacency" definitions, 

could very well be interpreted to be "Waters of the U.S." Vague federal rules have been 

used by various outside groups to litigate for years. We feel that this is yet another area 

where EPA rule ambiguity will end up being fodder for the courts. Recommendation: In 

order to avoid this, we respectfully recommend that MS4 activities be specifically exempt 

under the proposed rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072)

7.622 Since storm water management activities are not explicitly exempt under the proposed 

rule, we are concerned that man-made conveyances and facilities for storm water 

management could now be classified as a "water of the U.S." Some counties and cities 

own Municipal Separate Storm Sewer System (MS4) infrastructure including ditches, 

channels, pipes and gutters that flow into a "water of the U.S:' and are therefore regulated 

under the CWA Section 402 storm water permit program. There is a significant potential 

threat for counties that own MS4 infrastructure because they would be subject to 

additional water quality standards (including total maximum daily loads) if their storm 

water ditches are considered a "water of the U.S:' Not only would the discharge leaving 

the system be regulated, but all flows entering the MS4 would be regulated as well. Even 

if the agencies do not initially plan to regulate an MS4 as a "water of the U.S.," they may 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

408

be forced to do so through CWA citizen suits, unless MS4s are explicitly exempted from 

the requirements.

Further, storm water management is often not funded as a water utility, but rather through 

a county general fund. If storm water costs significantly increase due to the proposed 

rule, not only will it potentially impact our ability to focus available resources on real, 

priority water quality issues, but it may also require that funds be diverted from other 

government services such as education, police, fire, etc. Our County cannot assume 

additional unnecessary or unintended costs. (p. 5)

Agency Response: Please see summary response at 7.4.4.

Lake County Division of Transportation, Lake County, Illinois (Doc. #14743)

7.623 Since stormwater management activities are not explicitly exempt under the proposed 

rule, we are concerned that conveyances and facilities constructed for stormwater 

management would be classified as a "water of the U.S." Municipal Separate Storm 

Sewer Systems (MS4s) include ditches, channels, storm sewer, and gutters that under the 

proposed rule would flow into a "water of the U.S." and would therefore be subject to 

increased regulation under the Clean Water Act Section 402 stormwater permit program. 

If the stormwater ditches are considered a "water of the U.S." then all discharges leaving 

the system and all flows entering the MS4 would be subject to increased regulation as 

well. The MS4 would then be subject to additional water quality standards including total 

maximum daily loads. The proposed rule should specifically exclude MS4s from federal 

jurisdiction. (p. 2)

Agency Response: Please see summary response at 7.4.4.

National Association of County Engineers (Doc. #14981)

7.624 It is important to recognize that a water body is either regulated as an MS4 or a Water of 

the U.S., but it should not be both. Dual regulation would lead to competing and 

conflicting requirements. Counties should not have to get a 404 permit to dredge a 

stormwater management facility when MS4 regulations require maintenance of these 

facilities. For these reasons, water bodies and conveyance systems should not be dually 

regulated. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Union Pacific Railroad Company (Doc. #16370)

7.625 Waste Water Treatment Systems: The Proposed Rule refers to “Waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act”. Based on this text, it is not clear if a stormwater collection system in a 

managed stormwater basin ending in a water quality treatment structure prior to end of 

pipe [and regulated at end of pipe under NDPES/ MS-4] would qualify as a “waste 

treatment system designed to meet the requirements of the CWA”. We request that the 

Proposed Rule state clearly that all such stormwater basins are excluded. (p. 5)

...
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

409

h. In an effort to further understand the jurisdictional reach and related impacts of the 

Proposed Rule the following general questions need to be answered:

...

 Does the exclusion for “waste treatment systems” cover all likely water, 

stormwater and wastewater treatment systems? Is stormwater containing a 

pollutant a waste?

 Could a ditch that is upstream of a waste treatment system and fully treated by the 

system, be regulated as WOTUS? If so, would a treatment system have to be at a 

location that captures only waters that are not WOTUS?

... (p. 5, 6)

Agency Response: Please see summary response at 7.4.4. See the summary 

response at 7.1 with respect to the waste treatment system exclusion.

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)

7.626 This comment pertains to Section 328.3 Definitions, (b)(1), Federal Register page 22263. 

It is not clear if “waste treatment systems, including ponds or lagoon, designed to meet 

the requirements of the Clean Water Act” includes stormwater treatment systems. 

CMSWS recommends specifically stating that “Stormwater Management Facilities” 

are not “waters of the United States”. (p. l)

Agency Response: Please see summary response at 7.4.4.

Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1)

7.627 4. The Rule provides an exemption for artificial lakes or ponds used exclusively as 

settling basins, ditches that are excavated wholly in uplands, and ditches that do not 

contribute flow to a traditional navigable water. These exemptions are not 

comprehensive. Specifically, the Rule should have an exemption specifically for 

construction, maintenance and/or retrofitting of purpose built stormwater management 

facilities. Without such an exemption, the City's efforts to comply with its Section 402 

National Pollution Discharge Elimination System (NPDES) requirements (MS4) and 

compliance with future TMDL allocations will be severely limited. In addition, if these 

features are not exempt to the Rule, additional cumbersome reporting and resource 

intensive water quality standards may be applied to new WOUS under the Section 303 

program. (p. 2)

Agency Response: Please see summary response at 7.4.4. Please note that the 

proposed rule did not address which activities are regulated under the CWA; rather 

it addressed which waterbodies are jurisdictional. Comments about activities such 

as maintenance, construction and retrofitting are outside the scope of this rule.

7.628 ... the City of Chesapeake has identified a significant number of concerns and problems 

with EPA's proposed waters of tile US Rule; however, the City does support streamlining 

regulatory oversight by the EPA and the Corps through various sections of the CWA 

Other than the regulatory provisions already contained within Section 402 of the CWA 

(NPDES & MS4), stormwater management facilities which have been constructed 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

410

specifically for the purposes of conveyance, management, retention, and treatment of 

stormwarer should he specifically excluded from regulatory oversight under the CWA 

including, but not limited to stormwater management ponds, lakes, swales, dry or wet 

detention basins, constructed wetlands, bio-retention areas, rain gardens and 

intermittent/ephemeral ditches regardless of their proximity to a waters of the US or a 

traditional navigable water; regardless of being ephemeral, intermittent, perennial; 

regardless of having shallow subsurface groundwater connections or confined surface 

hydrologic connections; regardless of contributing to WOUS in storm events; and 

regardless of being excavated from uplands, wetlands, or agricultural lands. Without 

these exclusions, there may be unintended consequences for local governments subject to 

MS4 regulation as well as private property owners. Under the proposed Rule, the City's 

ability to perform required routine maintenance and retrofitting of stormwater 

management facilities to improve water quality could be severely limited because most of 

the City's facilities would be regulated as WOUS. The proposed Rule may require 

unnecessary and resource intensive Section 404 permitting for routine maintenance and 

retrofitting of the City's stormwater management facilities. (p. 7). 

Agency Response: Please see summary response at 7.4.4.

Beaufort County Stormwater Utility (Doc. #7326.1)

7.629 III) Man-Made or Man-Altered Tributaries” - Under Section III, “Proposed 

Definition of Waters of the United States,” Part F, Tributaries, Subsection (6), “ManMade or Man-Altered Tributaries Significantly Affect the Chemical, Physical, and 

Biological Integrity of (a)(1) Through (a)(3) Waters”, it states in part: “This proposal 

expressly states that a tributary, including wetlands, can be a natural, man-altered, or 

man-made water body and includes waters such as rivers, streams, lakes, impoundments, 

canals, and ditches that meet the definition of tributary and are not excluded from the 

definition of ‘‘waters of the United States’’ by paragraphs (b)(3) and (b)(4) of the 

proposed rule.” The agencies’ proposed rule clarifies that man-made and man-altered 

tributaries are ‘‘waters of the United States’’ because man-made and man-altered 

tributaries perform many of the same functions as natural tributaries, especially the 

conveyance of water that carries nutrients, pollutants, and other substances to traditional 

navigable waters, interstate waters, or the territorial seas. III) Man-Made or Man-Altered 

Tributaries” - Under Section III, “Proposed Definition of Waters of the United States,” 

Part F, Tributaries, Subsection (6), “Man-Made or Man-Altered Tributaries Significantly 

Affect the Chemical, Physical, and Biological Integrity of (a)(1) Through (a)(3) Waters”, 

it states in part: “This proposal expressly states that a tributary, including wetlands, can 

be a natural, man-altered, or man-made water body and includes waters such as rivers, 

streams, lakes, impoundments, canals, and ditches that meet the definition of tributary 

and are not excluded from the definition of ‘‘waters of the United States’’ by paragraphs 

(b)(3) and (b)(4) of the proposed rule.” The agencies’ proposed rule clarifies that manmade and man-altered tributaries are ‘‘waters of the United States’’ because man-made 

and man-altered tributaries perform many of the same functions as natural tributaries, 

especially the conveyance of water that carries nutrients, pollutants, and other substances 

to traditional navigable waters, interstate waters, or the territorial seas.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

411

Many stormwater management facilities, even those designed primarily for conveyance, 

have been “designed with nature” in which they would intentionally function as a natural 

wetland, pond or stream. In addition to its many ecosystem and hydrologic benefits, it is a 

design concept that has been strongly encouraged by State and Federal Agencies.

Recommendation: The final rule should explicitly state that stormwater 

management facilities are excluded from being considered WOTUS. More 

generally, the Corps and EPA should work to ensure that concerns about creating 

jurisdictional waters do not discourage the implementation of green infrastructure 

or natural methods of stormwater management. (p. 2-3)

Agency Response: Please see summary response at 7.4.4.

7.630 Waste Treatment Systems - The proposed rule would identify as non-jurisdictional by 

rule “waste treatment systems, including treatment ponds or lagoons, designed to meet 

the requirements of the Clean Water Act.” (79 FR 22263). The preamble does not contain 

any explanation of this exclusion, so it is not clear how this exclusion would apply to 

stormwater management systems that are constructed to meet requirements of the Clean 

Water Act. One of the potential impediments to developing green infrastructure is the 

concern that wetlands created to receive stormwater runoff could themselves be deemed 

jurisdictional.

Recommendation: The final rule should clarify that the exclusion for waste treatment 

systems, including treatment ponds or lagoons also applies to stormwater management 

facilities. More generally, the Corps and EPA should work to ensure that concerns about 

creating jurisdictional waters do not discourage the adoption of natural methods of 

stormwater management. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Gateway Water Management Authority, Los Angeles Gateway Region (Doc. #10032)

7.631 Curbs, street gutters, concrete or other constructed harded water conveniences such as 

circular or rectangular concrete storm drains in urban settings; that did not or are not 

replacing existing natural stream or river beds are not considered tributaries.

This wording is not inconsistent with the changes to the "ditch" rule for rural areas that 

are being proposed. This wording would also not impact the outfall and receiving water 

monitoring programs our cities have recently submitted to the Los Angeles Regional 

Water Quality Control Board, thus protection of the waterways would continue under the 

MS4 Permit. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Department of Public Works, Snohomish County, Washington (Doc. #10749)

7.632 Federal regulations for NPDES municipal stormwater permits are set forth in 40CFR 

122.26 pursuant to Section 402(p) of the Clean Water Act. 40 CFR 122.26(b)(8) defines

the term "municipal separate storm sewer" as: 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

412

"a conveyance or system of conveyances (including roads with drainage systems, 

municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or 

storm d rains):

(i) Owned or operated by a State, city, town, borough, county , parish, 

district, association, or other public body (created by or pursuant to State 

law) having jurisdiction over disposal of sewage, industrial wastes, storm 

water, or other wastes, including special districts under State law such as a 

sewer district, flood control district or drainage district, or similar entity, 

or an Indian tribe or an authorized Indian tribal organization, or a

designated and approved management agency under section 208 of the 

CWA that discharges to waters of the United States;

(ii) Designed or used for collecting or conveying stormwater ;

(ii i) Which is not a combined sewer; and

(iv ) Which is not part of a Publicly Owned Treatment Works (POTW) as 

defined at 40 CFR 122.2."

The basic purpose of the municipal storm sewer system, as operated under the NPDES 

permit, is to function in a manner analogous to a sanitary sewer system. The municipal 

storm sewer is designed, constructed, and operated to collect, convey, and properly treat 

stormwater prior to discharge to surface receiving waters.

The existing definition of "municipal separate storm sewer" sets forth an essential 

characteristic of these systems: they discharge to waters of the United States. This creates 

a very useful regulatory bright line: upstream of the discharge point, the system (and the 

water in it) are regulated by the NPDES municipal stormwater permit; downstream of the 

discharge point, regulations for water s of the United States apply.

The proposed language of 40 CFR 2303 creates ambiguity in distinguishing between 

waters of the United States and municipal separate storm sewer systems. Proposed 40 

CFR 2303(s) defines a very broad set of water bodies and conveyances as "waters of the 

United States." Proposed 40 CFR 2303(t) excludes a number of water bodies and 

conveyances from this definition, including "ditches that do not contribute flow, either 

directly or through another water, to a water identified in paragraphs (s)(1) through (4) of 

this section" (emphasis added). Thus, any ditch that contributes flow, directly or 

indirectly, to any of those waters of the United States is itself included in the scope of 

waters of the United States.

The municipal separate storm sewer system of Snohomish County includes hundreds of 

miles of ditches designed, constructed, operated, and maintained as part of the roadway 

drainage system. Virtually all of these ditches drain directly or indirectly to waters of the 

United States as defined in proposed 40 CFR 2303(s). Thus, while these ditches fall 

under the existing definition of municipal separate storm sewer set forth in 40 CFR 

122.26(b)(8), they would also become classified as waters of the United States under 

proposed 40 CFR 230.3.

Snohomish County believes this was an unintended consequence of the proposed 

definition of waters of the United States. Our recommended solution is to amend the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

413

proposed definition to include municipal separate storm sewer systems under the 

exemption given to waste treatment systems, as follows:

40 CFR 230.3

(t) The following are not "waters of the United States" notwithstanding whether 

they meet the terms of paragraphs (s)(1) through (7) of this section-

(l) Waste treatment systems, including treatment ponds or lagoons, designed to 

meet the requirements of the Clean Water Act and infrastructure that is part of 

municipal separate storm sewer systems as defined in 40 CFR l22.26(b)(8).

We believe that this amendment follows the logic used in the 1987 Clean Water Act 

amendments that placed regulation of stormwater and stormwater infrastructure under the 

purview of NPDES wastewater regulations. Both types of municipal infrastructure are 

designed, built, and operated to remove pollutants from water prior to it discharge to 

waters of the United States. Our proposed amendment will retain the existing important 

distinction between municipal sewer infrastructure and waters of the United States 

provided in 40 CFR l22.26(b)(8), while allowing the necessary revision to the scope of 

"waters of the United States" related to ditches that are not part of a municipal separate 

storm sewer system. (p. 1-2)

Agency Response: Please see summary response at 7.4.4.

Minnesota Cities Stormwater Coalition (Doc. #14647)

7.633 1. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. 

Some are cities. Others are various types of public entities (DOTs, counties, nontraditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES 

permitting program. Many more of these MS4s are not regulated and are not covered 

under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their 

systems that are regulated under MS4 permits (inside an Urbanized Area) and portions 

that are not regulated (outside of Urbanized Areas). Taken together, all these MS4s own, 

operate, and maintain millions of Stormwater Control Measures (SCMs) and Best 

Management Practices (BMPs). These SCMs and BMPs include both structural and nonstructural practices, programs, and features. In order for these MS4s to operate and 

maintain their systems in an efficient and cost-effective manner, the WOTUS 

jurisdictional status of the vast majority of these constructed SCMs and BMPs must be 

clear. Determining the WOTUS jurisdictional status of most of these constructed SCMs 

and BMPs on a case-by-case basis is not manageable or practicable. It is essential that 

clarity be provided by having specific and explicit exclusion language in the new rule for 

most of these constructed SCMs and BMPs, including roadside ditches. Broad inclusion 

language and reliance on agency best professional judgment and discretion regarding the 

WOTUS status of most urban SCMs and BMPs are not acceptable or practicable. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.634 3. If a significant number of urban SCMs are determined to be WOTUS, the operation 

and maintenance of those SCMs will become much more complicated, difficult, and 

expensive for the public entities responsible for these MS4s, without any corresponding 

positive environmental outcomes. In fact, the MS4s’ work and performance to protect, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

414

restore, and improve water quality will be diminished. Such determinations may be the 

result of agency judgment or the outcome of third party lawsuits, based on interpretations 

of rule language. This is part of the reason why an explicit exclusion for most urban 

SCMs is needed. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.635 4. Specific exclusion language is needed for urban SCMs. If, as has been stated publicly, 

it is EPA’s intent that most of these waters and structures are not to be considered 

WOTUS, this should be clearly stated in the rule. Such a clear statement would formalize 

and clarify EPA’s intent. Such a clear statement would significantly reduce the 

probability of unfortunate interpretations in the future. (p. 3-4)

Agency Response: Please see summary response at 7.4.4.

7.636 5. The current draft of the rule is almost silent about urban stormwater, in the preamble 

and the proposed rule language. This recommended revision language would rectify a 

portion of that deficiency. Adding exclusion language for urban SCMs to this rule would 

be appropriate, historic, and significant. (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.637 6. Because EPA is driving construction of MS4 SCMs and BMPs as part of its regulatory 

function, EPA has a responsibility to define clearly the jurisdictional status of most urban 

SCMs in the new WOTUS rule. This is part of the reason why an explicit exclusion for 

most urban SCMs is needed. (p. 4)

Agency Response: Please see summary response at 7.4.4

7.638 7. The definition for the term “tributary” provided in the proposed draft rule language is 

breathtakingly broad, especially the language related to man-made and natural breaks. 

Under this language, it appears that many urban SCMs could be considered tributary to 

other Waters of the United States and, thus, themselves be WOTUS. This contradicts 

EPA’s public statements that most urban SCMs are not WOTUS. This is part of the 

reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion 

language and reliance on agency best professional judgment and discretion regarding the 

WOTUS status of most urban SCMs and BMPs are not acceptable or practicable. (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.639 8. Section 1.a.vi. of the draft proposed rule (“All waters, including wetlands, adjacent to a 

water identified in paragraphs (a)(1) through (5) of this section”) states that all waters 

adjacent to WOTUS are WOTUS. The definition of the term “adjacent” includes the term 

“neighboring”. The definition of the term “neighboring” includes waters located within 

the riparian area or floodplain of a WOTUS. Under this rule language, it appears that 

constructed urban SCMs in the riparian areas or floodplains of WOTUS would be 

considered WOTUS. This contradicts EPA’s public statements that most urban SCMs are 

not WOTUS. This is part of the reason why an explicit exclusion for most urban SCMs is 

needed. Broad inclusion language and reliance on agency best professional judgment and 

discretion regarding the WOTUS status of most urban SCMs and BMPs are not 

acceptable or practicable. (p. 4)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

415

7.640 9. The approach with this new recommended revised rule language is to provide a broad 

exclusion for most types and the vast majority of urban stormwater SCMs, BMPs, and 

roadside ditches. The authors recognize that it may be appropriate that some types of 

urban SCMs are determined to be WOTUS, on a case-by-case basis. To this end, the new 

recommended revised language includes “exceptions to the exclusion” in the definition 

for “fully-constructed SCMs” (see the last three sentences). We urge EPA and the Corps 

to consider this approach for the final rule language. This approach allows for a 

categorical exclusion for most urban SCMs but also allows for some types of urban 

SCMs to be determined to be WOTUS, on a case-by-case basis. If additional exceptions 

are needed and appropriate for “fully-constructed SCMs” or exceptions are needed and 

appropriate for some types of roadside ditches, we urge EPA and the Corps to use this 

approach and add exceptions as needed. (p. 4-5)

Agency Response: Please see summary response at 7.4.4.

7.641 10. We urge EPA to add explanatory language to the preamble to clarify its approach for 

urban SCMs. The preamble should be as clear for urban SCMs and roadside ditches as it 

is for agricultural waters, flows, practices, and ditches. (p. 5)

Agency Response: The preamble explains all exclusions as clearly as possible. 

Also, please see summary response at 7.4.4.

7.642 11. The exclusion language in the current proposed rule (“Waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act.”) is inadequate for urban SCMs. Many urban SCMs were constructed for and 

serve purposes other than “waste treatment”. Many urban SCMs were designed for 

purposes other than meeting “the requirements of the Clean Water Act”. For example, 

this language does not cover many SCMs constructed in non-permitted MS4s. This 

language would not cover urban SCMs and roadside ditches constructed prior to the 

passage of the CWA. The new recommended revised rule language is intended to address 

these deficiencies. (p. 5)

Agency Response: Please see summary response at 7.4.4.

7.643 16. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United 

States. Some are cities. Others are various types of public entities (DOTs, counties, nontraditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES 

permitting program. Many more of these MS4s are not regulated and are not covered 

under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their 

systems that are regulated under MS4 permits (inside an Urbanized Area) and portions 

that are not regulated (outside of Urbanized Areas). The exclusion language proposed 

here applies to all urban SCMs, regardless of whether they are covered under an MS4 

permit or not. It may be appropriate to include language in this rule providing an 

exclusion for urban SCMs that are within the boundaries of permitted MS4s, but that is 

not the goal of this recommended rule revision. It is essential, for all the reasons listed 

above, that an exclusion be provided for the vast majority of urban SCMs, regardless of 

MS4 permit status. (p. 6)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

416

7.644 18. EPA has publicly stated that a water can be both part of an MS4 conveyance system 

and a Water of the Unites States. This is a very confusing concept, from the perspective 

of regulated MS4 permittees. It is particularly confusing in light of another public 

statement from EPA presentations on this rulemaking: “Remember: Clean Water Act 

permitting requirements apply ONLY when there is a discharge of a pollutant from a 

point source into a Water of the U.S.”. How does an MS4 system discharge to a WOTUS 

if the WOTUS is a component of the MS4 conveyance system? If there is no discharge, 

do the CWA permitting requirements apply? How does an MS4 permittee meet its permit 

requirements for the operation and maintenance of its system when a component of its 

system is also WOTUS?

We request that an alternative approach be considered. A water should only be WOTUS 

or part of an MS4, never both simultaneously. If a water is WOTUS, the discharge points 

from the MS4 to the water would be clearly viewed as outfalls under the MS4 permit. 

The water leaving the WOTUS could reenter the MS4. This approach may be much more 

clear and “cleaner” than the current concept of waters being both WOTUS and MS4 

components simultaneously. (p. 6)

Agency Response: The Agencies regard both approaches as essentially the same. 

Please see summary response at 7.4.4.

County of San Diego, California (Doc. #14782)

7.645 Exemption for water conveyance features

The County requests that the new rule exempt the full range of conveyances, green 

infrastructure, treatment, storage, and infiltration facilities necessary to comply with MS4 

permits. The proposed rule should explicitly and categorically exclude from the definition 

of a Water of the US multiple separate storm sewer systems (MS4s), conveyances, and 

related infrastructure designed for stormwater management. MS4s are not mentioned in 

the proposed rule. This is a glaring omission. Without a clear exemption, many features 

of MS4s could be potentially considered Waters of the U.S. Although there is an existing 

exemption for "waste treatment systems," it is not clear if all features of MS4s would 

qualify for this exemption.

An exemption is needed for MS4s because the new rule redefines treatment and the 

definition of tributaries in a way that could allow many MS4 facilities to be considered 

Waters of the U.S. because they contribute flow downstream. This presents a conflict in 

complying with sections 402 and 404/401 of the CWA. MS4 facilities and conveyances 

require maintenance to sustain their proper water quality function; however, Sections 404 

and 401 could trigger a need for permits to conduct the maintenance if these facilities are 

considered Waters of the U.S. Clearly, clarification is needed to exempt infrastructure 

and BMP features that are built and maintained to comply with MS4 permits. As 

explained above, the new definition of tributaries appears more expansive, which would 

reduce available water quality treatment options and make it difficult to locate such 

facilities, as Waters of the U.S. cannot be treated directly. As such, the new broad 

definition of tributaries would increase the cost of compliance, reduce treatment options, 

and make it more difficult to comply with Section 402 of the Clean Water Act.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

417

Conveyances should be explicitly defined as drainage facilities other than sanitary sewers 

by which urban runoff may be conveyed to receiving waters, including, but not limited 

to, roads, streets, constructed channels, aqueducts, storm drain, pipes, street gutters, inlets 

to storm drains or pipes, and catch basins. The rule should specifically exempt 

stormwater conveyances, bioswales, green streets, and infiltration basins that are 

necessary to comply with an MS4 permit. Additionally, the exemption should include 

structures and features designed in pursuit of watershed-based compliance options and 

integrated planning for stormwater management and water supply reliability. The 

definitions and exclusions must ensure that the design and location of stormwater BMPs 

can remain consistent with the goals of stormwater management without these areas 

being considered Waters of the U.S.

EXAMPLE: The San Diego Regional MS4 Permit requires plans to address pollutants 

and impairments in jurisdictional water bodies. The Regional Water Quality Control 

Board has identified Chollas Creek as impaired by dissolved metals. Expanding the 

definition of Waters of the U.S. to include ditches and other "offline" MS4 conveyances 

with connectivity to the Creek would significantly limit opportunities to treat stormwater 

before it reaches the receiving water. (p. 2-3)

Agency Response: Please see summary response at 7.4.4

Southeast Metro Stormwater Authority, Centennial, Colorado (Doc. #14935)

7.646 SEMSWA finds that the proposed ruling does not adequately address urban stormwater 

issues, and specifically, does not allow for appropriate management of our stormwater 

systems under our MS4 Permit. In fact, it has the potential to directly and negatively 

affect the efficient implementation of our existing CWA program. In the SEMSWA 

service area, there are several hundred fully-constructed permanent stormwater facilities, 

or best management practices (BMPs) mandated by our MS4 permit. These facilities are 

constructed for the purpose of water quality treatment, stormwater volume reduction, 

stormwater discharge control, flood control, and/or conveyance. These facilities have 

treatment components that require routine maintenance, and have the potential to be 

negatively affected by the proposed Rule, including the tributary definition; significant 

nexus; ditches, and 'waste treatment systems' proposed directives. With respect to our 

MS4 Permit implementation concerns, we would like to offer the following comments for 

your consideration: 

...

4. Additional clarification is needed to identify the type of facilities that qualify for the 

'waste treatment systems' exclusion defined as those systems that are "designed to meet 

the requirements of the Clean Water Act (Page 22193)". SEMSWA owns and operates 

stormwater facilities to control the volume and quality of stormwater runoff in 

accordance with our MS4 permit and we are uncertain if these facilities qualify as 'waste 

treatment systems' as outlined in the proposed rule. We believe any facility designed and 

operated to treat stormwater runoff in our MS4 to meet CWA requirements should be 

specifically included in the 'waste treatment systems' exclusion. (p. 1, 2)

Agency Response: Please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

418

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

7.647 1. Definition of Tributary. Existing regulations do not define this term. In practice, the 

USACE has regularly determined that many remote ephemeral drainages are not Waters 

of the U.S. The Proposed Rule will bring most, if not all, of these tributaries into the 

scope of jurisdictional Waters of the U.S. This would eliminate the USACE's flexibility 

in making individual determinations based on site-specific conditions. Features that 

would otherwise meet the definition of tributary do not lose that status if, for any length, 

there are natural or manmade breaks, provided that there is an ordinary high water mark 

upstream of the break. The Proposed Rule's definition of tributaries would increase the 

number of hydraulically connected features that are considered tributaries, 

notwithstanding exclusions such as ditches, to traditional navigable waters.

We respectfully request exclusions for MS4 features including roadside ditches, detention 

facilities, and detention outfalls. (p. 2)

Agency Response: Please see summary response at 7.4.4. and Compendium 6 -

Ditches

7.648 5. Excluded Best Management Practices. Waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of the Clean Water Act are not 

Waters of the U.S. under the current rule. Language in the 2012 Nationwide Permits and 

Current Guidance clarifies that permanent Best Management Practices (BMPs) that are 

determined to be waste treatment systems under current regulations are not WOTUS. The 

Proposed Rule does not significantly change the language regarding the excluded waste 

treatment facilities. However, there is not a categorical exclusion for BMPs. Additional 

clarification is required to identify the types of facilities that should qualify for this 

exclusion. EPA, as the regulatory authority driving the construction of many BMPs under 

the MS4 Stormwater Program, should have a responsibility to make the jurisdictional 

status of these features clear in the rule language.

Northglenn requests that any facility designed and operated to treat stormwater runoff to 

meet the requirements of the Clean Water Act or local regulations for managing 

stormwater should be included in this exclusion.

Furthermore, the existing regulations include exclusions for waste treatment facilities that 

are constructed to meet CWA requirements and are constructed in uplands. Currently, 

this exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff 

at the national offices and regional regulatory field offices level. Clearly, additional 

language is necessary to restore the intent of this exclusion.

Northglenn requests that language be included in the Proposed Rule to state that 

treatment of stormwater runoff from rural and urban settings conforms to the exclusion 

and that the exclusion applies to all necessary and constructed components of the 

stormwater treatment system. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Public Works, Orange County, California (Doc. #14994)

7.649 c. If the Agencies intend to adopt the Proposed Rule, further consideration should be 

given to the distinction by Congress and the U.S. Supreme Court that MS4s are separate 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

419

and distinct from waters of the U.S. Rapanos v. United States, 547 U.S. 715 (2006) 

(holding that "waters of the U.S. excludes channels containing merely intermittent or 

ephemeral flow, ephemeral streams, wet meadows, storm sewers and culverts, and manmade drainage ditches; and that "point source" is separately defined in Section 402 of the 

CWA). (p. 2)

Agency Response: Please see summary response at 7.4.4. See the Technical 

Support Document at Section 1 concerning the relationship between point sources 

and waters of the U.S. 

SD1 (Doc. #15140)

7.650 Specific Exemptions are needed for Storm Water Practices

An increase in WOTUS could affect the construction of storm water runoff control 

features for SD1, co-permittees, and developers. SD1 is also concerned that routine storm 

water maintenance, such as sediment removal from detention ponds and routine channel 

maintenance and debris removal, as well as green infrastructure practices, could also be 

inadvertently affected. These practices therefore need to be exempted from the rule and 

also need to be clearly stated in the rule so there isn’t confusion as to which storm water 

practices are exempted.

SD1 supports the approach outlined by the Minnesota Cities Stormwater Coalition. This 

approach recommends incorporating exclusion language into the rule for storm water 

control measures and BMPs that is more precise and clear. For example, the term 

“constructed stormwater control measures” is too broad and should be replaced with the 

term “fully-constructed stormwater control measures.” Fully-constructed stormwater 

control measures would be defined as man-made structures, devices, measures, or Best 

Management Practices (BMPs) that are constructed for the purpose of water quality

treatment, stormwater volume reduction, stormwater rate control, flood control, 

stormwater conveyance, or any combination of these purposes. Examples of fullyconstructed stormwater measures would include: constructed stormwater ponds, 

constructed stormwater wetlands, rain gardens, infiltration devices and structures, swales, 

Low Impact Development structures and BMPs, pipes, streets, curbs, gutters, roadside 

ditches, man-made channels, storm drains, and other constructed stormwater control and 

conveyance structures, devices and features.

In this exclusion language, there must also include some exceptions to the exclusions 

with some types of fully-constructed stormwater control measures and BMPs which will 

be determined on a case-by-case basis. These types of exceptions to the exclusion could 

be:

a. Fully-constructed stormwater control measures that have been built at the 

approximate location of similar types of natural waters (such as stormwater 

ponds constructed at the location of natural lakes or wetlands) shall not be 

considered to be fully-constructed stormwater control measures.

b. Natural lakes, ponds and wetlands with stormwater conveyance pipes 

discharging to them and constructed outlets shall not be considered to be 

fully-constructed stormwater control measures.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

420

c. Stormwater control measures that are subject to the ebb and flow of the tide 

shall not be fully-constructed stormwater control measures. (Neprash, 2014)

Testimony from the National Association of Counties (NACO) and the National 

Association of Flood and Stormwater Management Agencies (NAFSMA) illustrates the 

need for exemption of routine maintenance of storm water management facilities and 

roadside ditches (Williams 2014):

“Over the years, numerous local governments and public agencies have 

expressed concerns that regional Corps offices sometimes require Section 404 

permits for maintenance activities on public safety infrastructure conveyances. 

While a maintenance exemption for ditches exists on paper, in practice it is 

narrowly crafted. Whether or not a ditch is regulated under Section 404 has 

significant financial implications for local governments and public agencies.”

This testimony also points out that if a maintenance project is deemed jurisdictional, it is 

subject to many requirements of the CWA and other federal laws such as the National 

Environmental Policy Act and the Endangered Species Act. Negotiations over mitigation 

of environmental impacts and also special conditions dealing with maintenance activities 

ensue, which often take years. SD1 agrees that maintenance activities for existing storm 

water management facilities and roadside ditches, such as channels and detention basins, 

should be exempt from Section 404 permitting. Without these specific exemptions to the 

rule, municipalities and private organization may instead favor gray infrastructure over 

green infrastructure solutions to avoid the potential of having to obtain additional permits 

under WOTUS and the costs associated with delays due to permit backlog. (p. 7-8)

Agency Response: Please see summary response at 7.4.4. Please note that the 

proposed rule did not address which activities are regulated under the CWA; rather 

it addressed which waterbodies are jurisdictional. Comments about activities such 

as maintenance are outside the scope of this rule.

Albuquerque Metropolitan Arroyo Flood Control Authority (Doc. #15221)

7.651 1. Regulation is Proper Under the MS4 Permit Program

...

Nevertheless, the proposed rule would define the individual components of the MS4 

system as tributaries of traditional navigable waters (TNW), and therefore, waters of the 

U.S. themselves. This is in conflict with the distinction made by EPA that an MS4 is a 

system of conveyances that discharges to waters of the U.S., rather than being waters of 

the U.S. Such an interpretation creates a conundrum of inconsistency in applying the 

various parts of the CWA. When such an interpretation creates a conflict, the rules of 

statutory construction dictate that the laws and regulations must be read in a manner so as 

to harmonize the rules or statutes while giving them both effect. See e.g., Food & Drug 

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S. Ct. 1291, 

1301 (U.S. 2000); see also 2A Sutherland Statutory Construction § 46:5 (7th ed.). As a 

result, AMAFCA urges the EPA to exclude MS4 systems from its definition of waters of 

the U.S. subject to its 404 jurisdiction.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

421

Although concerns may arise any time jurisdiction is not asserted over a waterway, those 

concerns are not applicable to MS4 systems. All of AMAFCA’s facilities are currently 

subject to detailed regulations under the MS4 Permit Program. Any water which reaches 

the Rio Grande River must meet EPA requirements or AMAFCA may be held liable. 

This includes the multitude of point sources of unknown origin which infiltrate the 

system. AMAFCA accepts responsibility for ensuring that the water it conveys through 

its storm sewers and facilities is of the proper quality when it reaches the river, including 

seeking out the responsible party for any unauthorized dumping or deposits as necessary. 

As a result, the enforcement requirements are minimized because there is only one point 

source for contamination: the inlet from the MS4 to the river, and water is routinely 

monitored at this inlet.

However, if jurisdiction is asserted under section 404 of the Clean Water Act, AMAFCA 

is no longer able to assume responsibility for the quality of the water that reaches the 

river, which is the real concern of the CWA. In fact, the quality of the water in the MS4 is 

only at issue because of the potential it has to eventually reach the river. This concern is 

addressed most properly under the MS4 Permit Program, which requires the water in the 

system to be of a certain quality before entering the river. The proposed rule fails to take 

into consideration that an MS4 system has water quality features as a matter of practice in 

order to comply with the CWA. While it is generally true that pollutants dumped into any 

part of a tributary system are eventually washed downstream to a TNW, this is not the 

case in an MS4 system where the pollutants are removed as a matter of practice. The 

intent of the CWA is thus entirely covered by the NPDES permit. Furthermore, the

NPDES permit is watershed based, meaning that the quality of the water in the river is 

viewed on a larger scale rather than just at each discharge point. This watershed based 

permit ensures that the river is fully protected as the effects of discharges are evaluated 

not only on an individual basis, but also in the aggregate to ensure there are no 

detrimental effects.

In contrast, jurisdiction under Section 404 would focus not on the quality of the water 

reaching the river, but on the quality of the water which is actually in the MS4 system, 

based on the MS4 channels being classified as a “waters of the United States.” This 

means AMAFCA could no longer implement quality control features throughout the 

system to prevent impacts on the river. Instead, quality control features would need to be 

instituted prior to water entering the MS4 system. However, MS4s are intended to 

capture water at any number of locations to prevent fugitive stormwater from causing 

floods. As a result, there is no limit to the number of inlets into the system, as unmanaged 

water in any location has the potential to threaten the public health and safety. Installing 

water quality control features prior to water entering the MS4 system would prove to be a 

daunting and unrealistic task given the multitude of point sources which discharge into 

the MS4 system. This dual regulation is not only unnecessary, but would also become 

cumbersome to the point of unfeasibility.

This would be detrimental to both the public safety and the environment. AMAFCA’s 

facilities are strictly flood control facilities. They serve not only the public safety by 

capturing fugitive waters and conveying them safely, but they also clean the water that 

enters the system. While much of the water AMAFCA captures historically does not 

reach the river, even the water that does discharge into the river is significantly improved 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

422

by virtue of AMAFCA’s intervention. The flood waters coursing the system are cleaned 

as they pass through the BMPs. Prior to implementation of the MS4 system, historical 

discharges reached the river without any water quality treatment.

More importantly, the reach of the proposed rule would make AMAFCA largely 

ineffective. Because many of the components of the MS4 system are inextricably linked 

together, assertion of jurisdiction over a portion of the MS4 system could result in 

assertion of jurisdiction over the entire system. Dual regulation carries increased 

expenses that AMAFCA could otherwise use to ensure that the water and the public 

safety are protected under the existing MS4 permit. Furthermore, as noted in Sections 

III.F.2 and III.I of the proposed rule, waters, such as geographic features, which will 

result in the discharges being subject to other CWA authorities, should be nonjurisdictional. MS4 systems should be treated no differently, particularly because they are 

heavily regulated under the CWA. (p. 3-4)

Agency Response: Please see summary response at 7.4.4.

Louisville and Jefferson County Metropolitan Sewer District (Doc. #15413)

7.652 2) Clarify the Effect on Municipal Separate Storm Sewer Systems (MS4)

a) Jurisdiction: Based on the amended definition, MSD has significant concerns about 

the potential impacts of the rule on managing Municipal Separate Storm Sewer Systems 

(MS4's). Even though the term "MS4" is not mentioned in the proposed rule, it applies to 

all sections of the Clean Water Act including the NPDES program. Any proposed 

amendment should address the relationship between MS4 stormwater programs and 

jurisdiction over ditches. Accordingly, MSD requests that the final rule either expressly 

exclude MS4's from jurisdiction under Section (t) or provide additional guidance 

concerning the potential jurisdictional limits. As read, it appears that under the proposed 

rule, MS4's could qualify as "waste treatment systems" under Section (t)(I). Because 

MSD is responsible for managing and enforcing the MS4 system in Jefferson County, the 

concern is that if a MS4 becomes jurisdictional, in addition to the current regulation 

under 402(p), locations of outfalls, and therefore the point of regulation could be subject 

to change. MS4 permit holders would then not only be regulated at the point of discharge 

into a water of the US, but also when a pollutant initially enters the stormwater 

conveyance system. (p. 2-3)

Agency Response: Please see summary response at 7.4.4.

Central Massachusetts Regional Stormwater Coalition (Doc. #15443.1)

7.653 2. Proposed Rule, §328.3(b)(5). The definition in this section of the Proposed Rule 

describes seven types of “features” that are not waters of the United States, including 

“artificial lakes and ponds” and “non-wetland swales”. Many stormwater treatment BMP 

and green infrastructure features are similar to the seven features described, but are not 

specifically excluded from being considered a WOTUS. Structures like rain gardens, 

gravel wetlands, vegetated swales, etc. should be affirmatively included as an eighth 

feature under this section.

We offer wording more consistent with the MS4 Program, such as:
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

423

“(viii) Stormwater Best Management Practices (BMPs) or other engineered 

control and/or treatment measures designed, installed, or constructed to mitigate 

the impact of nonpoint source- and in some cases point source- pollution on 

waters of the United States. These BMPs may be designed to reduce stormwater 

volume, peak flows, and/or nonpoint source pollution discharged to the 

environment through evapotranspiration, infiltration, detention, retention, 

filtration, and/or biological and chemical treatment, or a combination of these 

methods.”

Alternately, the definition of “waste treatment system” section in §328.3(b)(1) could be 

revised to include this proposed definition of stormwater BMPs. (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.654 5. General: We strongly recommend that the Proposed Rule clarify that enforcement of 

long term operation and maintenance of stormwater BMP features or measures (described 

in #2, above) should continue to be through the Clean Water Act program under which 

they serve a function, such as the MS4 Program, rather than through a separate parallel 

WOTUS jurisdiction. Otherwise, the Proposed Rule introduces the jurisdictional 

confusion that it aims to eliminate. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Albuquerque, New Mexico (Doc. #15456)

7.655 ...As a Phase 1 Municipal Separate Storm Sewer System permittee (NMS000101), the 

COA’s storm water conveyance system is currently regulated under the Clean Water Act 

and therefore should be exempt from Waters of the U.S. status to avoid double 

regulation. Attempting to further regulate this system of natural tributaries supplemented 

by man-made channels that flow only during localized storm events will create an 

unnecessary and costly monitoring and maintenance burden. (p. 1)

Agency Response: Please see summary response at 7.4.4.

National Association of Clean Water Agencies (Doc. #15505)

7.656 Stormwater Exemptions Must be Explicit

Earlier this month, EPA’s Local Government Advisory Committee (LGAC) provided the 

Agencies with recommendations on how the proposed rule intersects with the important 

issues facing local officials. One of the LGAC’s main recommendations is that 

“manmade conveyance components of MS4s be exempt from Waters of the United 

States. This includes manmade green infrastructure, roads, pipes, manmade gutters, 

manmade ditches, manmade drains, and manmade ponds.” NACWA endorses and fully 

agrees with the LGAC’s recommendation for an exemption of manmade components of 

MS4s. Manmade wetlands in uplands constructed as part of an MS4 should also be 

included in the suggested exemption. This exemption would clarify that the rule is not 

intended to make MS4 collection systems jurisdictional under the CWA above the 

existing point of permitted discharge. This has been a point of significant concern for the 

municipal community, and the Agencies must clarify that MS4 collection systems are not 

jurisdictional in the final rule.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

424

Green infrastructure (GI) practices are manmade and engineered components of wet 

weather management systems and thus should be included in the MS4 exemption. GI 

installations designed to meet CWA obligations or achieve water quality compliance 

should not be jurisdictional waters. Many stormwater utilities use permanent and 

temporary, iterative best management practices (BMPs) such as diversions, sedimentation 

basins, and constructed GI to comply with MS4 permits and the rule should reflect the 

range of facilities that are used to convey, capture, treat and infiltrate stormwater. To 

avoid any interpretation of these structures as WOTUS, they should be clearly exempted 

from the jurisdictional definition. EPA itself has vigorously promoted GI as a “costeffective and resilient approach to our water infrastructure needs that provides many 

community benefits” but any indication that GI could be classified as a WOTUS would 

significantly disincentivize its continued nationwide adoption. Though EPA has verbally 

stated that the proposed rule is not intended to make GI installations jurisdictional, the 

final rule must explicitly indicate that manmade GGI and BMPs designed to meet CWA 

obligations or achieve water quality goals are not jurisdictional. (p. 2-3)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. The agencies did 

not define the stormwater control feature exemption by using the term “manmade.” Because jurisdictional waters can be man-made, using that term in the 

stormwater feature exclusion would be confusing. 

West Bay Sanitary District, Novato Sanitary District, West County Wastewater District, Union 

Sanitary District and West Valley Sanitation District, California (Doc. #16610)

7.657 ... channels and other conveyances used as part of a municipal separate storm sewer 

system (MS4) should be classified as "point sources" since discharges from these 

conveyances require an NPDES permit to discharge pollutants to WOTUS. 33 U.S.C. 

§1342(P). Waters within an MS4 may be collected and possibly even treated prior to 

discharge, which is not an activity contemplated within WOTUS themselves. Without 

this distinction, retention and detention basins could be defined as WOTUS, requiring a 

404 permit each time the sediment collected in those basins needed to be dredged out to 

maintain storage capacity, or an NPDES permit might be needed to discharge into those 

basins. These additional regulatory hurdles might make these Best Management Practices 

less attractive to local stormwater management agencies, and remove one of the best tools 

from the stormwater toolbox. (p. 6)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. 

Sacramento Stormwater Quality Partnership (Doc. #17005)

7.658 ...Combined, the new definitions and vague exclusions invite significant uncertainty with 

respect to how the Proposed Rule would be applied to MS4s and related structures. To 

avoid such a result, it is imperative that the Proposed Rule clearly distinguish MS4s as 

not WOTUS.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

425

Federal regulations define a municipal separate storm sewer (i.e., MS4) to mean "a 

conveyance or system of conveyances (including roads with drainage systems, municipal 

streets, catch basins, curbs, gutters, ditches, man-made channels v or . storm drains): . 

Designed or used for collecting or conveying storm water .. ..." (40 C.F.R. § 

12220(b)(8)3 M54s are highly regulated, and NPDES permits provide legal authority and 

regulation for discharges from M54s to WOTUS. (See, generally, CWA, § 402(p)(3)(E); 

see also 40 C.F.R. §§ .12226, 12230-122.37.) MS4s are not themselves WOTUS; and, 

MS4s are required, at a minimum, to implement controls to reduce the discharge of 

pollutants to WOTUS to the maximum extent practical. (CWA, § 402(p)(3)(B)(iii).) Such 

controls include nonstructural best management practices, structural hest management 

practices (BMPs), and other related infrastructure facilities. Examples of structural BMPs 

can include: ",(I) storage practices such as wet ponds and extended-detention outlet 

structures; (2) filtration practices such as grassed swales, sand filters and filter strips; and 

(3) infiltration practices such as infiltration basins and infiltration trenches." (See 64 Fed. 

Reg. 68722, 68760 (Dec. 8, 1999)) Examples of related infrastructure facilities can 

include groundwater recharge basins and green infrastructure projects. Green 

infrastructure may include the creation of new habitat and recreational facilities and areas 

where runoff is infiltrated or dispersed.

Unfortunately, the Proposed Rule fails to specifically exclude MS4s (and related 

infrastructure and associated facilities) from being a WOTUS. Thus, many of the newly 

proposed definitions create significant uncertainty, and could be interpreted in a manner 

that could bring an MS4 and/or its related facilities into the jurisdictional 'definition of a 

WOTUS. The new definitions in the Proposed Rule identify Waters by category, 'and 

include tributaries, jurisdictional ditches, adjacent waters, and "other waters" with 

significant nexus to an existing WOTUS.

The type of stormwater. facilities and other related infrastructure projects of an MS4 

system that are potentially vulnerable to jurisdiction under these new categories, include, 

but are not limited to:

 MS4 conveyance facilities

 Detention and settling basins

 Storm water treatment systems

 Infiltration/Detention facilities ,

 Bioswales

 Groundwater recharge facilities

 Green infrastructure projects

...the Partnership recommends that the Proposed Rule be revised to clearly indicate that 

the definition of tributary does not, and is not intended to, include MS4 facilities. The 

Agencies can accomplish this by ensuring that, the exclusions...are clear, concise, and 

specifically address storm water management facilities. The Agencies also need to 

include text within the descriptive portion of the final rule that clearly and definitively, 

states that MS4 facilities are not a WOTUS. Such a clarification is consistent with 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

426

previous EPA findings. (See 53 Fed. Reg. 49416, 49442 (Dec. 7, 1988) ["[W]aters of the 

United States are not storm sewers for purposes of this rule."].) 

...

Under the expansive ecoregion approach, many "other waters" throughout California will 

be included under CWA jurisdiction, unless specifically excluded. Arguably, any surface 

water body on the landscape that is not categorically exempted may be treated as a 

WOTUS if either Agency. determines that the surface water body in question, or in 

combination with other similarly situated waters, affects the chemical, physical, or 

biological integrity of a traditional navigable water, interstate water, or territorial sea. 

Hydrologic connection (surface-or subsurface) would be unnecessary to create significant 

nexus. Under such an approach, stormwater agencies in California will face significant 

uncertainty with respect to CWA jurisdiction for MS4 conveyance facilities as well as 

other stormwater related facilities. Further, the vagueness in the exclusions will only add 

to this uncertainty, which will not further the overall clarity goals of the Proposed Rule.

Moreover, the Proposed Rule states that functions of waters that might demonstrate a 

significant nexus include sediment trapping, nutrient recycling, pollutant trapping and 

filtering, retention or attenuation of flood waters, runoff storage, export of organic matter, 

export of food resources, and provision of aquatic habitat. (79 Fed. Reg. 22,188, 22213 

(April 21, 2014)) Many of these functions are identical to functions provided by 

stormwater structural BMPs. Thus, based on the Proposed Rule, many stormwater 

facilities could be found jurisdictional under the "other waters" category. Yet again, 

however, such facilities were specifically created to serve these functions, and are 

implemented to ensure compliance with CWA NPDES MS4 permit requirements. 

Considering the broad and expansive nature of the "other waters" category, it is 

imperative that the exclusions...specifically call out and include stormwater facilities. (p. 

2-3, 4, 6)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. See summary response at 7.4.4. Groundwater recharge 

basins are covered under the exclusion at (b)(7) for “wastewater recycling 

structures created in dry land: detention and retention basins built for wastewater 

recycling, groundwater recharge basins, and percolation ponds built for wastewater 

recycling, and water distributary structures built for wastewater recycling” or 

under the stormwater control feature exclusion at (b)(6), depending on the source of 

water. In effect, both have the same result, i.e., the infiltration basin is not a 

jurisdictional water as long as it was built in dry land. Please note that the final 

rule does not change the applicability of the Underground Injection Control 

program for Class V injection wells or subsurface fluid distribution systems under 

the Safe Drinking Water Act. See 40 CFR Part 144. 

Ventura County Watershed Protection District (Doc. #18762)

7.659 The Proposed Rule's suggestion that some types of storm water facilities, infrastructure 

projects, and associated facilities could be regulated within the scope of a definitional 

WOTUS poses uncertainty and potential confusion among both the regulating entities 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

427

and the regulated entities, and may increase the regulatory burden associated with 

implementation of MS4 permit requirements. The Ventura Countywide Stormwater 

Quality Management Program supports the California Stormwater Quality Association's 

(CASQA) recommendations that the Agencies revise the Proposed Rule to clarify that 

MS4s are not WOTUS, and that certain types of storm water related facilities discussed 

herein are also not considered to be WOTUS. Specifically, certain exclusions within the 

Proposed Rule need to be expanded to include MS4 conveyance facilities and other 

related facilities. Exclusions needing expansion include: waste treatment system, artificial 

lakes, ditches, and swales. The Program also supports the revisions to the Proposed Rule 

provided in CASQA's comment letter. These issues are summarized below:

1. MS4s are not WOTUS

2. New definition of 'tributary' could improperly include MS4 facilities

3. New definition of 'adjacent' could improperly include MS4 and other important 

water resource facilities

4. 'Other waters' approach goes beyond the case-by-case significant nexus test

5. The exclusions for waters that are not WOTUS must be revised to incorporate 

MS4 conveyance and other related facilities. (p. 1-2)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. 

Northern Arizona Municipal Waters Users Association (Doc. #9730)

7.660 ...Storm water systems should be clearly identified as not being "waters of the United 

States." (p. 1)

Agency Response: Please see summary response at 7.4.4.

Northwest Colorado Council of Governments Water Quality/ Quantity Committee (Doc. 

#10187)

7.661 QQ supports the continued exemption for tributary ditches and canals that are part of 

wastewater treatment systems. However, we propose that tributary ditches or canals that 

are part of stormwater management systems and water treatment systems also should be 

expressly excluded from the definition of tributaries in particular, and waters of the 

United States more generally. (p. 4)

Agency Response: Please see summary responses at 7.1 and 7.4.4.

Duke Energy (Doc. #13029)

7.662 b. The Proposed Rule Should Expressly Exclude Stormwater Management Facilities 

and Their Conveyances

Since stormwater management activities are not explicitly exempt under the proposed 

rule and it is unclear if they would be meet the requirements for the waste treatment 

exclusion, Duke Energy has concerns that man-made conveyances and facilities for 

stormwater management could now be classified as a “water of the United States.” 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

428

Stormwater control structures are located at many of Duke Energy’s various sites, from 

generation sites to individual substations. These entities are not currently considered 

“waters of the United States.” Duke Energy owns and maintains hundreds of electrical 

substations, the majority of which include some form of stormwater control structure, 

which include wet retention/detention basins. These basins are used to capture, control, 

and treat the stormwater runoff from the substations and are necessary to ensure 

reliability of electrical equipment. A picture of one facility is included as an example.

Currently, these stormwater features are not regulated as “waters of the United States” 

because they are isolated, man-made stormwater control and treatment structures. They 

are regulated, however, through state programs such as the Environmental Resource 

Permit (ERP) program in Florida. The ERP program in Florida was created in 1995 as a 

merger between two specific state programs, the wetland resource permitting program 

(WRP) and the management and storage of surface waters (MSSW) program. The intent 

was to streamline these regulatory programs without any loss of environmental 

protection.

The stormwater structures regulated under the ERP program must be designed and 

constructed to meet water quality (such as suspended solids and oil/grease) and water 

quantity (flood control) criteria. While industry and state officials within Florida consider 

these features to be waste treatment facilities, they arguably could not fit within the scope 

of the waste treatment system exclusion because they were designed to meet state 

requirements, not “the requirements of the Clean Water Act,” as courts could narrowly 

construe applicability of the exclusion.

Consequently, under the proposed rule, these isolated features could be deemed 

jurisdictional as either “adjacent waters,” if constructed within a floodplain398 of a 

jurisdictional water, or as “other waters” through aggregation of similarly situated waters. 

Additionally, more recently constructed control and treatment basins are often required 

by the state permitting authority to include a shallow littoral zone utilizing wetland

vegetation to facilitate additional treatment. The impact of capturing such treatment 

systems as “waters of the United States” would be enormous. The stormwater treatment 

systems would no longer be able to serve their essential purpose (which is to treat 

stormwater), necessitating alternative control and treatment structures (which, 

themselves, could then be considered “waters of the United States”). Capturing such 

stormwater treatment systems cannot possibly be part of the aquatic inventory that 

Congress intended to protect under the CWA.

Lastly, if these stormwater control features, which include swales, detention/retention 

ponds, or surrounding littoral zones, were classified as “waters of the United States,” 

additional permitting burdens would apply. For example, substation SPCC Oil Spill 

Response Plans could require significant revision to account for the increased notification 

and response requirements that would be mandatory if there were a spill to the newly 

designated “water of the United States.” Additionally, a general permit would be needed 

 

398 Determining the floodplain would be through the best professional judgment of the regulating agency and could 

be of a larger flood interval (i.e. 100 year) that would encompass a greater amount of surface area than what the 

retention pond was designed for (i.e. 20 or 50 floodplain).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

429

for herbicide or pesticide application for vegetation control. Moreover, a CWA § 404 

permit could be required to remove vegetation when maintaining the pond.

While some of these impacts may only result in minor cost increases or regulatory 

burdens to any one substation or other electrical facility, the aggregate cost for hundreds 

of these facilities could be significant with no consequential environmental benefit. Since 

these entities were designed and constructed for specific stormwater management 

activities, additional regulation is not appropriate and will not result additional 

environmental protection.

The agencies have stated that MS4 systems would not change status and would not 

become “waters of the United States.”399 It seems the agencies’ intent is to exclude these 

systems under the waste treatment exclusion, however, this is not evident in the language 

in the proposed rule. In addition, there is no justification why MS4 systems would be 

included within the exclusion and other stormwater systems designed and constructed 

under state or local requirements would not.

Duke Energy recommends that all stormwater structures (retention ponds, detention 

ponds and conveyances), not just MS4 systems, be expressly excluded from the definition 

of “waters of the United States” or for the agencies to clarify that these entities are 

included under the waste treatment exclusion. (p. 46-48)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4.

7.663 Section 402(p) of the CWA specifies that an NPDES permit is required for any “storm 

water discharge associated with industrial activity.” EPA has historically recognized that 

collected stormwater is not a “water of the United States” and, in some cases, regulated 

as a “point source”. If a facility discharges or has the potential to discharge stormwater to 

a municipal separate storm sewer system or directly to “waters of the United States,” then 

that facility requires authorization under a NPDES industrial stormwater permit.

Stormwater management features are located everywhere, including in floodplains. With 

the proposed fundamental change in jurisdictional determinations (jurisdictional unless 

excluded), stormwater collection systems could be considered jurisdictional “adjacent” or 

“other waters.” The conveyances associated with these systems could exhibit 

characteristics that would classify them as jurisdictional tributaries per the proposed 

rule’s definition. This is disconcerting since there is not a specific exclusion included in 

the proposed rule for any stormwater collection system. EPA has mentioned that MS4 

systems would qualify for the waste treatment exclusion, but this is not clarified in the 

rule. In addition, there are several other non-industrial/non-municipal systems in service 

that are regulated by the state and perform the same functions (collecting rainwater for

safety and flood control). Duke Energy recommends that the agencies clearly assert that 

all water collected in stormwater management systems are not “waters of the United 

States” until discharged into such a water. (p. 53-54)

 

399 EPA Questions and Answers About Waters of the U.S. Proposal, September 6, 2014 (Q13)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

430

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. 

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

7.664 VI. Unanswered Questions

Despite the proposal’s stated objective to add clarity to the regulatory process, the 

proposal in fact creates great confusion and uncertainty...issues that must be addressed, 

through clarification and in the context of an ongoing dialogue amongst stakeholders, 

include:

...

 Will man-made swales used to capture stormwater be jurisdictional (should have 

exemption);

(p. 6-7)

Agency Response: Please see summary response at 7.4.4.

EcoSynthesis Scientific & Regulatory Services (Doc. #14586)

7.665 Another important subject, alluded to above, that needs to be clarified, is the Proposed 

Rule’s intent and effect on regulation of constructed roadside ditches in locations where 

there is no antecedent historical drainage feature... application of the actual language of 

the Proposed Rule would include them. This would have massive regulatory implications 

for municipalities of every size. The disincentive to implement stabilization of longstanding roadside erosion posed by the costs and timeline of delineating and obtaining 

permits for such improvements would have negative consequences for water quality.

This concern extends also to every kind of permanent water quality BMP such as 

sediment basins with no continuous tributary connection to downstream waters: 

maintenance of such facilities would presumably require a verified delineation, 

notification, and a permit, which also means NHPA Section 106 consultation and 

sometimes also ESA Section 7 consultation. This is impossibly onerous for small entities. 

Delineation verifications alone take 3-18 months from submittal. Added to the permit 

timeline, this would mean that, if it became evident that a large event (say an exceptional 

10- or 20-year one) had filled a basin with sediment, it would usually be impossible to 

complete the regulatory process prior to the beginning of the ensuing rainy season, when 

that sediment capacity will be sorely needed. The Rule absolutely needs to have 

exclusions for MS4 features of every kind except those that are realignments of 

identifiable historic drainageways. (p. 5-6)

Agency Response: Please see summary response at 7.4.4.

National Rural Water Association (Doc. #14623)

7.666 Community storm sewer systems (MS4s) should be excluded from the final rule in a 

similar manner as waste treatment systems. Some communities’ storm sewer system 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

431

conveyance facilities include channels that may discharge to traditional “Waters of the 

U.S.” (p. 4)

Agency Response: Please see summary response at 7.4.4.

Tarrant Water Regional Water District, Fort Worth, Texas (Doc. #14643)

7.667 The proposed rules jeopardize our ability to build cost-effective BMPs because 

stormwater retention basins, constructed wetlands, bio swales, etc. could become part of 

the proposed definition of waters of the U.S., making permitting, construction, and 

maintenance more costly and time consuming. We therefore recommend that the rules 

exclude these and other stormwater BMPs so that we can continue to insist that 

developers implement stormwater quantity and quality controls. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Santa Clara Valley Water District (Doc. #14776)

7.668 The Proposed Rule is also inconsistent with stormwater regulation. In the West, open 

channels are often used to convey stormwater to ambient waters. Sometimes, portions of 

surface streets are used to convey stormwater. Both EPA and California typically treat 

these artificial conveyances as part of the stormwater system, and require NPDES permits 

for discharges from the downstream end of these conveyances to ambient waters. But the 

Proposed Rule suggests that these conveyances may actually be tributaries classified as 

waters of the United States. The final rule should clarify that the waste conveyance

systems, as well as waste treatment systems, are excluded from the definition. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.669 Municipal Stormwater Control Facilities. It appears that the Proposed Rule would 

regulate most Municipal Separate Storm Sewer System (MS4) as jurisdictional 

tributaries. If various components of MS4s are treated as jurisdictional, local 

governments would be responsible for meeting additional requirements throughout the 

local system, which includes traditional components such as ditches, channels, pipes, and 

gutters, as well as “green” stormwater infrastructure such as rain gardens. These 

additional requirements include numeric nutrient criteria applicable to Class III 

(“recreational”) water bodies, anti-degradation requirements and other permit conditions. 

Ironically, green stormwater infrastructure, which is designed to clean water before a 

discharge to waters of the United States, would itself need to meet water quality 

standards. Local governments would also be subject to permitting requirements for any 

dredge and fill activities associated with MS4 components, including some routine 

maintenance activities. The Agencies should categorically exempt MS4s from regulation 

under the Proposed Rule. (p. 29-30)

Agency Response: Please see summary response at 7.4.4.

Kentucky Stormwater Association (Doc. #18912)

7.670 Our KSA membership communities are already responsible, via the MS4 regulations, for 

maintaining the manmade stormwater drainage system / Stormwater Control Measures 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

432

(SCMs) in an environmentally sustainable manner. The extent to which SCMs and other 

management practices are to be double-regulated with the respective financial burden 

upon our local governments without additional benefit to our waterways is a primary 

concern. KSA requests that additional detail be provided for exclusion of manmade 

stormwater drainage / Stormwater Control Measures (SCMs). (p. 1)

Agency Response: Please see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.671 The proposed rulemaking is also silent on Low Impact Development (LID). Many LID 

features will fit the definitions outlined in the proposal and NAFSMA requests that EPA 

explicitly exempt LID / green infrastructure features from WOTUS. The vague language 

in the proposed rule could contradict the existing waste water treatment exemption and 

inadvertently recapture MS4s, including treatment BMPs, back under WOTUS. 

Commingling MS4s and WOTUS will forcibly misapply costly compliance requirements 

intended for receiving water bodies to the vast water collection and conveyance network. 

One of the many unanticipated consequences will be deterring the regulated community 

from implementing green infrastructure. NAFSMA acknowledges permit requirements 

for new construction activities, however, the maintenance of LID, green infrastructure, 

and MS4 features should all be explicitly exempt from WOTUS. (p. 1-2)

Agency Response: Please see summary response at 7.4.4. . Please note that the 

proposed rule did not address which activities are regulated under the CWA; rather 

it addressed which waterbodies are jurisdictional. Comments about activities such 

as maintenance are outside the scope of this rule.

American Rivers (Doc. #15372)

7.672 4. Specifically Exclude Stormwater Treatment Systems

The proposed rule currently excludes waste treatment systems but it does not discuss 

what that term encompasses.400 The definition of “waters of the United States” 

categorically excludes from CWA jurisdiction, “waste treatment systems, including 

treatment ponds or lagoons designed to meet the requirements of CWA.”401 We request 

that the Agencies better define ‘waste treatment systems’ and in doing so include 

stormwater treatment systems, specifically systems that rely on infiltration and 

bioretention to replicate natural hydrology.402 “Green infrastructure,” so far as it is 

defined as engineered stormwater management systems and practices that use or mimic 

natural processes to infiltrate or evapotranspirate stormwater runoff on the site where the 

runoff is generated, generally is employed as a stormwater management practice 

permitted under MS4 and other stormwater permits. Given EPA’s consistent interest in 

encouraging the use of “green infrastructure” as a preferred approach to reducing runoff 

volumes and water quality impacts, it would be inconsistent to imply, or assert, that use 

of these practices incurs additional permitting obligations. (p. 30)

 

400 Id. at 22217 [Definition of WOTUS, 79 Fed. Reg. at 22219.]

401 33 CFR 328.3(a) (2013).

402 See also, SAB review of the proposed rule, supra note 89 at 3-4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

433

Agency Response: Please see summary responses at 7.1 and 7.4.4.

Association of State Floodplain Managers, Inc. (Doc. #19452)

7.673 6. The proposed rule includes language reiterating current exemptions for waste 

treatment systems. However, the regulation of natural or artificial waters that are 

used to convey or treat stormwater is not clear; this is a long standing issue that is 

further complicated by the proposed rule. 

Regulations and exemptions for waters conveying stormwater should be clarified in the 

final rule and in implementing guidance. In additions, any distinctions between §404 

dredge and fill requirements, and the regulatory scheme under §402 – including 

stormwater treatment – should be clarified.

 The basic underlying question of whether stormwater collection and treatment 

systems are considered to be wastewater treatment systems must be clarified. In 

some circumstances, artificial stormwater treatment ponds have reportedly been 

identified by federal agency staff as wastewater systems, but in other cases that 

have been treated as waters of the United States. Situations where natural waters 

are used to collect, store, convey, or filter stormwater become even more 

complicated.

...

 A number of questions have been raised regarding jurisdiction over natural waters 

used to convey and filter stormwater. In some instances, these waters have been 

used to convey stormwater since prior to regulation under the CWA.

 The distinction between wetlands or other waters that store or convey stormwater, 

and those wetlands used specifically to treat or filter stormwater, also raises 

questions regarding the scope of the wastewater system exemption. (p. 9)

Agency Response: Please see summary response at 7.4.4.

Florida Stormwater Association (Doc. #14613)

7.674 The Regulations be re-proposed to confirm that ditches, canals and other waterways that 

convey wastewater or treated water to or from features where treatment occurs are 

covered by the wastewater treatment exclusion, including all sections of NPDESpermitted Municipal Separate Storm Sewer Systems (MS4s) that are upstream from the 

point of discharge. (p. 2)

Agency Response: Please summary response at 7.4.4.

7.675 ...unless there is a specific exclusion pursuant to the very limited exceptions as contained 

in the proposed regulations, one could interpret the regulations as making all ditches, 

stormwater conveyances and attenuation ponds jurisdictional waters. (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.676 Exclusions – We recommend that subsection 40 CFR 230.3(t)(1) (concerning exclusions 

from the definitions of “waters of the United States”) be revised as follows:
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

434

Waste treatment and flood control systems, including treatment ponds or lagoons, 

stormwater retention and detention ponds, and man-made and made-altered 

structures, devices and conveyances that are designed to meet the requirements of 

the Clean Water Act, the conditions of an MS4 permit or to provide flood control 

services.

Such an exclusion would be consistent with existing distinctions in the Clean Water Act 

and EPA regulations. Specifically, such a distinction would confirm that sections of an 

MS4 upstream from a discharge point are not jurisdictional; that the MS4 system itself is 

not waters of the United States; that the features of an MS4 are clearly and unequivocally 

subject to the waste treatment exclusion and are distinct from waters of the United States. 

See, e.g. 33 U.S.C. § 1342(3)(B) (requiring NPDES permits to limit pollutant “discharges 

from municipal storm sewers”)(emphasis added); 40 C.F.R. §122.26(b)(9)(defining an 

MS4’s “outfall” as “the point where a municipal separate storm sewer discharges to 

waters of the United States...”) (emphasis added); Id. at § 122.26(d) (providing 

requirements for MS4 permittees to manage their systems to limit pollutants to 

jurisdictional waters); Id. at § 122.1(b) (“The NPDES program requires permits for the 

discharge of ‘pollutants’ from any ‘point source’ into waters of the United States.”). (p. 

8)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4.

Iowa Stormwater Education Program MS-4 (Doc. #14511)

7.677 The draft proposed rule includes changes to twelve portions of the Clean Water Act. In 

general terms, the draft proposed rule includes the same changes to all twelve sections. 

The following is new revised rule language that we recommend be added to this rule. It is 

expressed in a format appropriate for the proposed revisions to Part 328, Section 328.3. 

We request that similar language, revised as appropriate, be added to each section 

included in this rule.

Added to PART 328—DEFINITION OF WATERS OF THE UNITED STATES § 

328.3 (c) “Definitions” (and other similar sections)

Fully-constructed Stormwater Control Measures. The term fully-constructed stormwater 

control measures (SCMs) means man-made structures, devices, measures, or Best 

Management Practices (BMPs) that are constructed for the purpose of water quality 

treatment, stormwater volume reduction, stormwater rate control, flood control, 

stormwater conveyance, or any combination of these purposes. Fully-constructed SCMs 

include the following man-made features: constructed stormwater ponds, constructed 

stormwater wetlands, rain gardens, infiltration devices and structures, groundwater 

recharge facilities, stormwater reuse facilities, swales, bioswales, Low Impact 

Development structures and BMPs, pipes, streets, curbs, gutters, roadside ditches, manmade channels, storm drains, and other constructed stormwater control and conveyance 

structures, devices, and features. SCMs that have been built at the approximate location 

of similar types of natural waters (such as stormwater ponds constructed at the location of 

natural lakes or natural wetlands, ditches constructed at the location of natural streams or 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

435

creeks, or stormwater channels constructed at the location of natural rivers) shall not be 

considered fully-constructed SCMs. Natural lakes, natural ponds, and natural wetlands 

with stormwater conveyance pipes discharging to them and constructed outlets shall not

be considered fully-constructed SCMs. SCMs that are subject to the ebb and flow of the 

tide shall not be considered fully-constructed SCMs. (p. 1)

Agency Response: Please see summary response at 7.4.4.

7.678 Comments Directly Related to the New Recommended Revised Rule Language 

Provided Above

1. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. 

Many more of these MS4s are not regulated and are not covered under an MS4 permit. 

Some MS4s (e.g.: counties and DOTs) have portions of their systems that are regulated 

under MS4 permits (inside an Urbanized Area) and portions that are not regulated 

(outside of Urbanized Areas). Taken together, all these MS4s own, operate, and maintain 

millions of Stormwater Control Measures (SCMs) and Best Management Practices 

(BMPs). These SCMs and BMPs include both structural and non-structural practices, 

programs, and features. In order for these MS4s to operate and maintain their systems in 

an efficient and cost-effective manner, the WOTUS jurisdictional status of the vast 

majority of these constructed SCMs and BMPs must be clear. Determining the WOTUS 

jurisdictional status of most of these constructed SCMs and BMPs on a case-by-case 

basis is not manageable or practicable. It is essential that clarity be provided by having 

specific and explicit exclusion language in the new rule for most of these constructed 

SCMs and BMPs, including roadside ditches. Broad inclusion language and reliance on 

agency best professional judgment and discretion regarding the WOTUS status of most 

urban SCMs and BMPs are not acceptable or practicable.

2. If a significant number of urban SCMs are determined to be WOTUS, the operation 

and maintenance of those SCMs will become much more complicated, difficult, and 

expensive for the public entities responsible for these MS4s, without any corresponding 

positive environmental outcomes. In fact, the MS4s’ work and performance to protect, 

restore, and improve water quality will be diminished. Such determinations may be the 

result of agency judgment or the outcome of third party lawsuits, based on interpretations 

of rule language. This is part of the reason why an explicit exclusion for most urban 

SCMs is needed.

3. Specific exclusion language is needed for urban SCMs. If, as has been stated publicly, 

it is EPA’s intent that most of these waters and structures are not to be considered 

WOTUS, this should be clearly stated in the rule. Such a clear statement would formalize 

and clarify EPA’s intent. Such a clear statement would significantly reduce the 

probability of unfortunate interpretations in the future.

4. The current draft of the rule is almost silent about urban stormwater, in the preamble 

and the proposed rule language. This recommended revision language would rectify a 

portion of that deficiency. Adding exclusion language for urban SCMs to this rule would 

be appropriate, historic, and significant.

5. Because EPA is driving construction of MS4 SCMs and BMPs as part of its regulatory 

function, EPA has a responsibility to define clearly the jurisdictional status of most urban 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

436

SCMs in the new WOTUS rule. This is part of the reason why an explicit exclusion for 

most urban SCMs is needed.

6. The definition for the term “tributary” provided in the proposed draft rule language is 

breathtakingly broad, especially the language related to man-made and natural breaks. 

Under this language, it appears that many urban SCMs could be considered tributary to 

other Waters of the United States and, thus, themselves be WOTUS. This contradicts 

EPA’s public statements that most urban SCMs are not WOTUS. This is part of the 

reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion 

language and reliance on agency best professional judgment and discretion regarding the 

WOTUS status of most urban SCMs and BMPs are not acceptable or practicable.

7. Section 1.a.vi. of the draft proposed rule (“All waters, including wetlands, adjacent to a 

water identified in paragraphs (a)(1) through (5) of this section”) states that all waters 

adjacent to WOTUS are WOTUS. The definition of the term “adjacent” includes the term 

“neighboring”. The definition of the term “neighboring” includes waters located within 

the riparian area or floodplain of a WOTUS. Under this rule language, it appears that 

constructed urban SCMs in the riparian areas or floodplains of WOTUS would be 

considered WOTUS. This contradicts EPA’s public statements that most urban SCMs are 

not WOTUS. This is part of the reason why an explicit exclusion for most urban SCMs is 

needed. Broad inclusion language and reliance on agency best professional judgment and 

discretion regarding the WOTUS status of most urban SCMs and BMPs are not 

acceptable or practicable.

8. The approach with this new recommended revised rule language is to provide a broad 

exclusion for most types and the vast majority of urban stormwater SCMs, BMPs, and 

roadside ditches. The authors recognize that it may be appropriate that some types of 

urban SCMs are determined to be WOTUS, on a case-by-case basis. To this end, the new 

recommended revised language includes “exceptions to the exclusion” in the definition 

for “fully-constructed SCMs” (see the last three sentences). We urge EPA and the Corps 

to consider this approach for the final rule language. This approach allows for a 

categorical exclusion for most urban SCMs but also allows for some types of urban 

SCMs to be determined to be WOTUS, on a case-by-case basis. If additional exceptions 

are needed and appropriate for “fully-constructed SCMs” or exceptions are needed and 

appropriate for some types of roadside ditches, we urge EPA and the Corps to use this 

approach and add exceptions as needed.

9. We urge EPA to add explanatory language to the preamble to clarify its approach for 

urban SCMs. The preamble should be as clear for urban SCMs and roadside ditches as it 

is for agricultural waters, flows, practices, and ditches.

10. The exclusion language in the current proposed rule (“Waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act.”) is inadequate for urban SCMs. Many urban SCMs were constructed for and 

serve purposes other than “waste treatment”. Many urban SCMs were designed for 

purposes other than meeting “the requirements of the Clean Water Act”. For example, 

this language does not cover many SCMs constructed in non-permitted MS4s. This 

language would not cover urban SCMs and roadside ditches constructed the passage of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

437

the CWA. The new recommended revised rule language is intended to address these 

deficiencies.

...

14. The terms “stormwater control measures” and “best management practices” are 

widely used and very broadly defined, in common usage among stormwater management 

professionals and regulators. They are used to describe both non-structural and structural 

practices, programs, and constructed features. A portion of the range of non-structural 

and structural BMPs can be found at a Web site developed by USEPA for the MS4 

permitting program: “National Menu of Stormwater Best Management Practices” at this 

Web URL: http://water.epa.gov/polwaste/npdes/swbmp/

15. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United 

States. Some are cities. Others are various types of public entities (DOTs, counties, nontraditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES 

permitting program. Many more of these MS4s are not regulated and are not covered 

under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their 

systems that are regulated under MS4 permits (inside an Urbanized Area) and portions 

that are not regulated (outside of Urbanized Areas). The exclusion language proposed 

here applies to all urban SCMs, regardless of whether they are covered under an MS4 

permit or not. It may be appropriate to include language in this rule providing an 

exclusion for urban SCMs that are within the boundaries of permitted MS4s, but that is 

not the goal of this recommended rule revision. It is essential, for all the reasons listed 

above, that an exclusion be provided for the vast majority of urban SCMs, regardless of 

MS4 permit status.

16. The term “stormwater control measures” (SCMs) is used in this recommended 

revised rule language because of its use in the National Research Council’s report from 

2008 “Urban Stormwater Management in the United States”. (p. 2-6)

Agency Response: Please see summary response at 7.4.4.

Water Environment Federation (Doc. #16584)

7.679 Impacts on MS4 Communities: The proposed rule will impact MS4 communities as it 

relates to the issue of waste treatment system exclusions in the context of stormwater 

management. Currently, exclusions listed in 40 CFR 122.3 specifically target discharges 

associated with pest control, nonpoint sources and agricultural activities, sewage and 

industrial wastes, water transfer activities5, and even sewage discharged from vessels.

Not included here are stormwater management and treatment systems. The proposed rule 

plainly states that it “does not change regulatory exclusions for waste treatment systems.” 

However, EPA and the Corps do not intend for traditional stormwater practices, such as 

detention ponds, or green infrastructure practices, such as bioretention facilities and 

permeable pavements, to be considered jurisdictional Waters of the United States, but the 

lack of language explicitly outlining the exclusion of these systems leaves the rule open 

for interpretation as to whether stormwater controls are considered jurisdictional. WEF 

asks that EPA specifically exempts these so to avoid their inclusion.
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438

To clarify that waters associated with stormwater infrastructure are not considered 

Waters of the United States, WEF suggests that specific terms, such as “stormwater 

control measures” or “best management practices,” be integrated into the regulations and 

clearly exempted. This would help to codify that infrastructure used to treat, manage, 

infiltrate, or retain urban stormwater runoff is covered under the waste system treatment 

exclusions. The rule also should further define the systems to which the exemption 

applies and could include man-made structures and devices as well as treatment measures 

used to improve water quality, reduce stormwater volume, control flow rate and flooding, 

convey stormwater, or any combination of these purposes. WEF suggests the following 

language to address this issue:

Added to (c) “Definitions”

“Fully-constructed Stormwater Control Measures. The term fullyconstructed stormwater control measures (SCMs) means man-made 

structures, devices, measures, or Best Management Practices (BMPs) that 

are constructed by the purpose of water quality treatment, stormwater 

runoff volume reduction, stormwater runoff rate control, flood control, or 

any combination of these purposes. Fully-constructed SCMs include 

constructed stormwater ponds, constructed stormwater wetlands, rain 

gardens, infiltration devices and structures, Low Impact Development 

structures and BMPs, and other stormwater control and conveyance 

structures, devices, and features. SCMs that have been built at the 

approximate location of similar types of natural waters (such as 

stormwater ponds constructed at the location of natural lakes or wetlands, 

ditches constructed at the location of natural streams or creeks, or 

stormwater channels constructed at the location of natural rivers) shall not 

be considered to be fully-constructed SCMs. Natural lakes, ponds, and 

wetlands with stormwater conveyance pipes discharging to them and 

constructed outlets shall not be considered to be fully-constructed SCMs.”

Added to “(b) The following are not “waters of the United States” 

notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of 

this section- (5) The following features:”

(viii) Fully-constructed stormwater control measures.

The term “Stormwater Control Measures” is used in the 2008 National Research Council 

report “Urban Stormwater Management in the U.S.” and would present a simple 

exclusion language to a now unclear provision. WEF finds that the use of the term “fullyconstructed SCMs” is narrow enough to allow a reasonable application of what otherwise

could be a broad term. We also intend for this to be narrow and by listing examples, 

achieve such narrow objective. (p. 7-8)

Agency Response: Please see summary response at 7.4.4.

California Stormwater Quality Association (Doc. #16606)

7.680 The Proposed Rule’s suggestion that some types of stormwater facilities, infrastructure 

projects, and associated facilities could be regulated within the scope of a definitional 

“waters of the United States” (WOTUS) poses uncertainty and potential confusion among 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

439

both the regulating entities and the regulated entities, and may increase the regulatory 

burden associated with implementation of MS4 permit requirements. CASQA 

recommends the Agencies revise the Proposed Rule to clarify that MS4s are not

WOTUS, and that certain types of stormwater related facilities discussed herein are 

also not considered to be WOTUS. Specifically, CASQA recommends that certain 

exclusions within the Proposed Rule be expanded to include MS4 conveyance facilities 

and other related facilities. Exclusions needing expansion include: waste treatment 

system, artificial lakes, ditches, and swales.

...the Proposed Rule states that functions of waters that might demonstrate a significant 

nexus include sediment trapping, nutrient recycling, pollutant trapping and filtering, 

retention or attenuation of flood waters, runoff storage, export of organic matter, export 

of food resources, and provision of aquatic habitat. (79 Fed. Reg. 22,188, 22,213 (April 

21, 2014).) Many of these functions are identical to functions provided by stormwater 

treatment control BMPs. Thus, based on the Proposed Rule, many stormwater facilities 

could be found jurisdictional under the “other waters” category. Yet again, however, such 

facilities were specifically created to serve these functions, and are implemented to 

ensure compliance with CWA NPDES MS4 permit requirements. Considering the broad 

and expansive nature of the “other waters” category, it is imperative that the exclusions, 

discussed below in section II, specifically identify and include stormwater facilities. (p. 2, 

6)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.681 The broad definitions in the proposed rulemaking, especially the definition of Tributary 

in conjunction with Adjacent, can lead to the conclusion that MS4s would be deemed 

Waters of the US. The distinction between MS4s and WOTUS is critical and begs the 

question of how CWA Sections 303 and 402 will be applied to historic MS4s deemed to 

be WOTUS. NAFSMA requests that the EPA clearly define what is considered to be an 

MS4 and what is determined to be a WOTUS, and reaffirm that an MS4 cannot be 

WOTUS. (p. 1)

...

The (b)(1) Waste Treatment Systems exemption does not clearly address stormwater 

treatment systems such as bioswales and constructed wetlands treatment systems. 

NAFSMA urges the federal agencies to clarify that such water quality treatment systems 

constructed to meet the requirements of the CWA are exempt. In addition, off‐ channel 

groundwater recharge basins, constructed adjacent to WOTUS should also be exempt. (p. 

1, 2)

Agency Response: Please see summary response at 7.4.4.
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440

Honorable Congressman Ed Perlmutter and Honorable Congressman Mike Coffman (Doc. 

#17456)

7.682 Additionally, we are hearing concerns about Municipal Separate Storm Water Sewer 

Systems (MS4s). It is common for ditches and other stormwater components to be 

connected to an MS4 in efforts to reduce and recycle stormwater runoff. Clarity is needed 

on exemptions for these systems as they are already permitted under the National 

Pollution Discharge Elimination System. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Honorable Representative Frankel, Honorable Representative Napolitano and Honorable 

Representative Dina Titus (Doc. #17458)

7.683 The Florida Department of Environmental Protection currently regulates surface water 

management systems under statewide environmental resource permitting programs that 

additionally provide certification under Section 401 of the Clean Water Act that the 

systems comply with the applicable provisions of the Clean Water Act. While the 

proposed rule preserves the existing exemption for wastewater treatment systems from 

being considered WOTUS, currently permitted surface water management systems could 

arguably fall within the definitions articulated under the proposed rule. Will the agencies 

explicitly exempt surface water management systems that are permitted under state law 

and meet state water quality standards from being considered WOTUS? If not, why not?

...

If the agencies feel as though the above concerns [stormwater management practices] 

currently fit under the existing waste treatment exemption to the "Waters of the United 

States" rule, please provide citations to existing regulations, guidance documents or other 

sources to support such a proposition. (p. 2, 3)

Agency Response: Please see summary response at 7.4.4.

7.4.5. Other

Summary Response

Please see Summary Response above for New Exclusions/Language from Commenters

Specific Comments

Oak Ridge National Laboratory (Doc. #14463)

7.684 The definition should not deter the beneficial, non-CWA use of water management 

features by failing to clearly exclude them from jurisdiction. The proposed definition 

raises jurisdictional uncertainty for some voluntary water management features.

1. Water management features required to be constructed by a CWA program but have 

ceased to function for the purposes of the CWA compliance but are voluntarily left in 

place. Example: Storm water runoff associated with construction activity is 

discharged to a project-related storm water detention basin. After the construction 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

441

activity is completed, the basin is not removed and serves the purpose of detaining 

storm water runoff from the area of the completed project.

2. Water management features required by a non-CWA program such as a state or local 

requirement. 

Example: Wetlands constructed to mitigated impacts under a state program.

3. Water management features not required but voluntarily constructed to achieve 

sustainability goals. 

Example: A water feature is constructed in uplands to help achieve LEED 

certification for a new building or development by capturing roof runoff. As time 

passes, the water feature develops flora and fauna common to ponds or wetlands. (p. 

1)

Agency Response: With respect to items 1 and 3, see summary response at 7.4.4. 

With respect to point 2, the rule excludes stormwater and wastewater treatment 

features constructed in dry land. If the waters in question meet these criteria, they 

would not be considered waters of the United States.

U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

7.685 The fact that your rule covers all waters in a flood plain calls into question the municipal, 

industrial and agricultural use of water. Water from rivers or groundwater aquifers is 

appropriated or withdrawn (under state law controlling the ownership of water) by 

municipalities, industry, farmers, and others for use. It may be stored in ponds. It may be 

conveyed in ditches all year round. But, until it is discharged back into a water of the 

U.S., any water that is in use should not be considered a water of the U.S. If it is treated, 

then the water might be considered part of an exempt waste treatment system, but not all 

water that has been used needs to be treated and some water is never discharged back to a 

water of the U.S. 

In your outreach sessions, EPA and the Corps have told people that you did not intend to 

regulate these waters. Staff has even suggested that the role does not reach water that is in 

use because it is no longer considered "waters" or because a pond or ditch was excavated 

in uplands.

Unfortunately, there is no clear exemption in the proposed rule that supports these 

assurances. However, a 2005 EPA General Counsel memo on water transfers says that it 

is EPA's longstanding position that water that when is withdrawn from navigable waters 

for an intervening industrial, municipal or commercial use and then reintroduced to 

navigable waters, that reintroduction requires a permit, So, water loses its status as 

"waters of the United States" when it is being used.

Will the final rule will clearly explain that it does not regulate water that is withdrawn, 

collected, transported, stored, or used for an intervening industrial, municipal, or 

commercial use, and this includes all management of water internal to a particular site? 

(p. 16-17)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

442

Agency Response: Please see summary response at 7.4.4. The 2005 memo 

referred to in this comment concerns whether there is an “addition” of pollutants in 

this situation, not the jurisdictional status of a waterbody. 

Alaska State Legislature, Alaska Senate Leadership (Doc. #7494.1)

7.686 IV. Permafrost should be excluded from CWA jurisdiction as it is a "subsoil" entity 

without a "continuous surface connection" that maintains or improves 

"downstream water quality."

The agencies are seeking comment on other categories of water which do not have a 

significant nexus and are not jurisdictional.403

We recommend that permafrost be added to 33 C.F.R. § 328.3(b), because permafrost is 

cryogenically isolated, does not have a significant nexus to other water, and is not 

jurisdictional under the CWA.404

As most Alaskans know, permafrost, as a permanently frozen material underlying the 

solum405 or a perennially frozen soil horizon, does not contribute flow, either directly or 

through another water, to a traditional navigable water, interstate water, the territorial 

seas or an impoundment of a jurisdictional water. It is cryogenically isolated. As a result, 

permafrost does not have a "significant nexus" and is beyond jurisdiction pursuant to the 

Rapanos decision.406

The Rapanos decision specifically stated that only wetlands with a "continuous surface 

connection" to bodies that are waters of the United States in their own right are adjacent 

to such waters and covered by the CWA.407 As permafrost is, per se, a "subsoil" entity 

without a "continuous surface connection," it should properly be excluded from CWA 

jurisdiction.

Noteworthy: Instead of providing flow, permafrost inhibits flow.

Rivers crossing vast permafrost regions are hydrologically isolated by the underlying 

permafrost. Isolated patches of permafrost effectively seal surface vegetative materials 

from underlying groundwater. There is no recharge through permafrost. Nor does 

permafrost serve to maintain or improve water quality (or beneficially affect the 

chemical, physical or biological integrity of traditional navigable rivers, streams, 

tributaries, lakes, or ponds).

Permafrost does not demonstrate a significant function to the watershed by serving as a 

sediment trap. Because it is a nutrient sink, it is not a source of nutrient recycle. It does 

not trap pollutants but is, instead, an emitter of carbon monoxide and methane.

 

403 Per Definition of "Waters of the United States" Under the Clean Water Act, 79 Fed. Reg. 22,252 (April 21, 

2014), and concurrent to the broad policy objectives of the CWA, permafrost should properly be included under 33 

C.F.R. § 328.3(b).

404 The agencies must take this opportunity (without relying on "regional supplements" produced in violation of the 

Administrative Procedure Act ("APA")) to correctly designate permafrost as non-jurisdictional under the CWA.

405 "Solum" is the upper layers of a soil profile. See http://dictionarv.reference.com/browse/solum.

406 Rapanos, 126 S.Ct. 2208, 547 U.S. 715.

407 See Rapanos, 126 S.Ct. at 2212-2213 , 547 U.S. at 716-717 .
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

443

Permafrost does not serve to retain floodwaters. Nor does it provide organic matter to the 

organic-starved arctic and subarctic rivers and streams.

Permafrost does not provide food resources, nor aquatic habitat. The upland habitat it 

provides for birds is neither unique nor linked specifically to endangered species.

The lack of hydrologic connection to traditional streams and waters is not a function of 

man-made ditches or canals; it is a factor of it being permanently frozen. Permafrost ice 

lenses have persisted through not only the current periglacial period, but are preserved in 

underlying strata from the prior 30 to 40,000 year old ice age (having persisted through 

this and the prior periglacial period).

The nexus, at best, between permafrost and traditional waters is limited to runoff of snow 

melt. It occurs in a very limited timeframe that precedes the growth season. The shallow 

and insignificant nature of the connection is best illustrated by the improved functionality 

of disturbed watersheds. It is not a continuous surface connection. The drainage can vary 

from season to season depending on snow drift and the erratic pattern of a given year's 

snowmelt.

Isolated areas of permafrost otherwise surrounding by uplands have even less connection 

to traditional waters, often impeding or preventing groundwater flow.

Permafrost is not "surface water." The minimal phreatic "groundwater" that forms a few 

inches below the surface is not a "significant connection" that provides beneficial 

functions to the waters of the United States. (p. 5-6)

Agency Response: The agencies agree that permafrost is not “surface water.” As 

noted, it is a term that refers to subsurface conditions, specifically, permanently 

frozen soil. As such, permafrost is not, in and of itself, a water of the U.S. Similarly, 

permafrost itself is not a “surface connection,” continuous or otherwise. 

Office of Water Management, Pennsylvania Department of Environmental Protection (Doc. 

#7985)

7.687 The proposed definitions do not exclude wet weather/stormwater conveyance or 

treatment systems. The proposed rule would include wet weather or storm water 

conveyance and treatment systems as regulated waters of the US. This result is unrealistic 

and unsound from the scientific perspective. The application to current regulated efforts 

to treat and manage storm water through pipes, conveyances, and other engineered 

structures, or through passive green infrastructure practices, would result in these 

activities being categorized as waters of the US. EPA has indicated in the Q&A related to 

the rule that this is not the intention, but language in the rule should be added to the 

exemptions in order to clarify this. (p. 6)

Agency Response: Please see summary response at 7.4.4.

State of Idaho (Doc. #9834)

7.688 3. Exclusions

The Proposed Rule should specifically exclude additional waters and features generally 

considered to be outside the scope of CWA jurisdiction, including:
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444

a. Farm ponds, stock ponds, irrigation ditches, and the maintenance of drainage 

ditches, as currently excluded under the CWA's agricultural exemption;

b. Man-made dugouts and ponds used for stock watering or irrigation in upland 

areas that are not connected to surface waters; and

c. Dip ponds that are excavated on a temporary, emergency basis to combat 

wildfires and address dust abatement. (p. 5)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1))

exempts many normal farming activities such as seeding, harvesting, cultivating, 

planting, soil and water conservation practices, and other activities from the Section 

404 permitting requirement. “Normal” farming, silviculture, and ranching is 

clarified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean 

established and ongoing activities to distinguish from activities needed to convert an 

area to farming, silviculture, or ranching and activities that convert a water to a 

non-water. Nothing in this rule changes the implementation of the exemptions under 

404(f). 

The final rule also contains an exclusion for “Artificial lakes and ponds created in 

dry land and used primarily for uses such as stock watering, irrigation, settling 

basins, rice growing, or cooling ponds.” In the exclusion for artificial lakes or ponds, 

the agencies have changed “exclusively” to “primarily” in describing the uses. 

Artificial lakes and ponds are often not used exclusively for one purpose and can 

have other beneficial purposes, such as animal habitat, water retention or 

recreation. The change to the exclusion reflects Agency practice and ensures that 

waters the agencies have historically not treated as jurisdictional do not become so 

because of another incidental beneficial use, such as temporary ponds constructed in

dry land for the purpose of combating wildfires.

State of Hawaii Department of Transportation (Doc. #10184)

7.689 ...green infrastructure, which includes existing stormwater treatment systems and low 

impact development stormwater treatment systems, is not explicitly exempt under the 

proposed rule. HDOT uses green infrastructure as a stormwater management tool to 

lessen flooding and protect water quality by using vegetation, soils and natural processes 

to treat stormwater runoff. The proposed rule could inadvertently impact a number of 

these facilities by requiring Section 404 permits for green infrastructure construction 

projects that are jurisdictional under the new definitions in the proposed rule. 

Additionally, it is unclear under the proposed rule whether a Section 404 permit will be 

required for maintenance activities on green infrastructure areas once the area is 

established. (p. 2)

Agency Response: Please see summary response at 7.4.4.

New Mexico Department of Agriculture (Doc. #13024)

7.690 Closed Basins
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445

According to consultation with the New Mexico Environment Department, waters within 

closed basins do not drain into any navigable or interstate waters and have not historically 

been under the jurisdiction of the CWA Instead, these waters are under state jurisdiction. 

In New Mexico closed basins are defined as "closed with respect to surface flow if its 

topography prevents the occurrence of visible outflow. It is closed hydrologically if 

neither surface nor underground outflow can occur." Therefore, NMDA requests the 

addition of waters within "closed basins" to the list of exclusions presented in this 

proposed rule, as they cannot satisfy any criteria required for a water to be jurisdictional.

Also, the former definition of Waters of the U.S. includes in part (c), "All other waters 

such as... playa lakes." Will playa lakes be excluded due to their hydrologic disconnect 

from major waterways or are they assumed to be included under one of the new Waters 

of the U.S. categories? (p. 10)

Agency Response: The agencies did not exclude closed basins as a category by 

rule from coverage under the final rule, but recognize that all categories of waters 

covered require a significant nexus to traditional navigable waters, interstate 

waters, or territorial seas. If that nexus is absent, then the waters in question are not 

considered “waters of the United States.”

Although some commenters suggested additional subcategories of waters for 

consideration, such as playa lakes and kettle lakes, the agencies at this time are not 

able to determine that the available science supports that the suggested additional 

subcategories of waters as a class have a significant nexus to traditional navigable 

waters, interstate waters, or the territorial seas. However, to be clear, under the 

rule, individual waters of the suggested additional subcategories are jurisdictional 

where they meet the requirements of (a)(1) through (a)(6) or (a)(8) (e.g., a playa lake 

that is an interstate water, a kettle lake that is an adjacent water, or one that is 2,000 

feet from a jurisdictional tributary and is determined on a case-specific basis to 

have a significant nexus to a traditional navigable water, interstate water, or the 

territorial seas).

Division of Aviation, North Carolina Department of Transportation (Doc. #14766)

7.691 The Division of Aviation (DoA) proposes an additional exclusion by regulation based on 

existing Federal Aviation Administration Orders and Advisory Circulars regarding safety 

of the traveling public. The following are the documents DoA refers to:

 14 CFR 139. Title 14: Aeronautics and Space. PART I39- CERTIFICATION OF 

AIRPORTS http://www.faa.gov/airponslairporl_satety/part139_cert/

 FAA Advisory Circular J50/5200-32 Reporting Wildlife Aircraft Strikes

 FAA Advisory Circular 150/5200-33 Hazardous Wildlife Attractants On or Near 

Airports

 Memorandum of Understanding between the United States Department of

Transportation Federal Aviation Administration and the United States Department 

of Agriculture Animal and Plant Health Inspection Service Wildlife Services. 

June 2005
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446

http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1015&context=birdstri

keother

 Significant Wildlife Strikes to Civil Aircraft in the United States (1990-2014)

http://www.faa.gov/airports/airport_safety/wildlife/resources/media/sig_strikes_1

990_2014.pdf

 Wildlife Hazard Management at Airports- A Manual for Airport Personnel

http://www.faa.gov/airports/airport_safety/wildlife/resources/media/2005_FAA_

Manual_complete.pdf

Though these resources regulations and guidance refer to "wildlife hazards," birds 

makeup 97% of the reported strikes to aircraft. Approximately 61% of bird strikes occur 

when the aircraft is at a height of 100 feet or less above ground level (AGL). 74% occur 

at 500 feet or less AGL, and 92% occur at or below 3,000 feet AGL. These numbers 

clearly show the vast majority of bird strikes occur within the airport property during 

take-off and landing. Research has also proven that standing water on airport property 

and surrounding properties attract hazardous birds and that these birds f1y at altitudes 

hazardous to aircraft operating in the same areas. (p. 1-2)

Agency Response: The agencies believe the current regulations, policy guidance, 

and memoranda adequately address this issue. Therefore the agencies did not add a 

specific exclusion relating to wildlife hazards.

7.692 In North Carolina, the Department of Environment and Natural Resources (NCDENR) 

and DoA partnered with several other agencies to assist in the passing of legislation 

prohibiting the siting of any stormwater BMPs that promotes standing water on or near 

North Carolina airports. The legislation is based upon FAA separation criteria, wildlife 

hazard guidance, the FAA Wildlife Strike Database trends, and other relevant research 

showing how some stormwater BMPs can be extremely hazardous to aircraft operating in 

the area of the airport property. The NCDENR Stormwater BMP manual has added 

Chapter 13 "Public Airports" and can be accessed here: 

http://portal.ncdenr.org/c/document_library/get_file?uuid=c7a8e5a2-f141-4612-817a43c48c2f108b&groupId=38334.

This document supports the legislation, G.S. 143-214.7(3c) & (c4) located here: 

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_143/

GS_143-217.7.html.

DoA is proud to have been involved with this effort, as it is immediately working to

make public airports in NC safer. In order to continue this trend, we respectfully request

to haw BMPs located on public airports added as excluded by the definition of "waters of 

the U.S." Additionally DoA requests extremely wide latitude be given to BMPs within

the FAA defined separation distance for wildlife attractants of five miles. We ask for as

few as possible of these BMPs be labeled as "waters of the U.S."

Several factors contribute to the rising number of bird/aircraft strikes. Successful wildlife

conservation efforts and quieter aircraft engines are two such factors. The U.S. Army 

Corps of Engineers in North Carolina is very aware of Bird Aircraft Strike Hazard

(BASH) issues. NCDENR is now also aware of the unique challenges Airports have to

preserve water quality. DoA feels EPA may lack visibility on this issue and therefore this
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447

exclusion would serve to educate further how dangerous standing water can be on

airports. Just as strike reporting is rising, the number of deadly and damaging strikes is

going down. This is a direct result of following a protocol of managing hazardous

wildlife at airports that includes wildlife population management, habitat modification, 

land use planning, training, harassment, and depredation on and near the airport property.

The exclusion we seek fits into the category of “habitat modification", specifically, 

avoiding construction of, or removing area s of standing water, which are proven

attractive to birds. (p. 1-3)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for 

stormwater control features constructed to convey, treat, or store stormwater that 

are created in dry land. Features that meet these criteria are not considered “waters 

of the United States.” The agencies believe the current regulations, policy guidance, 

and memoranda adequately address this issue. Therefore the agencies did not add a 

specific exclusion relating to habitat modification.

Florida Department of Environmental Protection (Doc. #15080)

7.693 Regulated Discharge Systems

The federal agencies propose no changes to the agencies' regulations that exclude from 

the definition of "waters of the United States" waste treatment systems designed to meet 

Clean Water Act requirements. 79 Fed. Reg. 22,217. In addition, the federal agencies 

intend no change to the statutory and regulatory exemptions from National Pollutant 

Discharge Elimination System ("NPDES") permitting requirements under section 402 of 

the Act. 79 Fed. Reg. at 22,218. The proposal does not, however, appear to expressly 

address stormwater management or treatment systems that discharge through outfalls 

permitted pursuant to section 402. These systems, which often consist of municipallyowned or operated stormwater treatment systems, traditionally have been regulated as 

"point sources" that discharge to "waters of the United States." These systems serve a 

critical pollution treatment role in Florida and treating them as "waters of the United 

States" subject to water quality criteria within their permitted boundaries could limit their 

viable use in treating urban and agricultural area runoff.

Similarly, Florida's large Everglades Stormwater Treatment Areas, which function as a 

major component of Everglades restoration, were built and are operated to remove excess 

nutrients from stormwater runoff before discharging into the Everglades and other natural 

areas. These constructed wetlands have an effective treatment area of 57,000 acres and 

are permitted as point sources through the NPDES program.

 The Department asks that the federal agencies clarify whether water bodies that 

could be considered tributaries or adjacent waters under this proposal, but that 

comprise a system having an outfall that is permitted under section 402 of the 

Act, particularly stormwater treatment systems, would constitute "waters of the 

United States."

 The Department asks that the federal agencies clarify whether the agencies intend 

states to apply water quality standards or develop total maximum daily loads 

under section 303 of the Act for water bodies that comprise a system having an 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

448

outfall that is permitted under section 402 of the Act, but that also may meet the 

proposed definition of "waters of the United States." (p. 7)

Agency Response: Please see summary response at 7.4.4.

7.694 Dispersed Water Storage

The federal agencies propose to exclude from the definition of "waters of the United 

States" artificially irrigated areas that would revert to upland should application of 

irrigation water to that area cease, and artificial lakes or ponds created by excavating or 

diking dry land and used exclusively for such purposes as stock watering, irrigation, 

settling basins, or rice growing. 79 Fed. Reg. at 22,218. The proposal does not appear to 

expressly address artificial water bodies created by excavating or diking dry land as part 

of water quality or water quantity improvement projects.

Since2005, the State of Florida, through its regional water management districts, has been 

working with a coalition of agencies, environmental organizations, ranchers, and 

researchers to enhance opportunities for storing excess surface water on private and 

public lands. Managing water on these lands, known as the Dispersed Water Management 

Program, reduces the amount of excess water ultimately discharged to coastal estuaries 

during the wet season. Dispersed water is defined as shallow water distributed across 

parcel landscapes using relatively simple structures. Shallow water retention also 

provides valuable groundwater recharge for water supply, opportunities for water quality 

improvement, and rehydration of drained systems. Through July 2014, in the greater 

Everglades system, approximately 47,400 acre-feet of water retention and storage has 

been made available through cooperative agreements, interim lands or environmental 

services projects.

In addition, the Department and the South Florida Water Management District committed 

a total $3 million this year for three pilot projects in the St. Lucie River watershed to test 

the concept of storing excess surface water on privately-owned fallow citrus lands. In 

February 2014, the first of these pilot projects became operational on property owned by 

a private citrus company. Under the pilot program, water will be pumped onto 450 acres 

of private property in Martin County, capturing an average of 6,780 acre-feet of water a 

year that would otherwise flow from lake Okeechobee and surrounding basins into the St. 

Lucie River and Estuary. Two more pilot projects on other privately-owned property are 

under construction or being designed. These two projects will provide more than 4,500 

acre-feet of additional water storage in the St. Lucie watershed.

 The Department asks that the federal agencies clarify whether dispersed water 

storage systems would constitute "waters of the United States" if, during periods 

of water storage, the systems otherwise meet the definitions of tributaries or 

adjacent waters under the proposal.

 The Department asks that the federal agencies clarify whether the agencies intend 

agricultural permitting exemptions under sections 402 and 404 of the Act to apply 

to any dispersed water storage systems that may meet the definition of "waters of 

the United States" under this proposal, but that are utilized during fallow 

agricultural periods. (p. 7-8)
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449

Agency Response: The final rule contains an exclusion for “Artificial lakes and 

ponds created in dry land and used primarily for uses such as stock watering, 

irrigation, settling basins, rice growing, or cooling ponds.” In the exclusion for 

artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in 

describing the uses. Artificial lakes and ponds are often not used exclusively for one 

purpose and can have other beneficial purposes, such as animal habitat, water 

retention or recreation. The change to the exclusion reflects Agency practice and 

ensures that waters the agencies have historically not treated as jurisdictional do not 

become so because of another incidental beneficial use. Provided the features 

discussed in this comment meet the conditions states in the final rule, they would not 

be considered “waters of the United States.” However, if not constructed in dry 

land, these features may be jurisdictional under (a)(4), (a)(6), or (a)(8).

“Normal” farming, silviculture, and ranching is clarified in the agencies’ 

implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing 

activities to distinguish from activities needed to convert an area to farming, 

silviculture, or ranching and activities that convert a water to a non-water. Nothing 

in this rule changes the implementation of the exemptions under 404(f).

7.695 Reclaimed Water Storage

7.696 Similar to the artificial water bodies created for dispersed water management, the 

proposal does not appear to expressly address water bodies created for the purpose of 

reclaimed water storage. Reclaimed water plays an important role in water resource, 

wastewater, and ecosystem management in Florida. When reclaimed water is used, it 

eases the demand on traditional, often limited, sources of water. The storage and 

subsequent reuse of reclaimed water also reduces discharges to surface waters and 

recharges groundwater.

 The Department asks that the federal agencies clarify whether reclaimed water 

storage systems would constitute "waters of the United States" if the systems 

otherwise meet the definitions tributaries or adjacent waters under the proposal. 

(p. 8)

Agency Response: The final rule contains exclusions for stormwater and 

wastewater management features constructed in dry land. Provided the features 

discussed in this comment meet the conditions states in the final rule, they would not 

be considered “waters of the United States.” However, if not constructed in dry 

land, these features may be jurisdictional under (a)(4), (a)(6), or (a)(8).

Tennessee Department of Environment and Conservation (Doc. #15135)

7.697 Storm water treatment systems are traditionally considered exempt as waste water 

treatment systems, assuming not created in a water of the U.S., if they are being actively 

maintained. Storm water systems, however, are evolving as EPA and the states encourage 

the use of constructed wetlands, green infrastructure, and other similar features. We 

request that the agencies make clear in this rulemaking that such systems will remain 

exempted under the waste water treatment exemption. (p. 28)

Agency Response: Please see summary response at 7.4.4. 
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450

North Carolina Department of Transportation (Doc. #15179)

7.698 ...we especially call attention to AASHTO's [American Association of State Highway 

and Transportation Officials] comments on the proposed rules' potential effects on 

stormwater management constructed to support transportation facilities. Clarification of 

the criteria to exclude the stormwater treatment systems associated with green 

infrastructure is necessary to negate any concerns over potentially creating jurisdictional 

waters. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Arizona Game and Fish Department (Doc. #15197)

7.699 7. State fish and wildlife agencies have unique jurisdictional authority over their state 

trust resources and maintain the expertise to determine actions necessary to protect those 

resources. The uncertainties of the proposed Rule may create excessive financial burdens 

on state public fiscal resources to accomplish fish and wildlife management objectives. 

The Department therefore requests the development of a clearly-expressed exemption for 

actions and activities in WUS conducted by State fish and wildlife agencies for the 

benefit of watershed habitats and fish and wildlife resources. Alternatively, a new 

permitting process could be developed similar to the ACOE's Section 404 Regional 

General Permits. At a minimum, the EPA must analyze and disclose the financial impacts 

to state fish and wildlife agencies. (p. 3)

Agency Response: The agencies have historically encouraged habitat 

enhancement activities, and have been open to the development of streamlined 

permitting options, such as the current Nationwide Permit #27 for Aquatic Habitat 

Restoration, Establishment, and Enhancement Activities. Therefore, the agencies do 

not believe it is necessary to add a specific exclusion for enhancement activities 

conducted by State agencies. 

While the rule imposes no direct costs as a definitional rule, the agencies prepared 

an economic analysis for informational purposes. The agencies conducted this 

economic analysis to provide the public with information on the potential indirect 

costs and benefits associated with this definitional rule. The economic analysis was 

done for informational purposes only, and the final decisions on the scope of 

“waters of the United States” in this rulemaking are not based on consideration of 

the information or analysis in the economic analysis. Please see the Economic 

Analysis for more details. 

California Department of Water Resources (Doc. #15245)

7.700 ...the policy for excluding some features, activities, and waters from CWA regulation is 

to recognize that there are certain facilities over which the USACE and EPA have 

generally not asserted jurisdiction as a policy matter and in order to provide greater 

regulatory clarity. (79 Fed. Reg. at p. 22189.) DWR requests that other facilities with 

functions similar to the features in the Proposed Rule be added to the definition of 

features. These proposed additional features include:

Flood By-Pass System. As described above, the primary California flood management 

system depends in part on multiple by-pass systems that divert high flood flows through 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

451

wide channels protected by artificial levees and berms away from cities and important 

agriculture areas to mostly uninhabited upland areas. When the flooding stops, the water 

drains from the by-pass regions, which reverts back to uplands. The main activity on 

these uplands during the non-rainy periods is irrigated agriculture. Similar to the concept 

of including artificially irrigated areas that would revert to uplands upon cessation of 

irrigation, DWR requests the USACE and EPA consider expanding the definition of 

features to include areas that are part of the flood control systems, including by-pass 

areas, that would revert to uplands when the flood waters are no longer being diverted 

and water drains from the lands. (p. 5-6)

Agency Response: The final rule does contain an exclusion for artificial, 

constructed lakes and ponds created in dry land. See response at 7.3.2. See also 

response at 7.4.

7.701 b. Artificial Water Supply Delivery Facilities. As elaborated above, the SWP water 

supply system includes numerous artificial conveyance structures, such as concrete-lined 

aqueducts, canals, pipes, tunnels, above-ground storage tanks, forebays, afterbays, and 

pumping plants that are used to transport water around the state after it is diverted. The 

SWP uses these artificial systems to transport and deliver water, both surface waters that 

would be diverted from traditionally navigable waters and groundwater, to its customers 

around the state. These types of facilities that are used for water deliveries are different 

than some canals and aqueducts found on the East Coast that are used for transportation 

and recreation and should be treated differently for jurisdictional purposes.

The definition of features recognizes that certain artificial water facilities should be 

excluded from the definition of jurisdictional waters as a matter of policy, recognizing 

that such waters have been separated from jurisdictional waters by legal means and such 

activities do not affect the chemical, physical, or biological integrity of waters of the 

United States. DWR requests that this rulemaking consider expanding the definition of 

features to include other water delivery facilities that are equivalent in function to those 

already listed as features in the Proposed Rule, especially artificial water conveyance 

systems like aqueducts, pipelines, and canals. Although DWR does not believe these 

artificial water facilities should be considered jurisdictional under the Proposed Rule, 

adding them to the list of features would provide important regulatory clarity for DWR 

and other operators of water supply systems. (p. 6)

Agency Response: As noted in the preamble, the agencies have consistently 

regulated aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land.

Sealaska Corporation (Doc. #15356)

7.702 Water Supply Systems. It appears that the proposed rule would treat most water supply 

systems, ranging from major federal and State water delivery systems to smaller 

reservoirs and other water system components managed by local governments, as 

“tributaries.” This would unduly increase the regulatory burden on small villages in 

Southeast Alaska that are already struggling, and on temporary water systems for logging 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

452

camps for an industry that is already near collapse. The rule exempts wastewater 

treatment systems from jurisdiction, but does not include a similar exemption for water 

supply systems. Regulation of water system components under the CWA would impose a 

needless burden on water purveyors. The Agencies should categorically exempt water 

supply systems (including treatment systems) from regulation under the proposed rule. 

(p. 21)

Agency Response: Although the agencies have modified the definition of 

“tributary” in the final rule, the preamble states that the agencies have consistently 

regulated aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land.

West Virginia Department of Environmental Protection (Doc. #15415)

7.703 The waste treatment system exclusion only covers systems designed to meet the 

requirements of the CWA. The same rationale for excluding waste treatment systems 

required for the CWA applies to such systems and supporting drain control structures 

constructed to comply with laws other than the CWA. This exclusion should be clarified 

and broadened to cover drainage control ditches or conduits constructed to comply with 

other environmental laws, including state counterparts to federal environmental laws. For 

example, surface and underground coal mining are regulated indirectly by the federal 

Surface Mine Control and Reclamation Act of 1977 ("SMCRA"). Pennsylvania 

Federation of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 3 10 (3d Cir. 2002); Bragg v. 

West Virginia Coal Association, 248 F.3d 275 (4th Cir. 2001). State law counterparts to 

SMCRA that provide for regulation in accordance with SMCRA and consistent with 

federal regulations promulgated pursuant to SMCRA, 30 C.F.R. 9 732.15(a), directly 

apply to the coal industry.' Pursuant to these state laws, mine operators are required to 

build diversion ditches for fresh water, drainage control ditches and structures to control 

and direct runoff that has been exposed to un-weathered rock and coal in the mine area, 

as well as sediment ponds, water treatment ponds, fresh water impoundments, and waste 

storage impoundments. On an individual basis, the purpose of some of these features 

cannot be deemed to be solely waste treatment. Some are merely conveyances, while 

others are for storage. Generally, however, they are constructed to comply with 

regulatory requirements under the state counterparts to SMCRA having to do with 

ensuring water quality that go well beyond the requirements of the CWA. Some of these 

features are temporary and will be removed when no longer necessary. Some of them will 

be retained after mining is completed. In all cases, reclamation will be conducted 

according to a plan approved in the mine operator's permit. The reclamation usually 

results in some alteration of these features to make them compatible with the surrounding 

landscape and drainage patterns in the post-mining scenario. Where a mine operator fails

to perform its duties under these laws, state government must step in to perform the mine 

operator's duties. A bond is posted by the mine operator to assure compliance and to fund 

the state's effort in the event it is called upon to perform reclamation. Each surface 

mining permit covers a defined permit area. The WVDEP urges the EPA to further

exempt features that are built within this permit area to comply with the requirements of 

state counterparts to SMCRA.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

453

Other mines are regulated under the State's Quarry Reclamation Act, W.Va. Code § 22-

4-1, et seq. Similar to the regulatory regime under SMCRA, these mining operations are 

required to have drainage control systems within a defined permit area, the individual 

features of which may not all be deemed to be purely for compliance with the CWA. As 

with coal mines, some of these features will become permanent, some are temporary, and 

all are subject to maintenance requirements during mining and some form of reclamation 

following mining. The features of these on-site drainage control structures should also be 

exempt. (p. 12-13)

Agency Response: As stated in the SMCRA statute, SMCRA “shall not be deemed 

in any way to repeal or supersede any portion of the Federal Water Pollution 

Control Act and no control or treatment under this subsection shall in any way be 

less than that required under the Federal Water Pollution Control Act.” The 

agencies believe that the two statutes have complementary, but differing, mandates 

and therefore is not appropriate to add a specific exclusion for features authorized 

under SMCRA. 

With respect to stormwater control features, please see the summary response at 

7.4.4.

Ohio Department of Natural Resources et al. (Doc. #15421)

7.704 Ohio EPA Comments:

Some confusion has been created by the proposed rule because, by rule, all tributaries 

(defined as having a bed, bank and ordinary high water mark) are defined as waters of the 

U.S. The agencies should explicitly clarify in the final rule that constructed storm water 

best management practices (BMPs) including, but not limited to, retention basins, 

detention basins, infiltration basins/trenches, constructed wetlands and bioretention 

permitted under Section 402 of the CWA that connect to a downstream jurisdictional 

receiving water through a constructed outlet having a bed, bank and ordinary high water 

mark are not considered waters of the U.S. (p. 24)

Agency Response: Please see summary response at 7.4.4.

San Gabriel Basin Water Quality Authority (Doc. #15642)

7.705 WQA respectfully requests that groundwater recharge basins be excluded from 

jurisdiction under the proposed rule. We note that the proposed rule definition of "waters 

of the United States" now includes, "...all waters, including wetlands, adjacent to 

traditional navigable water..." Although EPA has also listed several exceptions, we 

believe the definition should be modified to also allow an exception for groundwater 

recharge basins created specifically for the discharging, capturing and infiltrating of 

groundwater, storm water and non-storm water runoff. Such an exception would allow 

for the efficient discharge and reuse of water in infiltration basins without additional 

layers of onerous regulatory reviews - a scenario, which WQA envisions, could apply to 

discharges throughout the San Gabriel Valley regardless of whether or not the discharges 

are covered by an NPDES permit.

More than 30 groundwater treatment facilities are operating in the San Gabriel Basin 

today and many of them require the ability to discharge large volumes of water to flood 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

454

control channels over short periods of time to facilitate plant start-up (including 

complying with the State Water Resources Control Board's Division of Drinking Water 

permit requirements), operations and maintenance. Earlier this year the WQA, in 

furtherance of its mission, sponsored a basinwide Los Angeles Regional Water Quality 

Control Board discharge permit for the efficient discharge and reuse of water not 

otherwise available for direct potable use. This permit also allows for the future 

construction and use of groundwater recharge basins to allow direct recharge to the San 

Gabriel Valley groundwater basin. Additionally, these basins are envisioned to be multibenefit by also serving as integrated stormwater capture basins. Much of the land 

available for these newly constructed recharge basins located adjacent to facilities and 

waterways considered waters of the U.S. Therefore, if the proposed rule were 

implemented as proposed these constructed basins could be subject to additional 

permitting that is time-consuming, burdensome and costly with no additional benefit or 

improvement of water quality for San Gabriel Valley residents. (p. 2)

Agency Response: In the final rule, the agencies specifically exclude constructed 

detention and retention basins created in dry land used for wastewater recycling as 

well as groundwater recharge basins and percolation ponds built for wastewater 

recycling.

Environmental Protection Division, Georgia Department of Natural Resources (Doc. #16348)

7.706 The presence of one or more man-made or natural breaks does not affect the 

jurisdictional status of a tributary. Further clarity should be provided in this rule to 

prevent redundant regulation and the potential for conflict from existing facilities that are 

regulated under CWA Section 402 (i.e. Municipal Stormwater Systems, Natural 

Wastewater Treatment Facilities such as constructed wetlands, etc.). It is further 

suggested that clarity be provided in the proposed rule regarding exemptions for green 

infrastructure. (p. 1-2)

Agency Response: Please see summary response at 7.4.4.

Pyramid Lake Paiute Tribe (Doc. #17472)

7.707 As the rule reads, § 328.3 - Definitions, describes water bodies which are subject to the 

exclusions of waters of the United States, which includes, but is not limited to: artificial 

reflecting pools, swimming pools, small ornamental waters, water-filled depressions 

created incidental to construction activity, etc. However, the exclusions do not include 

storm-water Best Management Practices (BMPs). Language should be added to § 328.3 

Definitions to include storm-water BMPs and define them by using specific examples, 

such as: rain gardens, infiltration basins, storm-water wetlands, and other storm-water 

BMPs that improve water quality. (p. 1)

Agency Response: Please see summary response at 7.4.4.

Lee County, Florida (Doc. #1346.1)

7.708 As Lee County is a proponent of water reuse we require more time for a complete 

analysis of the potential impacts to our reuse efforts. We recognize that the proposed rule 

reiterates the exemption for wastewater treatment facilities under the CWA, however, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

455

water reuse infrastructure, at times, will not fall into this category and thus could become 

jurisdictional. (p. 2)

Agency Response: The final rule specifically excludes constructed detention and 

retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

Many commenters noted the growing interest in and commitment to water recycling 

and reuse projects. Detention and retention basins can play an important role in 

capturing and storing water prior to beneficial reuse. Similarly, groundwater 

recharge basins and percolation ponds are becoming more prevalent tools for water 

reuse and recycling. These features are used to collect and store water which then 

infiltrates into groundwater via permeable soils. Though these features are often 

created in dry land, they are also often located in close proximity to tributaries or 

other larger bodies of water. The exclusion also covers water distributary structures 

that are built in dry land for water recycling.

Board of County Commissioners, Sweetwater County, Wyoming (Doc. #6863)

7.709 To prevent the proposed rule from adding another layer of permitting delays to 

companies that are already excessively burdened by time delays, Sweetwater County 

strongly encourages the EPA, in its proposed rule, to explicitly exempt local streets, 

gutters, and manmade ditches from the definition of the waters of the United States. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Thornton, Colorado (Doc. #7328.1)

7.710 Thornton operates a drinking water supply system that could be impacted by the 

proposed rule. 

Thornton diverts water from Clear Creek and the South Platte River, both of which are 

considered "waters of the United States". The South Platte River is an effluent dominated 

stream in a heavily urbanized area, with discharges from centralized wastewater 

treatment plants contributing significantly to the flow of the river. This treated effluent is 

typically high in nutrients and BOD. Thornton stores some of this water in reclaimed 

gravel pit reservoirs that have been lined in accordance with Colorado state standards to 

prevent them from leaking. The water stored in the gravel pit reservoirs is used as a 

source for Thornton's drinking water.

As part of Thornton's pre-treatment program for the effluent dominated water, to control 

algae and taste and odor problems and to help meet SDWA standards, particularly for 

disinfection by-products, Thornton adds algaecide, oxidizers and/or activated carbon to 

the water in the lined gravel pit reservoirs. This pre-treatment process occurs in a closed 

system within the lined facility. This pre-treatment process has never been regulated by 

the EPA or the Corps, and Thornton requests that the proposed rule provide that this pretreatment process in its lined gravel pit reservoirs be exempted as described below.

Another reason this pre -treatment process should not be regulated is that after the water 

from the lined gravel pit reservoirs is used in Thornton's municipal water supply system, 

it is discharged in compliance with a CDPS permit, under Colorado's program 
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456

administering the federal NPDES program, at t he Robert W. Hite Treatment Plant 

operated by the Metro Wastewater Reclamation District. (p. 2)

Agency Response: Many commenters asked for an exclusion for drinking water 

supply systems, similar to exclusions for wastewater treatment and stormwater 

control. Because water supply networks can be both complex in structure and 

extensive in size, involving the use of tributaries as well as a variety of other 

features, the agencies determined that a complete exclusion of such systems is not 

appropriate. However, not all portions of these systems would be regulated under 

the final rule. Some portions of these systems are tributaries, or even traditional 

navigable waters, and so would be regulated under this rule for the same reasons 

that all such waters are subject to regulation as “waters of the United States.” At 

the same time, there are some portions of these systems that would be excluded from 

regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not 

flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, 

constructed lakes and ponds created in dry land).

7.711 Thornton requests an additional new exemption for municipal water suppliers for lined 

gravel pits.

The proposed rule would maintain exemptions for certain facilities or activities. 

Thornton's concern could be addressed with an additional exemption under the "features" 

section of the proposed rule § 328.3(b)(5) for lined gravel pit reservoirs. It appears that 

the basis for the proposed rule is the scientific recognition of "connectivity" and the 

nexus between various bodies of water. As described above, the connectivity is not 

present because of the liner in the gravel pit reservoirs. There is no nexus or connection.

Accordingly, Thornton requests that a new exemption under § 328.3(b)(5) be added to 

the proposed rule . We propose the following language: 

"(viii) lined water storage facilities, including lined gravel pit reservoirs." 

This narrow exemption is similar to the other "features" that are proposed in rule § 

328.3(b)(5). It is justified because the lined gravel pit reservoirs have not been previously 

regulated and the USEPA has indicated, according to AWWA, that drinking water 

suppliers' infrastructure is not intended to be regulated under the proposed rule. 

Moreover, it is justified by the lack of "connectivity" which is the science behind the 

proposed rule. (p. 3)

Agency Response: See prior response.

Transportation and Storm Water Department, City of San Diego, California (Doc. #7950.2)

7.712 Comment Number: 9

Section: 22206-G

Topic: Adjacent Waters

Comment: New construction and flood control activities could result in the unintended 

creation of a WOTUS. The installation of baffles and weirs to facilitate removal of 

pollutants such as sediment in storm water (as required by storm water permits) would 

now require complex 404 permitting procedures. Additional storm water permitting for 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

457

construction and development activities for all departments would be required and could 

delay infrastructure maintenance and municipal services from being constructed and will 

certainly increase costs.

Recommendation: Allow an exemption for installation and maintenance of water quality 

improvement structures or streamlined permitting for activities that will contribute to 

increasing water quality. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986)

7.713 Green Infrastructure

Green infrastructure includes creative, less intensive methods of controlling and utilizing 

stormwater. For example, instead of directing stormwater immediately into the 

underground stormwater pipe conveyance system, swales could be constructed and 

planted with vegetation to utilize stormwater before the excess makes its way to the 

conveyance system. Under the proposed definition, these swales would likely meet the 

requirements to be considered WOTUS, which would add an unnecessary permitting 

requirement for efforts that are constructed specifically to benefit the environment. 

Therefore, we respectfully request the inclusion of "green infrastructure" in the list of 

features identified as "not waters of the United States" in §328.3 (b). (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.714 Water Transfers

Water transfers are integral to Phoenix’s water supply and are handled in environmentally 

responsible ways. The Colorado River supplies a significant percentage of the City’s 

water supply and is delivered by the Central Arizona Project (CAP) through a series of 

dams, reservoirs, and canals. Although there is a rule in place exempting water transfers 

from Clean Water Act National Pollution Discharge Elimination System (NPDES) 

permitting requirements, that rule is undergoing legal challenge.

It would be enormously costly and provide no additional benefit to the environment to 

require the CAP to treat its water at any point, since the water is already treated by City 

of Phoenix water treatment plants prior to delivery to its customers.

As any diminution of its water supplies could have a devastating effect on the City, we 

respectfully request that EPA specifically indicate that water transfers will not require 

Clean Water Act permits. (p. 1-2)

Agency Response: Please see summary response at 12.3.

Aurora Water (Doc. #8409)

7.715 2. The new and expanded definition of "tributary" in the proposed rule adds 

ambiguity in its application in the western U.S.

The existing regulations do not fully define "tributary"; in practice, "tributary" has 

usually been restricted to a water feature with an active channel designated by ordinary 

high-water marks and connection to traditional navigable waters.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Under the proposal, all tributary and adjacent waters would now be "jurisdictional by 

rule". The definition of "tributary" and the scope of what is "adjacent" would both 

expand, including a new concept of "neighboring waters". Under the proposed rule, 

"neighboring" is defined for the first time to include waters located within the riparian 

area or floodplain of a WOTUS or waters with a confined surface or shallow subsurface

hydrological connection. While typical shallow subsurface flows are not considered a 

WOTUS under the proposed rule, those flows may define a connection, establishing 

jurisdiction to a "jurisdictional" water. The western U.S. faces additional critical issues 

due to the absolute lack of connection (as currently defined) of many of its ephemeral 

water bodies and the seasonal fluctuations in the water resource itself.

Many water treatment features, such as Aquifer Recharge and Recovery (ARR) and 

Aquifer Storage and Recovery (ASR) sites, may be unintentionally and inappropriately 

considered jurisdictional under the "adjacent" or "neighboring" definitions. As sources of 

water in the West continue to become scarce due to over appropriation and effects of 

climate variability, many western water utilities are either currently using or are 

evaluating the opportunities to utilize ARR and ASR for drought protection measures 

and/or water treatment. Many of these features utilize large man-made basins that allow 

the water to slowly infiltrate into the subsurface aquifer. Specifically, Aurora utilizes an 

ARR site to provide direct natural treatment to its raw source water through a man-made 

system of infiltration basins and medium amendment.

The proposed rule also asserts that all tributaries in a watershed will be considered in 

combination to assess whether they have a significant nexus to a WOTUS. The 

significant nexus test allows for a watershed scale determination of jurisdiction. Many of 

the dry arroyos, washes, and ephemeral or intermittent water bodies so common in the 

arid West could become the subject of federal oversight upon adoption of the proposed 

rule.

Additionally, the proposed rule states that determination of jurisdiction using the terms 

"riparian area," "flood plain," and "hydrologic connection" will be based on best 

professional judgment and experience applied to the definitions proposed in this rule. 

There is no limiting scope to the size of a riparian area or a definition of the types of 

animal, plant and aquatic life that may trigger this definition.

Lastly, the rule does not clearly define how water must be geographically proximate to 

the adjacent water, nor how waters outside the floodplain or riparian zone are 

jurisdictional if they are reasonably proximate. This lack of clarity creates uncertainty 

about whether these waters would be considered a WOTUS because it leaves it up to the 

local ACOE office to determine jurisdiction in these instances.

Recommendations: Man-made water treatment facilities should be explicitly exempted in 

the rule regardless of whether they are utilized for drinking water, sewer, or stormwater.

Dry arroyos, washes, ephemeral or intermittent water bodies should be exempted from 

the rule. (p. 2)

Agency Response: The final rule has modified the proposed definition of 

“tributary.” In addition, the final rule specifically excludes constructed detention 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

459

and retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling.

With respect to stormwater control features, please see the summary response at 

7.4.4.

7.716 4. The current and proposed rules under section 404(f)(1)(A) allow an exemption for 

"Normal farming, silviculture and ranching activities ... " and lists fifty-six (56) specific 

conservation practices which are and would continue to be exempted, but does not 

address similar watershed best management practices by urban water providers.

Aurora Water adopts a best management practices approach in the protection of its 

watersheds, headwaters, stormwater retention areas and ditches. These maintenance 

activities can often be accomplished under an existing nationwide permit. Under the 

proposed rule, some of these conservation practices may require a full Section 404 

permit, increasing costs and delaying or eliminating some maintenance and operations 

activities. In addition, Aurora Water works closely with federal, state and local agencies 

to improve the conditions of our watersheds.

Recommendation: New exemptions for activities related to stream and habitat 

improvements should be included in the rule, allowing a more immediate response to 

wildfires, floods and other natural disasters as an "urban corollary" to the similar 

agricultural best conservation practices exemptions. (p. 3)

Agency Response: Based on the existence of regulatory procedures for emergency 

authorizations, as well other streamlined permitting options, such as Nationwide 

and Regional Permits, the agencies do not believe it is necessary to add a specific 

exclusion for these activities. 

Board of Supervisors, Imperial County, California (Doc. #10259)

7.717 Waste Treatment Systems: The proposed rule should expand exemption for waste 

treatment systems if they are designed to meet any water quality requirements, not just 

the requirements of the CWA. (p. 5)

Agency Response: Please see summary response at 7.4.4. Also, see summary 

response 7.1 concerning the waste treatment system exclusion.

Mecklenburg County Government, North Carolina (Doc. #10946)

7.718 BMPs should be categorically excluded from "waters of the United States." BMPs are 

often constructed at the perimeter of sites in low lying areas. Many of these BMPs are 

constructed wet ponds and wetlands. With these features possibly becoming "waters of 

the United States" it becomes much more difficult to do repair work to these BMPs. As 

development continues to increase, the size of these BMPs may need to increase to treat 

the additional impervious areas.

Capital Improvement Projects for flooding are typically located adjacent to "waters of the 

United States." If these improvement projects are damaged and need to be repaired or 

significantly altered in the future, this may become more difficult as the BMPs would be 

considered "waters of the United States." (p. 2)
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Agency Response: Please see summary response at 7.4.4. While the agencies may 

not agree with all points raised in this comment, they agree that a specific exclusion 

for stormwater control features built in dry land is appropriate. 

City of Escondido, California (Doc. #11116)

7.719 It has also been suggested that a tributary could include a water conveyance system such 

as the Escondido Canal which transports water from the San Luis Rey Watershed to the 

Water Treatment Plant at Lake Dixon. If the water in the Escondido Canal is determined 

to be a Waters of the U.S., then all the requirements of the Clean Water Act would be 

triggered, including water quality standards and total maximum daily loads (TMDLs) 

could be applied to this man-made infrastructure. These are not discretionary 

requirements. This definition would expand the authority (and obligations) not only of 

the Army Corps of Engineers, but the State and Regional Water Quality Control Board. 

Potable water supply and recycled/reclaimed water conveyance systems should be 

excluded from the definition. (p. 2)

Agency Response: Although the agencies have modified the definition of 

“tributary” in the final rule, the preamble states that the agencies have consistently 

regulated aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land.

City of Palo Alto, California (Doc. #12714)

7.720 Water Reuse

Palo Alto is an active participant in the Regional Water Quality Control Plant Water 

Reuse Program. Since 1980 this program has reused over 10 billion gallons of water for 

irrigation and cooling, reducing the need to import potable water and reducing discharges 

of wastewater into San Francisco Bay. Water reuse in California is an essential 

requirement to meet demand, particularly at a time of recurring droughts. Investing in the 

necessary infrastructure and facilities to increase water reuse is expensive, and while 

government must ensure public safety and environmental compliance, it should not 

discourage the investment. Unfortunately, the proposed rule introduces impediments to 

water reuse and does not protect investments made in water reuse, even though federal 

agencies encourage such activity.

Recycled water is treated and distributed in ancillary infrastructure to a wastewater 

treatment system and can include channels to convey wastewater, settling or retention 

basins, and a separate pipe system to deliver the recycled water. Some of these facilities 

could fall under the definition of "tributary" of the proposed rule, could be located within 

a floodplain or riparian area, and would not necessarily be covered by the wastewater 

treatment exemption in the rule, which stipulates the exemption only for "waste treatment 

systems, including treatment ponds or lagoons, designed to meet the requirements of the 

Clean Water Act." While water recycling provides further treatment of wastewater, the 

purpose for its treatment is not "designed to meet the requirements of the Clean Water 

Act." Further, the rule's exemption for settling basins does not afford sufficient protection 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

461

for water reuse facilities because it does not cover detention basins, reservoirs, or 

associated infrastructure such as channels, ditches, or other conveyances.

At a minimum, we ask that the final rule include a clear exemption for all water reuse and 

water reclamation facilities. (p. 3-4)

Agency Response: The final rule specifically excludes constructed detention and 

retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

Many commenters noted the growing interest in and commitment to water recycling 

and reuse projects. Detention and retention basins can play an important role in 

capturing and storing water prior to beneficial reuse. Similarly, groundwater 

recharge basins and percolation ponds are becoming more prevalent tools for water 

reuse and recycling. These features are used to collect and store water which then 

infiltrates into groundwater via permeable soils. Though these features are often 

created in dry land, they are also often located in close proximity to tributaries or 

other larger bodies of water. The exclusion also covers water distributary structures 

that are built in dry land for water recycling.

Charlotte County, Florida (Doc. #13061)

7.721 The rule must explicitly exempt water quality treatment systems permitted via Florida 

Department of Environmental Protection/Southwest Florida Water Management 

District/South Florida Water Management District from the Clean Water Act Standards 

because these systems were created to capture pollutants and protect downstream 

waterways. These systems typically include stormwater treatment/attenuation facilities 

and associated conveyances including roadside ditches, vaults, bioswales, rain gardens, 

and other green infrastructure. We suggest you significantly modify the proposed rule to 

address these obvious issues; or simply exclude similar features from any future 

definition of WOTUS. (p. 2-3)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. 

Waters of the United States Coalition (Doc. #14589)

7.722 Application to terminal water supply reservoirs – The Proposed Rule will potentially 

classify many water supply reservoirs as waters of the United States. Throughout the 

west, many reservoirs are constructed on canyons or gullies that at one time may have 

been bisected by an ephemeral stream. Many such reservoirs simply act as forebays to 

surface water treatment plants, storing imported water that is not native to the underlying 

stream. They are isolated and/or lack any significant nexus to waters of the United States 

in the watershed where the reservoir is located. Classifying these reservoirs as waters of 

the United States will interfere with water operations as permitting and other water 

quality requirements could severely limit the utility of the reservoirs.

To address these concerns the Public Infrastructure Waters of the US Coalition request 

the following changes to 40 C.F.R § 122.2:
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462

Waste treatment, flood control and water supply systems, including but not 

limited to aqueducts, water supply canals not used for navigation, treatment 

ponds, or lagoons, storage ponds, pipelines, open channels, agricultural drains, 

manmade treatment wetlands, swales, or other low impact design infrastructure

designed to meet the requirements of CWA (other than cooling ponds as defined 

in 40 CFR 423.11(m) which also meet the criteria of this definition) are not 

waters of the United States. This exclusion applies only to manmade bodies of 

water which were not created in waters of the United States (such as disposal area 

in wetlands[See Note 1 of this section.] Waters of the United States do not include 

prior converted cropland. Notwithstanding the determination of an area's status as 

prior converted cropland by any other federal agency, for the purposes of the 

Clean Water Act, the final authority regarding Clean Water Act jurisdiction 

remains with EPA. (p. 5)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. 

With respect to stormwater control features, please the summary response at 7.4.4

7.723 Recycled water

The Proposed Rule will hinder recycled water projects. Water supply agencies rely on 

percolation ponds like those described above to add recycled water to the potable and 

non-potable supply. If man-made percolation ponds are classified as waters of the United 

States, then the percolation ponds will be required to attain designated Water Quality 

Standards. Though highly clean, recycled water can have TDS and nutrient levels that are 

higher than what regulatory agencies including EPA have determined is necessary for 

waters of the United States to attain their designated Water Quality Standards. If 

percolation ponds are considered waters of the United States, discharges of recycled 

water into the percolation ponds could require an NPDES permit, and the discharge itself 

could be prohibited because of high TDS and other constituent levels in the source water.

These restrictions will hinder the use of recycled water and put limits on the ability of 

water purveyors to develop new, responsible supplies. In Southern California, every 

gallon of recycled water that can be used is a gallon that does not have to be brought 

south through the Sacramento San Joaquin Delta or taken from the Colorado River. 

Likewise, in south Texas, every gallon of recycled water used allows more water to stay 

in the Rio Grande. There are very real ecological benefits to increasing the use of 

recycled water across the country, and the Proposed Rule could hinder those efforts. (p. 

140)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 
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463

California where water supplies can be limited and droughts can exacerbate supply 

issues.

7.724 We additionally request that the Proposed Rule’s changes to 40 C.F.R § 122.2 and other 

relevant sections of the federal regulations be modified as follows:

(a) Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to 

the exclusions in paragraph (b) of this section, the term ‘‘waters of the United States’’ 

means:

(1) All waters which are currently used, were used in the past, or may be 

susceptible to use in interstate or foreign commerce, including all waters which 

are subject to the ebb and flow of the tide;

(2) All interstate waters, including interstate wetlands;

(3) The territorial seas; 

(4) All impoundments of waters identified in paragraphs (a)(1) through (3) and (5) 

of this section excluding man-made water supply reservoirs that lack a significant 

nexus to downstream waters;

(b) The following are not ‘‘waters of the United States’’ notwithstanding whether they 

meet the terms of paragraphs (a)(1) through (7) of this section –

(1) Waste treatment systems, including treatment ponds, treatment wetlands, 

storage ponds or lagoons, and percolation ponds designed to meet the 

requirements of the Clean Water Act, or designed to reuse treated effluent. 

(2) Prior converted cropland. Notwithstanding the determination of an area’s 

status as prior converted cropland by any other Federal agency, for the purposes 

of the Clean Water Act the final authority regarding Clean Water Act jurisdiction 

remains with EPA. 

(3) Ditches that are excavated wholly in uplands, drain only uplands, and have 

less than perennial flow.

(4) Ditches that do not contribute flow, either directly or through another water, to 

a water identified in paragraphs (a)(1) through (4) of this section. 

(5) The following features: 

(i) Artificially irrigated areas that would revert to upland should 

application of irrigation water to that area cease;

(ii) Artificial lakes or ponds created by excavating and/or diking dry land 

and used exclusively for such purposes as stock watering, irrigation, 

settling basins, water supply storage, groundwater recharge, or rice 

growing; 

(iii) Artificial reflecting pools or swimming pools created by excavating 

and/or diking dry land; 

(iv) Small ornamental waters created by excavating and/or diking dry land 

for primarily aesthetic reasons;

(v) Water-filled depressions created incidental to construction activity;

(vi) Groundwater, including groundwater drained conveyed to waters of 

the United States through open channels and subsurface drainage systems; 

and

(vii) Gullies and rills and non-wetland swales.
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464

(viii) Any wastewater recycling facilities and all appurtenances thereto, 

including but not limited to conveyances, pumping facilities, discharge 

pipes, holding ponds, spreading grounds, and percolation ponds.

(6) Manmade flood control and water supply systems, including but not limited to 

aqueducts, water supply canals not used for navigation, treatment ponds, storage 

ponds, lagoons, pipelines, open channels, agricultural drains, manmade treatment 

wetlands, swales, or other low impact development infrastructure.

(c) The term “upland” shall mean all lands that are not classified as waters of the United 

States. (p. 5-7)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. See the preamble for the agencies’ rationale for changes to the final 

rule.

With respect to stormwater control features, please the summary response at 7.4.4

Valley Center Municipal District, California (Doc. #14752)

7.725 Water infrastructure, such as recycled water facilities, groundwater recharge basins, 

storm water retention basins, and constructed wetlands adjacent to "waters of the United 

States," should be excluded from jurisdiction under the proposed rule. (p. 2)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. 

With respect to stormwater control features, please the summary response at 7.4.4

Groundwater recharge basins are covered under the exclusion at (b)(7) for 

“wastewater recycling structures created in dry land: detention and retention basins 

built for wastewater recycling, groundwater recharge basins, and percolation ponds 

built for wastewater recycling, and water distributary structures built for 

wastewater recycling” or under the stormwater control feature exclusion at (b)(6), 

depending on the source of water. In effect, both have the same result, i.e., the 

infiltration basin is not a jurisdictional water as long as it was built in dry land.

Please note that the final rule does not change the applicability of the Underground 

Injection Control program for Class V injection wells or subsurface fluid 

distribution systems under the Safe Drinking Water Act. See 40 CFR Part 144.

Washington County Commission, Utah (Doc. #14991)

7.726 A. Proposed amendment to definition of tributaries. Washington County proposes that 

dry washes located throughout the southwestern United States be excluded-by name-sfrom jurisdiction if waters only flow in the dry wash intermittently or ephemerally and 
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465

tile primary flow from the dry wash or arroyo is drainage immediately following 

rainfall.408 This proposal would (1) provide a bright-line rule to determine jurisdiction, 

(2) prevent the new rule from significantly expanding the Agencies' jurisdiction, (3) 

prevent the Agencies from imposing significant costs on Washington County, and (4) 

follow congressional intent in ensuring the unprotected lands in Washington County 

remain open for travel and multiple use.

In the proposed rule, the Agencies specifically request comments regarding 

recommendations which will provide greater clarity to the proposed definition of 

jurisdictional tributaries as compared to non-jurisdictional gullies. As stated above, the 

county has expertise in maintaining roads in an area with frequent and localized flash 

flooding. Consequently, the county respectfully provides additional information to the 

Agencies with the intent of showing the need to not include dry washes or arroyos as 

jurisdictional by rule.

... The county respectfully requests that the Agencies' modify the proposed rule to not 

establish tributaries and other waters as jurisdictional by rule. Additionally, the county 

has significant experience with dry washes or arroyos as commonly found in the 

southwestern United States. The county strongly recommends that these dry washes not 

be considered jurisdictional by rule. Jurisdiction of dry washes is not permitted under the 

law. Additionally, approving the proposed rule without specifically excluding dry washes 

from the Agencies' jurisdiction will likely impose significant costs on the county and 

restrict access to public lands in the county. More importantly, the proposed rule would 

likely put the health, safety, and welfare of travelers at risk because it would hinder the 

county's regular repair of roads damaged by flash flooding. (p. 3, 4)

Agency Response: The agencies modified the definition of “tributary” in the final 

rule to “a water that contributes flow, either directly or through another water 

(including an impoundment identified in paragraph (a)(4) of this section), to a water 

identified in paragraphs (a)(1) through (3) of this section that is characterized by the 

presence of the physical indicators of a bed and banks and an ordinary high water 

mark.” The physical indicators of bed and banks and ordinary high water mark 

demonstrate that there is sufficient volume, frequency and flow in such tributaries 

to a traditional navigable water, interstate water, or the territorial seas to establish 

a significant nexus. “Tributaries” as defined are jurisdictional by rule. 

The rule identifies all erosional features, including gullies and rills, as nonjurisdictional features. While the proposed rule specifically identified gullies and 

rills, the agencies intended that all erosional features would be excluded. The final 

rule makes this clear. Erosional features are not jurisdictional under the terms of 

paragraph (a) and the definitions in paragraph (c), especially the definition of 

tributary, and would be non-jurisdictional in any case.

City of Glendale, Arizona (Doc. #15054)

7.727 Water Transmission Canals

 

408 See Rapanos v U.S., 547 U.S. 715, 739 (2006)
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The City of Glendale receives most of its water supplies via the Central Arizona Project's 

or the Salt River Project's canals. Water quality standards for Phoenix area canals have 

been established in Arizona Administrative Code, Title 18 Environmental Quality.

These canals often discharge to a groundwater recharge basin or return flow, either 

directly or through another water, to a jurisdictional water. Under the proposed rule, manmade conveyances meet the definition of "tributary" if they have a bed, a bank, and an 

ordinary high water mark and contribute flow either directly or indirectly to an (a)(1) 

through (a)(4) water. These water transmission canals may meet the definition of 

"tributary" under the proposed rule. 

Maintenance activities to operate the distribution canals, such as mechanical and 

chemical controls for aquatic plants and animals and removal of silt and debris from the 

channels, will become subject to state and federal permit requirements. Financial 

resources of the Central Arizona Project and Salt-River Project would be spent on 

permits without additional benefit to the environment. Water transmission canals should 

be specifically excluded from the definition of "waters of the United States." (p. 4)

Agency Response: Although the agencies have modified the definition of

“tributary” in the final rule, the preamble states that the agencies have consistently 

regulated aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land. The final rule also specifically excludes 

constructed detention and retention basins created in dry land used for wastewater 

recycling as well as groundwater recharge basins and percolation ponds built for 

wastewater recycling.

New York City Law Department (Doc. #15065)

7.728 Green Infrastructure: It is the City's understanding that bioswales, rain gardens, and 

similar green infrastructure would not be considered jurisdictional, and thus subject to 

regulation under the Clean Water Act, under the Proposed Rule. Several City agencies, 

including DEP, the Department of Transportation, and the Department of Parks and 

Recreation, among others, install and manage green infrastructure to manage stormwater 

in the City. The City appreciates that EPA and the Corps view the Proposed Rule as not 

defining green infrastructure as jurisdictional. To ensure clarity on this issue, the City 

suggests that EPA and the Corps add a subsection expressly exempting green 

infrastructure from jurisdiction. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.729 Water Transfers: EPA and the Corps should take advantage of this rulemaking as an 

opportunity to clarify the applicability of the Clean Water Act to water transfers. This is 

particularly important in light of the recent decision in Catskill Mountains Chapter of 

Trout Unlimited, Inc., et al. v. U.S. Environmental Protection Agency, et al., in which the 

court struck down EPA's 'Water Transfers Rule, 40 CFR § 122.3(i). 8 F. Supp. 3d 500 

(S.D.N.Y. March 28, 2014). In that case, the court explicitly questioned the status of 

water transfers in connection with the definition of "waters of the United States," The 

City believes that this rulemaking is an appropriate context in which to address the 
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467

applicability of the Clean Water Act to water transfers. Accordingly, the City proposes 

the following additions, which are underlined, to the definitions in 40 C.F.R. Section 

122.2:

"Discharge of a pollutant" means

(a) Any addition of any "pollutant" or combination of pollutants to "waters of the 

United States" from any "point source," or

(b) Any addition of any pollutant or combination of pollutants to the waters of the 

"contiguous zone" or the ocean from any point source other than a vessel or other 

floating craft which is being used as a means of transportation.

(c) For purposes of water transfers and impoundments. the source water and the 

receiving water shall be considered unitary. For navigable waters that are unitary, 

an addition of pollutants to navigable waters occurs only when pollutants first 

enter the navigable waters from a point source, not when pollutants are 

impounded or moved between navigable waters.”

This definition includes additions of pollutants into waters of the United States from: 

surface runoff which is collected or channelized by man; discharges through pipes, 

sewers, or other conveyances owned by a State, municipality, or other person which do 

not lead to a treatment works; and discharges through pipes, sewers, or other 

conveyances, leading into privately owned treatment works. This term does not include 

an addition of pollutants by any "indirect discharger,"

“Water transfer” means an activity that conveys or connects waters of the United States.” 

(p. 3-4)

Agency Response: Please see summary response at 12.3.

Flood Control and Water Conservation, Alameda County, California (Doc. #15074)

7.730 Green Infrastructure projects, such as bio-swales and artificial wetlands, are constructed 

to restore natural hydrological features and promote multiple environmental benefits. 

These systems are covered under the NPDES permit and should be excluded from Waters 

of the US. (p. 2)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4.

National Association of Counties (Doc. #15081)

7.731 Ensuring that Local Governments Are Able to Quickly Recover from Disasters

In our nation’s history, our citizens have experienced both manmade and natural 

disasters. Counties are the initial line of defense, the first responders in protection of its 

residents and businesses. Since local governments are responsible for much of what 

constitutes a community—roads and bridges, water and sewer systems, courts and jails, 

healthcare, parks, and more—it is important that local governments quickly recover after 
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468

disasters. This includes removing wreckage and trash from ditches and other 

infrastructure that are considered jurisdictional.409

Counties in the Gulf Coast states and the mid-west have reported challenges in receiving 

emergency waivers for debris in ditches designated as “waters of the U.S.” after natural 

and manmade disasters. This, in turn, damages habitat and endangers public health. 

NACo would urge the EPA and the Corps to revisit that policy, especially if more waters 

are classified as “waters of the U.S.” (p. 18)

Agency Response: The need for emergency action for a specific time and place is 

not related to the issue of whether a water is a defined “water of the United States” 

under the Clean Water Act. Rather, the agencies believe that such situations are 

better addressed through implementation actions, such as streamlined permitting 

procedures, that can provide the tailored oversight necessary to protect vital water 

resources while adequately responding to unusual emergency circumstances

Painesville Township, Ohio (Doc. #15183)

7.732 "Waste Treatment Systems and Other Exclusions"

The proposed rule excludes "waste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act" among other features 

listed in the section. While such systems have traditionally been excluded from CWA 

jurisdiction, we believe that other constructed water management and treatment 

infrastructure with similar attributes to these waste treatment systems should be 

exempted. (p. 2)

Agency Response: Waste treatment systems have been excluded from this 

definition since 1979, and they remain substantively and operationally unchanged. 

Only ministerial changes to delete an outdated cross reference are made to the 

exclusion for waste treatment systems. Continuing current practice, any waste 

treatment system built in a “water of the United States” would need a section 404 

permit to be constructed and a section 402 permit for discharges from the waste 

treatment system into “waters of United States. Because the agencies are not making 

any substantive changes to the waste treatment system and these comments are 

outside the scope of the proposed rule, the final rule does not reflect changes 

suggested in public comments. See summary response at 7.1

Los Angeles Department of Water and Power (Doc. #15238)

7.733 Impacts to Water and Power Suppliers, Such as LADWP

The proposed rule has the potential to impact LADWP's water rights, sources of water, 

transmission projects , water transfers , spill containment areas, evaporation cooling 

ponds, forebays used for water pass through for generating hydro-electric power, intake 

channels used for once-through cooling, and operation and maintenance activities by an 

 

409 Disaster Mitigation: Reducing Costs & Saving Lives: Hearing before the Subcomm. on Econ. Dev., Pub. Bldgs. 

& Emergency Mgmt., H. Comm. on Transp. & Infrastructure, 113th Cong. (2014) (statement of Linda Langston, 

President, Nat’l Ass’n of Counties).
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469

increased need for more permits and permit requirements. Projects will be subject to 

individual permits versus the Corps Nationwide Permits and expansion of National 

Pollutant Discharge Elimination System (NPDES) permits that may have total maximum 

daily loads (TMDLs) associated as effluent limitations. The Agencies will have 

jurisdiction and may conflict with agreements for flow requirements in order to maintain 

beneficial uses of streams, creeks, and/or rivers that have already been established. The 

proposed rule has the potential to interfere with already established water rights, and 

threatens the ability to maintain water and electricity demands as well as system 

reliability.

Science shows that including waters previously not classified as WOUS would not 

improve the quality of these waters; updating the definition of WOUS as proposed would 

only serve to place more waters under more regulations due to increased oversight. For 

example, drinking water meets potable water standards, which is its primary beneficial 

use, there is no benefit to being under the jurisdiction of the CWA; the environmental 

benefits do not outweigh the increased regulatory burden.

In addition, generating stations that are powered by coal or natural gas may have 

impoundments that hold cooling water from a WOUS prior to use in some form of 

cooling process. All of these impoundments are man-made. In some cases, sea water is 

drawn into an intake channel that was built solely for the operations of the plant. The 

water has been taken into the control and onto private property out of the public domain. 

Thus, the WOUS classification should be waived in this example. For inland generating 

stations that draw freshwater as cooling water, a man-made impoundment is also needed. 

As with the intake channel example, this type of impoundment does not harm any aquatic 

life or beneficial uses of a downstream water body and should not be classified as a 

WOUS. Generating stations also have lined ponds within the property, which are used 

either to accumulate wastewater or evaporate excess water as a part of treatment 

processes. These ponds should also not be classified as WOUS. If necessary, they will be 

permitted for discharge, which would protect any nearby waters.

Some hydroelectric power plants use a pump-back process so they can reuse water that 

was used to generate power. The water is held in a forebay until electricity demand is 

low, and then the water is pumped up to a reservoir at a higher elevation to be reused 

when the demand is high. The forebay is an enclosed man-made impoundment that 

should not be classified as a WOUS.

Aqueducts should not be considered WOUS. Aqueducts have a primary purpose to 

provide reliable water to the citizens that have water rights. Aqueducts often require 

maintenance in order to remove sediment or repair the sidewalls of the open channels, 

and also to maintain enclosed sect ions made of metal or concrete. In addition manmade 

ditches should not be WOUS because of the frequent maintenance that often requires 

flow adjustments for aqueduct system reliability that do not harm beneficial uses but are 

necessary for maintaining the operation of the aqueduct.

Spreading grounds used to recharge groundwater supply should not be considered 

WOUS. If the proposed regulation includes the significant nexus test, then an entire 

groundwater basin might be considered to be the connectivity between the spreading 

grounds and a river that is perhaps miles away from the spreading grounds.
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The definition of WOUS should not inadvertently interfere with implementing existing 

water rights by hindering maintenance activities on facilities used to deliver water in a 

reliable and efficient manner. Maintenance activities on conveyances such as ditches and 

facilities such as flow regulating structures need to be done very quickly - much faster 

than the turnaround time for NPDES and/or Corps permits - in order to ensure 

uninterrupted supplies. Some activities are highly dependent on weather as well as flow 

requirements downstream in the water supply system. Thus, water supply conveyances, 

ditches , and facilities must be left out of WOUS classification. (p. 6-7)

Agency Response: In the final rule, the agencies have expanded and clarified the 

features not considered “waters of the United States” for the purposes of the Clean 

Water Act. In the exclusion for artificial lakes or ponds, the agencies have changed 

“exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are 

often not used exclusively for one purpose and can have other beneficial purposes, 

such as animal habitat, water retention or recreation. The change to the exclusion 

reflects Agency practice and ensures that waters the agencies have historically not 

treated as jurisdictional do not become so because of another incidental beneficial 

use. The agencies have also added cooling ponds to the list of uses in the rule. The 

list of uses has always been illustrative rather than exhaustive, and this addition 

responds to many requests to clarify that cooling ponds created in dry land are 

excluded. 

Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in 

dry land are excluded. This new exclusion clarifies the agencies’ current practice 

that such waters and water features used for water reuse and recycling are not 

jurisdictional when constructed in dry land. The agencies recognize the importance 

of water reuse and recycling, particularly in areas like California where water 

supplies can be limited and droughts can exacerbate supply issues. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

Although the agencies have modified the definition of “tributary” in the final rule, 

the preamble states that the agencies have consistently regulated aqueducts and 

canals as “waters of the United States” where they serve as tributaries, removing 

water from one part of the tributary network and moving it to another. The 

agencies have not in practice asserted jurisdiction over these types of features when 

created in dry land.

7.734 LADWP recommends that the Proposed Rule be modified to:

...

 Exclude ephemeral streams from the definition of WOUS and allow the States to 

regulate them; 

 Clarify in the Rule that groundwater basins are not to be considered a tributary;

...

 Exclude aqueducts and water supply features from the definition of WOUS;
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

471

 Exclude storm water ponds, detention basins, spreading grounds, puddles,

reservoirs, or other standing waters from the definition of WOUS by virtue of

being adjacent or with a significant nexus;

 Exclude impoundments for holding cooling water or power plant pump back 

water from the definition of WOUS;

 Exclude lined ponds within a facility from the definition of WOUS; and 

... (p. 8, 9)

Agency Response: The agencies have modified the definition of “tributary” to 

require the presence of a bed and bank and other indicator of ordinary high water 

mark. A bed and banks and other indicators of ordinary high water mark are 

physical indicators of water flow and are only created by sufficient and regular 

intervals of flow. These physical indicators can be created by perennial, 

intermittent, and ephemeral flows. The rule includes ephemeral streams that meet 

the definition of tributary as “waters of the United States” because the agencies 

determined that such streams provide important functions for downstream waters, 

and in combination with other covered tributaries in a watershed significantly affect 

the chemical, physical, and biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas.

The final rule has expanded the features not considered “waters of the United 

States” to include certain wastewater treatment and stormwater facilities that may 

address some of the features discussed in this comment, where constructed in dry 

land. However, when constructed in, or impounding, waters of the United States, 

these features may still be considered jurisdictional. 

With respect to stormwater control features, please see the summary response at 

7.4.4.

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

7.735 B. Exclusion for Water Treatment Systems

...Greeley provides drinking water to its citizens through two treatment plants. The City 

must therefore comply with the stringent requirements of the Colorado Primary Drinking 

Water Regulations.410

Ponds and related treatment system components are typically located on plant property 

having no public access. It would be contrary to Safe Drinking Water Act requirements to 

allow contaminants to enter these waters prior to treatment and distribution. It would also 

be impractical to require drinking water these waters prior to treatment and distribution. It 

would also be impractical to require drinking water providers to obtain Corps 

authorization before performing necessary work on treatment system components where 

such work may involve a discharge of fill material.

 

410 5 CCR 1002-11. Colorado is authorized to implement its own drinking water program that complies with the Safe 

Drinking Water Act.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

472

The definition of Waters the United States has long excluded "waste treatment systems, 

including treatment ponds or lagoons designed to meet the requirements of the Clean 

Water Act." The Agencies should add a similar exclusion in 40 CFR §122.2(b) for 

"Drinking water treatment systems, including treatment ponds or lagoons, designed to 

meet the requirements of the Safe Drinking Water Act." (p. 6-7)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and treatment ponds or lagoons constructed in dry land may also be excluded. 

Many commenters asked for an exclusion for drinking water supply systems, similar 

to exclusions for wastewater treatment and stormwater control. Because water 

supply networks can be both complex in structure and extensive in size, involving 

the use of tributaries as well as a variety of other features, the agencies determined 

that a complete exclusion of such systems is not appropriate. However, not all 

portions of these systems would be regulated under the final rule. Some portions of 

these systems are tributaries, or even traditional navigable waters, and so would be 

regulated under this rule for the same reasons that all such waters are subject to 

regulation as “waters of the United States.” At the same time, there are some 

portions of these systems that would be excluded from regulation under the 

paragraph (b) exclusions, including (b)(3) (ditches that do not flow into a navigable 

water, interstate water or territorial sea) or (4)(B)(artificial, constructed lakes and 

ponds created in dry land.

District of Columbia Water and Sewer Authority (Doc. #15379)~

7.736 3. Combined Sewer System

As is the case with many combined sewer systems constructed over a century ago in 

cities undergoing urbanization, parts of DC Water's combined sewer system incorporate 

small streams and stream segments that were tributaries to larger streams and rivers 

leading to the Anacostia, Potomac, or Rock Creek. DC Water is currently spending 

billions of dollars on the District's combined sewer system to control discharges from the 

system, and we are concerned that the Rule could be interpreted to extend CWA 

jurisdiction over flows in the combined sewer system itself where the system incorporates 

streams and stream segments. Therefore, the term "tributary" needs to be amended in the 

Rule to make it clear that piped or buried sections incorporated into a combined system, o 

not meet the definition of "waters of the United States."

The Rule is unclear regarding the treatment of combined sewer systems and DC Water 

cannot support a final rule that does not specifically exempt combined systems and 

infrastructure that are part of a combined system as non-jurisdictional. Stream segments 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

473

that flow through pipes that are part of a combined system should be specifically 

exempted and should not be considered "waters of the U.S." (p. 4)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4. Also, please see Summary response at 12.3 concerning 

the NPDES program.

7.737 4. Green Infrastructure

DC Water's ongoing and proposed green infrastructure ("GI") projects incorporate a 

variety of measures, including green roofs (gardens on rooftops), rain gardens, rain 

barrels, and pervious pavements, removing impervious surfaces, and using other natural 

means to capture and infiltrate rain water. Man-made wetlands may be developed along 

with canals, ditches, and retention systems associated with GI. DC Water has made a 

significant investment in its commitment to GI that will capture and convey water to the 

GI before it can enter the combined system. In this way, combined sewer overflows will 

be reduced and controlled.

Stormwater and green infrastructure are not explicitly exempt under the proposed rule.

This infrastructure is vital to DC Waters commitment to clean water and without 

clarification, DC Water will be open to adverse agency determinations and the possibility 

of citizen suits under the CWA. DC Water seeks a rule that states affirmatively that GI 

infrastructure is not classified as a "water of the U.S." and that GI projects and 

infrastructure are not meant to be included in the proposed rule.

...

DC Water recommends that the definition of waters of the U.S. be narrowed and/or the 

exemptions expanded as set out below:

1. Exempt by definition of tributary or by definition of waste treatment system all 

sanitary and combined system facilities, the impoundments, ditches, and infrastructure 

related to them, from the definition "waters of the U.S," This would include sections of 

streams that flow through pipes that are part of a sanitary sewer system or combined 

systems;

...

Exempt by definition GI installations the impoundments, ditches, and infrastructure 

related to them, from the definition "waters of the U.S." This would also include sections 

of streams that flow through pipes that are part of a GI system. (p. 4, 5, 6).

Agency Response: Please see response to previous comment.

County of Los Angeles and Los Angeles County Flood Control District, California (Doc. 

#15620)

7.738 3. Green Infrastructure Projects

EPA’s System of Registries describes “Green Infrastructure” as “an adaptable term used 

to include an array of product, technologies, and practices that use natural systems – or 

engineered systems that mimic natural processes – to enhance overall environmental 

quality and provide utility services.”2 Green Infrastructure projects provide multiple 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

474

benefits such as groundwater replenishment, water quality improvement, and 

enhancement of wildlife habitats and recreational opportunities. In July 2014, EPA 

launched the Green Infrastructure Collaborative, which in part aims to advance green 

stormwater management techniques.3 The President’s Office of Management and Budget 

also has acknowledged that Green Infrastructure, including wetlands, can be a costeffective way to manage stormwater and meet Clean Water goals.4 In a press release and 

fact sheet dated October 8, 2014, the President’s Council on Environmental Quality 

identified creek and wetland restoration and wetland protection as examples of Green 

Infrastructure projects.3 The County and LACFCD share EPA’s commitment to Green 

Infrastructure as a way to attain more sustainable and livable communities. In recent 

years, the LACFCD has begun to incorporate Green Infrastructure elements, including 

constructed wetlands and engineered soft bottom, low-flow channels, as part of its flood 

control infrastructure. While some of these Green Infrastructure projects are intended for 

compliance with requirements in municipal stormwater permits required under Section 

402(p) of the CWA and are part of a larger stormwater quality improvement strategy, 

others are simply reflective of a “greener” approach to flood protection aimed at more 

livable communities. Following are two examples of Green Infrastructure projects 

recently constructed by the LACFCD. We are concerned that under the Proposed Rule, 

projects like these could be deemed WOTUS, which could discourage future Green 

Infrastructure projects.

The first example is the Dominguez Gap Wetlands, a constructed wetland located within 

the City of Long Beach and operated by the LACFCD. The wetlands project maintains 

the integrity of flood protection along Los Angeles River (a jurisdictional WOTUS), 

while introducing new water quality elements, groundwater recharge, restoration of 

native habitat, pedestrian and equestrian trails, environmental education, and river bike 

trail enhancements. The wetlands naturally treat from 2-3 cubic feet per second (1.3 to 

3.2 million gallons a day) of stormwater and urban runoff — enough water to fill five 

Olympic-size swimming pools, which results in a significant reduction in the amount of 

fecal coliform, nutrients, heavy metals, organic carbons, and oil and greases in the runoff.

The second example is the Tujunga Wash Greenway, a meandering stream constructed 

by the LACFCD as part of the Tujunga Wash Ecosystem Restoration Project, located in 

the City of Los Angeles. The Greenway is a man-made stream adjacent to the concretelined Tujunga Wash flood control channel, which is a jurisdictional WOTUS. The 

Greenway has brought plant and animal habitat, water quality enhancement, groundwater 

replenishment, and passive recreation to a one mile reach of the Tujunga Wash. Both 

sides of the Wash now feature vibrant native vegetation and pathways for walking and 

biking. During an average rain year, as much as 325,000 gallons a day will flow through 

the Wash’s new naturalized streambed, resulting in improved water quality for the region 

and enough groundwater recharge to provide 760 families of four with drinking water for 

an entire year.

The County and the LACFCD are concerned that projects such as these could be broadly 

interpreted to be WOTUS under the Proposed Rule, as they are located adjacent to 

existing WOTUS and do not clearly qualify for any of the current exclusions. As with the 

infiltration basins, designating waterway-based Green Infrastructure projects such as 

Dominguez Gap Wetlands and Tujunga Wash Greenway as a WOTUS would discourage 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

475

the future development of these types of projects. Requiring CWA Section 404 and 401 

permits or applying water quality standards to these types of projects would raise their 

cost beyond feasible funding sources. The County and the LACFCD believe that a 

specific exclusion for Green Infrastructure projects in the Proposed Rule is needed to 

avoid ambiguity and to promote Green Infrastructure projects that help improve water 

quality or create water features where none existed before. Such exclusion is especially 

crucial now because many Los Angeles area municipalities are currently in the planning 

stages of various Green Infrastructure projects, reflecting a larger trend towards using 

green stormwater management techniques. (p. 8-9)

Agency Response: Please see summary response at 7.4.4.

City of Riverside, California (Doc. #15824)

7.739 The City of Riverside has several facilities such as holding ponds, constructed wetlands, 

and water and wastewater infrastructure located adjacent to "water of the United States." 

The City of Riverside also has several projects on the horizon to capture and recharge 

storm water. These are projects that will be constructed in the foreseeable future. In 

addition, we plan to expand our recycled water system which may include the recharge of 

our groundwater basins with recycled water.

The City of Riverside requests water infrastructure facilities (including construction, 

maintenance, and operation) adjacent to traditionally navigable waters be excluded from 

the proposed definition of "waters of the United States." (p. 4)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4. 

The final rule specifically excludes constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. Many commenters 

noted the growing interest in and commitment to water recycling and reuse 

projects. Detention and retention basins can play an important role in capturing 

and storing water prior to beneficial reuse. Similarly, groundwater recharge basins 

and percolation ponds are becoming more prevalent tools for water reuse and 

recycling. These features are used to collect and store water which then infiltrates 

into groundwater via permeable soils. Though these features are often created in 

dry land, they are also often located in close proximity to tributaries or other larger 

bodies of water. The exclusion also covers water distributary structures that are 

built in dry land for water recycling.

Colorado Springs Utilities (Doc. #16351.1)

7.740 No exemption is offered for water treatment systems or water reuse facilities which 

oftentimes employ pits, ponds, lagoons and recharge basins. These features may be found 

jurisdictional under the rule (unlike wastewater treatment systems). (p. 2)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

476

impounding, waters of the United States, these features may still be considered 

jurisdictional.

7.741 There is no exemption for emergency work, such as post-fire drainage remediation 

activities of the type Colorado Springs and its neighbors had to construct after recent 

devastating forest fires. On a similar note, there is no exemption for stormwater control 

facilities necessary to meet MS4 obligations. (p. 2)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4. See also summary response at 7.4.

South Kansas Groundwater Management District No. 3 (Doc. #16465)

7.742 The Federal Agencies' proposal could also place a significant amount of previously nonjurisdictional water infrastructure under the CWA. Municipal water providers depend on 

much of this infrastructure to meet water needs in a responsible and environmentally 

conscious manner. The proposed rule expands the CWA jurisdiction from "adjacent 

wetlands" to "adjacent waters". This unnecessary expansion will capture a large amount 

of infrastructure not previously jurisdictional. Infrastructure that could be implemented 

includes a large number of water recycling and reuse facilities, groundwater recharge 

facilities, retention basins, and constructed wetlands. These facilities, often by necessity, 

are constructed in areas that the proposed rule would make jurisdictional for the first 

time. To address the issues identified in this letter the Federal Agencies should:

...

 Clarify that jurisdictional "impoundments" do not include manmade, off-stream 

facilities that lawfully appropriate and remove water from the natural 

environment, such as a drinking water system, off-stream storage pond, intake 

canal for any use;

... 

 Clarify in the text of any final rule that nothing in the proposal changes the 

regulatory status of water transfers;

... (p. 2, 3)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. Regarding water 

transfers, please see response at 12.3. 

City of Beaverton, Oregon (Doc. #16466)

7.743 We recognize that EPA and the Corps may claim these outcomes are unanticipated. 

However, there is so much gray area in the proposed rule that the rise of third-party 

citizen suits are likely to define all these described waters as WOTUS. The agency's socalled intent will not matter, because where there is gray, there will be a lawyer to file a 

lawsuit. Ultimately, the aggressive reach of this rule and its ambiguous provisions and 

terminology introduces uncertainty, requires more agency analysis and intervention, and 

will create increased litigation.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

477

With that in mind, the rule must include the following provisions that are priority 

concerns for local governments:

...

 Green infrastructure developed to improve water quality or achieve multiple 

public benefits shall be encouraged and given priority consideration that does not 

impose additional financial and regulatory burdens of permittees and shall not be 

considered waters of the U.S.;

 Water delivery, reuse, and reclamation systems and facilities shall not be 

considered waters of the U.S.;

... (p. 2-3)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4. 

The final rule specifically excludes constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. Many commenters 

noted the growing interest in and commitment to water recycling and reuse 

projects. Detention and retention basins can play an important role in capturing 

and storing water prior to beneficial reuse. Similarly, groundwater recharge basins 

and percolation ponds are becoming more prevalent tools for water reuse and 

recycling. These features are used to collect and store water which then infiltrates 

into groundwater via permeable soils. Though these features are often created in 

dry land, they are also often located in close proximity to tributaries or other larger 

bodies of water. The exclusion also covers water distributary structures that are 

built in dry land for water recycling.

Brady Township Supervisors, Clearfield County, Pennsylvania (Doc. #16480)

7.744 In section (b), the proposal excludes 'waste treatment systems, including treatment ponds 

or lagoons, designed to meet the requirements of the Clean Water Act" among other 

features listed in the section. While such systems have traditionally been excluded from 

CWA jurisdiction, we believe that due to the expansive nature of the proposal, the 

agencies should also exclude other constructed water management and treatment 

infrastructure with similar attributes to these waste treatment systems. These facilities 

could include water reuse and recycling ponds, treatment lagoons, and other -

appurtenances; artificially constructed wetlands designed to treat agricultural or 

stormwater runoff (e.g. green infrastructure) used and managed to improve water quality; 

arid artificially constructed groundwater recharge basins designed to percolate surface 

water into groundwater basins. All of these features would revert to dry land if the 

application of water were to cease and should be included in the list of features identified 

in the proposed rule as excluded from the definition of "waters of the U.S." (p. 5)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4.

The final rule specifically excludes constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

478

basins and percolation ponds built for wastewater recycling. Many commenters 

noted the growing interest in and commitment to water recycling and reuse 

projects. Detention and retention basins can play an important role in capturing 

and storing water prior to beneficial reuse. Similarly, groundwater recharge basins 

and percolation ponds are becoming more prevalent tools for water reuse and 

recycling. These features are used to collect and store water which then infiltrates 

into groundwater via permeable soils. Though these features are often created in 

dry land, they are also often located in close proximity to tributaries or other larger 

bodies of water. The exclusion also covers water distributary structures that are 

built in dry land for water recycling.

Palm Beach County, Florida (Doc. #16647)

7.745 The proposed rule, in section (b), excludes "waste treatment systems, including treatment 

ponds or lagoons, designed to meet the requirements of the Clean Water Act" among 

other features listed in the section. Due to the expansive nature of the proposed, the 

agencies should also exclude other constructed water management and treatment 

infrastructure with similar attributes to traditionally waste treatment systems, as well as 

constructed or managed water reuse and recycling systems that may not have been 

designed to meet the requirements of the Clean Water Act, but that serve a vital purpose 

for water recycling and provide marked water supply benefits. These facilities could 

include water reuse and recycling ponds, conveyance systems, treatment lagoons, and 

other appurtenances; artificially constructed wetlands designed to treat agricultural or 

stormwater runoff (e.g. green infrastructure) used and managed to improve water quality; 

and artificially constructed groundwater recharge basins designed to percolate surface 

water into groundwater basins. Simply put, as the agencies update and "clarify" the 

definition of what constitutes a "water of the US," they should also take the opportunity 

to update the language of the water treatment exclusion to recognize the advancements 

that have been made in wastewater design and treatment, as well as the innovative 

measures being undertaken by wastewater utilities to embrace a "one water" framework 

and incorporate water reuse into local and regional goals. (p. 10)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4.

The final rule specifically excludes constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. Many commenters 

noted the growing interest in and commitment to water recycling and reuse 

projects. Detention and retention basins can play an important role in capturing 

and storing water prior to beneficial reuse. Similarly, groundwater recharge basins 

and percolation ponds are becoming more prevalent tools for water reuse and 

recycling. These features are used to collect and store water which then infiltrates 

into groundwater via permeable soils. Though these features are often created in 

dry land, they are also often located in close proximity to tributaries or other larger 

bodies of water. The exclusion also covers water distributary structures that are 

built in dry land for water recycling.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

479

7.746 The Palm Beach County Water Utilities Department (PBCWUD) is the third largest 

water and wastewater utility in Florida and operates one of the largest and most mature 

reclaimed water networks in the State. PBCWUD treats wastewater at its Southern 

Region Water Reclamation Facility and supplies reuse to a number of different golf 

courses and residential communities for irrigation use. The facility is permitted under 

Florida DEP NPDES Permit FL0041424. Under the conditions of the permit, PBCWUD 

discharges reclaimed water into existing stormwater treatment systems that are owned, 

operated and maintained by the various golf courses and homeowner's associations and 

have previously been permitted under Florida's environmental permitting programs. The 

storage of reclaimed water in the stormwater systems are subject to DEP Program 

Guidance Memo DOM 96-01 and the associated TBEL that have previously been 

approved by EPA.

Under the conditions of its permit, PBCWUD is limited to discharging reclaimed water 

into the systems up to an agreed upon control elevation. Due to Florida's wet weather and 

groundwater/surface water interface, water within the ponds and lakes that make up the 

stormwater systems is a blend of groundwater, stormwater and reclaimed water. In wet 

weather periods, there may be intermittent discharges of this blended water from the 

systems into "waters of the State." PBCWUD is required to monitor and report these 

intermittent discharges to DEP as part of its permit requirements. The privately owned 

systems are not considered to be "waters of the state" and are only included in the 

definition of "waters" in state statutes for the purposes of discharge from the system onto 

property or into other “waters.”411

The lack of clarity in the proposed rule creates broad interpretive possibilities and 

uncertainties regarding water reuse and recycling infrastructure. Were the proposed rule 

to result in the stormwater management systems being designated jurisdictional "waters 

of the US/' PBCWUD would be required to meet water quality standards prior to the 

discharge of reclaimed water into systems under the existing approved permitting regime. 

This requirement would result in skyrocketing costs to implement a vital water reuse 

program that has been promoted by both the Florida DEP and USEPA as an effective 

way to address water supply concerns and could result in the abandonment of the 

program as not cost effective. Palm Beach County believes that water reuse and recycling 

infrastructure should be expressly included in the waste treatment exemption, along with 

previously permitted stormwater management systems that are utilized for reclaimed 

water distribution. (p. 12-13)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4

7.747 To avoid regulatory uncertainty, legal deficiencies and the practical consequences that 

will result from finalization of the proposed rule, Palm Beach County proposes the 

following amendments to the rule language:

...

 

411 See Section 403.301, Florida Statutes, and Guidance Memo DOM-96-01 (April 26, 1996) at p. 3 (describing golf 

course lakes and other lakes of ponds as "not waters of the state" and "part of the stormwater management system").
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

480

5) Clarify the waste treatment exemption to further clarify that innovative features other 

than treatment ponds or lagoons clearly fit within the exemption, including features that 

are designed to facilitate the delivery or disposal or reclaimed water that may not have 

been explicitly designed to meet the requirements of the Clean Water Act. In the case of 

Palm Beach County, these systems are included in the NPDES permit for the facilities, 

however, there are other situations where this is not the case and facility owners may see 

increased liability without an explicit change in the exemption.

6) Explicitly exempt green infrastructure from jurisdiction under the rule. (p. 13, 14)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4

City of Portland, Bureau of Environmental Services (Doc. #16662)

7.748 2. Please clarify that the wastewater treatment system exclusion includes recycled water 

and innovative treatment technologies. Some innovative treatment technologies, such as 

wetland systems, do not fall within the traditional boundaries of a wastewater treatment 

plant. Please clarify that these types of treatment technologies are included in the 

exclusion for treatment systems" designed to meet the requirements of the Clean Water 

Act" even if they are located in areas that would otherwise make them jurisdictional. This 

requested change is consistent with longstanding Corps of Engineers practice that 

excludes constructed treatment wetlands from jurisdiction. (p. 2)

Agency Response: The final rule specifically excludes constructed detention and 

retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

Many commenters noted the growing interest in and commitment to water recycling 

and reuse projects. Detention and retention basins can play an important role in 

capturing and storing water prior to beneficial reuse. Similarly, groundwater 

recharge basins and percolation ponds are becoming more prevalent tools for water 

reuse and recycling. These features are used to collect and store water which then 

infiltrates into groundwater via permeable soils. Though these features are often 

created in dry land, they are also often located in close proximity to tributaries or 

other larger bodies of water. The exclusion also covers water distributary structures 

that are built in dry land for water recycling.

Office of the Mayor and City Council, City of Palo Alto, California (Doc. #16799)

7.749 Water Reuse

Palo Alto is an active participant in the Regional Water Quality Control Plant Water 

Reuse Program. Since 1980 this program has reused over 10 billion gallons of water for 

irrigation and cooling, reducing the need to import potable water and reducing discharges 

of wastewater into San Francisco Bay. Water reuse in California is an essential 

requirement to meet demand, particularly at a time of recurring droughts. Investing in the 

necessary infrastructure and facilities to increase water reuse is expensive, and while 

government must ensure public safety and environmental compliance, it should not 

discourage the investment. Unfortunately, the proposed rule introduces impediments to 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

481

water reuse and does not protect investments made in water reuse, even though federal 

agencies encourage such activity.

Recycled water is treated and distributed in ancillary infrastructure to a wastewater 

treatment system and can include channels to convey wastewater, settling or retention 

basins, and a separate pipe system to deliver the recycled water. Some of these facilities 

could fall under the definition of "tributary" of the proposed rule, could be located within 

a floodplain or riparian area, and would not necessarily be covered by the wastewater 

treatment exemption in the rule, which stipulates the exemption only for "waste treatment 

systems, including treatment ponds or lagoons, designed to meet the requirements of the 

Clean Water Act." While water recycling provides further treatment of wastewater, the 

purpose for its treatment is not "designed to meet the requirements of the Clean Water 

Act." Further, the rule's exemption for settling basins does not afford sufficient protection 

for water reuse facilities because it does not cover detention basins, reservoirs, or 

associated infrastructure such as channels, ditches, or other conveyances.

At a minimum, we ask that the final rule include a clear exemption for all water reuse and 

water reclamation facilities. (p. 3-4)

Agency Response: The final rule specifically excludes constructed detention and 

retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

Many commenters noted the growing interest in and commitment to water recycling 

and reuse projects. Detention and retention basins can play an important role in 

capturing and storing water prior to beneficial reuse. Similarly, groundwater 

recharge basins and percolation ponds are becoming more prevalent tools for water 

reuse and recycling. These features are used to collect and store water which then 

infiltrates into groundwater via permeable soils. Though these features are often 

created in dry land, they are also often located in close proximity to tributaries or 

other larger bodies of water. The exclusion also covers water distributary structures 

that are built in dry land for water recycling.

7.750 Water Supply

The City of Palo Alto purchases its water supply from the San Francisco Regional Water 

Supply System, a system of reservoirs and aqueducts that delivers water from the Sierra 

Mountains to San Francisco and surrounding communities. The quality of the water from 

the SF Regional Water Supply System is such that it requires minimal to no pretreatment. The system of reservoirs and many of the associated rivers and streams are 

already considered "Waters of the United States" under the Clean Water Act. We are 

unaware of any consultation that has taken place with state and regional entities that own 

and manage these water supply facilities with respect to any changes that may occur as a 

result of this proposed rule. We urge the agencies to carefully consider the impact of this 

rule on water supply systems and make the appropriate changes in the final rule to ensure 

that the public can continue to rely upon these sources for dependable and affordable 

water supply.

...

Potential for Litigation
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

482

The City of Palo Alto prides itself on environmental stewardship and exceeds state and 

federal mandates for the utility services we provide our residents. We consider ourselves 

a partner with the federal and state governments in achieving the objectives of the Clean 

Water Act. However, the proposed rule fails to provide the necessary clarity that gave 

impetus to this rule. We support a rulemaking process that interprets court decisions and 

ensures future progress in meeting the requirements of the Act. Unfortunately, the 

aggressive reach of this rule and its ambiguous provisions and terminology introduces 

uncertainty, requires more agency analysis and intervention, and creates increased 

potential for litigation. In order to avoid bureaucratic delays and litigation, we provide the 

following examples of ambiguity that require clarification:

...

The wastewater treatment exemption has a history of legal challenge. Its application to 

water reuse facilities and storm water features must be clearly defined. (p. 4, 5)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA.

With respect to stormwater control features, please see the summary response at 

7.4.4

Board of Supervisors, Amador County, California (Doc. #17450)

7.751 Changes to the terms "navigable water" or "waters of the United States" will likely alter 

the way many water bodies arc regulated and trigger new unfunded mandates on local 

governments. Additionally, the expanded definition will subject counties to additional 

enforcement actions, including civil and criminal penalties, and place local governments 

at great risk of third-party litigation. Some examples include:

...

 Water supply systems, including local and private systems would likely qualify as 

waters of the U.S. as they convey flow to downstream waters.

 Water reuse facilities are separate from fresh water supply systems and never 

designed with the objective to meet the parameters of the CWA. The application of 

water reuse facilities to the proposed definition of Waters of the U.S. is unclear. 

Reclaimed water is often used for landscape irrigation but in some cases becomes part 

of the water supply system. It appears the intent was not to include such facilities and 

if so, should be explicitly exempted.

... (p. 2)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

483

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

Board of Supervisors, Lassen County, California (Doc. #17461)

7.752 ...even though your agencies have maintained that there is no intent to impact water 

reuse facilities, the rule does not clearly address reuse facilities associated with 

wastewater treatment systems. Reuse facilities were constructed to augment water supply 

for irrigation and sometimes drinking water, and were not designed with the objective to 

meet the parameters of the CWA. The rule needs to clearly state your agencies' intent for 

water reuse facilities. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA.

Board of County Commissioners, Pitkin County, Colorado (Doc. #18921)

7.753 The continued exclusion of wastewater treatment systems is wholly appropriate. It is 

likewise appropriate that water supply or municipal systems are not excluded. Many 

domestic water supply systems and infrastructure systems are simply too large and 

potentially involve multiple river drainages to be safely excluded as a matter of rule. (p. 

2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

484

California State Association of Counties (Doc. #9692)

7.754 Water Quality Treatment Features: Any constructed feature built for the purpose of 

water quality treatment or runoff control as required by any agency should be exempt 

from regulation under the CWA. It is important that counties are able to construct and 

maintain or cause to be constructed and maintained these features in a manner that is 

consistent with the overall goal and public good of stormwater management without 

subjecting themselves and property owners to federal regulation that can delay or 

interfere with the features public safety or water supply protection functions. Hindrances 

and delays regarding this function, and discouragement to build treatment features, that 

will result from federal permit processes and compensatory mitigation requirements will, 

ironically, conflict with the goals of the CWA.

As examples:

 Permanent settling basins that are constructed on a site to decant sediment-laden 

runoff from the site itself or properties above it prior to running off the property or 

into a storm drain.

 Green Infrastructure projects, such as bioswales and artificial wetlands, which are 

intended to impose or restore natural hydrological features and promote multiple 

benefits, have been embraced by many counties and municipalities. The Los Angeles 

County Flood Control District, for example, has constructed an artificial wetland next 

to a concrete flood control channel and an artificial "natural stream" adjoining an 

existing concrete channel. Additionally, in many areas, such a Los Angeles County, 

counties and municipalities are combining their efforts in designing facilities to treat 

and infiltrate stormwater and urban runoff in facilities that provide other community 

benefits. Such facilities are artificially created and will be subject to sediment 

accumulation that will need to be removed; vegetation taking root in the sediment 

will also need to be removed and replaced. These actions are needed to maintain the 

facilities' water quality function. To encourage the development of such projects, 

which create water features where none existed before, Green Infrastructure projects 

should not be designated as WOUS.

 Bioswales arc constructed to serve a filtering function. Such facilities are artificially 

created and will be subject to sediment accumulation that will need to be removed, 

along with vegetation taking root in the sediment, in order to maintain their water 

quality function. (p. 7-8)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4

7.755 Artificial Groundwater Recharge Basins: Under the current proposal, off-channel 

groundwater recharge basins that are located adjacent to a WOUS may be considered 

jurisdictional via the agencies "adjacent waters" language. In keeping with the spirit of 

the agencies stated intent not to regulate groundwater, language should be added that 

exempts these types of basins.

For example, starting almost 100 years ago, counties in southern California have 

constructed artificial basins for the purpose of replenishing local area aquifers. Today, the 

counties in southern California are home to over 20 million people, and the population is 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

485

expected to increase. Groundwater serves a significant portion of the water supply for the 

inhabitants of these counties. In many communities, groundwater actually makes up the 

majority of their water supply. Counties in southern California are under pressure from 

the federal and State governments to lessen their dependence on water imported from the 

Sacramento/San Joaquin Delta and the Colorado River for the sake of environmental 

concerns at these source areas. The State of California declared a drought emergency in 

early 2014 that is still in effect; there are projections that drought conditions may 

continue for a very long period of time, even decades. It is therefore vital that 

groundwater recharge in these counties is not only maintained but enhanced.

An exemption for these groundwater recharge basin s is consistent with exemptions the 

agencies have already given for artificial stock ponds and waters "created for purely 

aesthetic reasons." The recharge basins were artificially created. Although the basins may

be located adjacent to a river or channel that is designated a WOUS, the basins have no 

significant hydrologic connection to a WOUS; the waters entering the basins go down 

into groundwater aquifers, which are not WOUS.

CSAC strongly believes subjecting artificial groundwater recharge basins to federal 

permits will result in reducing groundwater recharge at a time when it is vital to increase 

recharge. Permit processes will result in delays in maintenance necessary to maintain the 

basins' operability and water storage and percolation capacity. The costs associated with 

groundwater recharge will significantly increase due to: increased staff time for permit 

acquisition; increased monitoring and reporting; the imposition of compensatory 

mitigation; and increased amount of work to remove accumulations in the basins that 

increased while waiting for the permits to be processed. Similar impacts can be expected 

for any project, including "drought buster" projects being sought by the State of 

California, to enhance operations, storage or percolation at existing groundwater recharge 

basins or create new basins. In addition to adversely impacting the water supply of 

millions of people and conflicting with the State's goal to alleviate the impact of 

prolonged droughts, the imposition of federal permits will, ironically, result in increased 

demand for imported water that will conflict with federal goals to reduce dependence on 

imported water. (p. 8-9)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

486

Association of California Water Agencies (Doc. #12978)

7.756 California’s Water Conveyance and Delivery Systems should be Excluded from the 

Proposed Definition of “Waters of the United States”

The proposed rule would define “waters of the United States” to include “tributaries.” (79 

Fed. Reg. No. 76, 22198 (April 21, 2014)). It would define “tributaries” as “water 

physically characterized by the presence of a bed and banks and ordinary high water 

mark. . . , which contributes flow, either directly or through another water” to waters of 

the United States (Id. at 22201). Although the proposed rule includes narrow exceptions 

for some types of man‐ made, non‐ stream conveyance facilities, the proposed rule states 

specifically that, “A water that otherwise qualifies as a tributary under this definition does 

not lose its status as a tributary if, for any length, there are one or more man‐ made breaks 

(such as bridges, culverts, pipes, or dams or one or more natural breaks . . . . A tributary, 

including wetlands, can be a natural, man‐ altered, or man‐ made water and includes 

waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not 

excluded in paragraphs (b)(3) or (4) (Id. at 22199, 22201‐ 22202). This definition is so 

broad that numerous man‐ made, non-stream conveyances would constitute tributaries 

and become subject to unnecessary permitting. ACWA requests that water conveyance 

systems be excluded from the definition of “waters of the U.S.” in the proposed rule. 

Additionally, the proposed rule should explicitly exempt Federal Energy Regulatory 

Commission relicenses. (p. 3-4)

Agency Response: Although the agencies have modified the definition of 

“tributary” in the final rule, the preamble states that the agencies have consistently 

regulated aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. 

7.757 ACWA does not believe it is EPA’s intent to regulate water re‐ use facilities, retention 

and detention basins, groundwater recharge basins, constructed wetlands and similar 

water and wastewater infrastructure that is often located adjacent to “waters of the United 

States”. ACWA requests water infrastructure facilities (including construction, 

maintenance, and operation) adjacent to traditionally navigable waters be excluded from 

the proposed definition of “waters of the United States”. (p. 13)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional.

7.758 While the proposed rule includes an exemption for artificial lakes and ponds used 

exclusively for settling basins, this language does not cover water reuse facilities. Reuse 

facilities can function or take on the characteristics of a wetland and can receive and 

discharge water into surface ditches that are not exempt. In addition, the proposed rule’s 

wastewater treatment exemption would not extend to water reuse facilities because such 

facilities are not expressly “designed to meet the requirements of the Clean Water Act,” a 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

487

condition stipulated in the exemption, nor do the facilities treat wastewater. ACWA 

requests the construction, operation and maintenance of water recycling facilities,

including associated storage ponds and percolation basins, be excluded from the proposed 

definition of “waters of the United States”. (p. 15)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

7.759 3. The proposed rule increases the regulatory burden to construct wetlands for water 

treatment increased.

Constructed wetlands are designed to treat urban runoff and remove pollutants before 

they enter a traditional navigable water. These projects are often integrated into water 

agencies’ existing Clean Water Act compliance permits. The constructed wetland ponds 

are currently non‐ jurisdictional, but are often located in floodplains and adjacent to 

“water of the United States.” Under the proposed rule, the ponds themselves would 

become jurisdictional. ACWA requests the proposed rule exclude man‐ made treatment 

wetlands. (p. 17-18)

Agency Response: Waste treatment systems, including treatment ponds or 

lagoons designed to meet the requirements of the Clean Water Act are listed as one 

of the specific features not considered “waters of the United States”, even where 

they would otherwise meet the terms of the rule. See summary responses at 7.1 and 

12.3. 

California Association of Sanitation Agencies (Doc. #12832)

7.760 The Waste Treatment Exemption Should Specifically Include Water Recycling 

Facilities and Effluent Storage Ponds

In order to address the historic drought conditions currently plaguing the western states, 

water and wastewater agencies must rely on a full suite of flexible options to provide 

potable and recycled water supplies for a variety of ongoing uses. Thus, CASA opposes 

any direct or indirect regulatory impacts on water recycling, water storage, and other 

mechanisms that play a part in recycled water infrastructure and processes as a result of 

the proposed rule.

As noted above, we appreciate the explicit acknowledgement and codification of the 

waste treatment exemption in the proposed rule. However, we believe it is important that 

the proposed rule expressly states that the waste treatment exemption extends to recycled 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

488

water facilities. California water recycling projects often depend upon artificially created 

wetlands and storage ponds to treat millions of gallons of water a day. If these features 

are considered waters of the U.S. and are excluded from the waste treatment exemption, 

they could theoretically no longer be used as an integral component of the waste 

treatment systems, forcing the closure of important recycled water projects critical to 

California’s water supply. Moreover, a lack of clarity on this issue may stall or halt the 

development of recycled water projects at a time when recycling is needed the most to 

address climate resiliency priorities.

Because recycled water demand is variable with time of day and season, recycled water 

agencies maintain reservoirs or storage basins/ponds to store recycled water during 

periods of low usage in anticipation of peak demands. These features are an essential 

component of the recycled water process and integral to an agency’s ability to continue 

reliably producing and supplying recycled water in many instances. The proposed rule 

should affirm that such reservoirs along with influent and treated effluent storage ponds 

are within the scope of the waste treatment exemption, consistent with the regulatory 

definition of “complete waste treatment system” found in existing federal regulations.412

As the proposed rule and existing practice acknowledge, waste treatment systems 

designed to meet the requirements of the Clean Water Act are not waters of the U.S., and 

treatment systems should include any facilities, including storage ponds and basins, 

related not only to traditional treatment facilities and processes, but also to the production 

of recycled water.

In the alternative, recycled water facilities and features (including storage ponds, basins, 

artificially created wetlands, recycled water reservoirs and other features associated with 

water recycling) should be expressly exempted as part of the specifically identified 

features that are not considered waters of the U.S. within the proposed rule. In this case, 

recycled water facilities would be treated similar to artificial lakes, ponds, swimming 

pools, ornamental waters, and groundwater, which are specifically identified and 

expressly exempted. In either case, whether recycled water facilities are considered part 

of the waste treatment exemption or have their own specifically identified exemption, it is 

essential that the proposed rule not interfere with recycled water production and treatment 

by making those features jurisdictional.

The failure to include an explicit statement in the final rule would leave open the question 

of whether these features are considered “waters of the U.S.” Such a situation could lead 

to regulatory disincentives to produce recycled water in California and other western 

states, compounding a water scarcity situation that is already dire. Pending and adopted 

federal and state legislation to address the impacts of our historic drought contain a 

number of approaches to encourage recycled water projects. Transforming components of 

the recycled water process (including integral systems such as storage ponds) into 

jurisdictional waters would completely undercut efforts to address the drought and have 

 

412 See 40 C.F.R. §35.2005(b)(12), defining “complete waste treatment system” as “all the treatment works 

necessary to meet the requirements of title III of the [CWA], involving . . . the ultimate disposal, including recycling 

or reuse, of the treated wastewater and residues which result from the treatment process.” (Emphasis added); see 

also 40 C.F.R. §35.2005(b)(49) [definition of “treatment works” includes “storage of treated wastewater in land 

treatment systems before land application” among other things].
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

489

resoundingly negative water supply ramifications across the state. We concur with the 

comments of Representative Grace Napolitano (D-CA) delivered to the House 

Committee on Transportation and Infrastructure Committee at the hearing held on June 

11, 2014, as she questioned why in light of the severe drought in California, USEPA 

would not expressly include recycled water within the scope of the waste treatment 

exception. Given the drought and dire need to develop recycled water facilities in the arid 

west, clarification that excludes recycled water facilities from additional federal 

regulation is absolutely vital. (p. 2-3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

7.761 In addition, many CASA member agencies utilize spreading grounds or basins in order to 

facilitate groundwater replenishment; a vital part of water management throughout 

California. Others utilize artificially created effluent storage ponds as part of their 

treatment process. Many agencies maintain reservoirs or storage basins/ponds to store 

recycled water. These artificially created features and spreading grounds have not 

previously been defined or regulated as “waters of the United States,” and should remain 

separate. For this reason, the proposed rule should expressly include..., spreading 

grounds/basins, ...within the scope of the Waste Treatment Exception,... (p. 3)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The list of uses has always been illustrative rather than 

exhaustive.

7.762 If these “adjacent” wastewater and recycled water facilities, including spreading grounds, 

are defined to be within the jurisdiction of the CWA, it would adversely impact CASA’s 

member agencies’ ability to augment groundwater supplies and to effectively provide 

wastewater treatment services. The plethora of additional and unnecessary requirements, 

regulations, and permitting associated with making these areas into jurisdictional waters, 

including but not limited to the procurement of an NPDES permit, assigning designated 

uses, exposure to penalties and potential third party liability for effluent violations, and 

impairment of the ability to operate and maintain these areas, would erect new mandates 

with no benefit to the surrounding ecosystems and waterbodies. Such a result represents 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

490

an extreme disincentive to sustainable water supply development and a significant 

impairment of wastewater agencies’ ability to protect public health and safety through 

innovative and effective wastewater treatment.

Within the proposed rule, there are two specific exemptions that could potentially address 

this issue. Pursuant to section 328.3(b)(5)(i) and 122.2(b)(5)(i)2, a spreading ground 

could fall under the definition of “[a]rtificially irrigated areas that would revert to upland 

should application of irrigation water to that area cease” (79 FR 22263 and 22268) 

Spreading grounds utilized by wastewater treatment facilities are generally artificially 

created and might not otherwise exist aside from the application of wastewater effluent to 

the area. However, without being explicitly stated, it is not clear enough that this 

definition would apply to upland wastewater spreading grounds. Similarly, pursuant to 

section 328.3(b)(5)(ii) and 122.2(b(5)(ii), wastewater and recycled water ponds and 

spreading grounds could fall under an expanded definition of “[a]rtificial lakes or ponds 

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

stock water, irrigation, settling basins, or rice growing.” (79 FR 22263 and 22268) The 

word “such” seems to indicate that these are merely examples, not an exhaustive list, and 

thus spreading grounds utilized in conjunction with and/or as part of the overall 

wastewater treatment process could fall under this exclusion. However, without specific 

references within these provisions to treatment ponds and spreading grounds, CASA and 

its members are very concerned that these facilities could become jurisdictional and 

create significant problems for agencies attempting to protect public health and the 

environment. This, we would request the explicit inclusion of the terms such as 

“spreading grounds” and “wastewater and recycled water storage,” within this section. (p. 

4-5)

Agency Response: See the two previous responses.

Colorado Stormwater Council (Doc. #12981)

7.763 Furthermore, the existing regulations include exclusions for waste treatment facilities that 

are constructed to meet CWA requirements and are constructed in uplands. Currently, 

this exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff 

at the national offices and regional regulatory field offices level. Clearly, additional 

language is necessary to restore the intent of this exclusion.

The CSC requests that language be included in the Proposed Rule to state that 

treatment of stormwater runoff from rural and urban settings conforms to the 

exclusion and that the exclusion applies to all necessary and constructed 

components of the stormwater treatment system. (p. 4)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for 

stormwater control features constructed to convey, treat, or store stormwater that 

are created in dry land. See summary response at 7.4.4. The agencies’ longstanding 

practice is to view stormwater water control measures that are not built in “waters 

of the United States” as non-jurisdictional. Conversely, the agencies view some 

waters, such as channelized or piped streams, as jurisdictional currently even where 

used as part of a stormwater management system. Nothing in the proposed rule was 

intended to change that practice. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

491

Many commenters, particularly municipalities and other public entities that operate 

storm sewer systems and stormwater management programs, expressed concern 

that various stormwater control measures—such as stormwater treatment systems, 

rain gardens, low impact development/green infrastructure, and flood control 

systems—could be considered “waters of the United States” under the proposed 

rule, either as part of a tributary system, an adjacent water, or as a result of a casespecific significant nexus analysis. 

This exclusion should clarify the appropriate limits of jurisdiction relating to these 

systems. A key element of the exclusion is whether the feature or control system was 

built in dry land and whether it conveys, treats, or stores stormwater. Certain 

features, such as curbs and gutters, may be features of stormwater collection 

systems, but have never been considered “waters of the United States.”

7.764 7. Constructed Wetlands. There is language in the Proposed Rule that would appear to 

make a large number of constructed stormwater ponds and constructed wetlands fall 

under the "tributary" definition. "In addition, wetlands, lakes, and ponds are tributaries 

(even if they lack a bed and banks or ordinary high water mark) if they contribute flow, 

either directly or through another water to a water identified in paragraphs (a)(1) 

through (3) of this section. A water that otherwise qualifies as a tributary under this 

definition does not lose its status as a tributary if, for any length, there are one or more 

man-made breaks (such as bridges. culverts, pipes, or dams), or one or more natural 

breaks (such as wetlands at the head of or along the run of a stream , debris piles, 

boulder fields, or a stream that flows underground) so long as a bed and banks and an 

ordinary high water mark can be identified upstream of the break. A tributary, including 

wetlands, can be a natural, man-altered, or man-made water and includes waters such as 

rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in 

paragraph (b)(3) or (4) of this section." (Proposed Rule at 40 CFR 230.3(u)(5)) It seems 

inappropriate and undesirable to have a large number of constructed stormwater ponds 

and constructed wetlands fall under the "tributary" definition and be considered WOTUS.

The CSC requests that the Proposed Rule clarify the rule language and/or provide a 

categorical exclusion for most types of constructed stormwater ponds and 

constructed wetlands. (p. 5)

Agency Response: The agencies have modified the definition of tributary in the 

final rule. With respect to stormwater control features, please see the summary 

response at 7.4.4

Association of Clean Water Administrators (Doc. #13069)

7.765 ACWA agrees that the specific exclusions listed in the Proposed Rule will provide 

increased clarity for regulators and the regulated community. This, in turn, may help 

streamline permitting by reducing the number of individual jurisdictional determinations 

that will have to be made. There are some exclusions, however, that need further 

clarification...further clarity is needed on whether, when, or what parts of stormwater 

collection and treatment systems fall within the exclusion of “waste treatment systems”, 

and therefore, a definition of these systems, or better criteria through which these systems 

will be identified, is warranted. (p. 3)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

492

Agency Response: Please see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

7.766 The (b)(1) Waste Treatment Systems exemption does not clearly address stormwater 

treatment systems such as bioswales and constructed wetlands treatment systems. 

NAFSMA urges the federal agencies to clarify that such water quality treatment systems 

constructed to meet the requirements of the CWA are exempt. In addition, off‐ channel 

groundwater recharge basins, constructed adjacent to WOTUS should also be exempt. (p. 

2)

Agency Response: Please see the summary response at 7.4.4. Paragraph (b)(7) of 

the rule clarifies that wastewater recycling structures created in dry land are 

excluded. This new exclusion clarifies the agencies’ current practice that such 

waters and water features used for water reuse and recycling are not jurisdictional 

when constructed in dry land. The agencies recognize the importance of water reuse 

and recycling, particularly in areas like California where water supplies can be 

limited and droughts can exacerbate supply issues. The agencies specifically exclude 

constructed detention and retention basins created in dry land used for wastewater 

recycling as well as groundwater recharge basins and percolation ponds built for 

wastewater recycling. This exclusion responds to numerous commenters and 

encourages water reuse and conservation while still appropriately protecting the 

chemical, physical, and biological integrity of the nation’s water under CWA.

Western Coalition of Arid States (Doc. #14407)

7.767 2. Exclude all stormwater retention and groundwater recharge basins from the proposed 

definition of waters of the U.S. Although, artificial lakes or ponds created by excavating 

and/or diking dry land and used exclusively for such purposes as settling are currently 

excluded from the proposed definition, it is unclear from the preamble whether the 

agencies intend to exclude basins that are designed to discharge to the subsurface. Also, 

stormwater retention basins may be excluded as “waste treatment systems” since they are 

used to prevent or reduce sediment discharges from stormwater systems to waters of the 

U.S. (p. 2)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4 Paragraph (b)(7) of the rule clarifies that wastewater 

recycling structures created in dry land are excluded. This new exclusion clarifies 

the agencies’ current practice that such waters and water features used for water 

reuse and recycling are not jurisdictional when constructed in dry land. The 

agencies recognize the importance of water reuse and recycling, particularly in 

areas like California where water supplies can be limited and droughts can 

exacerbate supply issues. The agencies specifically exclude constructed detention 

and retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

This exclusion responds to numerous commenters and encourages water reuse and 

conservation while still appropriately protecting the chemical, physical, and 

biological integrity of the nation’s water under CWA.
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7.768 4. Exclude all isolated impoundments and upland tributaries connected to them from the 

proposed definition of waters of the U.S. When all upland flow is terminated in a flood 

control structure and there is no discernible surface connection to an (a)(1) through (a)(3) 

water, CWA jurisdiction is not warranted, (p. 3)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for 

stormwater control features constructed to convey, treat, or store stormwater that 

are created in dry land. The agencies’ longstanding practice is to view stormwater 

water control measures that are not built in “waters of the United States” as nonjurisdictional. Conversely, the agencies view some waters, such as channelized or 

piped streams, as jurisdictional currently even where used as part of a stormwater 

management system. Nothing in the proposed rule was intended to change that 

practice A key element of the exclusion is whether the feature or control system was 

built in dry land and whether it conveys, treats, or stores stormwater. See also 

summary responses 8.1.2 and 8.3 for discussion of tributaries and breaks in flow. 

7.769 Groundwater recharge basins should be exempt from jurisdiction since the 

recharge/storage activity and water quality requirements of the water (if recycled water) 

are regulated by State laws and protected by CWA Sect. 101(b). Also, the basins are 

specifically designed and operated to maximize recharge to the subsurface and, therefore, 

minimize discharge to the (a)(1)-(a)(4) waters. (p. 9)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

Florida Rural Water Association (Doc. #14897)

7.770 Unless significantly revised, the proposed waters of the United States rule will 

significantly increase cost of reusing reclaimed water in Florida. Another exemption 

should be developed for reuse and use of reclaimed waters. EPA should categorically 

exempt all components of a functioning reuse system from the rule as they address and 

provide significant benefits in areas such as alternative water supplies and aquifer 

recharge. Reuse in Florida occurs statewide and takes many forms. Public access reuse 

systems irrigate 343,782 residences, 536 golf courses, 948 parks, and 358 schools. Also, 

electric utilities and domestic wastewater treatment utilities in Pensacola, Miami-Dade 

County, Polk County, and elsewhere have partnered (or are partnering) to deliver 

reclaimed water to electric power plants for cooling water and other industrial purposes. 

Meanwhile, other utilities use rapid infiltration basins, percolation ponds, and other reuse 

facilities to recharge the aquifer, offset the impacts of groundwater withdrawals, and 
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494

increase groundwater supplies for public use. The sum effect is that reclaimed water is 

viewed a positive environmental action, as a commodity in Florida and a critical piece of 

Florida’s future water supply plans, not as a mere waste product of the domestic 

wastewater treatment process...

... A primary goal of the CWA is to abate surface water discharges, as outlined in 33 

U.S.C. § 1251(a)(1). The reuse of reclaimed water is the realization of this goal. 

Accordingly, it seems that EPA would not want to adopt a rule that would impede reuse 

infrastructure in any way. Florida reuse utilities hold state-issued permits that govern 

their reuse systems, and applicable State rules prohibit reclaimed water irrigation 

practices or discharges to groundwater that cause or contribute to surface water 

impairments (p. 2-3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

The final rule has expanded the features not considered “waters of the United 

States” to include certain wastewater treatment and stormwater facilities that may 

address some of the features discussed in this comment, where constructed in dry 

land. However, when constructed in, or impounding, waters of the United States, 

these features may still be considered jurisdictional.

7.771 Any final rule should retain the current exclusion (33 CFR 328.3(a) and 40 CFR 122.2) 

for “waste treatment systems” and clarify that that the exclusion includes similar 

practices implemented by drinking water treatment systems. (p. 4)

Agency Response: The existing exclusion for waste treatment systems moves to 

paragraph (b)(1) with no substantive changes. One ministerial change is the deletion 

of a cross-reference in the current language to an EPA regulation that no longer 

exists. Because the agencies are not addressing the substance of the exclusion, the 

agencies do not make conforming changes to ensure that each of the existing 

definitions of the “waters of the United States” for the various CWA programs have 

the exact same language with respect to the waste treatment system exclusion, with 

the exception of deleting the cross-reference. See Summary response at 7.1.

Western Urban Water Coalition (Doc. #15178)

7.772 The statement that “[t]he agencies propose . . . no change to the regulatory status of water 

transfers” appears multiple times in the Preamble. 79 Fed. Reg. at 22189; see also id. at 

22193, 22199 and 22217. EPA’s Water Transfers Rule excludes any “activity that 
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conveys or connects waters of the United States without subjecting the transferred water 

to intervening industrial, municipal, or commercial use” from the National Pollutant 

Discharge Elimination System (“NPDES”) created by CWA. 40 C.F.R. § 122.3(i) 

(“Water transfer means an activity that conveys or connects waters of the United States 

without subjecting the transferred water to intervening industrial, municipal, or 

commercial use . . .”). The Water Transfers Rule does not define “waters of the United 

States,” although EPA relied on one of the definitions the agencies propose to change in 

the Proposed Rule. See 40 C.F.R § 122.2. 73 Fed. Reg. 33,697, at 33,699, note 2 (June 

13, 2008). In addition to the statements in the preamble, the final rule should expressly 

state in regulatory text that it does not change the regulatory status of water transfers. (p. 

7-8)

Agency Response: Regarding water transfers, please see summary response at 

12.3.

Pennsylvania Municipal Authorities Association (Doc. #15374)

7.773 PMAA would support wastewater treatment systems and drinking water systems, and 

their auxiliary operations, to be specifically excluded from the definition of tributary.

a. We suggest that the exemption for wastewater treatment systems be expanded to 

include all facets of that treatment, such as recycled water storage ponds, reconstructed 

wetlands associated with water reuse, connecting trenches, etc.

b. Likewise, some of the same “natural” infrastructure mentioned above, as well as 

ground water recharge basins, are also applicable to water treatment systems for storage 

and retention, and should be included under the exemption provision. (p. 1)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

The United States Conference of Mayors et al. (Doc. #15784)

7.774 The proposed rule provides that "waste treatment systems, including treatment ponds or 

lagoons, designed to meet the requirements of the Clean Water Act" (emphasis added) 

are not "waters of the U.S." In recent years, local governments and other entities have 

moved toward a holistic approach in treating stormwater by using ponds, swales and 

wetlands. Traditionally, such systems have been exempt from the CWA, but due to the 

broad nature of the proposed rule we believe the agencies should also exempt other 

constructed wetland and treatment facilities which may inadvertently fall under the 
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496

proposed rule. This would include, but not be limited to, water and water reuse, 

recycling, treatment lagoons, setting basins, ponds, artificially constructed wetlands (i.e. 

green infrastructure) and artificially constructed groundwater recharge basins. Therefore, 

we ask the agencies to specifically include green infrastructure techniques and water 

delivery and reuse facilities under this exemption.

A. Green Infrastructure

With the encouragement of EPA, local governments across the country are utilizing green 

infrastructure techniques as a stormwater management tool to lessen flooding and protect 

water quality by using vegetation, soils and natural processes to treat stormwater runoff, 

These more beneficial and aesthetically pleasing features, which include existing 

stormwater treatment systems and low impact development stormwater treatment 

systems, are not explicitly exempt under the proposed rule, Therefore, these sites could 

be inadvertently impacted and require Section 404 permits for green infrastructure 

construction projects if they are determined to be jurisdictional under the new definitions 

in the proposed rule.

Additionally, it is unclear under the proposed rule whether a Section 404 permit will be 

required for maintenance activities on green infrastructure areas once the area is 

established. Moreover, if these features are defined as "waters of the U.S.," they would be 

subject to all other sections of the CWA, including monitoring, attainment of water 

quality standards, controlling and permitting all discharges in these features, which would 

be costly and problematic for local governments. 

Because of the multiple benefits of green infrastructure and the incentives that EPA and 

other federal agencies provide for local governments to adopt and construct green 

infrastructure techniques, it is ill-conceived to hamper local efforts by subjecting them to 

404 permits or other requirements that would come with being considered a "waters of 

the U.S."

B. Water Delivery and Reuse Facilities

Across the country, and particularly in the arid west, water supply systems depend on 

open canals to convey water. Under the proposed rule, these canals would be considered 

"tributaries." Water reuse facilities include ditches, canals and basins, and are often 

adjacent to jurisdictional waters. These features would also be "waters of the U.S." and as 

such subject to regulation and management that would not only be unnecessarily costly, 

but discourage water reuse entirely. Together, these facilities serve essential purposes in 

the process of waste treatment and should be exempt under the proposed rule.

Requests:

Clarify the waste treatment exemption by stating that green infrastructure practices and 

water delivery and reuse facilities meet the requirements of the exemption."

Expand the waste treatment exemption to include systems that are designed to meet any

water quality requirements, not just the requirements of the CWA.

Provide a specific exemption for green infrastructure and water delivery and reuse 

facilities from the "waters of the U.S." definition. (p. 6-7)
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Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

With respect to stormwater control features (e.g., green infrastructure), please see 

the summary response at 7.4.4

7.775 Emergency Exemptions

In the past several years, local governments who have experienced natural or man-madedisasters" have expressed difficulty obtaining emergency clean-up waivers for ditches

and other conveyances. This, in turn, endangers public health and safety and jeopardizes 

habitats. We urge the EPA and the Corps to revisit that policy, especially as more waters 

are classified as "waters of the U.S." under the proposed rule.

Request:

 Set clear national guidance for quick approval of emergency exemptions. (p. 7-8)

Agency Response: The need for emergency action for a specific time and place is 

not related to the issue of whether a water is a defined “water of the United States” 

under the Clean Water Act. Rather, the agencies believe that such situations are 

better addressed through implementation actions, such as streamlined permitting 

procedures, that can provide the tailored oversight necessary to protect vital water 

resources while adequately responding to unusual emergency circumstances.

Washington State Water Resources Association (Doc. #16543)

7.776 A. Real World Consequences Associated with the Proposal

The previously noted “expansion” will, in turn, have negative real world consequences 

without any concomitant environmental benefits. Adoption of the proposal would 

significantly increase the time required before an entity can construct or modify 

necessary infrastructure; significantly increase the costs associated with the permitting, 

construction and potentially the operation of such infrastructure; unnecessarily increase 

post-permitting mitigation costs; and potentially even preclude the construction and 

operation of the infrastructure, placing at risk the ability to timely meet essential 

consumptive use and environmental/recreational water needs. For example:

...

To the extent water supply agencies desire to maximize the use of scarce water resources 

through innovative recharge, reuse and recovery projects, many of which involve the 
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498

construction and operation of holding basins and recharge ponds, as well as connecting 

canals and ditches, they will find that there is no exemption for such “water supply” 

activities comparable to that available to wastewater treatment facilities. Hence, 

employment of these necessary facilities faces a new regulatory hurdle.

... (p. 7, 8)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

7.777 C. Examples of Proposal’s Impact on Municipal Water Suppliers

Municipalities have a responsibility to meet water supply, wastewater treatment and 

stormwater control needs. Meeting these needs often requires significant investments in 

water storage reservoirs; water recycling and reuse facilities; desalinization plants; pumpback projects; groundwater recharge facilities; and reverse osmosis water treatment 

plants. Putting this water to beneficial use will also require the operation, maintenance 

and expansion of miles and miles of delivery and distribution pipelines.

As the demand for water continues to rise, NWRA’s members are committed to 

undertaking a variety of efforts to meet this need. These efforts include extensive water 

conservation efforts as well as the reclamation and reuse of water – i.e. water recycling. 

Reclaimed and reused water is a beneficial use that fully utilizes local water resources 

and reduces the demand for imported water. The processes for reclaiming and reusing 

water are costly, but are becoming increasingly feasible in areas of the country where 

groundwater and surface water sources are strained and the cost or availability of 

imported water are prohibitive. Water authorities across the country are investing 

millions of dollars in infrastructure to utilize this drought proof water resource. Treatment 

and distribution costs of recycled water are already high, making this valuable resource 

marginally cost effective in some places. Any significant increase in regulation will 

escalate the cost of utilizing this water and discourage its development.

Under the proposed rule, water reclamation and reuse facilities are not exempt from being 

designated “waters of the U.S.” As noted earlier, ditches that transport effluent or 

discharged water could also be considered a “tributary” under the proposed rule and be 

categorically regulated. The proposed rule defines as a “tributary” any natural or 

manmade feature that has a bed, bank, ordinary high water mark, and conducts flow to 

another water. In addition, reclamation and reuse facilities are frequently located in a 

floodplain or otherwise adjacent to jurisdictional water where all waters are categorically 

defined as “waters of the U.S.” While the proposed rule includes an exemption for 
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499

artificial lakes and ponds used exclusively for settling basins, such reuse facilities can 

function or take on the characteristics of a wetland and can receive and discharge water 

into surface ditches that are not exempt. The proposed rule’s wastewater treatment 

exemption would not extend to an associated water reuse facility because such facilities 

are not expressly “designed to meet the requirements of the Clean Water Act,” a 

condition stipulated in the rule. Many states have acknowledged the value of recycled 

water. Some states like California have established a statewide goal (California Water 

Plan) of recycling 2.5 million acre feet of water by 2030. In 2009, .67 MAF was recycled; 

increasing to 2.5 MAF is ambitious, but necessary to help drought-proof the state. 

Currently, 3.5 MAF of treated wastewater is being discharged to the ocean, and not 

beneficially reused.

The proposed rule’s impact on recycled water projects of this nature can be highlighted 

by one of NWRA’s members, the Eastern Municipal Water District (EMWD). EMWD is 

a water and wastewater agency in Southern California that utilizes nearly 100 percent of 

the water it generates, with recycled water constituting 30 percent of its entire water 

supply portfolio – over 35,000 acre feet annually. In recent years EMWD, in cooperation 

with federal partners at the Bureau if Reclamation, has developed 5,714 acre-feet of 

seasonal storage, five million gallons of elevated storage (to pressurize the system), 200 

miles of recycled distribution water pipeline, and 19 pumping facilities. EMWD currently 

has greater demand than supply for recycled water, and in response has prepared unique 

allocations for customers.

We are concerned that under the proposed rule, 10 EMWD recycled water storage sites 

could become jurisdictional because they are located in floodplains, are adjacent to 

jurisdictional water, and likely possess a subsurface hydrologic connection. After 

becoming jurisdictional, regular maintenance and vegetation removal of these 500 acres 

of ponds would require Sec. 404 permits. This added regulatory burden would not only 

increase the cost of recycled water, and potentially delay further development of recycled 

water storage ponds, but could hamper the development of this drought-proof water 

supply. Numerous agencies in the arid southwest share this scenario, concern, and 

dilemma.

Water reclamation and reuse facilities should be expressly exempt from this rule. The 

importance of this point is particularly evident in times of drought such as the one that 

currently affects most western states. Developing new sources of water for consumption 

should be encouraged. This rule could discourage water reuse and interfere with the 

successful deployment of water recycling programs.

This issue was highlighted during several hearings in the U.S. House of Representatives 

where NWRA members testified. During a June 11, 2014 House Committee on 

Transportation and Infrastructure Committee Hearing, then EPA Deputy Administrator 

Robert Perciasepe responded to questions from Congresswoman Grace Napolitano that it 

was not EPA’s intention to regulate water recycling facilities. It is our hope that the 

Agencies follow through on this assertion and clearly exempt water recycling facilities 

and associated infrastructure. (p. 11-13)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 
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agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA.

7.778 D. Examples of Proposal’s Impact on Groundwater Banking and Recharge

The Agencies have consistently stated that the proposed rule will not regulate 

groundwater. However, concern remains that the proposal could inadvertently envelope 

some groundwater banking and recharge projects. Multiple NWRA members operate 

groundwater banking and recharge projects. These projects can capture unused irrigation 

water and treated effluent from municipal treatment plants and divert it into basins 

designed to allow incoming flows to be “banked” in shallow aquifers for future use. 

Some of these facilities are located immediately adjacent to rivers. On occasion these 

sites were specifically selected based in part on adjacency to ensure operation efficiency 

and maximize water savings. However, these facilities have never been subject to CWA 

jurisdiction. Groundwater banking is an efficient water storage method that helps to 

conserve water by reducing water loss due to evaporation. The Agencies should provide 

additional clarity that the rule will not apply to groundwater, shallow subsurface aquifers 

and groundwater banking and recharge projects. (p. 13)

Agency Response: The agencies specifically exclude constructed detention and 

retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

Many commenters noted the growing interest in and commitment to water recycling 

and reuse projects. Detention and retention basins can play an important role in 

capturing and storing water prior to beneficial reuse. Similarly, groundwater 

recharge basins and percolation ponds are becoming more prevalent tools for water 

reuse and recycling.

Iowa League of Cities (Doc. #18823)

7.779 Green Infrastructure

Another area within storm-water systems that has raised concerns is the utilization of 

green infrastructure for the management of storm-water runoff. This includes projects 

that include permeable paving, dike systems, vegetation, soils and natural processes. 

Some cities within the Iowa have been lauded by the EPA for their usage of this type 

infrastructure to control storm-water and gaining additional benefits important to the EPA 

of nutrient reduction and flood mitigation. These cities now have to question whether 

these projects will need to meet WQS or if maintenance of the systems will require a 

Section 404 permitting process. Neither, the proposed rule language nor the preamble 

guidance address these systems for storm-water management.
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City Example: After the 2008 flooding, some cities in Iowa have been utilizing green 

infrastructure, such as newly constructed wetlands, to control flooding and act as a part 

of their storm water system. They are concerned that these efforts that have been praised 

could now be brought under further regulation.

Request for EPA Response: We request that the EPA specifically exclude green 

infrastructure and outline the Agency's understanding of what is included within green 

infrastructure similar to what was done for agricultural practices under the joint 

interpretive rule with the Department of Agriculture. (p. 4-5)

Agency Response: With respect to stormwater control features (e.g., green 

infrastructure), please see the summary response at 7.4.4

Board of County Commissioners, Pitkin County, Colorado (Doc. #18921)

7.780 An additional exclusion should be provided for within the rules. This exclusion should 

relate to the development of municipal and residential water supplies that are utilized 

within the same natural river drainage from which the water is developed. This exclusion 

would recognize the at times exigent need for the development of domestic water 

supplies and the anticipated large percentage of this developed water resource returning 

to the natural stream channels from which it was developed after it is used than occurs in 

other uses. This exclusion would be a logical extension of the waste treatment systems 

exclusion. Including the requirement that development and utilization of water supplies 

for domestic needs be within the same drainage as the water naturally occurs recognizes 

that, if a water supply is developed and then exported away from the natural drainage of 

its origin, the water quality of the originating based could be severely degraded. As a 

consequence, the Agencies reviews would be relevant in such circumstances. (p. 3)

Agency Response: Many commenters asked for an exclusion for drinking water 

supply systems, similar to exclusions for wastewater treatment and stormwater 

control. Because water supply networks can be both complex in structure and 

extensive in size, involving the use of tributaries as well as a variety of other 

features, the agencies determined that a complete exclusion of such systems is not 

appropriate. However, not all portions of these systems would be regulated under 

the final rule. Some portions of these systems are tributaries, or even traditional 

navigable waters, and so would be regulated under this rule for the same reasons 

that all such waters are subject to regulation as “waters of the United States.” At 

the same time, there are some portions of these systems that would be excluded from 

regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not 

flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, 

constructed lakes and ponds created in dry land). 

Golf Course Superintendents Association of America et al. (Doc. #14902)

7.781 The Agencies are proposing for the first time by rule to exclude some waters and features 

that have by longstanding practice generally considered not to be WOTUS. Specifically, 

the Agencies propose that the following are not WOTUS notwithstanding whether they 

would otherwise be jurisdictional:
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• Artificial lakes or ponds created by excavating and/or diking dry land and 

used exclusively for such purposes of stock watering, irrigation, settling 

basins, or rice growing;

• Ditches excavated wholly in uplands that drain only uplands and have less 

than perennial flow;

• Small ornamental waters created by excavating and/or diking dry land for 

primarily aesthetic reasons; and

• Gullies, rills, and non-wetland swales.

The way the Agencies have defined tributary, adjacent waters, and “other” waters is in 

direct conflict with the listed exemptions...Although these features (certain ditches, 

groundwater, gullies, rills, and non-wetlands, etc.) are not WOTUS under the proposed 

rule, they can serve to establish a connection under the proposed rule (e.g. connection 

that demonstrates adjacency to jurisdictional or demonstrates that an “other water” has a 

significant nexus to a traditional navigable water, interstate water including wetlands, and 

territorial sea). The way the Agencies have defined tributary, adjacent waters, and “other” 

waters is in direct conflict with the listed exemptions, as outlined in our above comments. 

Although these features (certain ditches, groundwater, gullies, rills, and non-wetlands, 

etc.) are not WOTUS under the proposed rule, they can serve to establish a connection 

under the proposed rule (e.g. connection that demonstrates adjacency to jurisdictional or 

demonstrates that an “other water” has a significant nexus to a traditional navigable 

water, interstate water including wetlands, and territorial sea). 

The golf industry asks EPA and the Corps to make explicit that, except for coverage 

expressed under the CWA and presently applicable regulation, golf courses are exempted 

from the new WOTUS rule. Alternatively, we ask that the above features on a golf course 

are not considered WOTUS. The agency has suggested it is not their intention to regulate 

these features on a golf course setting as WOTUS. The Agencies should make the intent 

specific. It is important to have clear guidelines and examples for what is exempt and not 

rely upon general and vague terminology or intentions that will impact features on a golf 

course. (p. 17-18)

Agency Response: The final rule has modified the definitions of tributary and 

adjacent waters. The final rule also states that the excluded features not considered 

“waters of the United States” are excluded even where they otherwise meet the 

terms of paragraphs (a)(4) through (a)(8).

American Chemistry Council (Doc. #15186)

7.782 II. Cooling and Firewater Ponds

Many ACC members use cooling or firewater ponds to store and manage water for 

industrial purposes, often exclusively for the purpose of cooling some part of the facility 

itself. As such, these ponds are not part of a wastewater production or treatment system. 

Historically, the agencies’ policy and practice have not considered these ponds as “waters 

of the U.S.,” particularly where the cooling ponds predate the CWA. Given the agencies’ 

repeated assurances that the Proposal’s rulemaking is intended only to clarify policy and 

practices and specifically not to expand CWA jurisdiction, these systems should be 
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explicitly excluded. However, potentially broad interpretations of the federal 

government’s jurisdiction under the Proposal could create ambiguity as to whether these 

ponds would be included. If the agencies consider these ponds “waters of the U.S.,” they 

would be subject to the requirements of an applicable State water quality standard. To 

comply with the applicable standard, the cooling ponds would need to be designated for a 

specific use and would have to meet accompanying water quality criteria. Given their 

intended use in industrial processes, many, if not all, of these cooling ponds may not be 

able to meet either narrative or specific water quality criteria for dissolved oxygen, 

temperature, and turbidity.

More to the point, if the cooling ponds used for industrial water systems were not able to 

meet the designated use and water quality criteria, facilities would be required to list 

these waters as “impaired” according to the state-specific CWA 303(d) list. Alternatively, 

the State would need to develop new designated use categories and water quality criteria. 

These additional CWA requirements would result in a significant new burden on EPA to 

develop new standards and criteria appropriate for the cooling ponds’ uses, as well as 

new NPDES or CWA 404 permits for discharges into or activities related to maintenance 

of those waters.

Some ACC members use cooling water returns to send water back to manmade ponds or 

ditches. As discussed above, if cooling water ponds were considered “waters of the U.S.”, 

each individual return to the pond would also be considered a point source under the 

CWA’s NPDES program. This requirement would be particularly problematic and 

inefficient in the case of an internal recycle pond system. In some of these systems, water 

is recirculated through the pond to be used again in the facility process while a side 

stream gets discharged to an existing NPDES system. The regulation of this type of pond 

and its connected feed streams under the NPDES program would likely require, among 

other things, the installation of flow measuring and sampling devices.

Additional requirements for these recycle ponds would be especially onerous when one 

considers that any cooling water pond it returns to must already be maintained to ensure a 

pond discharge is fully compliant with its authorized NPDES permit. Thus, including 

cooling ponds not currently regulated under the NPDES program as “waters of the U.S” 

would result in a potentially massive burden and substantial compliance costs on the 

regulated community, and an increased administrative burden on regulatory authorities, 

all with no environmental benefit.

For these cooling ponds and related industrial systems, ACC supports and incorporates 

by reference the proposed exemption language provided in the comments of the 

American Forest and Paper Association. Specifically, the regulatory exemptions listed in 

proposed 33 C.F.R. § 328.3(b) should be revised as follows:

(6) Man-made or man-altered bodies of water (including adjacent wetlands) that 

(i) are used for commercial purposes by a facility that owns or occupies the 

property on which the water is located and (ii) have no surface discharge to a 

water of the United States, other than through an NPDES-permitted outfall or as a 

result of a catastrophic or unusual sustained rainfall event. As used in this 

paragraph, “used for commercial purposes” means use in the production, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

504

distribution, or sale of goods or services, including both direct uses and uses that 

support the commercial facility.

The exemption provided in this paragraph does not affect the scope, application or 

implementation of any other exemption provided in this section.

This exemption would assure that those industrial or commercial waters that have a 

potential direct impact on “waters of the U.S.” are regulated, either through limitations in 

an NPDES permit (individual or general) at the point of discharge or because the 

exemption would not extend to waters with an unpermitted discharge. Any water not 

designed to discharge to “waters of the U.S.” would not lose its exemption, however, if a 

discharge occurred because of flooding or overflow caused by an unusual sustained 

rainfall event, e.g. a 100-year flood event. (p. 3-4)

Agency Response: In the final rule, the agencies added exclusions for 

groundwater and erosional features, as well as exclusions for some waters that were 

identified in public comments as possibly being found jurisdictional under proposed 

rule language where this was never the agencies’ intent, such as cooling ponds that 

are created in dry land. These exclusions reflect current agencies’ practice, and 

their inclusion in the rule as specifically excluded furthers the agencies’ goal of 

providing greater clarity over what waters are and are not protected under the 

CWA.

7.783 III. Other Industrial Water Systems

ACC members use other industrial water systems that have been and should continue to 

be excluded from the definition of “waters of the U.S.” Based on longstanding policy and 

on the language and structure of the statute, the final rule should specify that water that is 

subject to a municipal, industrial, commercial, or agricultural use is not a “water of the 

U.S”, and that such use includes water that is being collected and treated prior to 

discharge to a “water of the U.S.”, or water that is stored or otherwise managed, without 

discharge. For example, one ACC member uses a quarry that has been converted into a 

cooling water intake. This quarry is a manmade structure holding water that is being used 

for production processes. The water used in this system is not discharged back into the 

original quarry; instead, it is used exclusively within the facility. Given the industrial 

purpose of the water held in the quarry and the fact that no water is discharged back into 

it, it should not be considered a “water of the U.S.”

ACC urges the agencies to clarify in the final rule that all systems that hold, manage, or 

move water for collection, use, reuse, treatment, evaporation, infiltration or injection to 

groundwater, and aquifer storage, are excluded from the definition of “waters of the 

U.S.”

ACC is very concerned that some of the statements contained in EPA’s Draft 

Connectivity Report will lead the agencies unlawfully to expand its CWA authority over 

the structures and water systems discussed in our comments above. For example, EPA 

discusses certain features such as impoundments that potentially could be “connected” to 

downstream waters based solely on the fact that they hold water.413 If the agencies were 

 

413 Draft Connectivity Report at 4-45.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

505

to use this rationale to conclude that any structure that holds water affects and controls 

the supply of water and is thereby a “water of the U.S.”, it would radically and 

unlawfully sweep in industrial water systems that should not be regulated as “waters of 

the U.S.”

For instance, ACC members often use impoundments to settle out solids in water prior to 

the water’s use and primary treatment. The impoundments are currently not regulated and 

should not be regulated as “waters of the U.S.” as they are not connected to a downstream 

water. However, applying the rationale used in the Draft Connectivity Report, the 

agencies could assert jurisdiction over impoundments based on the simple fact that they 

hold water, concluding that they could affect and control the supply of water and thus are 

connected to them for the purposes of the CWA (despite how remote the connection is). 

This could lead again to many of the regulatory complications and negligible 

environmental benefits discussed above. (p. 4-5)

Agency Response: The existing exclusion for waste treatment systems moves to 

paragraph (b)(1) with no substantive changes. One ministerial change is the deletion 

of a cross-reference in the current language to an EPA regulation that no longer 

exists. See summary response at 7.1. Because the agencies are not addressing the

substance of the exclusion, the agencies do not make conforming changes to ensure 

that each of the existing definitions of the “waters of the United States” for the 

various CWA programs have the exact same language with respect to the waste 

treatment system exclusion, with the exception of deleting the cross-reference. 

Paragraph (b)(7) of the rule also clarifies that wastewater recycling structures 

created in dry land are excluded. This new exclusion clarifies the agencies’ current 

practice that such waters and water features used for water reuse and recycling are 

not jurisdictional when constructed in dry land. The agencies recognize the 

importance of water reuse and recycling, particularly in areas like California where 

water supplies can be limited and droughts can exacerbate supply issues. The 

agencies specifically exclude constructed detention and retention basins created in 

dry land used for wastewater recycling as well as groundwater recharge basins and 

percolation ponds built for wastewater recycling. This exclusion responds to 

numerous commenters and encourages water reuse and conservation while still 

appropriately protecting the chemical, physical, and biological integrity of the 

nation’s water under CWA.

7.784 IV. Green Infrastructure Features

Some ACC members employ “green infrastructure features” in the form of rain gardens 

or low impact stormwater management, none of which are currently listed in the 

proposed rule’s exemptions. These “green infrastructure” facility features follow EPA’s 

definition and are used for “protecting and restoring natural landscape features and use 

natural systems (or systems engineered to mimic natural processes) to manage rain water 

as a resource.”414 EPA has stated that it “supports expanded use of green infrastructure to 

protect and restore waters while creating more environmentally and economically 

 

414 See www.epa.gov/greeninfrastructure.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

506

sustainable communities” and sees green infrastructure as part of its “strategic agenda to 

protect waters.”415

In its stakeholder outreach related to the proposed rule, EPA staff publicly informed 

stakeholders that “rain gardens and similar green infrastructure would not be under the 

proposed rule because they are not wetlands or built in waters protected by the CWA.”416

However, the stated position is not reflected in the Proposal.

If left unaddressed, the Proposal’s broad definitions of “tributary” and adjacent” could 

sweep in green infrastructure features as “waters of the United States” based on a remote 

connection. If these facilities are subject to CWA requirements, the agencies would create 

unnecessary compliance obligations and no incremental environmental benefits. For 

instance, if a bioswale that conveys stormwater to downstream waters meets the 

overbroad “tributary” definition, it would be a water of the United States. Similarly, if a 

stormwater infiltration pond is constructed in the floodplain or riparian area of an (a)(1) 

through (5) water, it would be categorically jurisdictional.417

The imposition of CWA requirements on these features would require landowners and 

operators to obtain costly and burdensome permits to perform simple maintenance (e.g. 

sediment and debris removal) on them. Additionally, many green infrastructure devices 

will be left unmaintained while the applicant awaits a permit, leading to reduced 

effectiveness of the features. Thus, ACC urges the inclusion of green infrastructure 

features in the final rule’s waste treatment systems exemption. Excluding these features 

makes good policy sense and is in keeping with EPA’s public statement that green 

infrastructure features would not be considered “waters of the U.S.” (p. 5-6)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. 

Aluminum Association (Doc. # 15388)

7.785 Because the Proposed Rule does not delineate the starting point of the WUS, it may be 

interpreted to be any and all water at any time. This would create a regulatory quagmire. 

Moreover, it creates significant concerns for planning, capital utilization, and compliance 

for the regulated community.

A straightforward way of avoiding these problems is to create an exclusion for all waters 

upstream of a designated permitted monitoring point (that is, an outfall authorized under 

a valid National Pollutant Discharge Elimination System (NPDES) permit). Today a 

manufacturing facility has the flexibility to use or reuse waters within its processes until 

 

415 EPA, “A Strategic Agenda to Protect Waters and Build More Livable Communities Through Green 

Infrastructure.” April 2011.

http://water.epa.gov/infrastructure/greeninfrastructure/upload/gi_agenda_protectwaters.pdf

416 EPA and U.S. Army Corps of Engineers, Questions and Answers – Waters of the U.S. Proposal at 6 (Sept. 9, 

2014), http://www2.epa.gov/sites/production/files/2014-09/documents/q_a_wotus.pdf (hereinafter, September 2014 

Q & A).

417 79 Fed. Reg. 22198.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

507

such time as the water is discharged from the facility, usually from an authorized 

discharge point, which is regulated under the CWA through a NPDES permit.

The following diagram illustrates this concept:

Under the current regulatory interpretation of WUS a facility can use and reuse storm 

water, process water, heated water, etc. for the purposes of manufacturing requirements 

to minimize raw water use with few, if any, regulatory limitations. The discharge from 

the facility due to either normal operations or excessive rainfall is managed under the 

current water regulatory permit programs including, but not limited to, the storm water 

program, the NPDES program, general permits, and pretreatment programs. These 

activities are disclosed to the agency and permitted accordingly.

The Proposed Rule has the potential to alter this regulatory scheme and regulate waters 

prior to the discharge point as illustrated in the following figure:
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

508

We believe that this is an unintended consequence of the rule. Facilities that wish to 

recycle water, send water to treatment systems, or simply conserve water, may be 

required to install expensive and cost prohibitive treatment systems to clean water to 

meet water quality criteria prior to reusing the water or putting that water into a pond or 

ditch for reuse or transfer. Facilities that once were able to reuse/recycle on-site water 

may have to then utilize other sources of water such as potable water to meet their needs. 

This may affect other users in areas where water supplies are scarce, which is becoming a 

rising concern. This is particularly true of storm water that can be easily harvested and 

reused within a facility. (p. 2-4)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dry land is appropriate. Please see summary response at 7.4.4. 

Dow Chemical Company (Doc. #15408)

7.786 3) Dow is particularly concerned that expanding the scope of the CWA would result 

in the additional regulation of non-navigable waters or man-made structures that 

are part of our facility infrastructure. Dow believes that facility infrastructure such 

as waste treatment systems were never intended to be regulated as jurisdictional 

waters under the CWA and that the final rule needs to clearly state this. At a 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

509

minimum, the proposed rule leaves much uncertainty about whether industrial 

water systems/infrastructure will be subject to the CWA. Regulation of these 

systems would have little environmental benefit.

As written, the proposal would potentially include the following non-navigable or 

manmade elements of facility infrastructure that are not currently considered 

jurisdictional under the CWA:

 retention and containment ponds;

 cooling water ponds;

 stormwater retention basins or ponds;

 ditches and canals;

 fire water basins or ponds; and

 brine ponds.

The proposed rule states that these infrastructure elements can be identified as waters of 

the United States. Dow is concerned that asserting jurisdiction over retention and 

containment ponds, cooling water ponds, stormwater retention basins or ponds, gravel 

pits and ditches and canals, and fire water basins and other similar infrastructure waters 

will result in an undue burden on the regulated community, unnecessary paperwork for 

government agencies through permitting the maintenance activities of the infrastructure 

needed to safely and reliably run the facilities. This additional work for both industry and 

for the governmental agencies charged with permitting will have little environmental 

impact on our nation’s water resources.

If these industrial water systems are identified as waters of the U.S., then the applicable 

State water quality standard would apply. Designated uses of the above identified waters 

would need to be established along with appropriate water quality criteria. This would 

negatively impede our ability to properly maintain our facilities as well as unnecessarily 

increase the cost of maintenance.

In 1986, EPA proposed guidance that attempted to address the issue of man-made water 

bodies at industrial facilities and excluded them from CWA Section 404 jurisdiction. 

EPA specifically addressed the damming of tributaries for industrial water use purposes 

(such as once-through cooling water ponds, fire water sources, stormwater management, 

etc.) where water bodies were created in water drainage areas (e.g., drainage channels, 

intermittent creeks, and etc.). A significant number of these water bodies are associated 

with once-through cooling water systems, where the major use of the water body is for 

thermal cooling or infrastructure/support systems that are not currently subject to the 

Section 404 CWA jurisdiction.

In the case of cooling water ponds, if the agencies now decide to assert jurisdiction, all 

the individual returns to the cooling water pond would be considered point sources under. 

These returns would have to be permitted individually as opposed to a single point source 

from the discharge of the cooling water pond. If subject to NPDES regulations, each 

individual return would most likely require the installation of flow measuring devices, 

sampling devices, and electric utilities, in some cases. Any cooling water pond must 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

510

already be maintained at a condition to ensure that any discharge from the pond is fully 

compliant with the authorized NPDES permit. Any additional requirements as a result of 

the proposed rule would not benefit the environment but would clearly result in more 

paperwork/permitting for both the regulated entity and the agency responsible for the 

permitting.

In the past, EPA has designated some waters as non-jurisdictional. The proposed rule 

appears to allow for the reopening of previous jurisdictional determinations, contrary to 

EPA’s stated intent. These previously classified bodies of water are not specifically 

excluded from the proposed rule.

Dow Recommendation: As stated above, the Agencies need to withdraw and rewrite the 

fundamental definitions included in the rule so that these definitions make it clear that 

non-navigable or manmade infrastructure elements continue to be non-jurisdictional 

waters under the CWA. At a minimum, the proposed definitions need to be 

fundamentally revised to more narrowly define and clearly exempt retention and 

containment ponds, cooling water ponds, aeration basins, stormwater retention basins or 

ponds, effluent holding basins, gravel pits and other groundwater access systems, ditches 

and canals, fire water basins or ponds, and any other industrial water system already 

designated as non-jurisdictional. (p. 5-6)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. 

In the final rule, the agencies also added exclusions for groundwater and erosional 

features, as well as exclusions for some waters that were identified in public 

comments as possibly being found jurisdictional under proposed rule language 

where this was never the agencies’ intent, such as cooling ponds that are created in 

dry land. These exclusions reflect current agencies’ practice, and their inclusion in 

the rule as specifically excluded furthers the agencies’ goal of providing greater 

clarity over what waters are and are not protected under the CWA. 

With respect to stormwater control features, please see the summary response at 

7.4.4.

Rubber Manufacturers Association (Doc. #15419)

7.787 III. RMA recommends that EPA clearly exempt permitted industrial ponds

In the proposed rule, there are three exemptions that could potentially apply to RMA 

members’ industrial ponds. Section 122.2(b)(1) exempts waste treatment systems such as 

“treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.” 

76 Fed. Reg. 22268. Sections 122.2(b)(3) and 122.2(b)(5)(ii) exempt uplands ditches and 

artificial ponds used exclusively as settling basins. Id. But because “designed,” 

“uplands,” and “settling basin” are not defined, again it is not clear whether industrial 

ponds at RMA member facilities meet any of these exclusions.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

511

RMA members’ industrial ponds comply with numeric and non-numeric limits in 

NPDES permits. As similarly noted supra, industrial ponds are typically lined with 

impermeable layer of clay or plastic to prevent untreated water from leaching into other 

waters and have control measures such as baffles, weirs, and skimmers to remove solids, 

oils, and other contaminants. RMA members also monitor pH levels, remove chlorine, 

and control biological oxygen demand. The purpose of these industrial ponds is to treat 

water used in the manufacturing process.

To clarify the rule, RMA recommends that EPA explicitly exempt industrial ponds 

covered by NPDES permits. If these ponds are considered waters of the U.S., there will 

be a significant regulatory burden on RMA members with no additional environmental 

benefit since these ponds are already permitted. As noted supra, NPDES permits require 

RMA members to control floating solids, settled solids, suspended solids, oil sheen, and 

other indicators of pollution. (p. 2-3)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional.

7.788 V. RMA also supports the commercial waters exemption as proposed by the 

American Forest and Paper Association (AF&PA)

AF&PA recommends that the following exemption be added to proposed 33 C.F.R. 

§328.3(b), which designates certain waters as not waters of the U.S.:

(6) Man-made or man-altered bodies of water (including adjacent wetlands) that 

(i) are used for commercial purposes by a facility that owns or occupies the 

property on which the water is located and (ii) have no surface discharge to a 

water of the United States, other than through an NPDES-permitted outfall or as a 

result of a chronic or catastrophic rainfall event. As used in this paragraph, “used 

for commercial purposes” means use in the production, distribution, or sale of 

goods or services, including both direct uses (such as for log conditioning) and 

uses that support the commercial facility (such as fire protection or raw water 

treatment).

The exemption provided in this paragraph does not affect the scope, application or 

implementation of any other exemption provided in this section.

RMA supports this exemption because it would cover the different types of RMA 

member ponds outlined in these comments. AF&PA’s proposal would reduce regulatory 

burden and clarify which ponds are exempted. (p. 3)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

512

Texas Chemical Council (Doc. #15433)

7.789 3. TCC Members Facilities Would be Unduly Impacted By the Additional 

Regulation of Non-Navigable Waters and Man-made Structures That Are Part of 

the Facilities’ Infrastructure

TCC is concerned that, as written, the proposed rule would for the first time bring under 

federal CWA jurisdiction a number of non-navigable or manmade features incorporated 

into facility infrastructure. These features include various impoundments (retention and 

containment ponds; cooling water ponds; stormwater retention basins; fire water basins 

and ponds; brine ponds), as well as ditches and canals, including those for transportation 

of water used solely for manufacturing purposes. EPA has historically not subjected such 

systems to CWA regulation, and it should not back away from that interpretation today: 

this would place an unreasonably high burden on both the regulated community and the 

state regulatory agency.

The potential impact on the industrial community in this regard would be substantial, 

taking into consideration the breadth of the CWA’s requirements and charges. These 

water features and systems would become subject to state water quality standards, and 

those newly established “waters of the U.S.” would then need to obtain designated uses 

and comply with water quality criteria established by the state regulatory agency. Should 

such facilities remain unable to meet these requirements – which would be highly likely 

in light of narrative criteria or specific water quality criteria for dissolved oxygen, 

temperature, and turbidity – they would have to list the waters as impaired.418

TCC members are particularly concerned about the impacts the proposed rule would have 

on industrial ponds, as well as ditches used for conveyance.

a. Industrial Cooling and Firewater Ponds & Industrial Water Systems

One particular area of concern for chemical manufacturing facilities is the impacts the 

proposed rule would have on their use of cooling ponds for thermal cooling. These are 

widely used within the industry, and facilities currently have to obtain National Pollution 

Discharge Elimination Systems (NPDES) permits for the discharges from such ponds. 

Historically, EPA has not considered these cooling ponds “waters of the U.S.” However, 

if the agencies were to include cooling ponds in the definition of “waters of the U.S.,” 

they would be subject to state water quality standards, as indicated above. Additionally, 

every individual return into the pond would have to be permitted under an individual 

permit for being designated a point source, rather than solely the discharge from the 

cooling water pond itself. This could require the imposition of additional technology and 

monitoring that is unnecessary to maintain compliance with the currently authorized 

NPDES permits.

Furthermore, the applicable state regulatory agency would incur the additional burden of 

developing new designated use categories and water quality criteria. EPA would also 

have to take on new tasks, such as developing new standards and criteria specifically 

applicable to the cooling ponds, along with additional NPDES or CWA §404 permits 

tailored to activities surrounding the use of cooling ponds. All of these actions would 

 

418 CWA §303(d) (33 U.S.C. §1313(d)).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

513

enhance the cost of compliance and increase the burdens on regulatory agencies without 

any environmental benefit. (p. 8-9)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. 

In the final rule, the agencies also added exclusions for groundwater and erosional 

features, as well as exclusions for some waters that were identified in public 

comments as possibly being found jurisdictional under proposed rule language 

where this was never the agencies’ intent, such as cooling ponds that are created in 

dry land. These exclusions reflect current agencies’ practice, and their inclusion in 

the rule as specifically excluded furthers the agencies’ goal of providing greater 

clarity over what waters are and are not protected under the CWA.

With respect to stormwater control features, please see the summary response at 

7.4.4

CLUB 20 (Doc. #15519)

7.790 The rule should exclude, “water withdrawn from a stream for beneficial use” and “water 

collected from natural sources and conveyed through a ditch.” (p. 2)

Agency Response: Please see the summary response at 7.4 and Compendium 6 on 

ditches.

Federal Water Quality Coalition (Doc. #15822.1)

7.791 10. Puddles

The version of the proposed rule that was submitted to OMB for interagency review 

included an exemption for puddles.419 However, the agencies dropped that exemption 

before publishing the proposed rule in the Federal Register. According to the agencies, 

the exemption was deleted because ‘‘puddles’’ is not a sufficiently precise hydrologic 

term or a hydrologic feature capable of being easily understood.420 The agencies also 

claim that:

In addition, one commonly understood meaning for the term ‘‘puddle’’ is a 

relatively small, temporary pool of water that forms on pavement or uplands 

immediately after a rainstorm, snow melt, or similar event. Such a puddle cannot 

reasonably be considered a water body or aquatic feature at all, because usually it 

exists for only a brief period of time before the water in the puddle evaporates or 

sinks into the ground. Puddles of this sort obviously are not, and have never been 

thought to be, waters of the United States subject to CWA jurisdiction. Listing 

 

419 See OMB Review Draft, EPA-HQ-OW-2011-0880-0007.

420 79 Fed. Reg. at 22218.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

514

puddles also could have created the misapprehension that anything larger than a 

puddle was jurisdictional. That is not the agencies’ intent. Id.

Unfortunately, because the agencies are proposing to assert jurisdiction over ephemeral 

features, puddles may in fact be viewed as jurisdictional if not excluded. Furthermore, 

because the agencies are proposing to establish jurisdiction based on biological 

connections, any water where biota, even insects, spend a part of their lifecycle, could be 

considered connected in a significant way to a navigable or interstate water or territorial 

sea. Moreover, the preamble language quoted above suggests that standing water that 

does not sink into the ground in a brief period of time could be a water of the U.S. Of 

course, how quickly water sinks into the ground is a function of how saturated the ground 

is already. Finally, EPA describes vernal pools as “puddles,”421 claims the authority to 

exercise jurisdiction over vernal pools on a case-by-case basis, and seeks comment on 

whether they should, as a category, be waters of the U.S.422 Unless the agencies provide a 

rationale to distinguish between what is or is not “thought to be” waters of the U.S., all 

adjacent waters, including puddles, could become subject to federal jurisdiction, causing 

significant confusion and concern. (p. 21-22)

Agency Response: The final rule adds an exclusion for puddles. The proposed 

rule did not explicitly exclude puddles because the Agencies have never considered 

puddles to meet the minimum standard for being a “water of the United States,” 

and it is an inexact term. A puddle is commonly considered a very small, shallow, 

and highly transitory pool of water that forms on pavement or uplands during or 

immediately after a rainstorm or similar precipitation event. However, numerous 

commenters asked that the agencies expressly exclude them in a rule. The final rule 

does so.

7.792 3. Water Used for Municipal, Industrial, or Commercial Purposes.

Another example of non-jurisdictional water is water that is used or managed for 

municipal, industrial, or commercial purposes. Courts have held that water that is in use 

is not regulated.423 EPA also has long recognized the distinction between water that is in 

use and water that is part of the waters of the U.S.424 This policy is embedded in EPA’s 

water transfer rule, which draws the line between waters of the U.S. and water that is 

subject to a municipal, industrial or commercial use. “For example, if the water is 

withdrawn to be used as cooling water, drinking water, irrigation, or any other use such 

that it is no longer a water of the U.S. before being returned to a water of the U.S., the 

water has been subjected to an intervening use.”425 As EPA explains:

 

421 http://water.epa.gov/type/wetlands/vernal.cfm

422 79 Fed. Reg. at 22216.

423 American Iron and Steel Inst. v. EPA, 155 F.3d 979, 996 (D.C. Cir. 1997) (“The statute is clear: The EPA may

regulate the pollutant levels in a waste stream that is discharged directly into the navigable waters of the United

States through a "point source"; it is not authorized to regulate the pollutant levels in a facility's internal waste 

stream.”).

424 See August 5, 2005, Memorandum From Anne Klee and Benjamin Grumbles to Regional Administrators, 

“Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers,” at 18.

425 73 Fed. Reg. 33697, 33704 (June 13, 2008) (emphasis added).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

515

[A water transfer] differs from a situation in which, for example, an industrial 

facility takes in water for the purpose of cooling some part of the facility itself. In 

such cases, the water used for cooling loses its status as a water of the United 

States when subjected to an intervening industrial use .....

426

If water that is being used were somehow a water of the U.S, then EPA could subject that 

use to permitting, gaining complete control of water supply and water use, contrary to the 

stated purpose of the CWA, discussed above.

Based on longstanding policy and on the language and structure of the statute, the 

agencies should specify that water that is subject to a municipal, industrial, commercial, 

or agricultural use is not a water of the U.S, and that such use includes water that is being 

collected, stored, managed, used, or treated prior to discharge to a water of the U.S. or 

without discharge. This is the legal rationale for the waste treatment system exemption. It 

is the legal rationale that would clarify a number of areas of confusion. This clarification 

also would address concerns raised by some of the SAB Panel members.427

For example, clarifying that water that is in use is not jurisdictional makes it clear that a 

ditch that moves cooling water or process water or waste water around an industrial 

facility every month of the year is not a water of the U.S. Similarly, a canal used by an 

irrigation district to move water or hold water every month of the year would not be a 

water of the U.S.

This recommendation clarifies that all systems that hold, manage, or move water for 

collection, reuse, treatment, evaporation, infiltration or injection to groundwater, and 

aquifer storage, would be outside the definition of waters of the U.S. This exclusion 

would continue to apply even if a storage pond began to grow cattails or if an aquifer 

storage and recovery system recharges to surface water. Water that is being used by 

municipalities, industries, and farmers and ranchers are not federal waters. (p. 67-68)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment and 

stormwater facilities that may address some of the features discussed in this 

comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. 

In the final rule, the agencies also added exclusions for groundwater and erosional 

features, as well as exclusions for some waters that were identified in public 

comments as possibly being found jurisdictional under proposed rule language 

where this was never the agencies’ intent, such as cooling ponds and groundwater 

recharge ponds that are created in dry land. These exclusions reflect current 

agencies’ practice, and their inclusion in the rule as specifically excluded furthers 

the agencies’ goal of providing greater clarity over what waters are and are not 

protected under the CWA.

 

426 Id. at 33705 n.10 (emphasis added).

427 See supra pp. 49-50.
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Minnesota Chamber of Commerce (Doc. #16473)

7.793 ...the Agencies should amend the exclusion for waste treatment systems in proposed 

section (b)(1)-or add a new exclusion-to expressly exclude water-management systems at 

mining and related industrial facilities. These features tend to serve the same beneficial 

purposes as t hose covered by the proposed rule but for various reasons-e.g., being 

designed to meet state or other federal-law legal requirements rather than being 

specifically designed to "meet the purposes of the Clean Water Act"-may not qualify for 

the waste-treatment system exemption as proposed. (p. 5)

Agency Response: The existing exclusion for waste treatment systems moves to 

paragraph (b)(1) with no substantive changes. See summary response at 7.1. One 

ministerial change is the deletion of a cross-reference in the current language to an 

EPA regulation that no longer exists. Because the agencies are not addressing the

substance of the exclusion, the agencies do not make conforming changes to ensure 

that each of the existing definitions of the “waters of the United States” for the 

various CWA programs have the exact same language with respect to the waste 

treatment system exclusion, with the exception of deleting the cross-reference.

However, the final rule does include several refinements to the 

exclusion for water-filled depressions created as a result of 

certain activities. In addition to construction activity, the 

agencies have also excluded water-filled depressions created in 

dry land incidental to mining activity. This change is consistent 

with the agencies’ 1986 and 1988 preambles, which generally 

excluded pits excavated for obtaining fill, sand or gravel, and 

there is no need to distinguish between features based on 

whether they are created by construction or mining activity.

7.794 The Minnesota Chamber recommends that the Agencies make the following changes to 

the Proposed Rule:

1. The Agencies should amend the exclusion for waste-treatment systems in proposed 

section (b)(l)-or alternatively, add a separate exclusion-to expressly include holding 

basins, settlement ponds, tailings basins, and other water-management systems at mining 

and related facilities, as well as the on-site ditches and conduits that connect them.

... (p. 6)

Agency Response: The final rule does include exclusions related to mining sites, 

ditches and wastewater recycling structures. See discussion of these exclusions 

elsewhere in this Compendium.

7.795 C. The Proposed Rule Would Create Other Impediments to the Efficient Operation of 

Minnesota Mining Facilities.

...

2. Mine Pit Sumps

The pits of open-pit mines in Minnesota and other states frequently reach depths below t 

he natural water table. To avoid groundwater inundating the pit and destabilizing pit 

walls, mine operators employ systems of pumps to dewater the mine pit sumps. These 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

517

sumps have not been subject to regulation as "waters of the United States" in Minnesota; 

they are simply inherent in the operational process of open-pit mining. Discharges of 

pumped water are subject to appropriate regulatory controls, but the sumps themselves

are not jurisdictional waters. The Minnesota Chamber is concerned that under t he 

Proposed Rule's broad definition of "significant nexus," the sumps could be deemed 

jurisdictional as "other waters" on account of their interaction with other waters flowing

into the sump. Operation of open-pit mines would become significantly more difficult 

and expensive if dewatering activities in sumps were subject to 404 permitting 

requirements.

Recommendation:

The Agencies should make clear-in the preamble to the Final Rule or in the Final Rule 

itself- that open-pit mine sumps are not "waters of the United States." (p. 7)

Agency Response: The existing exclusion for waste treatment systems moves to 

paragraph (b)(1) with no substantive changes. See summary response at 7.1. One 

ministerial change is the deletion of a cross-reference in the current language to an 

EPA regulation that no longer exists. Because the agencies are not addressing the

substance of the exclusion, the agencies do not make conforming changes to ensure 

that each of the existing definitions of the “waters of the United States” for the 

various CWA programs have the exact same language with respect to the waste 

treatment system exclusion, with the exception of deleting the cross-reference. 

However, the final rule does include several refinements to the exclusion for waterfilled depressions created as a result of certain activities. In addition to construction 

activity, the agencies have also excluded water-filled depressions created in dry land 

incidental to mining activity. This change is consistent with the agencies’ 1986 and 

1988 preambles, which generally excluded pits excavated for obtaining fill, sand or 

gravel, and there is no need to distinguish between features based on whether they 

are created by construction or mining activity.

American Society of Civil Engineers (Doc. #19572)

7.796 Clarify Potential Jurisdiction Over Man-Made Recycled Water Conveyance And 

Storage Features

Similarly, there are other man-made water conveyance and storage features, such as those 

used for recycled water management and use, which should be expressly excluded from 

CWA jurisdiction. There are instances of recycled water conveyance or storage occurring 

in natural or previously natural waterbodies that understandably may not warrant 

exemption. Therefore, the use of “dedicated” and “man-made” in an exemption could 

provide distinction and clarification. There are instances where recycled water is 

impounded or conveyed in dedicated man-made facilities that have a bed, bank, and 

OHWM and contribute flow to waters of the U.S. or meet the proposed rule’s definition 

of “adjacent” to jurisdictional waters. However, these features these should be expressly 

exempted from the definition of “waters of the U.S.” Otherwise, the intended uses of 

these features for which they were built would be severely hindered or possibly 

abandoned. (p. 10)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

518

Agency Response: Paragraph (b)(7) of the rule also clarifies that wastewater 

recycling structures created in dry land are excluded. This new exclusion clarifies 

the agencies’ current practice that such waters and water features used for water 

reuse and recycling are not jurisdictional when constructed in dry land. The 

agencies recognize the importance of water reuse and recycling, particularly in 

areas like California where water supplies can be limited and droughts can 

exacerbate supply issues. The agencies specifically exclude constructed detention 

and retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

This exclusion responds to numerous commenters and encourages water reuse and 

conservation while still appropriately protecting the chemical, physical, and 

biological integrity of the nation’s water under CWA.

Although the agencies have modified the definition of “tributary” in the final rule, 

the preamble states that the agencies have consistently regulated aqueducts and 

canals as “waters of the United States” where they serve as tributaries, removing 

water from one part of the tributary network and moving it to another. The 

agencies have not in practice asserted jurisdiction over these types of features when 

created in dry land.

Pinnacle Construction & Development Corp. (Doc. #1807)

7.797 ... the exclusion for waste treatment systems and non-wetland swales is not clear in that 

it fails to encompass the full array of green infrastructure devices (i.e., rain gardens) and 

other systems installed voluntarily on private property that should be exempt from federal 

oversight. (p. 2)

Agency Response: With respect to stormwater control features, (for example, 

green infrastructure, please see the summary response at 7.4.4

Kingsport Horizontal Property Regime and Kingsport Homeowners Association, et al. (Doc. 

#4847)

7.798 ...I have another property on the Intracoastal Waterway that the Corps issued a permit to 

someone other than the property owner and that person excavated my property without 

my consent. Here, the Corps authorized someone other than the property owner to turn 

my property into what is considered today, to be waters of the United States. I believe 

that something like this should also be exempted from any definition of water of the 

United States. Here the Corps through some sort of negligence, has created waters of the 

United states where none existed prior to the improper permitting by the Corps. This 

would also reduce future lawsuits and reduce regulatory costs of Corps.

I have several properties that have been disturbed by the Local Mosquito Control District 

from the 1920’s throught 1960's. These were part of a Statewide program to eradicate a 

dangerous health hazard. The State of Florida in there state statutes has a provision to 

allow these properties that were once uplands, to not be considered waters of the State. 

The rule is contained in 62-340.750 FAC. Which, if you can prove the property was an 

upland previous to the mosquito control ditching, performed by the Agency, then the 

property is not considered a wetland today. I beleive the Corps should also adopt the 

same type of rule, as it relates to the definition fo waters of the United States. This could 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

519

easily be included as an exemption to the definition, to state that any property exempted 

by the State under it's statutes or rules is also exempted from the definition of waters of 

the United States. This would also reduce future lawsuits and reduce regulatory costs of 

Corps. (p. 1-2)

Agency Response: This definitional rule does not change the agencies’ 

longstanding practices or regulations governing the implementation of this rule and 

are outside the scope of this rule. Nothing in this rule affects the enforcement of the 

CWA and is outside the scope of this rule.

Kerr Environmental Services Corp. (Doc. #7937.1)

7.799 328.3(b)(5) Should Include an additional listing for: "Pits Excavated in Dry Land 

for the Purpose of Obtaining Fill, Sand or Gravel Unless and Until Construction or 

Excavation Operation is Abandoned and the Resulting Body of Water meets the 

Definition of Waters of the United States (See 33 CFR 328.3(a))".

This is the only general exemption stated in the preamble of November 13, 1986 (page 

41217) not included in the proposed list at 33 CFR 328.3(b). These areas have 

traditionally not been regulated unless abandoned. We recommend continuing the 

existing practice by the USEPA and USACE of not regulating these areas. Localities and

States regulate the movement of sand, gravel and fill within construction sites. Such pits 

may be used as a construction related Erosion and Sediment Control practice, required by 

state law, and then refilled after construction. The NPDES program regulates the 

stormwater discharges from such facilities. While not ''waste treatment systems... 

designed to meet the requirements of the Clean Water Act" they may well be constructed 

to comply with state water quality and/or erosion and sediment control requirements and 

therefore should be exempt by expanding the wording at 33 CFR 328.3(b)(1). For 

simplicity we recommend creating a separate category for this type of non-water of the 

US and/or erosion and sediment control requirements and therefore should be exempt by 

expanding the wording at 33 CFR 328.3(b)(1).

For simplicity we recommend creating a separate category for this type of non-water of 

the US. (p. 4-5)

Agency Response: The final rule includes several refinements to the exclusion for 

water-filled depressions created as a result of certain activities. In addition to 

construction activity, the agencies have also excluded water-filled depressions 

created in dry land incidental to mining activity. This change is consistent with the 

agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for 

obtaining fill, sand or gravel, and there is no need to distinguish between features 

based on whether they are created by construction or mining activity.

7.800 Ponds

Ponds should not, by their definition, necessarily be a default water of the United States 

via their inclusion as tributaries. As stated in the preamble, the USEPA and USACE are 

considering tributaries to be waters of the US by rule (page 22188). Man-made ponds, 

wholly in uplands and draining only uplands should not be considered waters of the US, 

and per proposed exclusions stated at 328.3(b)(5)i-iv are not considered waters of the US. 

Ponds should be subject to the Significant Nexus test when the government considers 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

520

them to be other than not a water of the US. Alternatively the government can assert it is 

an Adjacent Water, and so has alternative avenues for jurisdiction and does not need the 

added confusion of assuming that all are tributaries. (p. 7)

Agency Response: The final rule states that artificial lakes or ponds created by

excavating and/or diking dry land and used primarily for such purposes as stock 

watering, irrigation, settling basins, or rice growing are not “waters of the United 

States.” In this exclusion, the agencies have changed “exclusively” to “primarily” in 

describing the uses. Artificial lakes and ponds are often not used exclusively for one 

purpose and can have other beneficial purposes, such as animal habitat, water 

retention or recreation. The change to the exclusion reflects Agency practice and 

ensures that waters the agencies have historically not treated as jurisdictional do not 

become so because of another incidental beneficial use. The agencies have also 

added cooling ponds to the list of uses in the rule. The list of uses has always been 

illustrative rather than exhaustive, and this addition responds to many requests to 

clarify that cooling ponds created in dry land are excluded.

Vulcan Materials Company (Doc. #14642)

7.801 Categorically, flood plains and associated riparian areas should be exempted from 

consideration as jurisdictional waters, unless such areas qualify as jurisdictional based on 

current criteria. (p. 4)

Agency Response: In response to comments received, the final rule has made 

changes to the proposed definitions of “neighboring”, “floodplains”, and “riparian 

area.” In the rule the agencies establish a definition of neighboring which provides 

additional specificity requested by some commenters, including establishing a 

floodplain interval and providing specific distance limits from traditional navigable 

waters, interstate waters, the territorial seas, impoundments, and tributaries. See 

the preamble for more information on the factors used to evaluate adjacent waters. 

West Valley Planned Communities (Doc. #18906)

7.802 IV. Several Exemptions Are Necessary For The Rule To Be Clearer, Not Lead To 

The Illegal Expansion Of The Jurisdiction Of The CWA, And To Avoid Causing A

Significant Burden On And Cost To Planned Communities.

In stakeholder meetings, EPA has requested that stakeholders identify which exemptions

they need in order to achieve the intention of the rule to provide clarification. The 

following is a list of exemptions that planned communities would need in order to avoid 

the rule causing an undue economic and regulatory burden:

 A "grandfathering" provision to allow existing water features, primarily 

drainages, associated with planned communities and its recreation features to 

continue to be utilized and, by rule, not within the jurisdiction of the CWA.

 An exemption for flood control or erosion control features. These control features 

serve an important role in preventing pollution. However, as written, the proposed 

rule could allow the Army Corps or EPA to assert jurisdiction over a flood or 

erosion control feature if it directly, or through any other waters, discharges into 

an interstate or traditionally navigable water.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

521

 There should be a general exemption for golf courses, specifically water features 

such as lakes and ponds, as well as drainage ditches. Golf courses serve an 

important purpose in protecting headwaters. This is accomplished through best 

management practices and, typically, by designing the course such that waters, 

which could otherwise cause costly flooding, are directed into a flood control 

district canal or system.

 An exemption for constructing, modifying, or decommissioning man-made or 

man-altered water features if the construction, modification, or decommissioning 

will eliminate or prevent a significant nexus into a downstream interstate or 

traditionally navigable water.

There are three exemptions in the current proposal which seemingly attempt to

accomplish some of the scope contemplated by these proposed exemptions. See, 

Proposed Rule at (t)(5)(ii)-(v) ("(ii) 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; (iii) Artificial reflecting pools or swimming pools created 

by excavating and/or diking dry land; (iv) Small ornamental waters created by excavating 

and/or diking dry land for primarily aesthetic reasons; (v) Water-filled depressions 

created incidental to construction activity. . ."). However, these exemptions are too 

narrow and do not address the practical operation of most planned communities or its 

recreational features. More focused exemptions, which explicitly exempt certain water 

features, are necessary to achieve the intended "clarification" of the proposed rule. (p. 4-

5)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for 

stormwater control features constructed to convey, treat, or store stormwater that 

are created in dry land. See summary response at 7.4.4. This exclusion responds to 

numerous commenters who raised concerns that the proposed rule would adversely 

affect municipalities’ ability to operate and maintain their stormwater systems, and 

also to address confusion about the state of practice regarding jurisdiction of these 

features at the time the rule was proposed. The agencies’ longstanding practice is to 

view stormwater water control measures that are not built in “waters of the United 

States” as non-jurisdictional. Conversely, the agencies view some waters, such as 

channelized or piped streams, as jurisdictional currently even where used as part of 

a stormwater management system. Nothing in the proposed rule was intended to 

change that practice. 

The agencies do not believe it is appropriate to exclude features created as part of a 

golf course. However, there are streamlined permitting options, such as certain 

Nationwide Permits for residential or recreational development that may be utilized 

to authorize certain of these activities. Similarly, the agencies do not feel it is 

appropriate to add an exclusion to eliminate or prevent significant nexus. The 

available science indicates that many man-made features can have a significant 

effect on downstream waters and should be evaluated for coverage as “waters of the 

United States.” 

With regard to the comment on the need for a “grandfathering provision”, this rule 

is effective 60 days after Federal Register publication. Under existing Corps’ 
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522

regulations and guidance, Corps’ approved jurisdictional determinations generally 

are valid for five years. The agencies will not reopen existing approved 

jurisdictional determinations unless requested to do so by the applicant. All 

jurisdictional determinations made on or after the effective date of this rule will be 

made consistent with this rule. Similarly, consistent with existing regulations and 

guidance, jurisdictional delineations associated with issued permits and 

authorizations are valid until the expiration date of the permit or authorization.

National Association of Home Builders (Doc. #19540)

7.803 ii. Green Infrastructure Features are not “Waters of the United States.”

EPA defines green infrastructure as a means of “protecting and restoring natural 

landscape features and using natural systems (or systems engineered to mimic natural 

processes) to manage rain water as a resource,” and touts its many benefits, including 

increased climate resiliency, reduced urban heat island effects, lowered building energy 

demands, and sustainable communities.428 The Agency “supports expanded use of green 

infrastructure to protect and restore waters while creating more environmentally and 

economically sustainable communities” and sees green infrastructure as part of its 

“strategic agenda to protect waters.”429 Additionally, President Obama’s Council on 

Climate Preparedness and Resilience promotes green infrastructure, stating, “By weaving 

natural processes into the built environment, green infrastructure provides not only 

stormwater management, but also improved water quality, greenhouse gas reduction, 

flood mitigation, and recreational opportunities.”430 To further promote its widespread 

use, EPA along with HUD, DOT, USDA, DOI, DOD, and DOE recently announced the 

development of a broad-based, multi-sector Green Infrastructure Collaborative, and in 

2015, EPA plans to provide green infrastructure technical assistance grants to at least 25 

communities.431 Clearly, there is broad federal support of green infrastructure. 

In spite of this, EPA and the Corps do not recognize green infrastructure features, 

including rain gardens and low impact development stormwater management, under the 

waste treatment systems exclusion. This omission is unsettling to NAHB’s 140,000 

members, who regularly employ low impact development devices and other stormwater 

waste control technologies to reduce runoff and associated pollutant discharges from 

construction sites. The Agencies must acknowledge that on-site stormwater control 

systems do not contain waters of the United States and, furthermore, are explicitly 

excluded from CWA jurisdiction under the waste treatment systems exception.

 

428 See www.epa.gov/greeninfrastructure (last accessed Nov. 6, 2014).

429 EPA, “A Strategic Agenda to Protect Waters and Build More Livable Communities Through Green 

Infrastructure” (April 2011) available at 

http://water.epa.gov/infrastructure/greeninfrastructure/upload/gi_agenda_protectwaters.pdf

430 Office of the President, Priority Agenda: Enhancing the Climate Resilience of America’s Natural Resources.

Council on Climate Preparedness and Resilience (October 2014) at 34, available at

http://www.whitehouse.gov/sites/default/files/docs/enhancing_climate_resilience_of_americas_natural_resources.pd

f

431 Id. at 42.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

523

Regrettably, the closest the Agencies have come to suggesting green infrastructure is 

excluded from CWA jurisdiction came in the form of an unofficial Q & A regarding the 

proposed rule that EPA posted on its website in September 2014:432

[QUESTION] 22. Is my rain garden regulated as a ‘water of the US’ under the 

proposal?

ANSWER: No. Rain gardens and similar green infrastructure would not be 

regulated under the proposed rule because they are not wetlands or built in waters 

protected by the CWA.

EPA’s answer is problematic for several reasons. First, and most importantly, if this is 

truly the case, why haven’t the Agencies included green infrastructure and similar 

stormwater management devices explicitly under the proposed rule’s waste treatment 

systems exclusion? Indeed, this informal Q & A is not a regulatory document and will not 

be published in the CFR. What’s more, under the proposed broad definitions of 

“tributary,” “adjacent waters,” and “other waters,” green infrastructure and other 

stormwater management features could quite readily be deemed waters of the United 

States, either categorically or on a case-by-case basis. For instance, if a bioswale that 

conveys stormwater to downstream waters meets the overbroad tributary definition, it 

would be a water of the United States. Similarly, if a stormwater infiltration pond is

constructed in the floodplain or riparian area of an (a)(1) through (5) water, it would be 

categorically jurisdictional. Second, green infrastructure devices, namely rain gardens, 

although they may not have wetland characteristics (e.g., wetland hydrology, wetland 

plants, and hydric soils) when first constructed, can readily develop these traits over time 

– traits that can actually help them perform better in reducing flows and removing 

pollutants. Further, contrary to EPA’s answer in the Q & A, rain gardens and bioswales 

are commonly built within wet weather conveyances that could meet the Agencies’ 

proposed “tributary,” “adjacent waters,” or “other waters” definitions. So, to state that 

green infrastructure features are not waters of the United States because they are “not 

wetlands or built in waters protected by the CWA” is relatively cold comfort for the 

regulated community.

Equally troublesome is that while EPA proclaims green infrastructure’s many 

environmental and economic benefits, by not explicitly excluding green infrastructure 

from CWA jurisdiction, the Agencies create a disincentive to employ such practices. If 

rain gardens, bioswales, and other stormwater treatment devices are waters of the United 

States, landowners and operators will have to obtain costly and time intensive permits in 

order to perform simple maintenance on them including the removal of sediment and 

debris. This will be unnecessarily burdensome. Additionally, many green infrastructure 

devices will be left unmaintained while the applicant awaits a permit, leading to reduced 

effectiveness of the features and increased pollutant loading to downstream waters.

Home builders in Houston, Texas, recognize this conundrum in their comment letter on 

the proposed rule.433 Houston is known as the Bayou City. The City, Harris County, and 

 

432 September 2014 Q & A at 6.

433 Letter from the North Houston Association, the West Houston Association, and the Woodlands Development

Company to the Proposed Rule “Definition of ‘Waters of the United States’ Under the Clean Water Act” docket.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

524

the drainage districts with authority over development in this region have begun to 

embrace a wide variety of low impact development and green infrastructure as the best 

method to accommodate drainage. Houston has awoken to the fact that being the Bayou 

City gives it a unique corridor system for a wide range of desirable urban and suburban 

uses that both relies upon and promotes better water quality. But if rain gardens, 

bioswales, and biofilters become waters of the United States as a result of today’s 

proposed jurisdictional expansion, these green initiatives will require costly permits for 

routine maintenance and impose unwarranted burdens on the state (e.g., development of 

water quality standards, water quality monitoring requirements, development of TMDLs 

for green infrastructure features not attaining water quality standards). Ultimately, the use 

of green infrastructure will come to a screeching halt.

Additionally, if green infrastructure features are waters of the United States, all other 

CWA programs will apply to them. As a result, states will, among other requirements, 

have to monitor water quality, designate beneficial uses, establish water quality 

standards, and establish TMDLs for any green infrastructure features under the 

jurisdiction of the CWA. This is absurd.

The Agencies must confirm that green infrastructure features, such as rain gardens, 

bioswales, and treatment wetlands, are not waters of the United States. Additionally, the 

Agencies should specifically include green infrastructure features in the waste treatment 

system exclusion. (p. 109-111)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features (e.g., 

green infrastructure) built in dry land is appropriate. Please see summary response 

at 7.4.4. 

Texas Mining and Reclamation Association (Doc. #10750)

7.804 4. The Agencies Should Create a New Exclusion for On-Site Waters at Mine Sites 

Mandated by Other Regulatory Schemes

The Agencies should also add an exclusion for water management features on mine sites 

that are required under other regulatory schemes, including CWA compliance. Even if 

on-site waters might otherwise meet the new definition of "waters of the United States," 

such an exclusion is warranted to avoid putting mine operators in a position where they 

would be unable to meet the requirements of other regulatory schemes.

In addition to the CWA requirements, including permitting, monitoring, and reporting 

TMRA's members with coal mining operations must conduct all mining and reclamation 

activities in accordance with SMCRA and state laws (as with the CWA, Texas is a 

primacy state under SMCRA and operates its own state surface coal mining regulatory 

program). In particular, SMCRA requires that mining and reclamation activities be 

conducted to protect the hydrologic balance within the mine site and adjacent areas.434

The close relationship between surface coal mining and CWA rules, and even overlap, 

for water quality protection standards is evident in Texas' surface mining regulations that 

 

434 See, e.g., 30 U.S.C. § 1265(b)(10)(B)(i); 30 C.F.R. § 816.41.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

525

state "In no case shall federal and state water-quality statutes, regulations, standards, or 

effluent limitations be violated.435

To meet SMCRA requirements, mine operators rely on "siltation structures," which 

include sediment ponds, permanent and temporary ditches, permanent and temporary 

impoundments, diversions, and other water management features.436 Because of the 

dynamic nature of mining operations, siltation structures are often modified or moved to 

ensure that water draining from disturbed areas is handled and treated appropriately prior 

to discharge. And SMCRA requires that "[s]iltation structures shall be maintained until 

removal is authorized by the regulatory authority and the disturbed area has been 

stabilized and revegetated."437 SMCRA also requires mine operators to remove siltation 

structures after disturbed areas are reclaimed.438 If these sorts of structures are now 

deemed "waters of the United States" under the proposed rule, mine operators may face 

situations where they cannot meet SMCRA requirements because they are unable to 

obtain Section 404 permit coverage for whatever reason. In other words, mine operators 

could be impeded from fulfilling their obligation to remove sediment ponds and 

diversions, and reclaiming the site, because of delays or problems getting 404 permit 

approvals. To avoid this conundrum, the Agencies should include an exclusion for 

siltation structures that are constructed, maintained, and reclaimed in accordance with 

SMCRA or other regulatory requirements. (p. 18-19)

Agency Response: As stated in the SMCRA statute, SMCRA “shall not be deemed 

in any way to repeal or supersede any portion of the Federal Water Pollution 

Control Act and no control or treatment under this subsection shall in any way be 

less than that required under the Federal Water Pollution Control Act.” The 

agencies believe that the two statutes have complementary, but differing, mandates 

and therefore is not appropriate to add a specific exclusion for features authorized 

under SMCRA. However, it is important to note that current agencies’ practices 

often consider some features described in this comments as “waste treatment 

systems” during the active period of mining, and are therefore excluded from 

coverage until reclaimed. 

7.805 The proposed rule is silent regarding the potential impact on old works. These include old 

sediment ponds, diversions and other water management structures built on coal mine 

sites prior to enactment of SMCRA. It also includes impounded water in old abandoned 

and unreclaimed sites, such as between spoil piles and abandoned pits. They are often 

referred to as "orphan spoils" areas. Some of these areas may be reclaimed or reworked 

under the Office of Surface Mining's Abandoned Mine Lands Program, and some may be 

redisturbed for new mining activities under the current SMCRA regulatory program. 

Under the existing regulatory framework, Corps staff has indicated that these old works 

are not jurisdictional waters, but this could change under the proposed rule for all of the 

 

435 Texas Administrative Code Title 16, Part 1. Rule § 12.339(c). Permanent Program Performance Standards —

Surface Mining Activities. Hydrologic Balance.

436 See 30 U.S.C. § 1265(b)(10)(B)(i); see also 30 C.F.R. §§ 816.43 to 816.49.

437 See 30 C.F.R. § 816.46(b)(4).

438 See 30 U.S.C. § 1265(b)(10); see also 30 C.F.R. § 816.43(a)(3) ("Temporary diversions shall be removed 

promptly when no longer needed to achieve the purpose for which they were authorized.").
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

526

reasons discussed above in Section I.B. The Agencies should clarify that these features 

are not jurisdictional. This can be accomplished by adding language to the effect that 

waters created through historic mining activities, either purposefully or inadvertently, 

including impounded waters in abandoned or partly reclaimed mine sites, and waters in 

old diversions and other water management structures, are excluded from the definition 

of waters of the United States. (p. 22)

Agency Response: The rule includes several refinements to the exclusion for 

water-filled depressions created as a result of certain activities. In addition to 

construction activity, the agencies have also excluded water-filled depressions 

created in dry land incidental to mining activity. This change is consistent with the 

agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for

obtaining fill, sand or gravel, and there is no need to distinguish between features 

based on whether they are created by construction or mining activity. A number of 

commenters indicated that these water-filled depressions created in dry land are 

often left on a site after construction or mining activity is complete in order to 

provide beneficial purposes, such as water retention, recreation, and animal habitat.

For features that do not meet these criteria, an jurisdictional determination is 

necessary to evaluate if the waters meet any of the criteria for coverage under (a)(1)-

(a)(8), regardless of origin. The available science indicates that many man-made 

features can have a significant effect on downstream waters and should be evaluated 

for coverage as “waters of the United States.”

Wyoming Mining Association (Doc. #14460)

7.806 In addition to streams, ditches, and ponds, playas are common features at many Wyoming 

mines. These playas may be large or small, may contain minor functional wetlands, and 

may provide recharge of deeper groundwater or be supported by discharge of 

groundwater. However, most water in the playas is lost to evapotranspiration. Currently, 

playas and internally draining depressions are not jurisdictional based on the U.S. 

Supreme Court decision in Solid Waste Agency of Northern Cook County v U.S. Army 

Corps of Engineers, (No. 99-1178 (January 9, 2001). However, a strict interpretation of 

the Connectivity Report would determine that the playas are hydraulically connected to 

nearby streams and wetlands. In fact, the connections between nearly all playas and 

nearby stream channels and wetlands is tenuous at best and these playas should not be 

assumed to be hydraulically connected and should not be jurisdictional under the 

proposed rule. (p. 5)

Agency Response: The agencies at this time are not able to determine that the 

available science supports that playa lakes as a class have a significant nexus to 

traditional navigable waters, interstate waters, or the territorial seas. However, to 

be clear, under the rule, individual waters of the suggested additional subcategories 

are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) 

(e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water 

or one that is determined on a case-specific basis to have a significant nexus to a 

traditional navigable water, interstate water, or the territorial seas). See the 

Technical Support Document, section I, for a discussion of the SWANCC decision’s 

effect on jurisdiction.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

527

CONSOL Energy, Inc. (Doc. #14614)

7.807 Sediment ponds, slurry ponds, impoundments, ditches, and other water control features 

found on mining sites not currently considered jurisdictional could be covered by the 

proposed definition of "water of the US". These features are necessary for the 

functionality of mining operations in an environmentally sound way. If these features are 

included as a "water of the US" it has the potential to vastly increase water usage at 

mining facilities. These features are often times already regulated by state and federal 

authorities such as the Surface Mining Control and Reclamation Act (SMCRA). 

CONSOL requests that language be included to clearly state that these features intended 

for the management of run-off and mining wastes are exempt from inclusion in the final 

definition of "waters of the US". (p. 3)

Agency Response: Current agencies’ practices often consider some features 

described in this comments as “waste treatment systems” during the active period of 

mining, and are therefore excluded from coverage until reclaimed. Nothing in the 

rule is intended to alter the current application of the waste treatment exclusion. See 

summary response at 7.1.

7.808 Additional inclusions of mining features previously determined to be non-jurisdictional 

would trigger Section 303 requirements for total maximum daily loads (TMDLs). 

Individual states have the primary obligation of establishing TMDLs, and expanding 

Section 303 requirements to previously exempted mining features would create 

considerable burden on these agencies to establish water quality standards. (p. 3)

Agency Response: Current agencies’ practices often consider some features 

described in this comments as “waste treatment systems” during the active period of 

mining, and are therefore excluded from coverage until reclaimed. Nothing in the 

rule is intended to alter the current application of the waste treatment exclusion. See 

summary response at 7.1

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #14619)

7.809 A. The Agencies Should Clarify and Confirm That Features Associated With OnSite Stormwater and Surface Water Systems Will Remain Exempt in All Cases 

Water management features such as temporary and permanent diversion ditches and 

onsite ponds (e.g., sediment ponds, slurry impoundments) are absolutely critical to 

mining operations within the SVC. Mine operators rely on these features to manage, 

store, treat, and reuse water within the mine site, often as part of statutorily-mandated 

requirements under SMCRA. Given the nature of these requirements, the purpose and 

design of these systems and the dynamic nature of mining activities, these kinds of water 

management features must remain non-jurisdictional.

There are numerous changes within the Proposal that might have the unintended effect of 

altering the jurisdictional status of these features. For instance, we can envision many 

instances where these features might fall within the broad new definitions of "tributary" 

and/or "adjacent," and thus be treated as per se jurisdictional. Alternatively, the expanded 

concept of "significant nexus" set forth in the Proposal would also allow for jurisdictional 

lines to be extended to these features on a case-by-case or eco-regional basis. All of these 

new openings create the need for clarity, within the rule itself, regarding the non-
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

528

jurisdictional status of these features. This would logically come by way of clarifications 

to the waste treatment system exclusion (addressing uncertainty regarding jurisdiction 

over the various components of stormwater and surface water management systems 

employed at mine sites)439 and the artificial lakes and ponds exclusion (confirming that 

the exclusion applies to sediment and bench ponds, slurry impoundments, and other 

operational ponds). Without these critical clarifications, the Proposal will continue to 

pose an enormous threat to VMIG, VCEA and the mining industry as a whole. (p. 5-6)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for 

stormwater control features constructed to convey, treat, or store stormwater that 

are created in dry land. See summary response at 7.4.4. The agencies’ longstanding 

practice is to view stormwater water control measures that are not built in “waters 

of the United States” as non-jurisdictional. Conversely, the agencies view some 

waters, such as channelized or piped streams, as jurisdictional currently even where 

used as part of a stormwater management system. Nothing in the proposed rule was 

intended to change that practice. Nonetheless, the agencies recognize that the 

proposed rule brought to light confusion about which stormwater control features 

are jurisdictional waters and which are not, and agree that it is appropriate to 

address this confusion by creating a specific exclusion in the final rule for 

stormwater controls features that are created in dry land.

In addition, current agencies’ practices often consider some features described in 

this comments as “waste treatment systems” during the active period of mining, and 

are therefore excluded from coverage until reclaimed. Nothing in the rule is 

intended to alter the current application of the waste treatment exclusion. See 

summary response at 7.1.

National Mining Association (Doc. #15059)

7.810 C. As Currently Written, the Definitions in the Proposed Rule Could 

Inappropriately Extend CWA Jurisdiction to On-Site Water Management Features 

at Mine Sites

The Agencies state in the preamble to the proposed rule that they are narrowing, rather 

than expanding, CWA jurisdiction in comparison to existing regulations. Based on our 

meetings with EPA and Corps representatives, we understand the Agencies do not intend 

to define previously non-jurisdictional on-site water features as jurisdictional waters in 

the proposed rule. Such a position is consistent with the scope of the Agencies’ economic 

analysis, which did not appear to take these on-site water management features into 

account in estimating that the proposed rule will result in “an approximate 3 percent 

increase in assertion of jurisdiction when compared to 2009-2010 field practices.”440

Nevertheless, certain terms in the proposed rule are defined so broadly that most on-site 

 

439 These clarifications are discussed at length in the National Mining Association 's comments, which VMIG and

VCEA endorse.

440 See U.S. EPA (primary authority) & U.S. Army Corps of Eng’rs (contributing author), “Economic Analysis of 

Proposed Revised Definition of Waters of the United States,” at 2 (Mar. 2014). NMA also notes that it shares the 

concerns expressed by both Dr. David Sunding and WAC with respect to the economic analysis, including its failure 

to fully and accurately evaluate many of the costs associated with the proposed rule.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

529

water management features at mine sites could be erroneously deemed jurisdictional 

under the proposed language. The very real threat of third party litigation over the 

application of the rule to such features underscores the critical need for clarity concerning 

this issue.

First, the Agencies define “tributary” as any water “physically characterized by the 

presence of a bed and banks and ordinary high water mark . . . which contributes flow, 

either directly or through another water,” to a traditional navigable water, interstate 

water, territorial sea, or jurisdictional impoundment.441 Then the proposal declares 

tributaries are per se jurisdictional regardless of whether they contribute perennial, 

intermittent, or ephemeral flow.442 And for the first time, “waters of the United States” 

explicitly includes ditches that meet the new definition of tributary.443 Even “wetlands, 

lakes, and ponds” that lack a bed, bank, and ordinary high water mark can be tributaries 

(and hence per se jurisdictional), so long as they “contribute flow, either directly or 

through another water” to a traditional navigable water, interstate water, or territorial 

sea.

444 Adding to the confusion, the Agencies have, completely outside this rulemaking 

process, re-defined guidance on identifying OHWM.445 The new OHWM guidance 

revises the criteria the Corps has historically relied upon for identifying OHWM by 

replacing longstanding OHWM indicators with new, subjective, criteria and by requiring 

that only one such criterion be met to determine the existence of OHWM. The OHWM 

concept is especially important because, historically, existence of an OHWM was used to 

determine the lateral and upstream limits of Corps’ jurisdiction, i.e. the Corps’ 

jurisdiction stops where the OHWM is no longer perceptible.446

It is likely that many, if not most, ditches, as well as certain ponds and other water 

management features on mine sites, would fall within the definition of “tributary” based 

solely on contribution of flow, no matter how insubstantial or indirect. Indeed, many onsite water features are permitted under Section 402 to discharge to “waters of the United 

States” because of such connections. As explained in greater detail below, many such 

features do not fit neatly into any of the exclusion categories in the proposal without 

additional clarification, and as such could inappropriately become federal waters under 

the new rule.

Second, on-site waters in the mining industry could constitute “adjacent” jurisdictional 

waters because the Agencies have broadly defined the term “neighboring” (as used in the 

definition of “adjacent”) such that every water feature located within the riparian area or 

floodplain of a traditional navigable water, interstate water, territorial sea, jurisdictional 

impoundment, or tributary could be deemed a “water of the United States.”447 Indeed, 

 

441 79 Fed. Reg. at 22,263.

442 Id. at 22,202.

443 See id. at 22,263.

444 Id.

445 Mersel, M.K., Lichvar, R.W. 2014. A Guide to Ordinary High Water Mark (OHWM) Delineation for NonPerennial Streams in the Western Mountains, Valleys, and Coast region of the United States. U.S. Army Corps of 

Engineers, Engineer Research and Development Center, Cold Regions Research and Engineering Laboratory, TR14-13. http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/west_mt_finalsupp_aug2014.pdf.

446 See 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986).

447 Id. at 22,263.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

530

some water management structures on mine sites are constructed adjacent to 

jurisdictional waters, but are specifically designed and operated to sever any surface 

connection between mining water inside the permitted area and offsite undisturbed 

waters, or to limit any surface connection to a permitted NPDES discharge point.

Furthermore, any water feature that has a “shallow subsurface hydrological connection or 

confined surface hydrologic connection to such a jurisdictional water” would also itself 

be per se jurisdictional.448 Given that application of these definitions is left to the “best 

professional judgment” of agency staff,449 and that therefore agency staff are free to 

choose, among other things, which flood interval to use in applying the definition of 

“neighboring” and “floodplain,” many on-site waters that bear little or no connection to 

downstream “waters of the United States” are likely to be captured. Likewise, 

insubstantial subsurface hydrologic connections between water features on mine sites and 

remote, downstream “waters of the United States” could give rise to claims of CWA 

jurisdiction, whether by agency personnel or citizen plaintiffs.

Third, even if on-site waters at mines are somehow outside of the definitions of 

“tributary” or “adjacency,” which are per se jurisdictional, they could nevertheless be 

deemed jurisdictional “other waters” on a “case-specific basis” through application of the 

“significant nexus” test in the proposed rule.450 An on-site water management feature at a 

mine, either alone or when aggregated with “similarly situated” waters in the same 

region, could be deemed to significantly affect the chemical, physical, or biological 

integrity of a traditional navigable water, interstate water, or territorial sea so long as it 

has more than a speculative or insubstantial effect on such a downstream jurisdictional 

water in the judgment of Agency staff. As an example, biota movement among otherwise 

isolated on-site water management features such as settling ponds and a jurisdictional 

water may be all that is needed to trigger CWA jurisdiction under this new test.451

Ironically, even the reduction in sediment load to meet NPDES effluent limitations to 

below natural background concentrations could be deemed a more than a “speculative or 

insubstantial” effect on downstream waters due to the improvements made to stream 

water quality.

These examples show how on-site waters could become “waters of the United States” 

under the proposed rule, and exemplify the need for the rule to include specific language 

that clarifies that once a water feature is determined to be part of a waste treatment 

system or another type of excluded water, that water may not be “recaptured” by 

application of another concept such as “tributary,” “adjacent,” or “other waters.” In other 

words, the agencies should explicitly state their intent as explained to NMA members that 

once a water is determined to be excluded, that water may not be deemed a jurisdictional

water by any other means. (p. 13-15)

 

448 Id.

449 Id. at 22,209.

450 See id. at 22,263.

451 See id. at 22,214.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

531

Agency Response: The agencies have modified the definitions of “tributary” and 

“neighboring” in the final rule. See the preamble for further information regarding 

jurisdiction under (a)(5) and (a)(6). 

The final rule also includes a new exclusion in paragraph (b)(6) for stormwater 

control features constructed to convey, treat, or store stormwater that are created in 

dry land. See summary response at 7.4.4.The agencies’ longstanding practice is to 

view stormwater water control measures that are not built in “waters of the United 

States” as non-jurisdictional. Conversely, the agencies view some waters, such as 

channelized or piped streams, as jurisdictional currently even where used as part of 

a stormwater management system. Nothing in the proposed rule was intended to 

change that practice. Nonetheless, the agencies recognize that the proposed rule 

brought to light confusion about which stormwater control features are 

jurisdictional waters and which are not, and agree that it is appropriate to address 

this confusion by creating a specific exclusion in the final rule for stormwater 

controls features that are created in dry land.

In addition, current agencies’ practices often consider some features described in 

this comments as “waste treatment systems” during the active period of mining, and 

are therefore excluded from coverage until reclaimed. Nothing in the rule is 

intended to alter the current application of the waste treatment exclusion. See 

summary response at 7.1.

American Petroleum Institute (Doc. #15115)

7.811 C. The exclusion for waste treatment systems is incomplete

...API concurs with the comments of the National Association of Homebuilders 

concerning the Proposed Rule’s lack of an explicit exclusion of green infrastructure from 

jurisdiction. EPA promotes green infrastructure – “protecting and restoring natural 

landscape features and using natural systems (or systems engineered to mimic natural 

processes) to manage rain water as a resource” as a means to achieve sustainability, offset 

effects of climate change, and lower energy demands, among other benefits. And yet the 

agencies do not explicitly recognize green infrastructure and low impact stormwater 

management under the waste treatment exclusion in the 2014 Proposed Rule. 

Notwithstanding the waste treatment and artificial pond exclusions, rain gardens, 

bioswales, and other sustainable stormwater systems may very well be found 

jurisdictional, requiring permits and compliance with the Clean Water Act requirements. 

The uncertainty as to whether green infrastructure is considered jurisdictional is a clear 

disincentive to employ such practices. API members applying green infrastructure at 

point-of-sale locations such as retail gasoline outlets do not wish to find themselves 

facing burdensome permitting and other regulatory requirements in response to their 

efforts at water conservation and sustainability. API recommends the agencies 

incorporate into the 2014 Proposed Rule an explicit exemption from jurisdiction for green 

infrastructure projects. (p. 31)

Agency Response: With respect to stormwater control features, including green 

infrastructure, please see the summary response at 7.4.4

7.812 D. The exclusion for artificial lakes or ponds is too narrow
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

532

The 2014 Proposed Rule would exclude from jurisdiction “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.”125 This exclusion is 

incomplete. The exclusion could be interpreted to apply only to the specific activities 

identified. There are a number of other purposes, however, for which artificial lakes or 

ponds are created by excavating and/or diking dry land. Examples in the industrial sector 

include fire water ponds (to supply water in an emergency), raw water storage ponds, 

cooling water ponds (which should also be excluded as wastewater treatment units), 

small ponds for temporarily storing produced water from hydraulic fracturing operations, 

and storm water retention ponds designed not primarily for treatment but to protect 

against flooding or to serve as water supply storage. These types of industrial ponds, and 

any other similar industrial ponds, and all ditches and conduits to and from these ponds 

should be explicitly excluded from jurisdiction under the 2014 Proposed Rule because 

these ponds have no impact on navigable waters and are necessary for a range of 

industrial operations. Inflow of surface runoff to these ponds should in no way alter the 

exclusion. (p. 31-32)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive. 

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.813 The Agencies Should Clearly Exempt Waters on Manufacturing Facilities Used for 

Commercial Purposes

Even if our suggested revisions to clarify definitions were included in a final rule, the 

broad language of the proposal still would leave mills subject to unwarranted claims of 

jurisdiction for water bodies on mill property that are part of the commercial activities on 

that property. The final rule needs to unequivocally avoid that result, for three reasons:

• First, treating such water bodies as subject to federal jurisdiction and covered by 

the various requirements of the CWA would be contrary to decades of agency 

practice in application of the CWA. It also would be contrary to both the 

agencies’ stated intentions with respect to the Proposal and the reasonable 

expectations of those who own and operate industrial and other commercial 

facilities.

• Second, treating such water bodies as WOTUS would greatly interfere with the 

operation of industrial and other commercial facilities, imposing excessive costs, 

regulatory delays, and other constraints. In many cases, literal application of 

CWA requirements to such a water body could render its use for commercial 

purposes difficult or impossible. (As just one example, a pond used for 

flocculation of suspended solids as part of a raw water treatment system might by 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

533

definition violate state narrative water quality standards concerning floating 

materials or turbidity.)

• Thirdly, and most importantly, treating such water bodies as WOTUS would do 

little, if anything, to further the goals of the CWA, and it would impose excessive 

regulatory burdens on both facility operators and CWA permitting and 

enforcement authorities.

A prohibition on discharge of fill material into, or dredging fill material out of, a water 

body without a permit makes no sense when that water body was created for the purpose 

of storing water containing suspended solids, or of settling solids out of that water, for 

example. Water quality standards designed to protect aquatic life in, or to assure the 

aesthetics of, a natural water body serve no purpose if applied to a water body that is part 

of an industrial operation. Maintaining healthy aquatic organisms in a water body may be 

the opposite of what is needed in ponds used to store water to be used for commercial 

purposes, such as for cooling water or for water used to process food or manufacture 

drugs. If EPA were to claim WOTUS jurisdiction over such ponds, EPA and state 

agencies would take on a tremendous burden of having to develop new water quality 

standards that would be appropriate for such uses, as well as issue NPDES or section 404 

permits for discharges into or activities related to maintenance of those waters—and for 

little or no regulatory benefit.

As the Supreme Court explained in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 

(2014), EPA, when interpreting the extent of a statute’s regulatory program, must 

consider whether a broad interpretation would be consistent with “the Act’s structure and 

design,” and whether it “would be incompatible with the substance of Congress' 

regulatory scheme." Id. at 2442-43 (citation and quotations marks omitted). The Court 

has also emphasized, in that case and others, that EPA should not impose regulations 

where doing so would have only a de minimis regulatory benefit. See id. at 2449. That 

certainly would be the case if EPA tried to force the square peg of industrial and 

commercial water bodies into the round whole of a regulatory scheme designed for the 

protection of natural water bodies.

Accordingly, the agencies should adopt the following additional exemption from the 

definition of WOTUS that would work in tandem with the existing exemptions (as 

revised or clarified in accordance with our comments below) to clearly exempt waters, 

the regulation of which can expose our facilities to high compliance costs, while 

providing little to no water quality benefit.

Add to proposed 33 C.F.R. § 328.3(b) (“The following are not ‘‘waters of the United 

States’’ notwithstanding whether they meet the terms of paragraphs (a) (1) through (7) of 

this definition—”) and to similar provisions of other proposed definitions of “waters of 

the United States”:

(6) Man-made or man-altered bodies of water (including adjacent wetlands) that 

(i) are used for commercial purposes by a facility that owns or occupies the 

property on which the water is located and (ii) have no surface discharge to a 

water of the United States, other than through an NPDES-permitted outfall or as a 

result of a chronic or catastrophic rainfall event. As used in this paragraph, “used 

for commercial purposes” means use in the production, distribution, or sale of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

534

goods or services, including both direct uses (such as for log conditioning) and 

uses that support the commercial facility (such as fire protection or raw water 

treatment).

The exemption provided in this paragraph does not affect the scope, application or 

implementation of any other exemption provided in this section.

This exemption would assure that those industrial/commercial waters that have a 

potential direct impact on a WOTUS are regulated, either through limitations in an

NPDES permit (individual or general) at the point of discharge, or because the exemption 

would not extend to waters with an unpermitted discharge. (A water that is not designed 

to have a discharge to a WOTUS would not lose the exemption, however, if a discharge 

occurred because of flooding or because an unusual sustained rainfall event caused the 

water body to overflow its banks. EPA took a similar approach in its regulation of ponds 

associated with Concentrated Animal Feeding Operations.) Therefore the exemption 

would remain in the event of usual events. (p. 7-9)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional.

7.814 Stormwater

There should be no question that any stormwater management facilities (such as green 

infrastructure, storm water retention ponds, etc.) that are part of an industrial stormwater 

pollution prevention plan required under an NPDES stormwater permit or required by 

conditions in an NPDES stormwater permit are clearly covered by the waste treatment 

system exemption. Nonetheless, due to the expansive definitions and other provisions 

previously discussed, any final rule should specifically state that this is the case to 

remove any doubt or among all stakeholders. Due to the concern about ditches (see 

below), the preamble should clarify ditches that are conveying stormwater to or from 

stormwater management facilities also are covered by the waste water treatment 

exemption. (p. 11-12)

Agency Response: Please see summary response at 7.4.4.

Coeur Mining, Inc. (Doc. #16162)

7.815 D. Ditches and Conveyances Should Not Be Regulated as Waters of the U.S.

...

Mine operators also rely on a broad range of ponds and impoundments (e.g., sediment 

ponds, heap leach ponds, tailings ponds, slurry impoundments, etc.) to support mining 

operations. Like ditches and conveyances, mine operators depend on these features to 

manage, store, treat, and reuse water within the mine site. One of the main purposes of 

on-site ponds and impoundments is to promote the settling of solids. After solid particles 

settle to the bottom of the water column, those solids are removed for disposal or further 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

535

treatment, and the water can be evaporated, reused in mining processes, or discharged 

from the mine site pursuant to an NPDES permit.

Many on-site water management features are actually mandated by federal or state law 

and also are implemented as best management practices within the mining industry. 

Among other things, on-site water management features are designed to ensure that, if 

there are any surface discharges from a mine site into downstream navigable waters, 

those discharges are covered under an NPDES permit and as such do not cause or 

contribute to violations of water quality standards. Moreover, to the extent these on-site 

water features might pose a risk to groundwater, such features are permitted in 

accordance with state groundwater protection laws. In fact, many water management 

features within mine sites are designed to be zero discharge. At those sites, water that is 

collected and managed is either reused in mining processes or it evaporates; it is not 

discharged to downstream waters... (p. 5, 6)

Agency Response: Current agencies’ practices often consider some features 

described in this comments as “waste treatment systems” during the active period of 

mining, and are therefore excluded from coverage until reclaimed. Nothing in the 

rule is intended to alter the current application of the waste treatment exclusion. In 

addition, the final rule has expanded and clarified the types of ditches not 

considered “waters of the United States.”

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #18016)

7.816 A. The Agencies Should Clarify and Confirm That Features Associated With OnSite Stormwater and Surface Water Systems Will Remain Exempt in All Cases 

Water management features such as temporary and permanent diversion ditches and 

onsite ponds (e.g. , sediment ponds, slurry impoundments) are absolutely critical to 

mining operations within the SVC. Mine operators rely on these features to manage, 

store, treat, and reuse water within the mine site, often as part of statutorily-mandated 

requirements under SMCRA. Given the nature of these requirements, the purpose and 

design of these systems and the dynamic nature of mining activities, these kinds of water 

management features must remain non-jurisdictional.

There are numerous changes within the Proposal that might have the unintended effect of 

altering the jurisdictional status of these features. For instance, we can envision many 

instances where these features might fall within the broad new definitions of "tributary" 

and/or "adjacent," and thus be treated as per se jurisdictional. Alternatively, the expanded 

concept of "significant nexus" set forth in the Proposal would also allow for jurisdictional 

lines to be extended to these features on a case-by-case or eco-regional basis. All of these 

new openings create the need for clarity, within the rule itself, regarding the nonjurisdictional status of these features. This would logically come by way of clarifications 

to the waste treatment system exclusion (addressing uncertainty regarding jurisdiction 

over the various components of stormwater and surface water management systems 

employed at mine sites)" and the artificial lakes and ponds exclusion (confirming that the 

exclusion applies to sediment and bench ponds, slurry impoundments, and other 

operational ponds). Without these critical clarifications, the Proposal will continue to 

pose an enormous threat to VMIG, VCEA and the mining industry as a whole. (p. 5-6)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

536

Agency Response: Current agencies’ practices often consider some features 

described in this comments as “waste treatment systems” during the active period of 

mining, and are therefore excluded from coverage until reclaimed. Nothing in the

rule is intended to alter the current application of the waste treatment exclusion. In 

addition, the final rule has expanded and clarified the types of ditches not 

considered “waters of the United States.” With respect to stormwater control 

features, please see the summary response at 7.4.4

7.817 C. The Agencies Should Clarify That "Old Works" Are Not Jurisdictional

"Old works" are excavations and depressions left from historic mining activities 

conducted prior to the passage of the CWA and SMCRA. These features are generally 

considered non-jurisdictional and are reclaimed according to current SMCRA regulatory 

requirements. Nearly 80% of all surface mining conducted in Virginia involves remining; 

thus, these features are encountered at the majority of mine sites in the SVC. Active 

mining operations in the SVC utilize these "old works" - pre-law relic drainage ditches 

and depressions that have filled with water over time - for drainage and sediment basins, 

slurry impoundments and other operational purposes. Mining operations also frequently 

cross over and impact these features.

For the most part, these "old works" have remained outside of CWA jurisdiction under 

the exemption for "water-filled depressions created incidental to construction activity." 

But the Proposal threatens to erode or eliminate the applicability of this exemption to old 

works. We urge the Agencies to clarify that old works are not jurisdictional, either 

categorically or otherwise. (p. 7)

Agency Response: The rule includes several refinements to the exclusion for 

water-filled depressions created as a result of certain activities. In addition to 

construction activity, the agencies have also excluded water-filled depressions 

created in dry land incidental to mining activity. This change is consistent with the 

agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for 

obtaining fill, sand or gravel, and there is no need to distinguish between features 

based on whether they are created by construction or mining activity. A number of 

commenters indicated that these water-filled depressions created in dry land are 

often left on a site after construction or mining activity is complete in order to 

provide beneficial purposes, such as water retention, recreation, and animal habitat.

For features that do not meet these criteria, a jurisdictional determination is 

necessary to evaluate if the waters meet any of the criteria for coverage under (a)(1)-

(a)(8), regardless of origin. The available science indicates that many man-made 

features can have a significant effect on downstream waters and should be evaluated 

for coverage as “waters of the United States.”

Alameda County Cattlewomen (Doc. #8674)

7.818 Agencies Should Exclude Playa Lakes from Waters of the United States

ACCW request that the agencies create an exclusion for playa lakes from the category 

“waters of the United States.” The proposed rule requests comment on the exclusion or 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

537

inclusion of playa lakes within “waters of the United States,”452 (Proposed Rule at 

22216), and ACCW have concluded that due to their isolated nature, these waters fall 

squarely in the realm of those isolated ponds that were found to be beyond the Corps’ 

authority in SWANCC and as such should be specifically excluded in the regulation.453

Due to the fact that these waters are geographically isolated and fall outside the 

jurisdiction of the CWA, we would also submit that a specific exclusion not include a 

caveat wrapping playas back into the category of regulated waters through the “interstate 

waters,” “adjacent waters,” or any other category as suggested in the proposed rule.454

Not only would this subcategory exclusion be in line with Supreme Court rulings, it 

would provide much needed clarity to the regulated public.

The reports cited by EPA conclude that playas are “geographically isolated wetlands” 

that “...represent the lowest points on the landscape in closed watersheds” and “derive 

water from rainfall and local runoff (including irrigation water), while very few receive 

ground-water inputs (Haukos and Smith 1994).”455 Another report describes them as 

“shallow depressional recharge wetland occurring primarily in the High Plains region of 

the western Great Plains. Each occurs within a closed watershed and, as the term recharge 

implies, only receives water naturally from precipitation and its associated runoff.”456

These characteristics clearly resemble those of the isolated ponds that were considered to 

be beyond the Corps’ jurisdiction in SWANCC, therefore making it appropriate for 

clarity and legal purposes for the agencies to specifically exclude playas from the “waters 

of the U.S.” regulation.

The agencies also seek comment, data, and information on whether there are 

subcategories of “other waters” or specific combinations of characteristics that are 

“likely, in the majority of cases, to perform important functions for an aquatic ecosystem 

incorporating navigable waters,” and, thus, should be per se jurisdictional (page 22252). 

Again, the reports cited by EPA provide support for demonstrating that there is separation 

between playas and navigable waters and that a majority of playas do not meet the 

criteria to be considered jurisdictional “waters of the U.S.”:

1. There is a clear distinction between geographically isolated wetlands, such as 

playas, and adjacent wetlands, where the reports specifically state, “The 

closed watersheds and isolated environmental events (e.g., precipitation, 

 

452 Proposed Rule at 22216, (“In addition, the agencies could determine that other subcategories of waters are not

jurisdictional and lack a significant nexus to an (a)(1) through (a)(3) water. Under this option the agencies could

conclude that ‘‘other waters’’ such as playa lakes in the Great Plains, even in combination with other playa lakes in

a single point of entry watershed, lack a significant nexus and therefore are not jurisdictional.”).

453 SWANCC, at 163, 168 (describing the waters in question as “seasonal ponds of varying sizes;” and noting that to 

“rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not 

adjacent to open water”).

454 Proposed Rule at 22216 (“Under this approach, where a playa lake, or other excluded category of water, would 

be within a category established by paragraphs (a)(1) through (a)(6) of the proposed rule (e.g., the playa is an 

interstate water or the playa is adjacent to an (a)(1) through (a)(5) water), the playas would be jurisdictional.”).

455 Tiner, Geographically Isolated Wetlands of the United States, Wetlands 23(3): 494-516, 496 & 500 (2003).

456 Haukos & Smith, Playa Wetland Regulation, Wetlands 23(3): 577-589, 577 (Sept. 2003).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

538

runoff) defining playas contributes to spatial and temporal difference in the 

importance of ecosystem functions even among adjacent wetlands,”457 and

2. EPA suggests that a key criterion for jurisdiction should include “specific 

combinations of characteristics” that would include or be applicable to “...the 

majority of cases...” The reports cited by EPA state, “The remaining 

requirements for declaration of jurisdiction under the CWA apply to just a few 

playas. Indeed, we believe that <1% of the playas could meet the remaining 

jurisdictional criteria: interstate location, adjacent or connected to navigable 

waters, or a significant nexus to interstate commerce.” Clearly <1% is not 

indicative of “...the majority of cases...” and as such provides strong support 

for EPA to determine that playas are not be jurisdictional.458

It is clear from the science and the Supreme Court’s holding in SWANCC that playa 

lakes are the closed, isolated watersheds that are the prime candidates for exclusion under 

the “waters of the U.S.” rule. To provide the needed certainty and clarity to the ranchers 

utilizing these features, ACCW request the agencies categorically exclude playa lakes 

from the category of “waters of the U.S.” (p. 27-28)

Agency Response: The agencies at this time are not able to determine that the 

available science supports that playa lakes as a class have a significant nexus to 

traditional navigable waters, interstate waters, or the territorial seas. However, to

be clear, under the rule, individual waters of the suggested additional subcategories 

are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) 

(e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water 

or one that is determined on a case-specific basis to have a significant nexus to a 

traditional navigable water, interstate water, or the territorial seas). See the 

Technical Support Document, section I, for a discussion of the SWANCC decision’s 

effect on jurisdiction.

Illinois Corn Growers Association (Doc. #13996)

7.819 None of the following should be categorically considered jurisdictional waters of the 

United States: intermittent and ephemeral tributaries; man-made ditches, including 

ditches constructed in dry lands and drain only dry lands or ditches dug in dry lands 

which do not flow all the time or do not flow into a jurisdictional water; normal farming 

and ranching water-related activities such as irrigation which are not regulated under the 

CWA; wet areas on fields or erosional features on fields; farm ponds; impoundments 

with any of the foregoing features; and adjacent wetlands or any other waters adjacent to 

such features (whether in floodplain or riparian areas or otherwise physically proximate 

with some hydrological connection). (p. 3)

Agency Response: The agencies have expanded and clarified the features not 

considered to be “waters of the United States” in the final rule. These include some 

types of ditches, artificially irrigated areas that would revert to dry land should 

application of water to that area cease, artificial lakes and ponds created in dry land 

 

457 Playa Wetland Regulations, at 579.

458 Id. at 585.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

539

and used primarily for uses such as stock watering, irrigation, settling basins, rice 

growing, or cooling ponds, and erosional features. Nothing in this rule affects the 

exemptions under 404(f) for normal farming activities. Also, see the preamble for 

the revised definition of “adjacent.”

The rule definition of “tributary” requires that flow must be of sufficient volume, 

frequency, and duration to create the physical characteristics of bed and banks and 

an ordinary high water mark. If a water lacks sufficient flow to create such 

characteristics, it is not considered “tributary” under this rule. While some 

commenters expressed concern that a feature that flowed very infrequently could 

meet the proposed definition of “tributary,” it is the agencies’ judgment that such a 

feature is not a tributary under the rule because it would not form the physical 

indicators required under the definitions of “ordinary high water mark” and 

“tributary.” To further emphasize this point, the rule expressly indicates in 

paragraph (b) that ephemeral reaches that do not meet the definition of tributary 

are not “waters of the United States.” As noted by the SAB, and consistent with the 

scientific literature, tributaries as a group exert strong influence on the chemical, 

physical, and biological integrity of downstream waters, even though the degree of 

connectivity is a function of variation in the frequency, duration, magnitude, 

predictability, and consequences of chemical, physical, and biological processes. See, 

e.g., SAB 2014b. These significant effects on traditional navigable waters, interstate

waters, and the territorial seas occur even when the tributary is small, intermittent, 

or ephemeral.

USA Rice Federation (Doc. #13998)

7.820 ...USA Rice Federation requests the agencies to revise the exemptions from the 

definition of waters of the U.S. as follows:...

(ii) Artificial lakes or ponds created by excavating and/or diking dry land and used 

exclusively for such purposes as stock watering, irrigation, or settling basins, or rice 

growing;

(iii) Artificial reflecting pools or swimming pools created by excavating and/or diking 

dry land; 

(iv) Small ornamental waters created by excavating and/or diking dry land for primarily 

aesthetic reasons; 

(v) Water-filled depressions created incidental to construction activity; 

(vi) Groundwater, including groundwater drained through subsurface drainage systems; 

and

(vii) Gullies and rills and non-wetland swales; 

and 

(viii) Fields and ponds used for growing rice or rice and other crops in rotation and all 

manmade ditches, canals, and reservoirs used to hold water for, carry water to, or remove 

water from such fields and ponds. (p. 10)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

540

Agency Response: The agencies do not believe it is appropriate to separate out 

rice growing as stated in the comment. In the exclusion for artificial lakes or ponds, 

the agencies have changed “exclusively” to “primarily” in describing the uses. 

Artificial lakes and ponds are often not used exclusively for one purpose and can 

have other beneficial purposes, such as animal habitat, water retention or 

recreation. In many cases, the other features listed in the comment would not be 

regulated due to 404(f) exemptions for normal farming activities.

The Mosiac Company (Doc. #14640)

7.821 ...Mosaic agrees playa lakes should be a subcategory of "Other Waters" that are nonjurisdictional', unless they would fall within a category established by paragraphs (a)(l) 

through (a)(6) of the proposed rule.

EPA's review of the available scientific literature supports this conclusion for playa lakes. 

The available scientific literature on playa lakes indicates playas typically occur in closed 

basins. (79 Fed. Reg. at 22,251). The agencies conclude that the scientific literature 

regarding the physical, chemical, and biological connection of playa lakes to traditional 

navigable waters is limited and of a tenuous nature (79 Fed. Reg. at 22,251). The 

agencies rely on the scientific literature reviewed in the draft EPA Connectivity Report to 

make determinations that categories of waterbodies (adjacent waters, tributaries, etc.) 

have a significant nexus to traditional navigable waters and therefore warrant jurisdiction 

by rule. The agencies also state that "Other Waters" require a case-by-ease significant 

nexus determination because the degree of connection and effect on downstream waters 

are too uncertain to make these waterbodies jurisdictional by rule. The same body of 

literature indicates that playa lakes are isolated and have little to no connection to 

downstream waters (79 Fed. Reg. at 22,251 - citing D.A. Haukos, and L.M. Smith, "Past 

and Future Impacts of Wetland regulations on Playas," Wetlands 23(3):577-589 (2003)). 

The draft EPA Connectivity Report concludes the scientific literature lacks sufficient 

information to evaluate the type or degree of connectivity or the variability in 

connectivity for those unidirectional wetlands (of which playa lakes are categorized) that 

lack surface water connections to downstream waters (EPA Connectivity Report page 5-

40, lines 30 - 35), Thus, the scientific evidence is lacking to claim playa lakes either 

alone or in combination with other playas have a significant nexus with downstream 

waters. 

Based on the available literature and the agencies' conclusions, playa lakes should be 

determined to be non-jurisdictional by rule. A case-by-case significant nexus evaluation 

would not be needed for playa lakes. (p. 27-28)

Agency Response: The agencies at this time are not able to determine that the 

available science supports that playa lakes as a class have a significant nexus to 

traditional navigable waters, interstate waters, or the territorial seas. However, to 

be clear, under the rule, individual waters of the suggested additional subcategories 

are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) 

(e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water 

or one that is determined on a case-specific basis to have a significant nexus to a 

traditional navigable water, interstate water, or the territorial seas). See the 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

541

Technical Support Document, section I, for a discussion of the SWANCC decision’s 

effect on jurisdiction.

Irvine Ranch Water District (Doc. #14774)

7.822 C. Water Conveyance Systems and Man-Made Structures Should Not be Defined As 

"Tributaries".

The proposed rule defines "Tributary" as "a water physically, characterized by the 

presence of a bed and banks and ordinary high water mark ... which contributes flow, 

either directly or through another water." The proposed rule then goes further to 

incorporate all streams, underground flows, wetlands, lakes, ponds, and impoundments 

into the definition of tributary, if they contribute any amount of flow to a WOTUS, even 

if they lack a bed and bank or an ordinary high water mark. The proposed rule 

specifically expands the definition of tributary to include man-altered or man-made water 

conveyances. Through its use of a broad and sweeping definition of tributary, the 

proposed rule defines man-made, non-stream conveyances as WOTUS and makes them 

subject to the full spectrum of CWA permitting. Additionally, the rule presumes that all 

water conveyances have a significant nexus to a WOTUS, which is not true, and uses 

sweeping language to define these facilities as WOTUS themselves.

...IRWD requests that water conveyance systems be excluded from the definition of 

WOTUS in the proposed rule, and that the proposed definition of "Tributary" be 

narrowed. The requirement to include all tributaries by rule, including underground 

conveyances of a tributary is overreaching. Such a generalized requirement is not based 

on physical properties, such as an ordinary high water mark and is therefore subject to a 

wide range of interpretation. In the rule, federal jurisdiction should be specifically limited 

to the surface expression of a drainage that has connectivity to a downstream receiving 

water and an ordinary high water mark. (p. 4)

Agency Response: The agencies have modified the definition of “tributary” in the 

final rule. The agencies have consistently regulated aqueducts and canals as “waters 

of the United States” where they serve as tributaries, removing water from one part 

of the tributary network and moving it to another. The agencies have not in practice 

asserted jurisdiction over these types of features when created in dry land.

7.823 The list of excluded categories of waters should be expanded to specifically include:

• Raw, potable, and recycled water storage and water banking facilities, including 

reservoirs.

• Raw, potable, and recycled water conveyance systems, including canals, channels 

and ditches.

• Underground pipes and culverts for the conveyance of potable, recycled, and 

storm water.

• Detention basins excavated in uplands and used for the purpose of detaining storm 

flows. (p. 6)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

542

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Detention and retention 

basins can play an important role in capturing and storing water prior to beneficial 

reuse. Similarly, groundwater recharge basins and percolation ponds are becoming 

more prevalent tools for water reuse and recycling. These features are used to 

collect and store water which then infiltrates into groundwater via permeable soils. 

Though these features are often created in dry land, they are also often located in 

close proximity to tributaries or other larger bodies of water. The exclusion also 

covers water distributary structures that are built in dry land for water recycling. 

With respect to stormwater control features, please see the summary response at 

7.4.4

Browns Valley Irrigation District, California (Doc. #14908)

7.824 To better balance the broad interest of the CWA in protecting the nation's surface waters 

while not unduly interfering with the ability of water agencies to provide water, the 

Browns Valley Irrigation District recommends the following:...

 Water infrastructure, such as recycled water facilities, groundwater recharge basins, 

stormwater retention basins, and constructed wetlands, adjacent to "waters of the 

United States" should be excluded from jurisdiction under the proposed rule. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Detention and retention 

basins can play an important role in capturing and storing water prior to beneficial 

reuse. Similarly, groundwater recharge basins and percolation ponds are becoming 

more prevalent tools for water reuse and recycling. These features are used to 

collect and store water which then infiltrates into groundwater via permeable soils. 

Though these features are often created in dry land, they are also often located in 

close proximity to tributaries or other larger bodies of water. The exclusion also 

covers water distributary structures that are built in dry land for water recycling. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

543

With respect to stormwater control features, please see the summary response at 

7.4.4

7.825 Under the proposed rule, the Browns Valley Irrigation District would be subject to all the 

permitting requirements in the CWA including needing to obtain a section 404 dredge 

and fill permit when, for example maintenance work is conducted on our canal? The 

Browns Valley Irrigation District recommends water conveyance systems be excluded 

from the definition of tributary. (p. 2)

Agency Response: The agencies have modified the definition of “tributary” in the 

final rule. The agencies have consistently regulated aqueducts and canals as “waters 

of the United States” where they serve as tributaries, removing water from one part 

of the tributary network and moving it to another. The agencies have not in practice 

asserted jurisdiction over these types of features when created in dry land.

7.826 The Browns Valley Irrigation District requests water infrastructure facilities (including 

construction, maintenance, and operation) adjacent to traditionally navigable waters be 

excluded from the proposed definition of "waters of the United States". (p. 3)

Agency Response: See two previous responses.

Georgia Paper & Forest Products Association (Doc. #14924)

7.827 4) The rule should exempt waters that are used at commercial facilities for commercial 

purposes, whether used directly or indirectly, as explained in greater detail in the AF&PA

comment letter. (p. 3)

Agency Response: The agencies disagree that “commercial purposes” should be a 

basis for exclusion from jurisdiction.

Klamath Water Users Association (Doc. #15063)

7.828 Subsection (b)(1) of the proposed rule excludes “waste treatment systems, including 

treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act” 

among other features listed later in the section. While such systems have traditionally 

been excluded from CWA jurisdiction, we believe that, due to the expansive nature of the 

proposal, the agencies should also exclude other constructed water management and 

treatment infrastructure with similar attributes to these waste treatment systems. These 

facilities could include water reuse and recycling ponds, treatment lagoons, and other 

appurtenances; artificially constructed wetlands designed to treat agricultural, stormwater 

or other municipally treated return flows (e.g. “green infrastructure”) that are used and 

managed to remove nutrients and improve water quality; and artificially constructed 

groundwater recharge basins designed to percolate surface water into groundwater basins. 

All of these features would revert to dry land if application of water were to cease and, 

even though they usually contain plants and shrubs known to grow in wetlands, they 

should be added to the list of features identified in subsection (b) as excluded from the 

definition of “waters of the U.S.” (p. 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

544

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Detention and retention 

basins can play an important role in capturing and storing water prior to beneficial 

reuse. Similarly, groundwater recharge basins and percolation ponds are becoming 

more prevalent tools for water reuse and recycling. These features are used to 

collect and store water which then infiltrates into groundwater via permeable soils. 

Though these features are often created in dry land, they are also often located in 

close proximity to tributaries or other larger bodies of water. The exclusion also 

covers water distributary structures that are built in dry land for water recycling. 

With respect to stormwater control features, please see the summary response at 

7.4.4

Beet Sugar Development Foundation (Doc. #15368)

7.829 e. Stormwater Exemptions

BSDF encourages the agencies to retain the current and proposed non-jurisdictional 

agricultural exemptions in the final rule. The agencies should, however, expand and 

clarify industrial stormwater exemptions. Although the proposed rule purports to leave 

intact exemptions for agricultural stormwater discharges,459 these exemptions are often 

inconsistently applied and difficult to predict. The agencies must clarify the exemptions 

to ensure BSDF farmers that their stormwater systems are non-jurisdictional. Failure to 

clarify these exemptions will frustrate the efforts of farmers and processing facilities to 

comply with stormwater regulations. (p. 14-15)

Agency Response: See summary response at 12.3. 

Weyerhaeuser Company (Doc. #15392)

7.830 III. Water Features and Treatment Systems on Mill Sites Should Remain Exempted

Some of the proposed changes and definitions could result in claims of Clean Water Act 

jurisdiction for water features and treatment system components that currently are not 

considered waters of the U.S. and that are necessary to manage the flow and quality of 

waters leaving the site or being discharged to jurisdictional waters. This would be an 

unreasonable and extremely burdensome result, turning the physical features and 

operations necessary to maintain both the commercial mill processes and the quality of 

 

459 See id. at 22193–94 (“Exempted discharges are established under CWA sections 402, 502, and 404 and include 

Agricultural stormwater discharges . . . . .”). [Rapanos]
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

545

jurisdictional waters receiving permitted discharges into jurisdictional waters themselves 

that have to meet water quality criteria and standards.

For example, because many forest products mills are located on or near traditional 

navigable waters, fire and storm water control ponds that are maintained at many mills 

could, under the proposed rules and definitions for tributaries or other waters, be claimed 

as within jurisdictional scope. These should be clearly exempted from jurisdiction. (p. 15)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional.

Similarly, for operations that have large wastewater treatment systems utilizing lagoons 

or ponds that may have been established decades ago the agencies’ jurisdictional 

interpretations should not change the existing regulatory provision that provides an 

exemption. EPA should recognize that all portions of a wastewater or stormwater 

treatment system regulated under an NPDES permit are exempt. For example, an NPDES 

permit for a large land area such as a mill site can cover both wastewater treatment 

systems and stormwater management systems, including conveyances such as ditches and 

swales that direct wastewater or stormwater to structural source controls and treatment 

but which may or may not be specifically listed in an NPDES permit for the site. The 

proposals that would expand jurisdiction to most ditches as tributaries while severely 

limiting their exclusion, as discussed previously in these comments, would counter their 

use on mill sites in protecting operations and downstream water quality. Best 

Management Practices systems for stormwater may include ditches, settling basins, 

vegetated swales, infiltration ponds, etc., that are mandated by the terms of the 

stormwater management plan and/or NPDES permit for the site. It would be 

unreasonable to deem any of these conveyances jurisdictional waters of the U.S. because 

they are locations where, for example, maintenance is routinely completed, different Best 

Management Practices are added, or more active treatment approaches are tried to 

improve the managed water and protect the receiving water bodies.

EPA should also clarify that zero discharge systems, including land application systems, 

fall within the exemption. At wood products mills where Timber Products effluent 

guidelines call for zero discharge, ponds and other systems used to implement the zero 

discharge requirement clearly are designed to meet the requirements of the Clean Water 

Act. In some cases land application systems are used to meet the effluent guideline or to 

avoid an unpermitted discharge, and these typically involve storage/pretreatment ponds 

and acres of spray-fields. Spray fields may develop wetland-like areas or have ditches to 

collect run off. These systems are designed to meet the requirements of the Clean Water 

Act but not to be jurisdictional waters, and should be recognized as such in any final rule. 

(p. 15-16)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

546

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. The exclusion also covers 

water distributary structures that are built in dry land for water recycling. 

With respect to stormwater control features, please see the summary response at 

7.4.4

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)

7.831 III. The Agencies Should Clearly Exempt Waters on Manufacturing Facilities Used 

for Commercial Purposes

The broad language of the Proposal would leave mills subject to unwarranted claims of 

jurisdiction for water bodies on mill property that are part of the commercial activities on 

that property. The final rule needs to unequivocally avoid that result, for three reasons:

(1) Treating such water bodies as subject to federal jurisdiction and covered by the 

various requirements of the CWA would be contrary to decades of agency practice in 

application of the CWA. It also would be contrary to both the agencies’ stated intentions 

with respect to the Proposal and the reasonable expectations of those who own and 

operate industrial and other commercial facilities.

(2) Treating such water bodies as WOTUS would greatly interfere with the operation of 

industrial and other commercial facilities, imposing excessive costs, regulatory delays, 

and other constraints. In many cases, literal application of CWA requirements to such a 

water body could render its use for commercial purposes difficult or impossible. (p. 3)

Agency Response: The agencies disagree that “commercial purposes” should be a 

basis for exclusion from jurisdiction.

The final rule has expanded the features not considered “waters of the United 

States” to include certain wastewater treatment, artificial ponds, and stormwater 

facilities that may address some of the features discussed in this comment, where 

constructed in dry land. However, when constructed in, or impounding, waters of 

the United States, these features may still be considered jurisdictional.

American Forest & Paper Association (Doc. #15420) 

7.832 IV. The Agencies Should Clearly Exempt Waters on Manufacturing Facilities Used 

for Commercial Purposes

Even if the revisions we suggest in Section V., below, were included in a final rule, the 

broad language of the Proposal still would leave mills subject to unwarranted claims of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

547

jurisdiction for water bodies on mill property that are part of the commercial activities on 

that property. The final rule needs to unequivocally avoid that result, for three reasons:

(1) Treating such water bodies as subject to federal jurisdiction and covered by the 

various requirements of the CWA would be contrary to decades of agency practice in 

application of the CWA. It also would be contrary to both the agencies’ stated intentions

with respect to the Proposal and the reasonable expectations of those who own and 

operate industrial and other commercial facilities. (2) Treating such water bodies as 

WOTUS would greatly interfere with the operation of industrial and other commercial 

facilities, imposing excessive costs, regulatory delays, and other constraints. In many 

cases, literal application of CWA requirements to such a water body could render its use 

for commercial purposes difficult or impossible. As just one example, a pond used for 

flocculation of suspended solids as part of a raw water treatment system might by 

definition violate state narrative water quality standards concerning floating materials or 

turbidity.

(3) Most importantly, treating such water bodies as WOTUS would do little, if anything, 

to further the goals of the CWA, and it would impose excessive regulatory burdens on 

both facility operators and CWA permitting and enforcement authorities. A prohibition 

on discharge of fill material into, or dredging fill material out of, a water body without a 

permit makes no sense when that water body was created for the purpose of storing water 

containing suspended solids, or of settling solids out of that water, for example. Water 

quality standards designed to protect aquatic life in, or to assure the aesthetics of, a 

natural water body serve no purpose if applied to a water body that is part of an industrial 

operation. Maintaining healthy aquatic organisms in a water body may be the opposite of 

what is needed in ponds used to store water to be used for commercial purposes, such as 

for cooling water, or for water used to process food or manufacture drugs. If EPA were to 

claim WOTUS jurisdiction over such ponds, EPA and state agencies would take on a 

tremendous burden of having to develop new water quality standards that would be 

appropriate for such uses, as well as issue NPDES or section 404 permits for discharges 

into or activities related to maintenance of those waters— and for little or no regulatory 

benefit.

Further, Dr. Michael Josselyn, a member of the Science Advisory Board panel reviewing 

the Proposal, noted that:

“[T]he Science Report might also discuss how some man-made features are 

designed to avoid connectivity in order to protect the environment from toxic or 

polluted water sources that are present in some of these features. The construction 

of any facility designed to retain, store, pond, treat, or process water used in 

industrial processes and to assure that such liquids do not enter the environment 

should be excluded from jurisdiction as a matter of rule.”460

As the Supreme Court explained in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 

(2014), EPA, when interpreting the extent of a statute’s regulatory program, must 

 

460 September 2, 2014, Memorandum from Dr. Amanda D. Rodewald, to Dr. David Allen, “Comments to the

chartered SAB on the adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of 

‘Waters of the United States’ Under the Clean Water Act,” at 48.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

548

consider whether a broad interpretation would be consistent with “the Act’s structure and 

design,” and whether it “would be incompatible with the substance of Congress' 

regulatory scheme." Id. at 2442-43 (citation and quotations marks omitted). The Court 

has also emphasized, in that case and others, that EPA should not impose regulations 

where doing so would have only a de minimis regulatory benefit. See id. at 2449. That 

certainly would be the case if EPA tried to force the square peg of industrial and 

commercial water bodies into the round hole of a regulatory scheme designed for the 

protection of natural water bodies.

Accordingly, the agencies should adopt the following additional exemption from the 

definition of WOTUS that would work in tandem with the existing exemptions (as 

revised or clarified in accordance with our comments in section V., below) to clearly 

exempt waters, the regulation of which would expose AF&PA members and owners or 

operators of other industrial or commercial facilities to high compliance costs, while 

providing little to no water quality benefit.

Add to proposed 33 C.F.R. § 328.3(b) (“The following are not ‘‘waters of the 

United States’’ notwithstanding whether they meet the terms of paragraphs (a) (1) 

through (7) of this definition—”) and to similar provisions of other proposed 

definitions of “waters of the United States”:

(6) Man-made or man-altered bodies of water (including adjacent wetlands) that

(i) are used for commercial purposes by a facility that owns or occupies the 

property on which the water is located and (ii) have no surface discharge to a 

water of the United States, other than through an NPDES-permitted outfall or as a 

result of a chronic or catastrophic rainfall event. As used in this paragraph, “used 

for commercial purposes” means use in the production, distribution, or sale of 

goods or services, including both direct uses (such as for log conditioning) and 

uses that support the commercial facility (such as fire protection or raw water 

treatment).

The exemption provided in this paragraph does not affect the scope, application or 

implementation of any other exemption provided in this section. 

This exemption would assure that those industrial/commercial waters that have a 

potential direct impact on a WOTUS are regulated, either through limitations in an 

NPDES permit (individual or general) at the point of discharge, or because the exemption 

would not extend to waters with an unpermitted discharge. A water that is not designed to 

have a discharge to a WOTUS would not lose the exemption, however, if a discharge 

occurred because of flooding or because an unusual sustained rainfall event caused the 

water body to overflow its banks. EPA took a similar approach in its regulation of ponds 

associated with Concentrated Animal Feeding Operations.461 (p. 5-7)

Agency Response: The agencies disagree that “commercial purposes” should be a 

basis for exclusion from jurisdiction.

 

461 See, e.g., 40 C.F.R. § 412.12(b); 58 Fed. Reg. 7620; EPA Guidance Manual and Example NPDES Permit for 

Concentrated Animal Feeding Operations, Review Draft, Aug. 6, 1999 pp. 3-8, F-6, F-24.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

549

The final rule has expanded the features not considered “waters of the United 

States” to include certain wastewater treatment, artificial ponds, and stormwater 

facilities that may address some of the features discussed in this comment, where 

constructed in dry land. However, when constructed in, or impounding, waters of 

the United States, these features may still be considered jurisdictional.

Packaging Corporation of America (Doc. #15515)

7.833 3) The agencies should clearly exempt waters used at manufacturing facilities for 

commercial purposes (consistent with AF&PA comments).

Mills that have historically used various water features on their property as part of the 

commercial activities on that property should be protected from potential jurisdiction 

under the rule for several reasons: First, treating such water bodies as subject to federal 

jurisdiction and covered by the various requirements of the CWA would be contrary to 

decades of agency practice in application of the CWA, which have influenced operational 

practices of regulated entities. It also would be contrary to both the agencies' stated 

intentions with respect to the Proposal and the reasonable expectations of those who own 

and operate industrial and other commercial facilities. Secondly, treating such water 

bodies as WOTUS would greatly interfere with the operation of industrial and other 

commercial facilities, imposing excessive costs, regulatory delays, and other constraints. 

In many cases, literal application of CWA requirements to such a water body could 

render its use for commercial purposes difficult or impossible. Thirdly, and most 

importantly, treating such water bodies as WOTUS would do little, if anything, to further 

the goals of tile CWA, and it would impose excessive regulatory burdens on both facility 

operators and CWA permitting and enforcement authorities.

Accordingly, the agencies should adopt the following additional exemption from the 

definition of WOTUS that would work in tandem with the existing exemptions.

Add to proposed 33 C.F.R. § 328.3(b) ("The following are not "waters of the 

United States" notwithstanding whether they meet the terms of paragraphs (a) (1) 

through (7) of this definition-") and to similar provisions of other proposed 

definitions of "waters of the United States":

(6) Man-made or man-altered bodies of water (including adjacent wetlands) that 

(i) are used for commercial purposes by a facility that owns or occupies the 

property on which the water is located and (ii) have no surface discharge to a 

water of the United States, other than through an NPDES-permitted outfall or as 

a result of a chronic or catastrophic rainfall event. As used in this paragraph, 

"used for commercial purposes" means use in the production, distribution, or sale 

of goods or services, including both direct uses (such as for log conditioning) and 

uses that support the commercial facility (such as fire protection or raw water 

treatment).

The exemption provided in this paragraph does not affect the scope, application 

or implementation of any other exemption provided in this section. (p. 3-4)

Agency Response: The agencies disagree that “commercial purposes” should be a 

basis for exclusion from jurisdiction.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

550

The final rule has expanded the features not considered “waters of the United 

States” to include certain wastewater treatment, artificial ponds, and stormwater 

facilities that may address some of the features discussed in this comment, where 

constructed in dry land. However, when constructed in, or impounding, waters of 

the United States, these features may still be considered jurisdictional.

Dairy Cares (Doc. #16471)

7.834 Dairy Cares requests that the Agencies revise the Proposed Rule in a manner that clearly 

excludes man-made lagoons, ponds, ditches, and the like from being considered 

jurisdictional even in circumstances where such facilities would be considered to be 

“adjacent” to a traditional WOTUS. (p. 5)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional.

Anderson-Cottonwood Irrigation District (Doc. #17085)

7.835 ...To better balance the broad interest of the CWA in protecting the nation's surface 

waters while not unduly interfering with the ability of water agencies to provide water, 

Anderson-Cottonwood Irrigation District recommends the following:

 Water conveyance systems, including ditches, should be excluded from the proposed 

definition of "waters of the United States."

 Water infrastructure, such as recycled water facilities, groundwater recharge basins, 

stormwater retention basins, and constructed wetlands, adjacent to "waters of the 

United States" should be excluded from jurisdiction under the proposed rule. (p. 2)

Agency Response: Paragraph (b)(7) of the rule also clarifies that wastewater 

recycling structures created in dry land are excluded. This new exclusion clarifies 

the agencies’ current practice that such waters and water features used for water 

reuse and recycling are not jurisdictional when constructed in dry land. The 

agencies recognize the importance of water reuse and recycling, particularly in 

areas like California where water supplies can be limited and droughts can 

exacerbate supply issues. The agencies specifically exclude constructed detention 

and retention basins created in dry land used for wastewater recycling as well as 

groundwater recharge basins and percolation ponds built for wastewater recycling. 

This exclusion responds to numerous commenters and encourages water reuse and 

conservation while still appropriately protecting the chemical, physical, and 

biological integrity of the nation’s water under CWA.

Although the agencies have modified the definition of “tributary” in the final rule, 

the preamble states that the agencies have consistently regulated aqueducts and 

canals as “waters of the United States” where they serve as tributaries, removing 

water from one part of the tributary network and moving it to another. The 

agencies have not in practice asserted jurisdiction over these types of features when 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

551

created in dry land With respect to stormwater control features, please see the 

summary response at 7.4.4

Hampton Roads Planning District Commission, Virginia (Doc. #9612)

7.836 4. Manmade flood control and drainage conveyance structures should be excluded 

from the definition of WOTUS. These structures are constructed to prevent loss of life 

and protect property from flooding. A jurisdictional designation will result in more costly 

and time consuming permitting requirements to maintain or expand these structures to 

mitigate flooding. This may discourage flood control projects and may cause harm to the 

public, especially in coastal communities. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Lake County Division of Transportation, Lake County, Illinois (Doc. #14743)

7.837 Under the proposed rule, stormwater management facilities and green infrastructure are 

not explicitly exempt. Lake County encourages the use of green infrastructure as a 

stormwater best management practice (BMP) to lessen flooding and protect water quality 

by using vegetation, soils, and natural processes. The proposed rule could impact these 

County maintained sites by requiring Section 404 permits for maintenance activities once 

the areas are established. This could inadvertently encourage the installation of less 

desirable stormwater management facilities. The proposed rule should specifically 

exclude stormwater management facilities and green infrastructure from federal 

jurisdiction. (p. 1-2)

Agency Response: Please see summary response at 7.4.4.

Airlines For America (Doc. #15439)

7.838 2. Application of the Proposed Rule

EPA and the Corps repeatedly have assured stakeholders that the proposal does not 

expand CWA jurisdiction but simply revises agency regulations to reflect the Agencies’ 

longstanding interpretations. A4A [Airlines For America] supports this aim. 

Unfortunately, however, the Proposed Rule appears sweepingly broad in its reach. 

Moreover, it invites broad interpretation by reason of the subjective standard of 

“significant nexus” that the Agencies have employed when seeking to describe the proper 

reach of the Act.462 Most important, it would operate unpredictably in the context of 

airports. An example is illustrative.

The Proposed Rule’s treatment of tributaries is expansive. In the abstract, the proposal 

would define as a “tributary” and confer jurisdictional status on virtually any channelized 

feature, natural or manmade, that contributes flow.463 This broad universe of “tributaries” 

 

462 ‘‘‘Significant nexus’ is not itself a scientific term. The relationship that waters can have to each other and 

connections downstream that affect the chemical, physical, or biological integrity of traditional navigable waters, 

interstate waters, or the territorial seas is not an all or nothing situation. The existence of a connection, a nexus, does 

not by itself establish that it is a ‘significant nexus.’ There is a gradient in the relation of waters to each other, and 

this is documented in the Report.” 79 Fed. Reg. at 22193, col.2.

463 79 Fed. Reg. at 22263.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

552

could, under the Agencies’ proposal, be interpreted to include any feature that conveys 

stormwater away from or below an airport because manmade features designed to convey 

water offsite are engineered to have a “bed and bank” and to “contribute flow.” In the 

absence of an applicable exclusion, such features would be deemed to be Waters of the 

U.S.

In some cases, it appears that certain of these on-airport features might fit within one of 

the proposed exclusions. Certain open conveyance ditches, for example, might be 

excluded as “ditches that are excavated wholly in uplands, drain only uplands, and have 

less than perennial flow.”464 Where such ditches also receive flow from groundwater, 

however, or are not created wholly in uplands, they presumably would fail these tests and 

would remain categorically jurisdictional tributaries.465 In those cases, permit 

authorization could be required for discharges into a ditch that was never intended as 

anything more than a simple, engineered conveyance.

Similarly, some detention and retention ponds frequently found within airport collection 

systems may fall within the exclusion for “artificial lakes or ponds created by excavating 

and/or diking dry land and used exclusively for such purposes as..., settling basins,....”466

This exclusion (as well as the existing exclusion for wastewater treatment systems) might 

not apply, however, where ponds were not expressly designed or are not expressly relied 

upon for their settling characteristics, but rather are used simply as repositories for water 

that must be removed from runways and taxiways or to provide equalization for off-site 

treatment. Ponds in these latter categories are present at the nation’s airports, including at 

some of the nation’s largest facilities. Rendering such ponds jurisdictional waters would 

oblige operators to obtain permits for discharges into the ponds, likely necessitating 

treatment in locations where system designers and current permit writers never intended 

for treatment to exist.

Case-by-case assessment of “other waters” under the same “significant nexus” test will 

yield the same patchwork of jurisdictional and non-jurisdictional findings in the airfield 

environment.

Overall, it is reasonable to assume that the Proposed Rule would result in the incidental

characterization of individual drainage ditches or detention/retention ponds as WOTUS 

within airport sites. Such characterizations would vastly and unpredictably reshuffle the 

systems that airports, airlines, and their permitting authorities have put in place to meet 

the requirements of the Act. By potentially requiring outfalls within the aircraft 

operations area to be permitted the Proposed Rule would – inadvertently, we assume –

 

464 79 Fed. Reg. at 22269, proposed Section 122.2(b)(3).

465 The proposal’s treatment of “ditches” is equally broad and will allow for similarly disruptive subjective 

determinations by federal regulators. The Agencies have proposed only two exemptions from the definition of 

“ditch”: (1) ditches entirely in uplands, that drain only uplands (for their entire length) and have less than perennial 

flow, and (2) ditches that do not contribute flow. 79 Fed. Reg. at 22263. These exemptions are poorly worded, 

however. For example, from a hydrologic perspective, it is unclear what constitutes a ditch entirely in uplands or 

how a ditch that drains only uplands could ever have perennial flow. Similarly, it is unclear how a ditch that does not 

convey any flow could be considered a water in the first instance. In addition, the rule does not address the common 

occurrence of ditches that are constructed in uplands but which develop spotty wetland characteristics from drainage 

water pooling within the feature.

466 79 Fed. Reg. at 22269, proposed Section 122.2(b)(5)(ii).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

553

render many choices of treatment technology unavailable. On the other hand, by 

requiring permits at on-airfield sites where no treatment can feasibly be placed, the 

Proposed Rule would make it impossible to meet water quality-based effluent limitations 

and, thereby, threaten the sustainability of air service (a result that clearly is 

impermissible under the Federal Aviation Act).

3. Proposed Resolution

The Agencies should consider how to avoid these problems in the current rulemaking. 

Specifically, the Agencies should consider an aviation-specific exclusion of on-airport 

water bodies from the definition of WOTUS to avoid the arbitrary and capricious 

obligation to abandon existing, sufficient, costly pollution control systems where those 

systems already operate under the authorization of NPDES permits. (p. 5-6)

Agency Response: With respect to stormwater control features at airport 

facilities, please see the summary response at 7.4.4

WateReuse Association (Doc. #1349.1)

7.839 Water recycling and reuse remains the one reliable and readily available new source of 

fresh water across the nation. The infrastructure and technologies used to recycle and 

reuse water often incorporate features that could become jurisdictional under the CWA if 

the new rule defining "waters of the U.S." is not properly promulgated. This issue 

deserves additional consideration and we must have the opportunity to understand the

potential unintended consequences of the proposed rule- especially at a time when the 

nation is clearly moving towards utilizing water reuse to help make our communities 

drought resistant and resilient....

While the proposed rule reiterates the exemption for wastewater treatment facilities under 

the CWA, water reuse and recycling infrastructure many times will not fall into this 

category and thus could become jurisdictional. We believe by making water reuse and 

recycling infrastructure and related facilities jurisdictional under the CWA through this 

rule, it will substantially hinder our ability to access this major new source of fresh water 

supply so important to the future of many communities in the U.S. (p. 1, 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. The exclusion also covers 

water distributary structures that are built in dry land for water recycling.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

554

City of Omaha, Nebraska (Doc. #9733)

7.840 The City of Omaha strongly objects to any expansion of jurisdiction as proposed with this 

rule change. If the proposed rule passes, we request at a minimum projects needed to 

comply with NPDES programs and CSO control policies should be explicitly exempt 

from falling under the expanded CWA jurisdiction. (p. 2)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4

Las Virgenes - Triunfo Joint Powers Authority, California (Doc. #13847)

7.841 We wish to emphasize that the proposed rule should specifically state that the waste 

treatment exemption extends to recycled water (RW) facilities. Further, the proposed rule 

should affirm that recycled water reservoirs, along with influent and treated effluent 

storage ponds are included within the scope of the waste treatment exemption.

Failing to apply the waste treatment exemption to water recycling facilities could lead to 

regulatory disincentives to produce RW, which is a significant portion of the JPA's water 

portfolio. Last year, nearly 20 percent of the water delivered by the JPA agencies was 

RW used to irrigate parks, school grounds, highway landscapes, golf courses and 

common areas of multi-family housing developments. Using RW for these purposes 

reduces the demand for potable water resources in drought-stricken California and other 

western states. EPA should ensure any future rules encourage, rather than impede, the 

development of this valued resource. (p. 1)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. The exclusion also covers 

water distributary structures that are built in dry land for water recycling.

County of San Diego, California (Doc. #14782)

7.842 Exemption for water quality treatment features

Any constructed feature built for the purpose of water quality treatment and/or runoff 

control as required by any federal, state, or local agency, including those with wetland 

indicators, connectivity and/or within a floodplain or riparian area, should be specifically 

defined as being non-jurisdictional by rule. In the Federal Register posting, the agencies’

request comment on which waters should be determined non-jurisdictional by rule; this is 

an important example of such. It is imperative that the County, and other local agencies, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

555

be able to construct and maintain water quality treatment facilities to ensure that the 

design and location of such facilities can remain consistent with the goals of stormwater 

management. If these facilities are left undefined, counties and stakeholders would be 

vulnerable to broad application of federal jurisdiction as these facilities would be open to 

being considered jurisdictional by local regulators. If these water quality treatment 

features are considered jurisdictional, then lengthy permitting and possible costly 

mitigation would be required to construct and maintain these features.

EXAMPLE: The County implements bridge replacement projects administered by the 

Federal Highway Administration. These bridge replacement projects are commonly 

located at stream crossings and typically include an increase in impervious surface to 

bring the bridge up to current standards. The increase in impervious surface area would 

trigger a requirement to install detention basins or a similar water quality treatment 

facility pursuant to Clean Water Act Section 402 and the corresponding MS4 permit. In 

this scenario, the water quality treatment facility must be installed adjacent to the new 

impervious surface in order to filter the water, which would also be adjacent to the 

stream. Thus, such a water quality treatment system would likely have direct 

connectivity, be within the floodplain, and within the riparian area. This example 

illustrates the importance of insuring that such facilities can be constructed and 

maintained unimpeded by potentially being considered to impact Waters of the U.S. by a 

significant nexus, wetland, or other determination. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Public Works, Orange County, California (Doc. #14994)

7.843 2. The Agencies should provide specific exemptions:

a. Green infrastructure and other structural Best Management Practices (BMP) required 

by the CWA for water quality protection should be explicitly exempt for the purposes of 

maintenance.

b. Roadside ditches, draining only roadway runoff, should be explicitly exempt.

c. Constructed flood control channels, excavated in upland, should be considered part of 

the MS4 and explicitly exempted. Many such channels have been constructed in portions 

of Orange County (Stanley W. Trimble, Journal of Historical Geography, 29, 3 (2003) 

422-444 Historical hydrographic and hydrologic changes in the San Diego creek 

watershed, Newport Bay, California) and have been inappropriately regulated as waters 

of the U.S. rather than part of the MS4, requiring Section 401/404 certifications/permits 

and being subject to Section 303 requirements (See 1.e above regarding Peters Canyon 

Channel).

d. Routine maintenance of ditches should be explicitly exempt pursuant to CWA 3 

404(f)(l)(b) and (c). To this end, the County supports the recommendation made by 

others to define the term "Fully Constructed Stormwater Control Measures" ("SCMs") as 

follows: "SCMs are human-made structures, devices, measures or Best Management 

Practices (BMPs) that are constructed for the purpose of water quality treatment, 

stormwater volume reduction, stormwater rate control, flood control, stormwater 

conveyance, or any combination of these purposes." The County further supports 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

556

modifications to the Rule's Preamble that defines an exclusion for stormwater that is as 

clear as that for agriculture. (p. 3)

Agency Response: The final rule include exclusions relevant to this comment, 

including exclusions for certain ditches and stormwater control features built in dry

land. See summary response at 7.4.4. 

National Association of Clean Water Agencies (Doc. #15505)

7.844 Water Reuse Exemption Needed

The draft rule does not sufficiently address the issue of recycled water and reuse projects, 

in particular those using constructed treatment wetlands to treat millions of gallons of 

water a day. Under the draft rule these treatment wetlands could be declared WOTUS, 

potentially stifling development of or shutting down innovative recycled water projects. 

Lawmakers and the public alike are recognizing the integral role water reuse will play in 

regions facing severe drought, as demonstrated by California’s recently passed ballot 

measure Water Quality, Supply and Infrastructure Act of 2014, which provides more than 

$7 billion for water infrastructure projects including investments in reuse. Clarifying the 

exemption of these projects designed to reuse treated effluent will ensure that 

jurisdictional questions will not impede their development and help to provide a 

sustainable water supply where it is most critical. There are multiple ways to clarify a 

regulatory exemption of these recycled water projects, which is currently unclear. 

Manmade features, like treatment wetlands, which are components of the water reuse 

process, could be easily included as a component of the waste treatment exemption with 

additional language. A separate exclusion specifically for water reuse and recycling 

elements would also work. (p. 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. The exclusion also covers 

water distributary structures that are built in dry land for water recycling.

7.845 EPA and USACE also have the opportunity to clarify the applicability of the CWA to 

water transfers in this rulemaking. Transferring water from one basin to another is a tool 

used by clean water utilities; it is often an essential element of water resource 

management and warrants close attention as to the jurisdiction of the CWA. In defining 

WOTUS, EPA and the USACE should be clear that jurisdiction does not extend to waters 

transferred from one water body to another without intervening municipal, industrial, or 

agricultural use, for purposes of water utility operations and maintenance.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

557

Also, the final definition of WOTUS will have a direct impact on wastewater utilities and 

other entities engaged in construction, maintenance, repair, and expansion of water 

infrastructure. The rule should incorporate generally accepted practices to assure 

protection of WOTUS, while minimizing regulatory burden and allowing routine 

operation and maintenance of wastewater and stormwater conveyances. For wastewater 

utilities, the ability to engage in timely construction and other maintenance and 

improvement projects has significant implications for infrastructure function, public 

health, local economies, and community quality of life. It is critical that jurisdictional 

changes not delay wastewater system maintenance, repair, and construction activities. (p. 

4)

Agency Response: Regarding water transfers, please see summary response at 

12.3. With respect to stormwater control features, please see the summary response 

at 7.4.4

South Orange County Wastewater Authority, California (Doc. #15619)

7.846 ... the proposed rule lacks sufficient clarity to protect all elements of recycled water 

production and use as fully within the waste treatment exemption. As a recycled water 

producer, SOCWA is keenly aware of the importance of recycled water as a source of 

supply to our agencies and cities. The expansion of jurisdictional waters under the 

proposed rule could complicate and interfere with wastewater treatment processes and 

with new water reuse opportunities. Integral to recycled water projects is a clear 

expression from USEPA that recycled water and appurtenant facilities for the reuse of 

water are within the scope of the waste treatment exception. For sample, in our area, 

south Orange County, California it may become important in the very near future, and in 

light of the ongoing drought conditions to use spreading grounds or basins to facilitate 

groundwater replenishment. We support the request of the CASA organization that the 

proposed rule should expressly include treatment ponds/lagoons, spreading 

grounds/basins , constructed treatment wetlands, effluent storage reservoirs and recycled 

water storage facilities within the scope of the waste treatment exception. All of these of 

facilities are vital to the reuse of the water resources in California.

We are concerned that revisions to the category of "adjacent wetland" to include "all 

adjacent waters" will bring in areas of stored water and water treatment systems 

regardless of whether any sort of nexus or hydraulic connection is shown, and without 

consideration of separations by berms or levees. We do not believe it is the Agencies' 

intent to regulate water reuse facilities, retention and detention basins, groundwater 

recharge basins, constructed wetlands, and similar water and wastewater infrastructure 

that is often simply located adjacent to "waters of the United States." For agencies such 

as SOCWA, the reuse and treatment of wastewater is a valuable resource to improve 

overall water supply and the "all adjacent waters" language will raise issues for projects 

as to whether existing or planned facilities are now jurisdictional waters . This action will 

bring less clarity to public agencies and inhibit their development of water reuse projects. 

Public agencies will be impaired by additional and unnecessary requirements, regulations 

and permitting associated with jurisdictional waters, including the potential for exposure 

to penalties and potential third party liability for effluent violations. This will set up a 

strong disincentive to sustainable water supply development and reduce the ability of 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

558

clean water agencies to act with innovation to put water resources to immediate drought 

relieving uses. We request that EPA consider a similar approach to that given to artificial 

lakes and ponds used for stock water, irrigation and other "such purposes" to include 

"existing, planned and new features of wastewater treatment systems using spreading 

grounds/recharge basins" and "wastewater and recycled water storage and conveyance 

systems". We also suggest that in order to alleviate the water crisis for California 

innovative water reuse/storage systems that put to beneficial reuse treated brackish, 

impaired/urban waters and wastewater resources should be considered for that 

exemption. (p. 1-2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. The exclusion also covers 

water distributary structures that are built in dry land for water recycling.

Orange County Sanitation District, California (Doc. #16335.1)

7.847 In order to address the historic drought conditions currently plaguing the western states, 

water and wastewater agencies must rely on a full suite of flexible options to provide 

potable and recycled water supplies for a variety of ongoing uses. Thus, OCSD opposes 

any direct or indirect regulatory impacts on water recycling, water storage, and other 

mechanisms that playa part in recycled water infrastructure and processes as a result of 

the proposed rule.

As noted above, we appreciate the explicit acknowledgement and codification of the 

waste treatment exemption in the proposed rule. However, we believe it is important that 

the proposed rule expressly states that the waste treatment exemption extends to recycled 

water facilities. California water recycling projects often depend upon artificially created 

wetlands and storage ponds to treat millions of gallons of water a day. If these features 

are considered waters of the U.S. and are excluded from the waste treatment exemption, 

they could theoretically no longer be used as an integral component of the waste 

treatment systems, forcing the closure of important recycled water projects critical to 

California's water supply. Moreover, a lack of clarity on this issue may stall or halt the 

development of recycled water projects at a time when recycling is needed the most to 

address climate resiliency priorities.

Because recycled water demand is variable with time of day and season, recycling water 

agencies maintain reservoirs or storage basins/ponds to store recycled water during 

periods of low usage in anticipation of peak demands. These features are an essential 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

559

component of the recycled water process and integral to an agency's ability to continue 

reliably producing and supplying recycled water in many instances. The proposed rule 

should affirm that such reservoirs along with influent and treated effluent storage ponds 

are within the scope of the waste treatment exemption, consistent with the regulatory 

definition of "complete waste treatment system" found in existing federal regulations.467

As the proposed rule and existing practice acknowledge, waste treatment systems 

designed to meet the requirements of the Clean Water Act are not waters of the U.S., and 

treatment systems should include any facilities, including storage ponds and basins, 

related not only to traditional treatment facilities and processes, but also to the production 

of recycled water.

In the alternative, recycled water facilities and features (including storage ponds, basins, 

artificially created wetlands, recycled water reservoirs and other features associated with 

water recycling) should be expressly exempted as part of the specifically identified 

features that are not considered waters of the U.S. within the proposed rule. In this case, 

recycled water facilities would be treated similar to artificial lakes, ponds, swimming 

pools, ornamental waters, and groundwater, which are specifically identified and 

expressly exempted. In either case, whether recycled water facilities are considered part 

of the waste treatment exemption or have their own specifically identified exemption, it is 

essential that the proposed rule not interfere with recycled water production and treatment 

by making those features jurisdictional.

The failure to include an explicit statement in the final rule would leave open the question 

of whether these features are considered "waters of the U.S." Such a situation could lead 

to regulatory disincentives to produce recycled water in California and other western 

states, compounding a water scarcity situation that is already dire. Pending and adopted 

federal and state legislation to address the impacts of our historic drought contain a 

number of approaches to encourage recycled water projects. Transforming components of 

the recycled water process (including integral systems such as storage ponds) into 

jurisdictional waters would completely undercut efforts to address the drought and have 

resoundingly negative water supply ramifications across the state. We concur with the 

comments of Representative Grace Napolitano (D-CA) delivered to the House 

Committee on Transportation and Infrastructure Committee at the hearing held on June 

11, 2014, as she questioned why in light of the severe drought in California, USEPA 

would not expressly include recycled water within the scope of the waste treatment 

exception . Given the drought and dire need to develop recycled water facilities in the 

arid west, clarification that excludes recycled water facilities from additional federal 

regulation is absolutely vital. (p. 2-3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

 

467 See 40 C.F.R. §35.2005(b)(12), defining "complete waste treatment system" as "all the treatment works 

necessary to meet the requirements of title III of the [CWA], involving . .. the ultimate disposal, including recycling 

or reuse, of the treated wastewater and residues which result from the treatment process." (Emphasis added); see 

also 40 C.F.R. §35.2005(b}(49) [definition of "treatment works" includes "storage of treated wastewater in land 

treatment systems before land application" among other things]
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

560

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and 

retention basins created in dry land used for wastewater 

recycling as well as groundwater recharge basins and 

percolation ponds built for wastewater recycling. The exclusion 

also covers water distributary structures that are built in dry 

land for water recycling.

7.848 The Proposed Amendments to What is Considered an "Adjacent Water" Must be 

Reexamined to Consider Wastewater Treatment Processes

Many wastewater treatment processes, including man-made spreading basins, are located 

near or even "adjacent" to rivers and tributaries that have been (or under the proposed 

rule, would be) designated as waters of the U.S. and may be located in the riparian or 

floodplain areas of these rivers. Because the proposed rule defines "adjacency" and 

includes the incorporation of waters within the flood plain or riparian area of a designated 

water of the U.S. as also being a jurisdictional water (see section 328.3(c)(2)-(4), FR 

22263), this could lead to an interpretation that such spreading basins and artificial 

storage ponds are jurisdictional.

Specifically, the proposed rule would revise the current category of an "adjacent wetland" 

to include all "adjacent waters." (FR 22206) As a result, numerous treatment ponds, 

recycled water reservoirs, and spreading grounds/basins across California could become 

jurisdictional, creating a significant problem and interference with existing wastewater 

treatment processes . For example, under the proposed rule, the Montebello Forebay 

spreading grounds in Southern California would appear to become jurisdictional. Under

existing rules, regulations and case law, a waterbody is considered a water of the U.S. if it 

is a wetland adjacent to a water of the U.S. In contrast, under the proposed rule, all 

waterbodies (of many types) adjacent to a water of the U.S. could be considered 

themselves waters of the U.S., regardless of whether any sort of nexus or hydraulic 

connection has been shown and without any consideration of whether a berm or levee 

separates them. Under the proposed rule, a significant nexus appears to be assumed, as it 

states "...even in cases where a hydrologic connection may not exist, there are other 

important considerations .. .that result in a significant nexus between the adjacent 

wetlands or waters and the nearby "waters of the United States" and (a)(1) through (a)(3) 

waters." (79 FR 22244) As one seeming justification for this expanded interpretation, the 

proposed rule states that "many major species that prefer habitats at the interface of 

wetland and stream ecosystems remain able to utilize both habitats despite the presence 

of such a berm." (Id. at 22245) This use of species preference and behavior to justify 

incorporation of a water with no proven hydrologic connection as a water of the U.S. 

closely resembles the previously invalidated migratory bird rule. As such, terrestrial 

species preference is not an acceptable basis for the assertion of jurisdiction.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

561

If these "adjacent" wastewater and recycled water facilities, including spreading grounds, 

are defined to be within the jurisdiction of the CWA, it would adversely impact water and 

wastewater agencies' ability to augment groundwater supplies and to effectively provide 

wastewater treatment services . The plethora of additional and unnecessary requirements, 

regulations, and permitting associated with making these areas into jurisdictional waters, 

including but not limited to the procurement of an NPDES permit, assigning designated 

uses, exposure to penalties and potential third party liability for effluent violations, and 

impairment of the ability to operate and maintain these areas, would erect new mandates 

with no benefit to the surrounding ecosystems and waterbodies. Such a result represents 

an extreme disincentive to sustainable water supply development and a significant 

impairment of wastewater agencies' ability to protect public health and safety through 

innovative and effective wastewater treatment.

Within the proposed rule, there are two specific exemptions that could potentially address 

this issue. Pursuant to section 328.3(b)(5)(i) and 122.2(b)(5)(i)468, a spreading ground 

could fall under the definition of "[a]rtificially irrigated areas that would revert to upland 

should application of irrigation water to that area cease" (79 FR 22263 and 22268) 

Spreading grounds utilized by wastewater treatment facilities are generally artificially 

created and might not otherwise exist aside from the application of wastewater effluent to 

the area. However, without being explicitly stated, it is not clear enough that this 

definition would apply to upland wastewater spreading grounds. Similarly, pursuant to 

section 328.3(b)(5)(ii) and 122.2(b(5)(ii), wastewater and recycled water ponds and 

spreading grounds could fall under an expanded definition of "[a]rtificial lakes or ponds 

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

stock water, irrigation, settling basins, or rice growing." (79 FR 22263 and 22268) The 

word "such" seems to indicate that these are merely examples, not an exhaustive list, and 

thus spreading grounds utilized in conjunction with and/or as part of the overall 

wastewater treatment process could fall under this exclusion. However, without specific 

references within these provisions to treatment ponds and spreading grounds, OCSD is 

very concerned that these facilities could become jurisdictional and create significant 

problems for agencies attempting to protect public health and the environment. This, we 

would request the explicit inclusion of the terms such as "spreading grounds" and 

"wastewater and recycled water storage," within this section. (p. 4-6)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

 

468 All references are to Part 328 and Part 122, however the language suggestions contained herein similarly apply to 

other regulatory sections that have the potential to impact wastewater entities, including Part 230 (79 FR 22268-

22269), Part 232 (79 FR 22269-22270), and Part 401 (79 FR 22273 -22274).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

562

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. The exclusion also covers 

water distributary structures that are built in dry land for water recycling.

Sacramento Stormwater Quality Partnership (Doc. #17005)

7.849 With respect to stormwater related facilities, this expanded definition of "adjacent" could 

result in structural BMPs, green infrastructure projects, and other multi-purpose benefit 

projects being classified as a WOTUS if such projects are installed in a floodplain 

&riparian zone, or are otherwise determined to be "adjacent" to a traditional navigable 

water. As indicated previously, such facilities are installed so that stormwater agencies 

can reduce pollutants to the maximum extent practical, and many such facilities provide 

for multiple benefits to the environment. For example, green infrastructure projects 

improve water quality, enhance recreational uses, and help to infiltrate water to 

groundwater basins for future municipal and domestic uses. However, under the 

Proposed Rule, such projects could become jurisdictional. Thus, facilities designed and 

implemented to comply with NPDES MS4 permit requirements would be subject to 

further regulation as a WOTUS. Such a result undermines the intent and purpose of such 

facilities and the stormwater program in general, and exposes municipalities to litigation.

Other types of facilities that could be impacted are spreading grounds. In California, 

many municipal agencies operate infiltration basins that are commonly referred to as 

"spreading grounds." Generally, spreading grounds consist of "spreading" recycled water, 

imported water, stormwater, and other water across basins for infiltration. These 

spreading grounds recharge aquifers, and are an essential part of California's efforts to 

manage its water resources. If they fall within' the "adjacent" category, these spreading 

grounds could become a WOTUS and become subject to extensive regulation, under the 

CWA.

Accordingly, it is necessary to specifically exclude stormwater structural BMPs, 

spreading grounds, and other beneficial projects such as green infrastructure from the 

definition of "adjacent." ... (p. 5)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. The exclusion also covers 

water distributary structures that are built in dry land for water recycling.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

563

With respect to stormwater control features, please see the summary response at 

7.4.4

Central Arizona Project (Doc. #3267)

7.850 We have heard in conversations with our federal partners that it was not the intention of 

the EPA nor the Corps of Engineers to include closed public water supply systems such 

as CAP in the new rule. I am writing in the hope that you will confirm this intention in 

writing. This matter has become a major issue in the State of Arizona, and we hope that 

this is an unnecessary concern. It is also our intention to submit formal comments to the 

rulemaking...

...It is with this background on the importance of the CAP to the citizens of Arizona that 

we seek clarification on your agencies' intention to include our closed water canal system 

in the proposed rulemaking. Furthermore, we strongly believe that an appropriate remedy 

would be to include closed aqueduct or diversion canals used in the operation of a public 

water supply system in the exclusions listed with the rule. The attached fact sheet further 

details how tins might be accomplished. (p. 1, 3)

Agency Response: The agencies have consistently regulated aqueducts and canals 

as “waters of the United States” where they serve as tributaries, removing water 

from one part of the tributary network and moving it to another. The agencies have 

not in practice asserted jurisdiction over these types of features when created in dry 

land.

7.851 To address the concerns of the Central Arizona Project, and other major western water 

supply projects, in the expansion of the definition through the U.S. Army Corps of 

Engineers, we propose to amend 33 C.F.R. § 328.3(b)(5) by inserting the following 

exclusion, ‘(viii) Aqueducts or diversion canals used in the operation of a public water 

supply system.’ (p. 6)

Agency Response: See previous response.

Clearwater Watershed District et al (Doc. #9560.1)

7.852 ...the level of significance of water's nexus to traditionally navigable waters, interstate 

waters, and the territorial seas varies across a wide spectrum. We encourage the agencies 

to consider the scientific evidence available on common discharges and work to clearly 

define as exempt those discharge activities that, either due to their minimal level of 

impact directly to navigable water's integrity, or due to the relation of connectivity 

between the impacted water and navigable waters, do not degrade the integrity of waters 

of the United States. (p. 4)

Agency Response: The rule reflects the judgment of the agencies when balancing 

the science, the statute, the Supreme Court opinions, the agencies’ expertise, and the 

regulatory goals of providing clarity to the public while protecting the environment 

and public health. The rule excludes certain waters and features over which the 

agencies have generally not asserted CWA jurisdiction, as well as groundwater, 

which the agencies have never interpreted to be a “water of the United States” 

under the CWA. Codifying these longstanding practices supports the agencies’ goals 

of providing greater clarity, certainty, and predictability for the regulated public 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

564

and regulators, and makes rule implementation clear and practical. The final rule 

provides clear exclusions for certain types of ditches. The final rule also expressly 

excludes stormwater control features created in dry land and certain wastewater 

recycling structures created in dry land. Waters and features that are excluded 

under paragraph (b) of the rule cannot be determined to be jurisdictional under any 

of the categories in the rule under paragraph (a).

Northwest Colorado Council of Governments Water Quality/ Quantity Committee (Doc. 

#10187)

7.853 In both the existing rule and proposed rule, wastewater treatment systems, including 

treatment ponds and lagoons are not considered “waters of the United States.” This 

exemption is only listed for wastewater treatment, which means that water treatment 

systems could fall under CWA jurisdiction. Local governments and water providers own 

and manage treatment ponds and lagoons that are uses for drinking water treatment and 

stormwater management. QQ recommends including all water treatment systems, not just 

wastewater, under this exemption. (p. 7)

Agency Response: Many commenters asked for an exclusion for drinking water 

supply systems, similar to exclusions for wastewater treatment and stormwater 

control. Because water supply networks can be both complex in structure and 

extensive in size, involving the use of tributaries as well as a variety of other 

features, the agencies determined that a complete exclusion of such systems is not 

appropriate. However, not all portions of these systems would be regulated under 

the final rule. Some portions of these systems are tributaries, or even traditional 

navigable waters, and so would be regulated under this rule for the same reasons 

that all such waters are subject to regulation as “waters of the United States.” At 

the same time, there are some portions of these systems that would be excluded from 

regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not 

flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, 

constructed lakes and ponds created in dry land). 

Southeast Florida Utility Council (Doc. #11879)

7.854 Under these definition categories, constructed storage ponds which are part of a 

stormwater/wastewater system (i.e. stormwater or wastewater treatment ponds, storage 

ponds) in Florida could be considered navigable waters because of Florida’s flat 

landscape and broad floodplains or under the significant nexus theory. SEFLUC is 

concerned that storage ponds located within the traditional navigable water’s floodplain 

would be included as navigable waters and require a NPDES permit for discharges that 

may occur under flood conditions. Similarly, SEFLUC is concerned that reclaimed water 

reuse with a direct discharge to stormwater ponds which already requires an NPDES 

permit; may be required to meet water quality standards at the point of discharge, thus 

making the practice cost prohibitive.

SEFLUC is aware of the existing exemption for “waste treatment systems, including 

treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.”, 

however, the limiting language that the system be “designed to meet the requirements of 

the Clean Water Act” raises significant concerns as to whether these storage ponds will 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

565

actually be exempt from the navigable waters definition. The written guidance on the 

scope of this exemption inadequately addresses the issue. Therefore, we recommend the 

exemption should be revised to specifically include, at a minimum, the following: water 

storage facilities; aquifer storage and recovery facilities; stormwater management 

systems that are permitted under federal or authorized state programs; reclaimed water 

storage and conveyance systems; and man-made wetlands that are permitted as part of 

waste water treatment system. Without these revisions, navigable waters may be 

interpreted to include a number of water systems that are clearly outside the scope of the 

intended definition and utility operations will suffer significant adverse impacts. (p. 3)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4. The rule also includes exclusions for wastewater 

recycling structures created in dry land and waste treatment systems. See 

discussion of those exclusions earlier in this Compendium.

Duke Energy (Doc. #13029)

7.855 Implementation

...Stipulate that on-site waters at electrical generation sites that were not previously 

determined as “waters of the Unites States” remain non-jurisdictional through all 

decommissioning processes. (p. 13)

Agency Response: This rule does not affect the implementation process for 

determining jurisdictional determinations in the field. Typically, these 

determinations are valid for five years, absent significant new information.

Florida Power & Light Company (Doc. #13615)

7.856 Utilities also use man-made intake and supply canals that deliver water to power plant 

sites, essentially via open-top pipeline. These are not natural systems as water supply can 

disappear within hours if the river authority limits or stops flow. These features, which 

can be miles long, are not currently classified as WOTUS and serve a similar function to 

irrigation canals. Additionally, man-man discharge canals convey treated water offsite 

and may be considered distinct from a waste treatment system; however, they are not 

WOTUS. It will be important that the final rule clarify that these features are nonjurisdictional.

To that end, we further recommend the following regulatory revision to 33 CFR 

328.3(b),469 with additions in underlined bold.

(b) The following are not "waters of the United States" notwithstanding whether 

they meet the terms of paragraphs (a)( I) through (7) of this section-

...

(6) Cooling water impoundments, canals, and water conveyances, including, 

but not limited to:

(i) Cooling water impoundments and reserve cooling water ponds;

 

469 As proposed at 79 Federal Register 22263 (April 2 1, 20 14).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

566

(ii) Intake and supply canals, including open-top canals, pipelines, and other 

man-made sources;

(iii) Discharge canals, including those used for heat dissipation.

The final rule should expressly confirm that explicit exemptions such as the waste 

treatment systems exemption and an exemption for reserve coo ling water impoundments, 

canals, and water conveyances apply regard less of the jurisdictional language for 

WOTUS. We also recommend that the agencies make clear that any man-made structures 

that are not created from WOTUS or whose construction pre-dates the CWA, should not 

be considered jurisdictional. (p. 6-7)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded. In contrast, the agencies have consistently regulated 

aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land.

Calleguas Municipal Water District, Thousand Oaks, California (Doc. #13959)

7.857 As with any other water provider, in order to achieve our water quality and reliability 

goals, Calleguas needs predictability and certainty in determining if a water body is 

subject to jurisdiction of the CWA, and the Agencies need to be specific about the degree 

of regulation that accompanies that designation. Regulatory certainty is essential not only 

for water agencies to understand how to plan for and meet water quality objectives, but 

also protects water agencies from potential litigation for CWA violations. Unfortunately, 

the proposed rule does little to address these issues. Instead, it introduces new concepts, 

definitions, and tests that would vastly expand the universe of waters defined as “waters 

of the United States.” To better balance the broad interest of the CWA in protecting the 

nation’s surface waters while not unduly interfering with the ability of water agencies to 

provide water, Calleguas recommends the following:

 Components of water conveyance systems, including ditches, should be excluded 

from the proposed definition of “waters of the United States.”

 Water infrastructure, such as terminal reservoirs, recycled water facilities, 

groundwater recharge basins, stormwater retention basins, and constructed wetlands, 

adjacent to “waters of the United States” should be excluded from jurisdiction under 

the proposed rule.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

567

Calleguas requests water infrastructure facilities (including construction, maintenance, 

and operation) adjacent to traditionally navigable waters be excluded from the proposed 

definition of “waters of the United States”. (p. 1-2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. 

The exclusion also covers water distributary structures that are built in dry land for 

water recycling. These features often connect or carry flow to other water recycling 

structures, for example a channel or canal that carries water to a percolation pond. 

The agencies have not considered these water distributary systems jurisdictional 

where they do not have surface connections back into, and contribute flow to, 

“waters of the United States.” In contrast, the agencies have consistently regulated 

aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land. With respect to stormwater control features, 

please see the summary response at 7.4.4.

Southern Company (Doc. #14134)

7.858 The primary function of stormwater retention impoundments, or other green 

infrastructure related features, e.g., bioswales, is to detain stormwater and facilitate 

pollutant removal through settling and biological uptake. EPA should clarify that 

conveyances of any kind leading into such structures designed to protect water quality are 

not jurisdictional. Such clarification is needed to avoid added confusion and regulatory 

burdens imposed upon environmentally optimal features, many of which are required in 

the first place for compliance with the CWA. (p. 48-49)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

568

Agency Response: Please see previous response. With regard to green 

infrastructure, see summary response at 7.4.4.

Southern Nevada Water Authority (Doc. #14580)

7.859 Dry lake beds, or playas, are common in the desert southwest. These geographic low 

areas may occasionally contain water from seasonal rain events, and are the terminal 

location for water from ephemeral washes. By their nature, they do not contribute flow to 

traditional WOTUS. SNWA recommends the Proposed Ru1e clarify that isolated dry lake 

beds (playas), and their associated tributaries, are not jurisdictional, even if they are 

located in a basin that may contain other jurisdictional waters. (p. 2)

Agency Response: The agencies at this time are not able to determine that the 

available science supports that playa lakes as a class have a significant nexus to 

traditional navigable waters, interstate waters, or the territorial seas. However, to 

be clear, under the rule, individual waters of the suggested additional subcategories 

are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) 

(e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water 

or one that is determined on a case-specific basis to have a significant nexus to a 

traditional navigable water, interstate water, or the territorial seas). See the 

Technical Support Document, section I, for a discussion of the SWANCC decision’s 

effect on jurisdiction.

7.860 The EPA and Corps did not propose any changes to the existing exclusion from 

jurisdiction for waste treatment systems designed consistent with the requirements of the 

CWA. However, SNWA is concerned the broad definition of "tributaries" under the 

Proposed Rule could result in components of public water supply and wastewater 

treatment systems, such as man-made ditches, canals, and off-river storage ponds, 

becoming subject to regulation as WOTUS. This additional regulation would be 

unnecessarily burdensome, as the delivery of water through these systems is already 

subject to CWA permitting. SNWA recommends ditches, canals, ponds, and other manmade features used in the operation of public water treatment and supply and wastewater 

treatment and discharge systems be specifically excluded from jurisdiction as WOTUS. 

(p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

569

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. 

The exclusion also covers water distributary structures that are built in dry land for 

water recycling. These features often connect or carry flow to other water recycling 

structures, for example a channel or canal that carries water to a percolation pond. 

The agencies have not considered these water distributary systems jurisdictional 

where they do not have surface connections back into, and contribute flow to, 

“waters of the United States.” In contrast, the agencies have consistently regulated 

aqueducts and canals as “waters of the United States” where they serve as 

tributaries, removing water from one part of the tributary network and moving it to 

another. The agencies have not in practice asserted jurisdiction over these types of 

features when created in dry land.

Central Arizona Water Conservation District (Doc. #14585)

7.861 CAWCD stresses that the concerns expressed in this comment letter are not specific to 

the CAP [Central Arizona Project]. Many public water supply systems with features 

similar to the CAP have raised like concerns over the impact of the proposed rulemaking. 

Therefore, any solution that addresses the concerns of CAWCD should be broad enough 

to exempt both the CAP and other public water supply systems. With that understanding 

in mind, CAWCD proposes the following language be inserted into the definition of 

WOTUS proposed in 33 C.F.R. § 328.3(b)(5), 40 C.F.R. § 110.1, 112.2, 116.3, 117.1, 

122.2, 230.3, 232.2, 300.5, part 300 App. E, 302.3, and 401.11: 

"(viii) Aqueducts or diversion canals used in the operation of a public water 

supply system and related conveyance, storage, and distribution facilities." 

Alternatively, CAWCD requests that the Agencies provide a specific exemption from the 

rulemaking for the CAP system and related conveyance, storage, and distribution 

facilities. CAWCD believes that such a categorical or specific exclusion is consistent 

with the intentions of the Agencies in promulgating the proposed rule and consistent with 

the EPA’s Water Transfers Rule. (p. 6-7)

Agency Response: The agencies have consistently regulated aqueducts and canals 

as “waters of the United States” where they serve as tributaries, removing water 

from one part of the tributary network and moving it to another. The agencies have 

not in practice asserted jurisdiction over these types of features when created in dry 

land.

The Clean Energy Group Waters Initiative (Doc. #14616)

7.862 ...it is unclear if man-made intake canals that respectively deliver water to power sites 

would be regulated as WOTUS...if the rule is not clarified. These are not natural systems 

as water supply can disappear within hours if the river authority limits or stops flow, but 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

570

some are unlikely to be considered part of a waste treatment system. Thus, it will be 

important that the final rule clarify that these features are exempted from WOTUS. 

Furthermore, any waste treatment system that has a discharge to a WOTUS is already 

regulated through limits on the receiving waters. (p. 2)

Agency Response: The agencies have consistently regulated aqueducts and canals 

as “waters of the United States” where they serve as tributaries, removing water 

from one part of the tributary network and moving it to another. The agencies have 

not in practice asserted jurisdiction over these types of features when created in dry 

land. The rule makes no substantive change to the existing exclusion for waste 

treatment systems designed consistent with the requirements of the CWA.

Metropolitan Water District of Southern California (Doc. #14637)

7.863 Metropolitan understands that the Agencies do not intend the proposed rule to change the 

regulation of water supply facilities and infrastructure, including groundwater basins, or 

the regulatory status of water transfers. (See 79 Fed. Reg. at 22189, 22193,22199, 

22218). Metropolitan fully supports the Agencies' intent not to change the regulation of 

water supply facilities and infrastructure because it is concerned about the proposed rule's 

potential expansion of CWA jurisdiction beyond existing guidance. However, the 

proposed rule defines a "tributary" for the first time and states that a tributary "can be a 

natural, man-altered, or man-made water and includes waters such as rivers, streams, 

lakes, ponds, impoundments, canals, and ditches not excluded in paragraph (b)(3) or (4) 

.... " (79 Fed. Reg. 22263). Under this definition, some of the water-related features in the 

arid west that make up Metropolitan's drinking water infrastructure could be interpreted 

to be tributaries of a water of the United States. Accordingly, Metropolitan requests that 

the Agencies provide clear exclusions for water delivery facilities and infrastructure, 

including groundwater basins. Otherwise, if sections of Metropolitan's drinking water 

infrastructure were to be considered waters of the United States, expensive, complex, and 

time-consuming CWA permits could be required, except if the water transfers rule 

applied.

...

In order to meet water supply needs, western water utilities and providers such as 

Metropolitan must make substantial infrastructure investments. Such investments include 

new or expanded storage reservoirs; reuse facilities; treatment plants; and water 

collection, delivery, and distribution pipelines or other types of conveyances. Many of 

these facilities will, of necessity, be in somewhat close proximity to the types of "waters" 

described in the proposed rule. It is essential that these critical activities, which may be 

undertaken in direct response to emergency conditions related to drought, fire, or postfire damage, do not unnecessarily trigger a federal nexus and the associated lengthy and 

costly permitting procedures. (p. 4-5, 10)

Agency Response: The final rule has modified the definition of “tributary” and 

“neighboring” for the purposes of determining adjacency. In addition, the final rule 

has expanded the features not considered “waters of the United States” to include 

certain wastewater treatment, artificial ponds, and stormwater facilities that may 

address some of the features discussed in this comment, where constructed in dry 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

571

land. However, when constructed in, or impounding, waters of the United States, 

these features may still be considered jurisdictional.

Santa Clara Valley Water District (Doc. #14776)

7.864 C. Artificial Ditches, Canals, or Channels Used For Public Water Supply

Operations Should Be Excluded

The District operates several ditches, channels, and canals whose function is to deliver 

water from one artificial water-supply management facility to another. These ditches, 

channels, and canals are artificial, in whole or in part. The Proposed Rule excludes 

numerous artificial features: "[a]rtificially irrigated areas," "[a]rtificial lakes or ponds," 

"[a]rtificial reflecting pools or swimming pools," "[s]mall ornamental waters," and 

"depressions created incidental to construction." (79 Fed.Reg. 22263.) These artificial 

features are excepted in apparent recognition of the fact that, but for human control, they 

would not have water in them. The same principle applies to the type of artificial ditches, 

canals, and channels operated by the District: They generally operate via human

intervention, and would not have water flowing through them but for control

mechanisms. The artificial segments of ditches, channels, and canals used for watersupply operations should likewise be excluded.

To put it another way, surface channels that function as pipelines should not be

distinguished from pipelines. The Proposed Rule seems to recognize, for instance, that a 

sewer is not a tributary. An artificial channel used to move water from place to place in 

substantially the same manner as a pipeline is in all relevant respects no different than a 

sewer, and should not be classified as a water. Congress could not have intended sewers 

or sewer-equivalent channels to be waters of the United States.

A new sub-sub-paragraph to the Proposed Rule should be added to (b )(5) as follows: 

"(viii) Artificial segments of ditches, channels, or canals used for public water supply 

operations." (p. 7-8)

Agency Response: Many commenters asked for an exclusion for drinking water 

supply systems, similar to exclusions for wastewater treatment and stormwater 

control. Because water supply networks can be both complex in structure and 

extensive in size, involving the use of tributaries as well as a variety of other 

features, the agencies determined that a complete exclusion of such systems is not 

appropriate. However, not all portions of these systems would be regulated under 

the final rule. Some portions of these systems are tributaries, or even traditional 

navigable waters, and so would be regulated under this rule for the same reasons 

that all such waters are subject to regulation as “waters of the United States.” At 

the same time, there are some portions of these systems that would be excluded from 

regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not 

flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, 

constructed lakes and ponds created in dry land). 

7.865 D. Other Artificial Water Treatment And Supply Facilities Should Be Excluded

The District operates artificial treatment ponds, lagoons, wetlands, bioswales, water 

supply storage facilities, aquifer storage and recovery facilities, water conveyance 

facilities, stormwater management and capture facilities (municipal separate storm sewer 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

572

systems or MS4 ), and recycled water storage and conveyance facilities. These artificial 

water treatment and supply facilities should be excluded from the Proposed Rule for two 

reasons.

First, they further the goals and policies of the CWA. In the CWA, Congress's policy was 

to respect and protect State-level efforts to manage water use: It is the policy of the 

Congress to recognize, preserve, and protect the primary responsibilities and rights of 

States to prevent, reduce, and eliminate pollution, [and] to plan the development and use 

(including restoration, preservation, and enhancement) of land and water resources ... (33

U.S.C. § 1251(b).)

In apparent recognition of this policy, the Proposed Rule already would exclude "[w]aste 

treatment systems ... designed to meet the requirements of the Clean Water Act." (79 Fed. 

Reg. 22263.) But the other facilities designed by local public agencies to ensure safe; 

clean, and reliable water services also further this policy. They, too, should be excluded 

from the Proposed Rule.

Second, these facilities are artificial, and should be excluded just as other artificial 

facilities are. As noted above, the Proposed Rule would already exempt numerous 

artificial features, in apparent recognition of the fact that, but for human intervention, 

they would not have water in them. Under the same principle, artificial water-supply 

facilities should also be excluded.

Another new sub-sub-paragraph to the Proposed Rule should be added to (b )(5) as 

follows: "(ix) Artificial facilities used for water treatment or supply by State or local 

public agencies." (p. 8)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. With regard to stormwater management facilities, see summary 

response 7.4.4.

The Fertilizer Institute (Doc. #14915)

7.866 ...many water management systems at both mining and industrial sites have features that 

could be included under the definition of WOTUS as proposed. On-site containment and 

treatment ponds, diversion and conveyance ditches, closed loop systems, and mine pits 

that are critical to both mining and industrial processes, and are used to manage, contain, 

and treat on-site waters generally must comply with existing state and federal 

environmental standards. These existing standards can include the CWA, Surface Mining 

Control and Reclamation Action, and the Mine Safety and Health Act. Additionally, if 

and when water leaves a mine site, or industrial facility, it is generally subject to CWA 

Section 402 standards. Because these various water containment and treatment features 

are already subject to both state and federal permitting requirements, including them 

under the definition of WOTUS would not provide any additional environmental benefit, 

would increase compliance costs, and may create competing permitting regimes, thus 

creating confusing and/or conflicting compliance obligations. Accordingly, EPA should 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

573

specifically exempt from the definition of WOTUS any water management systems or 

treatment ponds, impoundments, or systems at mining and/or industrial facilities that are 

already subject to environmental permitting requirements or have a CWA permitted 

outfall for discharge. (p. 4-5)

Agency Response: As stated in the SMCRA statute, SMCRA “shall not be deemed 

in any way to repeal or supersede any portion of the Federal Water Pollution 

Control Act and no control or treatment under this subsection shall in any way be 

less than that required under the Federal Water Pollution Control Act.” The 

agencies believe that the two statutes have complementary, but differing, mandates 

and therefore is not appropriate to add a specific exclusion for features authorized 

under SMCRA. 

Current agencies’ practices often consider some features described in this comments 

as “waste treatment systems” during the active period of mining, and are therefore 

excluded from coverage until reclaimed. Nothing in the rule is intended to alter the 

current application of the waste treatment exclusion.

With respect to stormwater control features, please see the summary response at 

7.4.4.

Salt River Project Agricultural and Power District and the Salt River Valley Water Users 

Association (Doc. #14928)

7.867 2. Explicitly exclude all man-made stormwater retention and groundwater recharge 

basins from the proposed definition of Waters of the U.S. Although artificial lakes or 

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

purposes as "settling" are proposed to be excluded from the proposed definition, it is 

unclear from the preamble whether the agencies intend to exclude basins that directly 

discharge to the subsurface. (p. 16)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

574

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. 

With respect to stormwater control features, please see the summary response at 

7.4.4. 

7.868 3. Explicitly exclude all non-tidal roadside, stormwater, and agricultural ditches from the 

proposed definition of tributary. Moreover, the agencies should reiterate in the final rule 

that MS4s are not Waters of the U.S. (p. 17)

Agency Response: The final rule clarifies and expands the ditches not considered 

“Waters of the United States.” With respect to stormwater control features (e.g. 

those that part of MS4s), please see the summary response at 7.4.4.

7.869 4. Exclude all isolated impoundments, including upland connecting tributaries, from the 

proposed definition of Waters of the U.S. When all upland flow is terminated at a flood 

control structure or diverted for beneficial uses and there is no discernible surface water 

connection to §328.3 (a)(l) through (a)(3) waters, CWA jurisdiction is not warranted. (p. 

17)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded.

Nucor Corp. (Doc. #14963)

7.870 ...many manufacturing facilities utilize on-site stormwater retention systems and closedloop process water recycling systems, including retention ponds, which may be located in 

floodplains. Under the proposed rule and the far-reaching extension of jurisdiction to 

"adjacent" waters located in floodplains and "other waters" (i.e., waters that can be 

aggregated with other "similarly situated" waters), the Agencies likely could consider 

many of these systems categorically "waters of the United States" despite the fact that 

they are entirely man-made and/or not originally located in jurisdictional waters. Such 

systems should be categorically excluded from jurisdiction under any new version of the 

definition of "waters of the United States". (p. 13)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

575

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. 

With respect to stormwater control features, please see the summary response at 

7.4.4.

7.871 ...the proposed rule provides that "adjacent waters" (presumably including "other 

waters") will be considered jurisdictional even if separated from "(a)(l) through (a)(3)" 

waters "even where the two waters may be separated by features that are not 

jurisdictional, such as uplands, berms, roads, levees and similar features ." 79 Fed. Reg. 

22210. In other words, where stormwater and process water ditches and other water 

management features such as retention ponds are located in a flood plain separated from 

an "(a)(l) through (a)(3)" jurisdictional water, such features will be "waters of the United 

States". This provision has the effect of including isolated waters (similar to those at issue 

in SWANCC) as jurisdictional waters, even though they are intentionally isolated from the 

"(a)(l) through (a)(3)" water. When applied to industrial process water systems and 

stormwater management systems, the proposed rule stretches jurisdiction "beyond 

parody". The rule should be revised to exclude such waters. (p. 13)

Agency Response: The agencies have modified the definition of “neighboring” 

with respect to evaluating adjacency in the final rule. The final rule also states that 

waters excluded in paragraph (b) are not considered “waters of the United States”, 

even where they otherwise meet the terms of paragraphs (a)(4)-(a)(8). With respect 

to stormwater control features, please see the summary response at 7.4.4.

American Public Power Association (Doc. #15008)

7.872 ...The proposed rule will impose federal CWA regulation on features that are constructed 

and used pursuant to other federal and state regulatory programs. For example, power 

plants that do not use “once through” cooling often have onsite tempering ponds to assist 

in the transfer of waste heat to the atmosphere in order to meet CWA National Pollutant 

Discharge Elimination System (NPDES) permit limits on thermal shock to navigable 

waters. While similar enclosures within a wastewater treatment plant are specifically 

excluded from the definition of a WOTUS, that same exemption does not appear to apply 

to power plant structures within the fence-line. (p. 6)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

576

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded.

Utility Water Act Group (Doc. #15016)

7.873 VI. Other Important Water Management Systems Lawfully Created to Serve Power 

Plants and Other Industrial Facilities Also Should Be Exempted from the WOTUS 

Definition.

Power plants also rely on raw water and other service water ponds that store rain water, 

stormwater runoff, and water withdrawn from other waterbodies for eventual use by the 

facility. In some cases, the pond is large enough to allow sedimentation to occur, 

effectively cleaning the water for later use. Some facilities may discharge treated effluent 

to such ponds for re-use, in which case the same permitting issues noted above may 

pertain.

For those ponds that do not qualify as waste treatment systems, classifying this type of 

man-made water feature as a WOTUS could have at least four important and costly 

impacts.

The first stems from EPA’s § 316(b) regulations, which impose extensive data collection, 

technology, and monitoring requirements for “cooling water intake structures” that 

withdraw water from waters of the United States. The second concerns the need for an 

NPDES permit to transfer water from a source water to the raw or service water. 

Although EPA’s NPDES rules include a provision exempting the transfer of water from 

one water of the United States to another without any intervening industrial, municipal or 

commercial use, the U.S. District Court for the Southern District of New York recently 

remanded and partially vacated that rule.470 While the district court’s decision is under 

appeal, the threat remains real. The third concerns the need for § 404 permits for any 

maintenance or expansion of the pond or impoundment. And the fourth concerns safety 

implications for service water ponds.

Imposing § 316(b) requirements on cooling water withdrawals from ponds and reservoirs 

purpose-built to supply water for steam electric plants, requiring NPDES permits to 

transfer water into such ponds or reservoirs, or requiring § 404 permits to perform 

maintenance activities on such ponds would impose enormous costs without any 

corresponding environmental benefit. Consider this example (one of many). A UWAG 

member constructed a raw water reservoir to serve its steam electric generating station. 

The reservoir is man-made, purpose-built, and inextricably linked to power plant 

operations. Raw water from the river intake is pumped to the reservoir for storage; raw 

water from the reservoir is then pumped to the power station for use as cooling water. 

 

470 Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 8 F. Supp. 3d 500, 567 567 (S.D.N.Y. 2014).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

577

Cooling water intake structures (“CWISs”) are located at both the river and the reservoir. 

While the company has been planning for § 316(b) requirements to apply to the river 

CWIS, it has not done the same for the reservoir CWIS, because historically the raw 

water reservoir has not been deemed to be a WOTUS. Under the Proposed Rule, the 

reservoir may be deemed a WOTUS under the Agencies’ expansive definitions of 

“tributary,” “adjacent” or “other waters.” If the WOTUS rule is finalized as proposed and 

the reservoir is deemed to be a WOTUS, then the reservoir CWIS will be subject to the § 

316(b) rule, and discharges of raw water to or withdrawals from the reservoir, as well as 

maintenance of the reservoir, will be subject to other CWA regulatory programs (e.g., §§ 

402 and 404 permitting, § 401 water quality certification, water quality standards and 

TMDLs).

Classifying service water ponds as jurisdictional could create similarly significant 

burdens and create safety concerns. For example, a UWAG member has a nuclear 

generating facility with a service water pond that withdraws water from an adjacent 

reservoir. To prevent biofouling and reduce corrosion of safety-related components, 

aggressive chemical treatment of service water in this pond is required. If this pond were 

classified as a WOTUS, and the use of treatment chemicals was restricted, such 

restrictions could impact safety systems at the facility. 

To avoid substantial and unnecessary impacts of this kind, UWAG requests that the 

Agencies add an exclusion to clarify that ponds and impoundments used for raw water 

storage and transfer are not WOTUS, in order to allow their continued use without 

creating significant issues. (p. 86-88)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded.

Edison Electric Institute (Doc. #15032)

7.874 Water withdrawn from a water of the U.S. for industrial use should be excluded from 

itself being a water of the U.S., even if impounded or conveyed via a ditch or other openair conveyance. Likewise, ditches that discharge to a water of the U.S. already are 

regulated as point sources, within the existing statutory and regulatory provisions 

governing such sources, and should not themselves be waters of the U.S.471 With these 

changes, it will be clearer that the agencies are not regulating the movement of 

 

471 If ditches were waters of the U.S., water flowing from the ditch to lake or river or stream would be a water 

transfer that is not subject to NPDES permit regulations, reducing water quality protection. 40 C.F.R § 122.3(i). This 

result is not consistent with the CWA.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

578

stormwater runoff, cooling water, and process water, and electric utilities can continue to 

move water about their facilities using open, man-made surface conveyance systems. 

Utilities also will be able to continue to rely on nationwide permits such as Nationwide 

Permits 12 and 51 to conduct activities, such as installation and maintenance of 

transmission lines and renewable energy facilities. (p. 29)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded. With regard to stormwater, see summary response 7.4.4.

However, the agencies disagree that these exclusions should be broadened to the 

point that they encompass all industrial uses or all features that contain waters 

subject to regulation as point sources.

Chino Basin Watermaster (Doc. #15046)

7.875 We appreciate EPA’s position that the Proposed Rule does not change the existing 

regulatory exclusion for wastewater treatment systems that have been designed to meet 

the requirements of the CWA. Nonetheless, Section (b) of the Proposed Rule (40 C.F.R. 

§ 328.3(b)) does not expressly exclude water reuse and recycling infrastructure that is 

part of wastewater treatment systems from CWA jurisdiction. To unequivocally provide 

that such infrastructure is excluded from the definition of “waters of the United States,” 

the facilities that must be clearly listed in the wastewater system exclusion include: water 

reuse and recycling ponds, water treatment lagoons, and other appurtenances; artificially 

constructed wetlands designed to treat agricultural or stormwater runoff (e.g., “green 

infrastructure”) that can be used to manage the removal of sediment, nutrients and 

improve water quality for water reuse and recycling; and artificially constructed 

groundwater recharge basins designed to percolate surface water into groundwater basins 

for reuse and recycling. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

579

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

With respect to stormwater control features, please see the summary response at 

7.4.4.

7.876 ...we therefore request that: (1) the categorical exclusion for wastewater systems 

specified in Section (b) of the proposed regulation be expanded to expressly include 

water reuse and recycling ponds, water treatment lagoons, artificially constructed 

wetlands designed to treat agricultural or stormwater runoff, and artificially constructed 

groundwater recharge basins...(p. 3)

Agency Response: See response above. 

San Diego County Water Authority, California (Doc. #15089)

7.877 The proposed rule presumes that all impoundments of waters of the United States are 

jurisdictional. The San Diego Region has a number of local man-made reservoirs, 

constructed for the purpose of drinking water supply that are owned, operated and 

maintained by the water utility and have no downstream discharges. A number of the 

reservoirs simply act as forebays to surface water treatment plants, storing imported 

water or other local supplies that are delivered by pipeline to the reservoirs. They are 

isolated or lack any significant nexus to waters of the United States in the watershed 

where the reservoir is located. Because the reservoirs store water that is delivered from 

waters of the United States, in the proposed rule they are presumed to be jurisdictional. 

This definition in the rule is based on case law related to reservoirs that are integral to a 

stream or river system where the court found that once a water is of national concern, 

diversion or storage does not eliminate it from national concern. This approach was 

inappropriately expanded to include all impoundments without regard to the exclusion of 

isolated waters as described by the court in Solid Waste Agency of Northern Cook 

County v. US Army Corps of Engineers (SWANNC),531 U.S 159(2001), or application 

of the significant nexus test in Rapanos v. United States, 547 U.S. 715(2006). We ask that 

a specific exclusion be added to the rule for water supply impoundments that are isolated 

or have no significant nexus to waters of the United States within the watershed where 

the impoundment is located. (p. 3)

Agency Response: The rule states that all impoundments of waters otherwise 

identified as waters of the United States are considered “waters of the United 

States”, unless otherwise excluded. However, the final rule has expanded the 

features not considered “waters of the United States” to include certain wastewater 

treatment, artificial ponds, and stormwater facilities that may address some of the 

features discussed in this comment, where constructed in dry land.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

580

7.878 The proposed rule would significantly expand Federal Clean Water Act jurisdiction over

recycled water projects that are currently regulated by the States. Under the proposed

definition, all waters “adjacent” to waters of the United States will be presumed to be

jurisdictional having a substantial impact on the chemical, biological or physical integrity

of traditional navigable waters or interstate waters. “Adjacent” is further defined to mean

bordering or neighboring, which includes waters located within the riparian area, where

surface or subsurface hydrology influences the ecological processes, or a flood plain. The 

State of California has been targeting long-term groundwater storage and recharge

projects to create more sustainable supplies. The proposed definition, if strictly

interpreted, would include percolation basins used to recharge the groundwater for 

potable reuse and many recycled water impoundments. Given the local geology in the

San Diego Region (narrow, shallow alluvial deposits make up most groundwater basins)

the enhancement of natural groundwater supplies using man-made conveyances, such as

infiltration basins and injection wells would likely need to be co-located near a riparian

corridor or flood plain. The expansion of the rule to cover “bordering or neighboring”

waters located within the riparian area, if interpreted broadly, would make groundwater

storage and recharge projects, including recharge with recycled water, in the region

largely infeasible due to interference with jurisdictional waters.

In California, recycled water groundwater recharge projects and recycled water

impoundments are currently permitted under extensive and comprehensive State

regulations. These include criteria for groundwater recharge and non-potable reuse of

recycled water that balance the need for water supply development with water quality

standards that support other beneficial uses. Recycled water projects constitute a

significant source of water supply for the State of California. The San Diego region

currently has several recycled water groundwater recharge projects being proposed to

augment our local water supplies and reduce our dependence on imported water.

California issues waste discharge permits or water reclamation criteria that are consistent

with state criteria and other basin plan objectives. The local recycled water supplies have

not historically been considered waters of the United States.

The expansion of the definition to include all waters, and not just wetlands, as addressed

by the Supreme Court, could bring many of the recycled water uses that have been

effectively regulated by California for over 50 years into the definition of waters of the

United States. An additional regulatory layer requiring National Pollutant Discharge

Elimination System permits will add requirements that are not necessary and will

interfere with the State’s ability to maintain use of existing water sources and develop

additional critical water supplies. We recommend that specific exclusions be added to the 

rule for recycled water recharge basins, recycled water impoundments, and aquifer

storage and recharge projects. (p. 3-4) 

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

581

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

7.879 As a water supplier, we encourage the use of watershed-based water quality solutions –

including natural treatment systems, constructed wetlands and green infrastructure – to 

protect the chemical, biological and physical integrity of our source water supplies. Our 

local lakes and reservoirs that are waters of the United States are impacted by nutrient 

loadings from urban and agricultural runoff. Implementation of integrated solutions in 

conjunction with the dischargers on the watershed has been impeded by the prescriptive 

requirements of the Clean Water Act. Natural treatment facilities can improve water 

quality and have the added benefit of providing interim habitat, but would not necessarily 

be designed specifically for that purpose. In addition, routine mechanical maintenance, 

including the periodic removal of excess plant growth or sediment, would be required.

The proposed rule could be interpreted to include natural treatment systems, constructed 

wetlands, and green infrastructure as waters of the United States. This will be a deterrent 

to using natural watershed based treatment systems for management of nutrients and 

improving downstream water quality. If these constructed natural treatment systems are 

independently considered a water of the United States, then it would add an extra layer of 

regulatory requirements that would create permitting delays and barriers to 

implementation, limit the ability to maintain the facilities, and would reduce the viability 

of natural treatment systems as cost effective solutions to improve water quality. We ask 

that a specific exclusion be added to the rule for natural treatment systems, constructed 

wetlands, and green infrastructure. (p. 4-5)

Agency Response: With respect to stormwater control features (e.g., green 

infrastructure), please see the summary response at 7.4.4.

7.880 The proposed rule also says that “a tributary, including wetlands can be man-altered or 

man-made water and includes waters such as rivers, streams, lakes, ponds, 

impoundments, canals and ditches.” It also says that certain types of ditches are not 

waters of the United States. It is unclear if water supply and wastewater infrastructure, 

storm drain systems, concrete channels or other water-related infrastructure would be 

considered waters of the United States. Including these man-made aqueducts, canals, 

channels, pipelines or storm drains as waters of the United States would interfere with the 

ability to operate and maintain water infrastructure. We ask that the rule specifically 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

582

exclude man-made aqueducts, canals, channels, pipelines and storm drains from the 

definition of waters of the United States. (p. 5)

Agency Response: The agencies have consistently regulated aqueducts and canals 

as “waters of the United States” where they serve as tributaries, removing water 

from one part of the tributary network and moving it to another. The agencies have 

not in practice asserted jurisdiction over these types of features when created in dry 

land. The rule makes no substantive change to the existing exclusion for waste 

treatment systems designed consistent with the requirements of the CWA. With 

respect to stormwater control features, please see the summary response at 7.4.4.

Luminant (Doc. #15100)

7.881 The Proposed Rule should be revised to ensure that previously non-jurisdictional water 

features remain excluded from the definition of "waters of the United States." Under the 

proposed rule, water features commonly found on power plant and mine sites which are 

currently not considered jurisdictional could be included in the definition of "waters of 

the United States." Ditches, on-site ponds, impoundments, and other water management 

features are integral to power generation and mining operations, and are used to manage 

on-site waters in an environmentally sound and frequently statutorily mandated manner. 

(p. 3)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional.

This rule does not affect the implementation process for determining jurisdictional 

determinations in the field. Typically, these determinations are valid for five years, 

absent significant new information.

7.882 Luminant urges that many water features such as ditches, other conveyances and facilities 

that are designed, constructed and used to manage, store and treat water that are currently 

excluded from CWA jurisdiction should be clearly excluded in any final rule. At steam 

electric generating facilities and surface mines, these conveyances and facilities 

(including canals, swales, containment basins and ponds, cooling ponds, spill diversion 

ditches, raw water and service water ponds, wastewater collection/treatment ponds, 

intake and discharge canals, construction ponds, and roadside and other ditches) are 

engineered and constructed specifically to protect waters of the U.S. by maintaining 

separation. Maintenance is routinely performed on these features in addition to those 

associated with coal piles, waste disposal areas; building or equipment pads; roads or rail 

spurs; and above ground pipelines. These conveyances are typically a part of a larger 

treatment system designed to prevent spills and other contamination from reaching waters 

of the U.S. and are often authorized under a federal- or state-implemented NPDES 

program. Such conveyances may also be part of engineered safety systems used to insure 

the integrity of dikes and dams. If these manmade features become subject to regulation 

as waters of the U.S. the resulting requirements for permitting routine maintenance, 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

583

cleanout, or emergency repairs could require significant time and actually compromise 

the environments they were engineered (and often required by other federal and/or state 

rules) to protect. (p. 6-7) 

Agency Response: See previous response.

Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. #15114)

7.883 EPA's Water Transfers Rule. The preamble to the proposed rule states, multiple times, 

that "[t]he agencies propose ... no change to the regulatory status of water transfers.”472

EPA's Water Transfers Rule excludes any "activity that conveys or connects waters of the 

United States without subjecting the transferred water to intervening industrial, 

municipal, or commercial use" from the National Pollutant Discharge Elimination System 

(NPDES) created by the CWA.473 The Water Transfers Rule does not define "waters of 

the United States," although EPA relied on one of the definitions the agencies propose to 

change.474

The proposed rule should be revised to expressly state in the text of the Code of Federal 

Regulations (ill addition to the Preamble) that it does not change the regulatory status of 

water transfers. (p. 10)

Agency Response: Regarding water transfers, please see summary response at 

12.3.

Bella Vista Water District, Redding, California (Doc. #15149)

7.884 Water conveyance systems, including ditches, should be excluded from the proposed 

definition of “waters of the United States.” (p. 2)

Agency Response: See the preamble and Technical Support Document for a 

discussion of the ditches excluded from being considered “waters of the United 

States.”

7.885 Water infrastructure, such as recycled water facilities, groundwater recharge basins, 

stormwater, retention basins, and constructed wetlands, adjacent to "waters of the United 

States" should be excluded from jurisdiction under the proposed rule. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

 

472 79 Fed. Reg. at 22 189; see also id. at 22193, 22199 and 22217.

473 40 C.F.R. § 122.3(i) ("Water transfer means an activity that conveys or connects waters of the United States 

without subjecting the transferred water to intervening industrial, municipal, or commercial use . . .”).

474 See 40 CFR § 122.2. 73 Fed. Reg. 33,697, at 33,699, note 2 (June 13, 2008).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

584

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. 

With respect to stormwater control features, please see the summary response at 

7.4.4.

7.886 Bella Vista Water District facilities include backwash settling/water recycling ponds, 

water storage tank overflow ditches, and emergency discharge ditches at its wells. Bella 

Vista Water District requests water infrastructure facilities (including construction, 

maintenance, and operation) adjacent to traditionally navigable waters be excluded from 

the proposed definition of "waters of the United States." (p. 2)

Agency Response: The agencies have modified the final definition of 

“neighboring” with regard to adjacency. The final rule has expanded the features 

not considered “waters of the United States” to include certain wastewater 

treatment, artificial ponds, and stormwater facilities that may address some of the 

features discussed in this comment, where constructed in dry land. However, when 

constructed in, or impounding, waters of the United States, these features may still 

be considered jurisdictional.

Association of Metropolitan Water Agencies et al. (Doc. #15157)

7.887 Infrastructure used to transport and store water are critical components of the systems 

used to provide drinking water, process wastewater, and manage storm water. With 

limited exceptions, current and past practice under the CWA has been not to treat water 

system infrastructure as subject to WOTUS restrictions when carrying out normal 

operational and maintenance activities. In particular, water supply and treatment 

operations and maintenance activities conducted by a water utility within or associated 

with water supply conveyances, storage, and treatment facilities should be specifically 

exempted from WOTUS restrictions.

Similarly, the final rule should retain the current exclusion (33 CFR 328.3(a) and 40 CFR 

122.2) for “waste treatment systems” and it should be clear that that the exclusions 

include residual management systems associated with drinking water treatment. The 

current rulemaking also presents an opportunity to clarify that release of drinking water 

or wastewater to dry land, such as through a sanitary sewer overflow (SSO), do not 

constitute a discharge to a jurisdictional water body.

Water infrastructure facilities encompass a broad range of structures and activities, 

ranging from green infrastructure (e.g., infiltration trenches, swales, artificial wetlands, 

etc.) to ground-water recharge basins and percolation ponds, constructed wetlands, and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

585

ground-water wells, water recycling facilities, and stormwater retention basins. The final 

rule exclusion for water infrastructure should clearly and explicitly encompass the full 

breadth of water utility operations.

This request for an exclusion, which is consistent with historical practice, speaks directly 

to the rulemaking goal of a clear definition of WOTUS and consistent implementation of 

the CWA. For situations that fall outside of any exclusions for ongoing operations and 

maintenance activities, further efforts also need to be made to eliminate the ambiguity 

introduced by a number of important terms in the proposed definition. Terms like 

“adjacent”, “tributary” and “wetland” must be clearly defined to ensure that they are not 

construed as applying to water utility infrastructure, including facilities and practices 

such as those listed above. (p. 2-3)

Agency Response: The agencies have revised and clarified the proposed definition 

of “tributary” and “neighboring” in the final rule. The final rule makes no 

substantive changes to the existing exclusion for waste treatment systems. The final 

rule has also expanded the features not considered “waters of the United States” to 

include certain wastewater treatment, artificial ponds, and stormwater facilities that 

may address some of the features discussed in this comment, where constructed in 

dry land. However, when constructed in, or impounding, waters of the United 

States, these features may still be considered jurisdictional. With respect to 

stormwater control features, please see the summary response at 7.4.4.

Alameda County Flood Control and Water Conservation District, Zone 7, California (Doc. 

#15259)

7.888 Water resource infrastructure, such as recycled water facilities, water treatment facilities 

(and associated basins), groundwater recharge basins, stormwater retention basins and 

constructed wetlands, adjacent to "waters of the United States" should be excluded from 

jurisdiction under the proposed rule. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

586

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water. With respect to stormwater control features, please see the 

summary response at 7.4.4.

7.889 Zone 7 requests that water, wastewater and stormwater infrastructure facilities (including 

those used for construction, maintenance, detention, storage, settling and operation) 

adjacent to traditionally navigable waters be excluded from the proposed definition of 

"waters of the United States. (p. 2)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 

impounding, waters of the United States, these features may still be considered 

jurisdictional. With respect to stormwater control features, please see the summary 

response at 7.4.4.

Beaver Water District, Lowell, Arkansas (Doc. #15405)

7.890 Water system infrastructure should generally be exempt from WOTUS jurisdiction when 

normal operational and maintenance activities are carried out using best management 

practices. (p. 2)

Agency Response: See previous response.

Eastern Municipal Water District, Perris, California (Doc. #15409)

7.891 Under the proposed rule, water recycling and reuse facilities are not explicitly excluded 

from being designated waters of the U.S. Ditches that transport effluent or conduct 

discharged excess water are essential features of a water recycling facility and would 

meet the definition of “tributary” under the proposed rule and therefore be categorically 

regulated as waters of the U.S. Water recycling facilities also include storage ponds and 

percolation basins that would also be considered jurisdictional waters under the rule. The 

proposed rule defines a “tributary” as any natural or man-made feature that has bed and 

banks and an ordinary high water mark, and conducts flow to another water. The rule 

goes further to clarify that wetlands, lakes, and ponds that do not have ordinary high 

water marks are also waters of the U.S. According to the proposed rule, these tributaries 

remain waters of the U.S. even if piped or obstructed for any length so long as tributary 

characteristics can be identified upstream of the break.

Water recycling and reuse facilities are frequently located in a floodplain or otherwise 

adjacent to jurisdictional water, where the rule proposes that all “waters” would be 

categorically defined as waters of the U.S. While the proposed rule includes an 

exemption for artificial lakes and ponds used exclusively for settling basins, water 

recycling facilities can receive and discharge water into surface ditches that would not be 

exempt under the rule, therefore making the water recycling facilities subject to 

jurisdiction. Similarly, detention basins that hold potable water for future treatment and 

distribution would also be jurisdictional under this interpretation. It is not unusual for a 

water district to have hundreds of acres of these environmentally benign manmade 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

587

settling and storage basins which have historically not been jurisdictional. Additionally, 

the proposed rule’s wastewater treatment exemption would not extend to an associated 

wastewater recycling facility because such facilities to not treat waste, and are not 

expressly “designed to meet the requirements of the Clean Water Act,” a condition 

stipulated in the proposed rule that would not cover a beneficial use not addressed in the 

Act. 

... EMWD requests that water recycling and reuse facilities should be expressly 

excluded from this rule. The exclusion must be clear and included in the text of the 

rule, not merely discussed in the preamble. With the effects of climate change and 

drought in the western U.S., developing new environmentally superior drought-proof 

sources of water must be encouraged by the federal government. This rule could 

discourage water reuse and interfere with the successful deployment of U.S. Bureau of 

Reclamation Title XVI and other programs. Unfortunately, the economic analysis that 

accompanies the proposed rule completely ignores the potential impact on water 

recycling and reuse. (p. 3-4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

7.892 Exclusion for Water Delivery Systems

EMWD’s customers, as with most Californians, depend upon imported water to 

supplement limited local water supply. These systems are comprised of canals and 

reservoirs that transport water across watersheds to urban areas and traverse much of the 

state to deliver water for agriculture, municipal, and industrial uses. Like the State Water 

Project, the Central Valley Project, and the Colorado River Aqueduct in California, other 

regions of the country have state and federal water delivery systems whose surface water 

features meet the definition of “tributary” and could be defined as waters of the U.S. The 

Central Arizona Project (CAP) governing board recently adopted a resolution opposing 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

588

the rule: “...because [the] outcome could be disastrous for CAP and its customers; 

treatment methods for that volume of water are technically impractical and the costs of 

compliance are prohibitively expensive.”

EMWD echoes these concerns, and notes that these water delivery systems exist not only 

in the arid west but in many other parts of the country where storm water flows are 

diverted and stored for later treatment for drinking water and other beneficial uses.

Again, the man-made reservoirs, delivery canals and overflow channels meet the 

definition of a tributary and could be defined as waters of the U.S. under the proposed 

rule. Such designation could dramatically affect the operations and management of these 

systems and impose new regulatory requirements that would increase operation costs or 

possibly impede the optimal performance of these water delivery systems—with no 

discernible environmental benefit. As with water recycling and reuse facilities, EPA has 

stated repeatedly that regulating these facilities is not the intent of the proposed rule. As 

such, EMWD requests a clear categorical exclusion for water conveyance facilities to 

ensure that these systems can continue to efficiently meet water supply needs. (p. 4-5)

Agency Response: The agencies have consistently regulated aqueducts and canals 

as “waters of the United States” where they serve as tributaries, removing water 

from one part of the tributary network and moving it to another. The agencies have 

not in practice asserted jurisdiction over these types of features when created in dry 

land. The rule makes no substantive change to the existing exclusion for waste 

treatment systems designed consistent with the requirements of the CWA.

Grand Valley Water Users Association et al. (Doc. #15467)

7.893 The proposed rule continues the explicit exemption for ditches, canals and 

retention/detention/treatment ponds, that are part of wastewater treatment systems, but 

the rule should also categorically exempt the same structures associated with permitted 

stormwater management and drinking water treatment systems. (p. 3)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4. Many commenters asked for an exclusion for drinking 

water supply systems, similar to exclusions for wastewater treatment and 

stormwater control. Because water supply networks can be both complex in 

structure and extensive in size, involving the use of tributaries as well as a variety of 

other features, the agencies determined that a complete exclusion of such systems is 

not appropriate. However, not all portions of these systems would be regulated 

under the final rule. Some portions of these systems are tributaries, or even 

traditional navigable waters, and so would be regulated under this rule for the same 

reasons that all such waters are subject to regulation as “waters of the United 

States.” At the same time, there are some portions of these systems that would be 

excluded from regulation under the paragraph (b) exclusions, including (b)(3) 

(ditches that do not flow into a navigable water, interstate water or territorial sea) 

or (4)(B)(artificial, constructed lakes and ponds created in dry land.

Aqua America, Inc. (Doc. #15529)

7.894 ...Aqua supports the exclusions for "waste treatment systems", but believes this 

exclusion needs to be expanded to include all water and wastewater infrastructures. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

589

Water and wastewater facilities are already heavily regulated under the Safe Drinking 

Water Act (SDWA) and CWA. An important goal of the proposed rulemaking should be 

to avoid duplicate regulations that impede environmental improvements. Examples of 

highly regulated activities that should be included in the exclusions are municipal 

separate storm systems (MS4s), stormwater retention basins, "green infrastructure" 

practices (e.g., infiltration trenches, swales and artificial wetlands), water reuse, 

recycling, and reclamation operations, ground water wells, and water treatment systems. 

The exclusion for water infrastructure should clearly and explicitly encompass the full 

breadth of water and wastewater utility operations. (p. 1-2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

With respect to stormwater control features, please see the summary response at 

7.4.4.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.895 Water Supply Systems. It appears that the Proposed Rule would treat most water supply 

systems, ranging from major federal and state water delivery systems to smaller 

reservoirs and other water system components managed by local governments, as 

“tributaries.” The rule exempts wastewater treatment systems from jurisdiction, but does 

not include a similar exemption for water supply systems. Regulation of water system 

components under the CWA would impose a needless burden on water purveyors. The 

Agencies should categorically exempt water supply systems (including treatment 

systems) from regulation under the Proposed Rule. (p. 29)

Agency Response: Many commenters asked for an exclusion for drinking water 

supply systems, similar to exclusions for wastewater treatment and stormwater 

control. Because water supply networks can be both complex in structure and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

590

extensive in size, involving the use of tributaries as well as a variety of other 

features, the agencies determined that a complete exclusion of such systems is not 

appropriate. However, not all portions of these systems would be regulated under 

the final rule. Some portions of these systems are tributaries, or even traditional 

navigable waters, and so would be regulated under this rule for the same reasons 

that all such waters are subject to regulation as “waters of the United States.” At 

the same time, there are some portions of these systems that would be excluded from 

regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not 

flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, 

constructed lakes and ponds created in dry land.

7.896 Water Reuse and Recharge Facilities. It appears that the Proposed Rule would regulate 

many water reuse and recharge facilities, even facilities that do not discharge to any other 

jurisdictional waters. These types of facilities often include recharge ponds or recycled 

water impoundments that abut traditional navigable waters. The Agencies should 

categorically exempt water reuse and recharge facilities from regulation under the 

Proposed Rule. (p. 29)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

7.897 Off-Site Storage Facilities. As discussed in Section III.A above, the Proposed Rule could 

be interpreted to regulate manmade facilities that lawfully appropriate and remove water 

from the natural environment, such as an off-river storage pond, an intake canal or 

cooling pond for a power plant, or forebay for a hydro-electric plant. The Agencies 

should categorically exempt such facilities from regulation under the Proposed Rule. (p. 

31)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

591

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded.

7.898 Waste Impoundments. The Proposed Rule could be interpreted to regulate waste 

impoundments historically regulated under Resource Conservation and Recovery Act. 

The Agencies should clarify that the Proposed Rule does not regulate such areas under 

the CWA. (p. 32)

Agency Response: The rule makes no substantive change to the existing exclusion 

for waste treatment systems designed consistent with the requirements of the CWA.

San Luis & Delta-Mendota Water Authority, Los Banos, California (Doc. #15645)

7.899 F: Disincentives to the necessary expansion of recycled and reclaimed water development

Under the proposed rule, water reclamation and reuse facilities are not exempt from being 

designated "waters of the U.S." Added regulatory burdens would not only increase the 

cost of recycled water, a vitally important emerging new water source throughout the 

West, but could unnecessarily hamper the development of this water supply. Water 

reclamation and reuse facilities should be expressly exempt from this rule. (p. 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

592

SCANA Services, Inc. (Doc. #15660)

7.900 We believe that language in the proposed rule needs to clearly state that stormwater 

management facilities, such as stormwater retention ponds, constructed under a 

stormwater pollution prevention plan are excluded from regulation as "waters of the 

United States." (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.901 SCANA would like to see language included that exempts ponds or impoundments 

constructed to perform reactor safety functions at nuclear generating facilities (such as 

the Service Water Pond at the Virgil C. Summer Nuclear Station, Unit 1) from being 

identified as waters of the United States. Such ponds perform a critical safety function 

and needed repairs to dikes or other structures should be allowed to occur without CWA 

Section 404 permitting. (p. 2)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded.

Association of Electronic Companies of Texas, Inc. (Doc. #16433)

7.902 The electric industry involves the construction, operation, and maintenance of electric 

generation facilities, and the decommissioning of other electric generation facilities. The 

Proposed Rule would trigger new and/or revised regulatory requirements for the 

construction, operation, maintenance, and decommissioning of electric generation 

facilities. Permitting and compliance costs to address those new and/or revised regulatory 

requirements would result in delays to adding new electric power to the grid, which is 

necessary to meet the electric power needs of a growing population.

Further, the operation of electric generation facilities usually involves cooling water and 

wastewater conveyance, storage, and treatment systems that are critical for providing 

adequate water to cool electric generating units and for the appropriate treatment and then 

recycling and/or discharge of wastewater generated by those units. Wastewater treatment 

systems (except for cooling ponds) that are designed to meet the requirements of the 

CWA have long been excluded by rule from the definition of WOTUS.475 As explained 

below, AECT is concerned that the Proposed Rule would eliminate such regulatory 

exclusions, despite the EPA's and the Corps' statement that the Proposed Rule "does not 

 

475 See for example 33 C.F.R. § 328.3(a)(8), 40 C.F.R. § 117(i)(6), 40 C.F.R. § I22.2(g), 40 C.F.R. § 230.3(s)(7), 40 

C.F.R. § 232.2, 40 C.F.R. § 300.5, and Appendix E to Part 300, section 1.5.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

593

change regulatory exclusions for waste treatment systems"476 and that such exclusion 

would remain "even if they would otherwise fall within one of the categories [of 

WOTUS].”477

Unlike the exclusion for wastewater systems, there is no express exclusion that the EPA 

and the Corps say would be preserved for cooling water systems. Although EPA and the 

Corps state that "[t]he agencies propose, for the first time, to exclude by regu1ation 

certain waters and features over which the agencies have as a policy matter generally not 

asserted CWA jurisdiction," it is not clear whether the agencies are referring to part or all 

of a cooling water system (e.g., ditches or other features associated with a cooling water 

system at an electric generating facility) that have historically been excluded from CWA 

jurisdiction.478

...AECT requests that EPA and the Corps expressly exempt all parts of such cooling and 

wastewater systems. Any impact to the water in such a cooling and/or wastewater system 

would have no impact on the chemical, physical, or biological characteristics of waters 

outside the site boundary, and if the water in such a cooling and/or wastewater system 

would ever be discharged outside the site boundaries, their discharges would be subject to 

strict water quality standards and effluent limitations. (p. 4, 5)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have 

changed “exclusively” to “primarily” in describing the uses. Artificial lakes and 

ponds are often not used exclusively for one purpose and can have other beneficial 

purposes, such as animal habitat, water retention or recreation. The change to the 

exclusion reflects Agency practice and ensures that waters the agencies have 

historically not treated as jurisdictional do not become so because of another 

incidental beneficial use. The agencies have also added cooling ponds to the list of 

uses in the rule. The list of uses has always been illustrative rather than exhaustive, 

and this addition responds to many requests to clarify that cooling ponds created in 

dry land are excluded.

Inland Empire Utilities Agency, California (Doc. #16520)

7.903 We appreciate EPA's explanation that the proposed rule would not change the existing 

regulatory exclusion for wastewater treatment systems that have been designed to meet 

the requirements of the CWA. However, Section (b) of the proposed rule does not clearly 

state that water reuse and recycling infrastructure that are part of wastewater treatment 

systems are excluded. The types of facilities that need to be clearly listed in the 

wastewater system exemption include water reuse and recycling ponds, water treatment 

lagoons, and other appurtenances; artificially constructed wetlands designed to treat 

agricultural or stormwater runoff (e.g. "green infrastructure") that can be used to manage 

the removal of sediment and nutrients and improve water quality for water reuse and 

recycling; and, artificially constructed groundwater recharge basins designed to percolate 

surface water into groundwater basins for reuse and recycling.

 

476 79 Fed. Reg, 22193; see a similar statement at79 Fed. Reg. 22189.

477 79 Fed. Reg. 222 17.

478 79 Fed. Reg. 22189.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

594

Given the severity of the current drought throughout the west and rising concerns about 

the impact of climate change on the nation's long-term water supply reliability, it is vital 

that the steps that are being taken by the EPA and the Corps to protect the "waters of the 

United States" not impede the development and use of recycled water and stormwater for 

groundwater replenishment and direct use as a water supply.

On behalf of IEUA, we request that the wastewater systems exemption specified in 

Section (b) of the proposed regulation be expanded to include water reuse and recycling 

ponds, water treatment lagoons, artificially constructed wetlands designed to treat 

agricultural or stormwater runoff, and artificially constructed groundwater recharge 

basins as listed above... (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

With respect to stormwater control features (e.g., green infrastructure), please see 

the summary response at 7.4.4.

ARIPPA (Doc. #16545.1)

7.904 Most existing legacy coal refuse stock piles are found on Abandoned Mine Lands. In 

order to reclaim these lands back to their natural state coal refuse to alternative energy 

plants must first acquire permitting to remove and re-mine legacy stockpiled coal refuse. 

ARIPPA Members have a major concern as to the economic impacts the rule will have on 

such permitting and re-mining. Many of these legacy coal refuse stockpile sites impacted 

surface waters (since in the past coal refuse was often stockpiled in swales, drainage 

ways, and streams prior to laws and regulations disallowing such activity).

Today, these legacy "stockpile sites" are the source of fuel for the ARIPPA Member 

electric generating plants. As such, the sites are re-mined under the state delegated 

SMCRA Permits and state delegated NPDES Program. However, ARIPPA is concerned 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

595

that the rule as written will hinder and delay ARIPPA Members' ability to obtain the 

necessary permits to remove these legacy stockpiles that are a major source of acid mine 

pollution and stream degradation.

These sites are currently well regulated under Pennsylvania's Surface Mine and the 

Beneficial Use of Ash Regulations. ARIPPA Members work closely with the PADEP

[Pennsylvania Department of Environmental Protection] Mining Bureau to eliminate 

these sources of mine drainage, sedimentation, and air pollution in both a safe and 

environmentally responsible manner. In fact many plants have won environmental 

steward awards for their work in re- mining legacy coal refuse stock piles and reclaiming 

the correlating abandoned mine sites. 

At a minimum these projects should be clearly excluded from the rule and should be left 

under the jurisdiction of the Office of Surface Mining and Reclamation (OSMRE). 

Further, Congress has directed. OSMRE to develop regulations encouraging the remining of coal refuse sites and piles. (p. 4-5)

Agency Response: The agencies disagree that these types of features or activities

should be categorically excluded from consideration as “waters of the United 

States.” The agencies support the goals of remining activities but feel it is more 

appropriate to encourage these activities through streamlined permitting options, 

such as Nationwide Permits.

Cucamonga Valley Water District, California (Doc. #16556)

7.905 Water reclamation and reuse facilities are not exempt from being designated waters of the 

U.S. Ditches that transport effluent or discharged water can easily meet the definition of 

"tributary" under the proposed rule and be categorically regulated as waters of the U.S. 

The proposed rule defines a "tributary" as any natural or man-made feature that has a bed, 

bank, ordinary high water mark, and conducts flow to another water. Reclamation and 

reuse facilities are frequently located in a floodplain or otherwise adjacent to 

jurisdictional water where all waters are categorically defined as waters of the U.S. While 

the proposed rule includes an exemption for artificial lakes and ponds used exclusively 

for settling basins, such reuse facilities can function or take on the characteristics of a 

wetland and can receive and discharge water into surface ditches that are not exempt. The 

proposed rule's waste water treatment exemption would not extend to an associated water 

reuse facility because such facilities are not expressly "designed to meet the requirements 

of the Clean Water Act," a condition stipulated in the rule that would not cover a 

beneficial use not addressed in the Clean Water Act.

California acknowledges the value of recycled water and established a statewide goal 

(California Water Plan) of recycling 2.5 million acre feet of water by 2030. In 2009, 0.67 

MAF was recycled; and increasing to 2.5 MAF is ambitious, but necessary to help 

drought-proof the state. Currently, 3.5 MAF of treated wastewater is being discharged to 

the ocean that could be developed for beneficial reuse. Obstacles such as designating 

some water reuse facilities as waters of the U.S. will further delay achieving that goal.

Water reclamation and reuse facilities should be expressly exempt from this rule, 

particularly in times of drought such as the one that currently affects most western states; 

developing new sources of water for consumption should be encouraged. This rule could 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

596

discourage water reuse and interfere with the successful deployment of U.S Bureau of 

Reclamation Title XVI programs. Of equal concern is that the economic analysis that 

accompanies the propose rule completely ignores the potential impact on water reuse. (p. 

2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061)

7.906 The proposed rule revises the existing jurisdictional category of "adjacent wetlands." The 

proposed "adjacent waters" category would replace "adjacent wetlands" and would thus 

include other neighboring water bodies, including those located in the adjacent flood 

plain or having a shallow subsurface hydrologic connection or confined surface 

hydrologic connection to a jurisdictional water. As stated above, CLWA relies on water 

banking programs in the San Joaquin Valley. Some of these programs rely on man-made 

spreading facilities that would appear to fall under the new definition of adjacent waters. 

Further, to reduce reliance on environmentally sensitive imported water such as that 

being conveyed through the Sacramento San Joaquin Bay Delta, CLWA is investigating 

the feasibility of using highly treated recycled water to recharge groundwater basins 

adjacent to the Santa Clara River. Such groundwater recharge facilities may share storm 

water capture facilities being considered by the City of Santa Clarita. Thus, CLWA joins 

ACWA in requesting that water infrastructure facilities including construction, 

maintenance and operation adjacent to traditionally navigable water be excluded from the 

proposed definition of "waters of the U.S." (p. 2)

Agency Response: The final rule has expanded the features not considered 

“waters of the United States” to include certain wastewater treatment, artificial 

ponds, and stormwater facilities that may address some of the features discussed in 

this comment, where constructed in dry land. However, when constructed in, or 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

597

impounding, waters of the United States, these features may still be considered 

jurisdictional.

Cloud Peak Energy (Doc. #18010)

7.907 Under the proposed rule it is not clear whether these on-site water management systems 

will remain non-jurisdictional. We are concerned that inclusion of these treatment and 

conveyance systems will significantly impact mining operations. If the rule is not 

clarified, the unintended consequence will be that many of these traditional, effective 

treatment systems will no longer be available to the mining industry. Moreover, the 

mining industry requests a clear statement in the rule that these mine site water 

management systems are non-jurisdictional.

If the onsite treatment systems are considered jurisdictional, mines will face additional 

permitting requirements related to these treatment systems. Mines will no longer be able 

to relocate the systems as needed without additional permitting requirements and 

associated delays. System maintenance and clean-out may be delayed or stopped because 

of the jurisdictional status and the inability to impact the system without triggering 

possible mitigation requirements. These onsite treatment systems must remain nonjurisdictional if they are to remain effective treatment systems.

Many of these onsite treatment systems are designed to ensure that if there are any 

surface discharges from a mine site into downstream navigable waters, those discharges 

are covered under an NPDES permit. As such possible, violations of the applicable water 

quality standards are covered through NPDES regulations. Often times these treatment 

systems are designed to be zero discharge, further safeguarding that there are no 

environmental impacts. The need to include these as jurisdictional waters is unwarranted 

because the discharges from these systems are already regulated through other CWA 

regulations. (p. 4)

Agency Response: Current agencies’ practices often consider some features 

described in this comments as “waste treatment systems” during the active period of 

mining, and are therefore excluded from coverage until reclaimed. Nothing in the 

rule is intended to alter the current application of the waste treatment exclusion.

Xcel Energy (Doc. #18023)

7.908 ... Constructed stormwater conveyances (such as swales, channels, ditches, and 

engineered storm water management ponds), water supply ditches, and ephemeral 

drainages should not be treated as jurisdictional Waters of the U.S....” (p. 7-8)

Agency Response: With respect to stormwater control features, please see the 

summary response at 7.4.4.

WateReuse Association (WateReuse) (Doc. #12758)

7.909 We believe the agencies should exclude all other constructed or managed water reuse and 

recycling treatment infrastructure. Such facilities have related attributes to waste 

treatment systems by providing an important mechanism for the beneficial disposition of 

treated effluent. Additionally, these systems also provide an important and 

environmentally superior water supply function. As such, excluded facilities should 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

598

encompass all water reuse and recycling conveyance systems, storage impoundments, 

water treatment lagoons, and other appurtenances; artificially constructed wetlands 

designed to treat agricultural or stormwater runoff (e.g. "green infrastructure") that can be 

used to manage the removal of sediment, nutrients and improve water quality for water 

reuse and recycling; and artificially constructed groundwater recharge basins designed to 

percolate surface water into groundwater basins for reuse and recycling.

Even though many of these man-made features can contain plants and shrubs known to 

grow in wetlands or meet the proposed rule's definition of "tributary" or "adjacent," they 

should be included in the list of features identified in the proposed rule as excluded from 

the definition of "waters of the U.S." We believe that if water reuse and recycling 

infrastructure and related facilities are made jurisdictional under the CWA through the 

proposed rule, it would substantially hinder our ability to access this major source of 

fresh water supply so important to the current and future water supply reliability of many 

communities across the Nation. (p. 2-3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

With respect to stormwater control features, please see the summary response at 

7.4.4.

Eastern Municipal Water District, Perris California (Doc. #15544)

7.910 Exclusion for Water Recycling and Reuse Facilities

Recycled water is a beneficial use that develops reliable local water resources and 

reduces demand for imported water supplies. In addition, it is one of the highest forms of 

water use efficiency because water is literally used twice. Moreover, recycled water is an 

environmentally benign supply that is a key component of the present and future water 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

599

supply portfolio not only for EMWD, southern California and the arid west, but for every 

region of the country seeking to more effectively manage water resources.

The processes for recycling and reusing water are costly but are becoming more widely 

implemented in areas of the country where groundwater and surface water sources are 

strained, and the cost or availability of imported water are prohibitive or limited. Water 

authorities across the country, especially those in the arid west, are investing millions of 

dollars in infrastructure to utilize recycled water because it is a drought-proof water 

resource. Treatment and distribution costs of recycled water are already high, making this 

valuable resource marginally cost-effective in many places. Any significant increase in 

regulation and the associated costs for compliance, such as defining recycled water 

infrastructure as waters of the U.S., will escalate the cost of utilizing this water and 

discourage its development.

Under the proposed rule, water recycling and reuse facilities are not explicitly excluded 

from being designated waters of the U.S. Ditches that transport effluent or conduct 

discharged excess water are essential features of a water recycling facility and would 

meet the definition of “tributary” under the proposed rule and therefore be categorically 

regulated as waters of the U.S. Water recycling facilities also include storage ponds and 

percolation basins that would also be considered jurisdictional waters under the rule. The 

proposed rule defines a “tributary” as any natural or manmade feature that has bed and 

banks and an ordinary high water mark, and conducts flow to another water. The rule 

goes further to clarify that wetlands, lakes, and ponds that do not have ordinary high 

water marks are also waters of the U.S. According to the proposed rule, these tributaries 

remain waters of the U.S. even if piped or obstructed for any length so long as tributary 

characteristics can be identified upstream of the break.

Water recycling and reuse facilities are frequently located in a floodplain or otherwise 

adjacent to jurisdictional water, where the rule proposes that all “waters” would be 

categorically defined as waters of the U.S. While the proposed rule includes an 

exemption for artificial lakes and ponds used exclusively for settling basins, water 

recycling facilities can receive and discharge water into surface ditches that would not be 

exempt under the rule, therefore making the water recycling facilities subject to 

jurisdiction. Similarly, detention basins that hold potable water for future treatment and 

distribution would also be jurisdictional under this interpretation. It is not unusual for a 

water district to have hundreds of acres of these environmentally benign man-made 

settling and storage basins which have historically not been jurisdictional. Additionally, 

the proposed rule’s wastewater treatment exemption would not extend to an associated 

wastewater recycling facility because such facilities to not treat waste, and are not 

expressly “designed to meet the requirements of the Clean Water Act,” a condition 

stipulated in the proposed rule that would not cover a beneficial use not addressed in the 

Act.

Under the proposed rule, ten EMWD man-made recycled water storage ponds could 

become jurisdictional because they are located in floodplains, are adjacent to 

jurisdictional waters, and potentially possess a minor subsurface hydrologic connection. 

These facilities have no hydraulic connection to waters of the U.S. and are not subject to 

flooding or spill into such waters. Should these facilities become jurisdictional under the 

proposed rule, regular maintenance and vegetation removal of these 500 acres of man-
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

600

made and maintained ponds would require 404 permits. Even more problematic and 

costly would be the additional regulatory requirements associated with these features 

being designated as waters of the U.S., namely the potential requirements to meet water 

quality standards for fishable and swimmable waters and to control all discharges into 

these waters.

These added regulatory burdens would not only increase the cost of recycled water and 

potentially delay further development of recycled water storage ponds, but could hamper 

the development of a critically important drought-proof water supply for the region. 

These water storage facilities are essential to maximize the use of recycled water because 

recycled water is in greater demand in warmer months and less in the winter, requiring 

storage in the winter in order to meet the demand in summer. Such a system is required 

anywhere in the arid west that utilizes recycled water, as well as other areas of the 

country that store water for later treatment and delivery.

EMWD requests that water recycling and reuse facilities should be expressly excluded 

from this rule. The exclusion must be clear and included in the text of the rule, not 

merely discussed in the preamble. With the effects of climate change and drought in the 

western U.S., developing new environmentally superior drought-proof sources of water 

must be encouraged by the federal government. This rule could discourage water reuse 

and interfere with the successful deployment of U.S. Bureau of Reclamation Title XVI 

and other programs. Unfortunately, the economic analysis that accompanies the proposed 

rule completely ignores the potential impact on water recycling and reuse. (p. 3-4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

7.911 Exclusion for Water Delivery Systems

EMWD’s customers, as with most Californians, depend upon imported water to 

supplement limited local water supply. These systems are comprised of canals and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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reservoirs that transport water across watersheds to urban areas and traverse much of the 

state to deliver water for agriculture, municipal, and industrial uses. Like the State Water 

Project, the Central Valley Project, and the Colorado River Aqueduct in California, other 

regions of the country have state and federal water delivery systems whose surface water 

features meet the definition of “tributary” and could be defined as waters of the U.S. The 

Central Arizona Project (CAP) governing board recently adopted a resolution opposing 

the rule: “...because [the] outcome could be disastrous for CAP and its customers; 

treatment methods for that volume of water are technically impractical and the costs of 

compliance are prohibitively expensive.”

EMWD echoes these concerns, and notes that these water delivery systems exist not only 

in the arid west but in many other parts of the country where storm water flows are 

diverted and stored for later treatment for drinking water and other beneficial uses. 

Again, the man-made reservoirs, delivery canals and overflow channels meet the 

definition of a tributary and could be defined as waters of the U.S. under the proposed 

rule. Such designation could dramatically affect the operations and management of these 

systems and impose new regulatory requirements that would increase operation costs or 

possibly impede the optimal performance of these water delivery systems—with no 

discernible environmental benefit. As with water recycling and reuse facilities, EPA has 

stated repeatedly that regulating these facilities is not the intent of the proposed rule. As 

such, EMWD requests a clear categorical exclusion for water conveyance facilities to 

ensure that these systems can continue to efficiently meet water supply needs. (p. 4)

Agency Response: The agencies have consistently regulated aqueducts and canals 

as “waters of the United States” where they serve as tributaries, removing water 

from one part of the tributary network and moving it to another. The agencies have 

not in practice asserted jurisdiction over these types of features when created in dry 

land. The rule makes no substantive change to the existing exclusion for waste 

treatment systems designed consistent with the requirements of the CWA.

George Washington University Regulatory Studies Center (Doc. #13563)

7.912 The Agencies should expand their exclusions from the Waters of the United States to 

include, not just wastewater systems, but also municipal separate storm systems (MS4s), 

especially “green infrastructure” practices; water reuse, recycling, and reclamation 

operations; and commercial, industrial and manufacturing water treatment systems.

The Agencies affirm, without explanation, the long-standing exclusion of wastewater 

systems from the Waters of the United States and the proposed rule, presumably, on the 

grounds that these entities are already adequately regulated under the CWA as to 

permitting, water quality standards, enforcement, and the like. This is sensible and 

appropriate.

Yet, it is fair to ask if this same rationale might be extended to other highly regulated 

activities which also generate environmental and water quality benefits such as MS4s, 

along with “green infrastructure” practices; water reuse, recycling, and reclamation 

operations; and commercial, industrial and manufacturing water treatment systems. At 

the very least, extending the wastewater system exclusion to these other activities merit 

consideration and comment. In the case of MS4s, any new proposal for exclusion and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

602

solicitation of public comment should extend to their conveyances that channel and 

discharge stormwater runoff as well as “green infrastructure” approaches which attempt 

to infiltrate, reuse, retain and evaporate stormwater flows. Constructed wetlands should 

also be considered for exclusion.

In addition to avoiding double or redundant regulation, such exclusions are conducive to 

these other activities, all of which benefit the environment and water quality including its 

chemical, physical and biological components.

The goal should be to avoid double regulation and remove obstacles to environmental 

improvement by private entities and citizens.

Recommendation

The Agencies should propose and seek public comment on additional exclusions from the 

Waters of the United States to include, not just wastewater systems, but also municipal 

separate storm systems (MS4s) and their conveyance network as well “green 

infrastructure” practices; water reuse, recycling, and reclamation operations; and 

commercial, industrial and manufacturing water treatment systems. (p. 8-9)

Agency Response: While the agencies may not agree with all points raised in this 

comment, they agree that a specific exclusion for stormwater control features built 

in dryland is appropriate. Please see summary response at 7.4.4. With respect to 

waste treatment systems, see summary response at 7.1. 

Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in 

dry land are excluded. This new exclusion clarifies the agencies’ current practice 

that such waters and water features used for water reuse and recycling are not 

jurisdictional when constructed in dry land. The agencies recognize the importance 

of water reuse and recycling, particularly in areas like California where water 

supplies can be limited and droughts can exacerbate supply issues. This exclusion 

responds to numerous commenters and encourages water reuse and conservation 

while still appropriately protecting the chemical, physical, and biological integrity of 

the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

Water Environment Federation (Doc. #16584)

7.913 The Waste Treatment Exemption Should Specifically Include Water Recycling 

Facilities and Effluent Storage Ponds
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603

In order to address the historic drought conditions currently plaguing the western 

states,water and wastewater agencies must rely on a full suite of flexible options to 

provide potable and recycled water supplies for a variety of ongoing uses. Thus, WEF 

opposes any direct or indirect regulatory impacts on water recycling, water storage, and 

other mechanisms that play a part in recycled water infrastructure and processes as a 

result of the proposed rule.

As noted above, we appreciate the explicit acknowledgement and codification of the 

waste treatment exemption in the proposed rule. However, we believe it is important that 

the proposed rule expressly states that the waste treatment exemption extends to recycled 

water facilities. States’ water recycling projects often depend upon artificially created 

wetlands and storage ponds to treat millions of gallons of water a day. If these features 

are considered waters of the U.S. and are excluded from the waste treatment exemption, 

they could theoretically no longer be used as an integral component of the waste 

treatment systems, forcing the closure of important recycled water projects critical to 

states’s water supply. Moreover, a lack of clarity on this issue may stall or halt the 

development of recycled water projects at a time when recycling is needed the most to 

address climate resiliency priorities.

Because recycled water demand is variable with time of day and season, recycled water 

agencies maintain reservoirs or storage basins/ponds to store recycled water during 

periods of low usage in anticipation of peak demands. These features are an essential 

component of the recycled water process and integral to an agency’s ability to continue 

reliably producing and supplying recycled water in many instances. The proposed rule 

should affirm that such reservoirs along with influent and treated effluent storage ponds 

are within the scope of the waste treatment exemption, consistent with the regulatory 

definition of “complete waste treatment system” found in existing federal regulations.479

As the proposed rule and existing practice acknowledge, waste treatment systems 

designed to meet the requirements of the Clean Water Act are not waters of the U.S., and 

treatment systems should include any facilities, including storage ponds and basins, 

related not only to traditional treatment facilities and processes, but also to the production 

of recycled water.

In the alternative, recycled water facilities and features (including storage ponds, basins, 

artificially created wetlands, recycled water reservoirs and other features associated with 

water recycling) should be expressly exempted as part of the specifically identified 

features that are not considered waters of the United States within the proposed rule. In 

this case, recycled water facilities would be treated similar to artificial lakes, ponds, 

swimming pools, ornamental waters, and groundwater, which are specifically identified 

and expressly exempted. In either case, whether recycled water facilities are considered 

part of the waste treatment exemption or have their own specifically identified 

 

479 See 40 C.F.R. §35.2005(b)(12), defining “complete waste treatment system” as “all the treatment works 

necessary to meet the requirements of title III of the [CWA], involving . . . the ultimate disposal, including recycling 

or reuse, of the treated wastewater and residues which result from the treatment process.” (Emphasis added); see 

also 40 C.F.R. §35.2005(b)(49) [definition of “treatment works” includes “storage of treated wastewater in land 

treatment systems before land application” among other things].
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

604

exemption, it is essential that the proposed rule not interfere with recycled water 

production and treatment by making those features jurisdictional.

The failure to include an explicit statement in the final rule would leave open the question 

of whether these features are considered “waters of the United States.” Such a situation 

could lead to regulatory disincentives to produce recycled water in western states, 

including California, compounding a water scarcity situation that is already dire. Pending 

and adopted federal and state legislation to address the impacts of our historic drought 

contain a number of approaches to encourage recycled water projects. Transforming 

components of the recycled water process (including integral systems such as storage 

ponds) into jurisdictional waters would undercut efforts to address the drought. (p. 2-3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. This exclusion responds to numerous commenters and encourages water 

reuse and conservation while still appropriately protecting the chemical, physical, 

and biological integrity of the nation’s water under CWA. 

The agencies specifically exclude constructed detention and retention basins created 

in dry land used for wastewater recycling as well as groundwater recharge basins 

and percolation ponds built for wastewater recycling. Many commenters noted the 

growing interest in and commitment to water recycling and reuse projects. 

Detention and retention basins can play an important role in capturing and storing 

water prior to beneficial reuse. Similarly, groundwater recharge basins and 

percolation ponds are becoming more prevalent tools for water reuse and recycling. 

These features are used to collect and store water which then infiltrates into 

groundwater via permeable soils. Though these features are often created in dry 

land, they are also often located in close proximity to tributaries or other larger 

bodies of water.

In the exclusion for artificial lakes or ponds, the agencies have changed 

“exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are 

often not used exclusively for one purpose and can have other beneficial purposes, 

such as animal habitat, water retention or recreation. The change to the exclusion 

reflects Agency practice and ensures that waters the agencies have historically not 

treated as jurisdictional do not become so because of another incidental beneficial 

use. The agencies have also added cooling ponds to the list of uses in the rule. The 

list of uses has always been illustrative rather than exhaustive, and this addition 

responds to many requests to clarify that cooling ponds created in dry land are 

excluded.
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605

7.5. SUPPLEMENTAL COMMENTS ON FEATURES AND WATERS NOT JURISDICTIONAL

Summary Response

The substantive issues raised in this section are addressed in the summary responses and 

individual responses above, and commenters should review those sections. Additional 

references and information are provided below.

Specific Comments

Anonymous (Doc. #2893)

7.922 Problem: This rule can be wrongly utilized in claiming jurisdiction over eroded storm 

water outfall such as gullies because it has a bed and bank formation (although it was 

never historically a ephemeral channel). Jurisdiction may be pushed up the gully so far 

that it may also take jurisdiction over MS-4 structures and SWMP. This could result in a 

delay and increase expense in retrofit projects since a permit would be required as well as 

possible mitigation.

This rule wants to clarify the difference between a man made gully and a natural channel 

but it is not as obvious in the field to determine the difference.

Problem Resolution: Must have a specific definition of what a OHWM is and guidance 

on how to properly field identify the feature in order to determine if the gully is a WOUS.

The soil profile of the gully must exhibit old channel bed characteristics somewhere in 

the profile strata (layer of sorted cobble, pebbles and stone) to prove it was a natural 

drainage. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See summary 

response 7.3.7 for discussion of gullies. 

Department of Public Works, City of Harrisonville, Missouri (Doc. #4038.2)

7.923 Our interpretation of the current rule, and its implications for existing EPA and USACOE 

rules, is that many tasks associated with routine municipal maintenance would now 

require additional interaction with both federal agencies. Applications would have to be 

completed and filed with the appropriate agency for work within the “Waters of the 

United States”, coupled with additional monitoring, and reporting for such routine 

maintenance as:

Removal of vegetation (mowing) in and along roadside ditches.

Installing or replacing utility poles, street signs and traffic control devices (signage or 

lights) on the banks of ditches following motor vehicle accidents or natural disasters.

Placing stone (riprap) into or removing stone from ditches and stormwater channels to 

facilitate, control, and mitigate damage from stormwater transport.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

606

Removing plant or mineral debris from ditches or stormwater channels as part of a 

program of regular maintenance to avoid flooding streets and other city property, and 

reducing private property owner damages as well as reducing soil erosion.

Re‐ contouring bank cuts for existing ditches and stormwater channels to reduce soil 

erosion even with the required land disturbance permits and an approved erosion control 

program for the state environmental agency. (p. 1 – 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. With regard to 

maintenance and upkeep of existing structures, the agencies note that there are 

several options for streamlined permitting alternatives, such as Regional General 

Permits and Nationwide Permits 3 and 13.

7.924 We request that roadside ditches and stormwater channels which only carry water after 

rain or snow storms be added to the categorical exclusion from Waters of the United 

States. Further we ask that both agencies carefully examine the language in the draft rule 

to insure that it will not have significant impact on land use decisions within the city in 

ways already controlled by city governments. (p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. For discussion 

of excluded ditches and the implications for roadside ditches, please see discussion 

in preamble and the summary response at 6.2.

William P. Minervini (Doc. #4040.2)

7.925 Exclusion of Waste Treatment Systems Designed to Meet the Requirements of the 

Clean Water Act

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

(Corps) should confirm that these “waste treatment systems” include stormwater 

treatment systems designed to meet the requirements of National Pollutant Discharge 

Elimination System (NPDES) permits for stormwater discharges issued under section 402 

of the Clean Water Act (CWA). Such discharges include, for example (see 40 CFR 

122.26 and 122.32), stormwater discharges associated with industrial activity or small 

construction activity, and stormwater discharges from some municipal separate storm 

sewer systems (MS4s). Examples of such stormwater treatment systems include (i) 

sediment basins that treat some stormwater discharges associated with construction 

activity; and (ii) dry detention ponds, wet ponds, infiltration basins, and stormwater 

wetlands that treat stormwater runoff from some new development and redevelopment 

projects that discharge into some MS4s.

The CWA uses the phrase “waste treatment” very broadly. For example, section 201(c) 

of the CWA declares that “to the extent practicable, waste treatment management shall be 

on an areawide basis and provide control or treatment of all point and nonpoint sources of 

pollution, including in place or accumulated pollution sources” (emphasis added). Section 

208 of the CWA requires “areawide waste treatment management plans” (emphasis 

added) to include, among other things, the necessary “urban storm water runoff systems,” 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

607

and the establishment of a regulatory program to “implement the waste treatment 

management requirements of section 201(c)” (see section 208(b)(2)(A) and (C)). (p. 1)

Agency Response: See summary response on waste treatment systems at 7.1. With 

respect to the jurisdictional status of stormwater control features as waters of the 

U.S., please see summary response at 7.4.4.

7.926 Relation to Natural Buffers and the Construction and Development Point Source 

Category (NPDES)

The EPA and the Corps assert that through their proposed rule they “are providing clarity 

to regulated entities as to whether individual water bodies are jurisdictional and 

discharges are subject to permitting, and whether individual water bodies are not 

jurisdictional and discharges are not subject to permitting” (79 FR 22188). In the NPDES 

program, however, the definition of “waters of the United States” serves an additional 

regulatory purpose not mentioned either in the April 21, 2014 rule proposal notice or in 

the ‘‘Economic Analysis of Proposed Revised Definition of Waters of the United States’’ 

cited in that notice (79 FR 22220).

This purpose is to provide clarity as to which individual water bodies require provision 

and maintenance of “natural buffers” (unless infeasible) pursuant to EPA’s Effluent 

Limitations Guidelines and Standards for the Construction and Development point source 

category (as amended in 2014; see 79 FR 12661). See 40 CFR 450.21(a)(6), which uses 

the term “waters of the United States.” Even where it is indisputable (whether the 

definition of “waters of the United States” is changed or not) that stormwater from a 

construction site discharges to “waters of the United States” (which in many instances are 

located offsite), the definition of “waters of the United States” can still be important in 

establishing which (if any) individual water bodies at the construction site are subject to 

the “natural buffers” requirement. EPA should consider and discuss the aquatic resource, 

implementation, and economic implications of a definition of ‘‘waters of the United 

States’’ as they pertain to the “natural buffers” requirement in 40 CFR 450.21(a)(6). (p. 1 

– 2)

Agency Response: The final rule does not address the buffer requirements that 

may apply through various CWA programs, and comments about 40 CFR 

450.21(a)(6) are outside the scope of this rulemaking. With respect to the 

jurisdictional status of stormwater control features as waters of the U.S., please see 

summary response at 7.4.4. Also, please see Economics Analysis section 8 regarding 

costs and benefits for the NPDES program. 

7.927 NPDES Permits and Ground Water

The EPA and the Corps assert that “the agencies have never interpreted ‘waters of the 

United States’ to include groundwater and the proposed rule explicitly excludes 

groundwater” (79 FR 22218). EPA asserted in 1990, however, that “discharges to ground 

waters” are subject to NPDES permitting if “there is a hydrological connection between 

the ground water and a nearby surface water body.” See 55 FR 47990, 47997 (Nov. 16, 

l990) (storm water permit application regulations). Although this 1990 assertion was not 

the same as an assertion that this groundwater is “waters of the United States,” this 1990 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

608

assertion nevertheless alleged a significant link between NPDES permitting and some 

groundwater.

What is EPA’s current position in this regard? Are releases of waste from discernible, 

confined, and discrete conveyances into groundwater “hydrological connected” to 

“nearby” “waters of the United States” subject to NPDES permitting? If so, how close is 

“nearby”? (Specify number of feet or other suitable units.) The answers to these questions 

affect the practical significance of explicitly excluding groundwater from the “waters of 

the United States” definition. (p. 2)

Agency Response: Please see summary response at 7.3.6 (groundwater) and 

summary response at 12.3.

Town of Carolina Beach, North Carolina (Doc. #5618)

7.928 8. BE IT FURTHER RESOLVED, that the rule include the following provisions that 

are priority concerns for local governments:

 Separate municipal storm sewers will continue to be regulated and permitted 

under Section 402 of the Clean Water Act, and shall not be considered, either in

their entirely or any individual feature thereof, Waters of the U.S.; and

 Green infrastructure developed to improve water quality or achieve multiple 

public benefits shall be encouraged and given priority consideration that does not 

impose additional financial and regulatory burdens of permittees and shall not be 

considered Waters of the United States; and

 Water delivery, reuse, and reclamation systems and facilities shall not be 

considered waters of the U.S.; and

 Wastewater treatment systems and all associated infrastructure shall not be 

considered waters of the U.S.; and (p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. With respect to 

water delivery, reuse, and reclamation systems, please see summary response at 

7.4.2.

Black Hills Corporation (Doc. #6248)

7.929 Black Hills recommends that at a minimum, the definition of WOTUS (Section 40 CFR 

230.3) should be expanded to specifically exclude man-made stormwater conveyances 

and other BMPs implemented for stormwater compliance. (p. 4)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4.

Amber Earnhardt (Doc. #6761)

7.930 I. Any rule that exempts all groundwater from CWA jurisdiction clearly violates the 

purpose, intent, and science grounded in the Act and is inconsistent with the 

language of the proposed rule.

A. Purpose and Legislative Intent of the Clean Water Act Support the Inclusion of 

“Tributary” Groundwater:
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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The objective of the CWA is “to restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters.”480 Congress’s broad purpose, along with their 

recognition of the hydrologic connection between surface and groundwater and the 

importance of controlling pollution at its source, makes it critical for the EPA/Corps to 

include “shallow” or “tributary” groundwater under “other waters” in order to be 

consistent with the goals of the CWA.481 Congress did not explicitly exempt groundwater 

within the language of the Act, as it did for agricultural return flows.482 Therefore, with 

the broad definition of “waters of the U.S.” the statute demonstrates that Congress 

intended to include some forms of groundwater in regulating point source pollution.483 

Statutory language may vary when referring to groundwater throughout sections of the 

CWA, but the objective of the CWA is clear.

The Senate Committee Report 92-414 reveals that Congress recognized the connection 

between surface and groundwater, stating that “it must be remembered that rivers, 

streams, and lakes themselves are largely supplied with water from the ground—not 

surface runoff.”484 The Report explicitly shows that Congress understood the complexity 

of groundwater and its connection to other surface waters. (p. 2 – 3)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.931 B. Scientific Evidence Supports “Tributary” Groundwater:

Science is clear about the impacts of “shallow” or “tributary” groundwater on the 

chemical, physical, and biological integrity of downstream waters. “Tributary” 

groundwater is groundwater that discharges into surface water.485 The EPA’s scientific 

evidence acknowledges that wetlands provide temporary storage of local groundwater 

that supports baseflow in rivers,486 and references aquifers and “shallow groundwater” as 

a major source of annual flow in rivers, especially in the southwestern U.S.487 Isolated 

wetlands can also be connected to downstream waters through groundwater 

connections.488 The scientific evidence clearly demonstrates the critical role that 

groundwater plays in the health of adjacent, tributary, and downstream “waters of the 

U.S.”

 

480 33 U.S.C. § 1251(a).

481 Brian Knutsen, Asserting Clean Water Act Jurisdiction Over Isolated Waters: What Happens After the SWANCC 

Decision, 10 Alb. L. Envtl. Outlook J. 155, 194 (2005).

482 Mary Christina Wood, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under 

the Clean Water Act, 12 Harv. Envtl. L. Rev. 569, 576 (1988).

483 Id.

484 S. Rep. No. 92-414, reprinted in 1972 U.S.C.C.A.N. 3668, 3739.

485 Mary Christina Wood, supra note 6, at 570.

486 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22223.

487 Id. at 22224.

488 Id. at 22226.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

610

Further, the US Geological Survey is currently encouraging more significant 

interdisciplinary research that includes research about the relationship between 

groundwater and surface water resources.489 The USGS acknowledges that “we need 

enough ground water of good quality to sustain our lives, our economy, and our aquatic 

ecosystems.”490 Another challenge of managing our water resources is the slow 

movement of groundwater––the effects of pumping can take years to measure, leading to 

groundwater mistakenly seeming less critical compared to surface water.491

Different regions of the U.S. will be adversely impacted if groundwater is excluded from 

federal jurisdiction under the CWA. For instance, the IJC Great Lakes Science Advisory 

Board stated that “the Great Lakes cannot be protected without protecting the 

groundwater resources in the Basin.”492 “Tributary” groundwater in the Great Lakes 

Basin requires protection, as groundwater contributes over 50 percent of the water 

flowing to streams that discharge into the Great Lakes,493 supplies drinking water for 8.2 

million people,494 and sustains the industry and ecology of the region.495 (p. 3 – 4)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.932 C. Purpose of Proposed Rule Supports “Tributary” Groundwater:

When referencing scientific evidence for its purpose, the proposed rule states that 

“tributaries and adjacent waters play an important role in maintaining the chemical, 

physical, and biological integrity of traditional navigable waters....because of their 

hydrological and ecological connections to and interactions with those waters.”496

However, as evident in the scientific literature, groundwater connections are as if not 

more critical to the integrity of downstream waters. The term groundwater was 

significantly used (over 55 times) and discussed at length within Appendix A in 

demonstrating the hydrologic connection to downstream waters,497 but the mentioning of 

 

489 W.E. Sanford, J.S. Caine, D.A. Wilcox, H.C. McWreath, & J.R. Nicholas, Research Opportunities in 

Interdisciplinary Ground-Water Science in the U.S. Geological Survey (January 11, 2013), available at: 

http://pubs.usgs.gov/circ/circ1293/circ1293.html.

490 Id.

491 N.G. GRANNEMANN, R.J. HUNT, J.R. NICHOLAS, T.E. REILLY, & T.C. WINTER, U.S. GEOLOGICAL 

SURVEY: THE IMPORTANCE OF GROUND WATER IN THE GREAT LAKES REGION 1 (2000).

492 INTERNATIONAL JOINT COMMISSION GREAT LAKES SCIENCE ADVISORY BOARD, 

GROUNDWATER IN THE GREAT LAKES BASIN 1 (2010).

493 N.G. GRANNEMANN, ET AL. , supra note 15, at 12.

494 INTERNATIONAL JOINT COMMISSION GREAT LAKES SCIENCE ADVISORY BOARD, supra note 16, at 

1

495 N.G. GRANNEMANN, ET AL. , supra note 15, at 12.

496 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22194.

497 U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence (2013), available at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Watershed Connectivity Report?OpenDocument.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

611

groundwater was virtually ignored in the proposed rule as having no impact or role in the 

hydrologic system when, in reality, it is absolutely crucial. Therefore, to fulfill the 

purposes of the CWA and the proposed rule the inclusion of “shallow” or “tributary” 

groundwater is necessary and cannot be exempt.

Similarly, within the discussion of “other waters,” the agencies correctly determined that 

the “watershed is a reasonable and technically appropriate extent on which to identify 

waters that together may have an effect on the chemical, physical, or biological integrity 

of a particular (a)(1), through (a)(3) water.”498 When defining the term watershed, the 

EPA’s website states that “a watershed is the area of land where all of the water that is 

under it or drains off of it goes into the same place” (emphasis added).499 Therefore, if the 

EPA/Corps use a watershed to define Justice Kennedy’s remark of “in the region,” then 

they must include specific groundwater types by adjacent or tributary jurisdiction or 

within the “other waters” category. (p. 4 – 5)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.933 II. The EPA/Corps have the authority under the CWA to include certain forms of 

groundwater within the definition of “waters of the U.S.”

A. Case Law Supports “Tributary” Groundwater:

Courts have reached inconsistent conclusions over the issue of groundwater––most courts 

find the language of the CWA to be ambiguous.500 Courts have traditionally 

acknowledged that the CWA does not generally regulate discharges to groundwater; 

however, courts have held that the CWA can extend federal jurisdiction to groundwater 

that is hydrologically connected to surface waters designated as “waters of the U.S.”501

The Supreme Court, citing Senate Committee Report 92-414 in United States v. Riverside 

Bayview Homes,

502 stated that Congress broadly defined the term “waters of the U.S.” 

and that Congress recognized the importance of controlling pollution at its source to 

restore the integrity of our nation’s waters.503 According to the court’s interpretation in 

Riverside Bayview Homes, Inc. and SWANCC, CWA jurisdiction reaches to all waters 

linked to navigable waters.504 Therefore, groundwater connections constitute a 

 

498 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22212.

499 EPA, What is a Watershed? (2012), available at: http://water.epa.gov/type/watersheds/whatis.cfm .

500 66 Fed. Reg. 2960, 3016 (Jan. 12, 2001).

501 Robert L. Glicksman & Matthew R. Batzel, Science, Politics, Law, and the Arc of the Clean Water Act: The Role 

of Assumptions in the Adoption of a Pollution Control Landmark, 32 Wash. U. J.L. & Pol’y 99, 112 (2010).

502 United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).

503 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22191.

504 Brian Knutsen, supra note 5, at 188.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

612

“significant nexus” within the meaning of the caselaw if they can be determined to have a 

significant connection to jurisdictional surface waters.505

Many courts have found sufficient justification for CWA jurisdiction over “tributary” 

groundwaters, and this proposed rule provides an opportunity to clarify the position of the 

agencies and allow for greater consistency.506 For instance, as stated by the court in Idaho 

Rural Council v. Bosma, “whether pollution is introduced by a visible, above-ground 

conduit or enters the surface water through the aquifer matters little to the fish, 

waterfowl, and recreational users which are affected by the degradation of our nation’s 

rivers and streams.”507 As Susan Griffithe analyzed, after reviewing the purpose of the 

CWA, the Bosma court held that “there is little doubt that any polluted water ultimately 

affecting the quality of regulated waters should also be regulated.”508

More recently, in Hernandez v. Esso Standard Oil Company, the court held that the CWA 

extended federal jurisdiction over groundwater that was hydrologically connected to 

surface waters designated as “waters of the U.S.”509 The Hernandez court stated that 

previous cases concluding that the CWA provides no federal jurisdiction over 

groundwater do “not preclude the act from applying to the regulation of ‘tributary 

groundwater’...which allegedly migrates from groundwater back into surface water.”510

The Hernandez court explains that although Congress did not generally regulate 

groundwater under the CWA, they did not exclude any regulation if the introduction of 

pollutants in groundwater would have adverse impacts to surface waters.511 (p. 5 – 6)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” However, it has also been the 

longstanding interpretation of the agencies that discharges of pollutants to “waters 

of the United States” via groundwater with a direct hydrologic connection to surface 

waters may be subject regulation by the CWA. See summary response for section 

7.3.6 of this RTC and the Technical Support Document.

7.934 B. Agency History Under the CWA Supports “Tributary” Groundwater:

The statement within the proposed rule that the “agencies have never interpreted ‘water 

of the United States’ to include groundwater and the proposed rule explicitly excludes 

groundwater” contradicts agency history.512 The EPA, in their regulations for NPDES 

permits of storm water discharges explained that groundwater will be regulated if it is 

 

505 Id.

506 Brian Knutsen, supra note 5, at 192.

507 Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1179 (D. Idaho 2001).

508 Susan Griffithe, Isolating the Problem by Finding the Connection: The Proper Approach to Regulating 

Groundwater Under the Clean Water Act: Idaho Rural Council v. Bosma, 143 F. Supp. 2D 1169 (D. Idaho 2001), 27 

S. Ill. U. L.J. 437, 450 (2003).

509 Hernandez v. Esso Standard Oil Company, 599 F. Supp. 2d 175, 180 (D.P.R. 2009).

510 Id.

511 Id. at 181.

512 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22218.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

613

hydrologically connected to a nearby surface water.513 In their proposed regulation 

regarding NPDES permits to CAFO’s, the EPA explained that “[a]t the least, there is no 

evidence that in rejecting the explicit extension of the NPDES program to all ground 

water Congress intended to create a ground water loophole through which the discharges 

of pollutants could flow, unregulated, to surface water.”514 The EPA explicitly stated that 

the “EPA repeatedly has taken the position that the CWA can regulate discharges to 

surface water via ground water that is hydrologically connected to surface waters.”515 The 

EPA clearly has taken the position of interpreting “waters of the U.S.” to include certain 

types of groundwater. The agency has provided no justification for its change in policy to 

allow for the public to have the opportunity to comment on the change.

Ultimately, if the EPA/Corps provide such clarity over “waters of the U.S.” to include 

groundwater connections in the proposed rule, then the courts will be able to extend 

Chevron deference in upholding the rule.516 The EPA has the authority, under the CWA, 

to include and clarify jurisdiction over the matter of groundwater.517 (p. 6 – 7)

Agency Response: Please see summary response at 7.3.6, the Technical Support 

Document, and 12.3. The issue of whether a discharge to groundwater that is 

hydrologically connected to a waters of the U.S. is regulated as a point source 

discharge under NPDES is distinct from the question of whether the groundwater 

itself is a jurisdictional waters of the U.S.

7.935 III. Recommendations for groundwater to be included in the “other waters” 

category of the proposed rule.

A. Need for Clarity in Defining “Isolated” versus “Tributary” Groundwater:

The rule needs to clarify the distinction between “isolated” groundwater and “shallow” or 

“tributary” groundwater, and the latter term(s) must be included into the jurisdiction of 

“waters of the U.S.,” or at least included in the category “other waters,” as defined in the 

proposed rule. Only “isolated” groundwater, defined as without hydrologic connection to 

downstream “waters of the U.S.,” should be included in the exemptions [section (b)] of 

the proposed rule.518 As described in the comments above, the agencies have a 

longstanding tradition of regulating groundwater with hydrologic connections to 

downstream surface waters on a case by case basis.

Groundwater with hydrologic connection to surface waters could be defined in the rule 

either as “shallow,” as scientific studies define them, or as “tributary,” as the courts have 

referred to them. The EPA/Corps could classify groundwater as “tributary” according to 

the time a pollutant would reach surface waters within a specific number of years (e.g., 

forty).519 Including “tributary” groundwater under “other waters” would leave the 

 

513 Susan Griffithe, supra note 32, at 453.

514 66 Fed. Reg. 2960, 3016 (Jan. 12, 2001).

515 Id.

516 Brian Knutsen, supra note 5, at 188.

517 33 U.S.C. 1251, et seq.

518 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22218.

519 Mary Christina Wood, supra note 6, at 618. Forty is the number of years recognized by the Supreme Court of 

Colorado for groundwater to be considered “tributary.”
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

614

flexibility of the EPA to issue, under section 402, NPDES permits for point source 

pollution into groundwater that would have a significant impact for jurisdictional surface 

waters. (p. 7 – 8)

Agency Response: Please see summary response at 7.3.6, the Technical Support 

Document, and 12.3. The issue of whether a discharge to groundwater that is 

hydrologically connected to a waters of the U.S. is regulated under the NPDES 

program as a point source discharge is distinct from the question of whether the 

groundwater itself is a jurisdictional waters of the U.S.

7.936 B. Need for Inclusion of “Tributary” Groundwater in “Other Waters” Category:

The EPA/Corps need not extend broad general authority over groundwater. Rather, 

certain groundwater types should be listed under the “other waters” category in the 

proposed rule. The proposed rule states that “the agencies propose that ‘other water’ 

(those not fitting in any of the above categories) could be determined to be ‘waters of the 

United States’ through a case-specific showing that, either alone or in combination with 

similarly situated ‘other waters’ in the region, they have a ‘significant nexus’ to a 

traditional navigable water, interstate water, or the territorial seas.”520 The “significant 

nexus” test would be satisfied if water flowed through groundwater to surface waters 

(i.e., “shallow” or “tributary”) which would significantly impact the chemical, physical, 

or biological integrity of “waters of the U.S.”

If the EPA/Corps wants to clarify wetlands, adjacent waters, and tributaries as being 

“waters of the U.S.,” then they must list “tributary” groundwater under the “other 

waters,” allowing case by case analysis of groundwater jurisdiction under the CWA. 

Groundwater is fundamental to the hydrology of watersheds. Groundwater is a primary 

source of streamflow for some waters of the U.S., and the southwestern U.S. relies 

heavily on groundwater to feed surface water streams. The USGS states that much of the 

groundwater contamination occurs in shallow aquifers making groundwater a major 

contributor to the contamination of surface waters.521 Collaborating with USGS, 

EPA/Corps could use the best available base-flow methods to calculate the amount of 

streamflow derived from groundwater within certain watersheds, thereby assisting in 

defining which groundwater should be included in the “other waters” category.522 (p. 7 –

8)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

 

520 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22189.

521 Thomas C. Winter, Judson W. Harvey, O. Lehn Franke, & William M. Alley, Ground Water and Surface Water: 

A Single Resource: U.S. Geological Survey Circular 1139, VI (1998), available at: 

http://pubs.usgs.gov/circ/circ1139/pdf/circ1139.pdf .

522 Id at 12. The USGS conducted research about the “groundwater component of streamflow” and was able to 

conclude from a sampling of 24 regions nationwide (54 streams over a thirty-year period) that an average of 52% of 

the streamflow was contributed by groundwater; one basin actually received 90% of its average annual flow from 

groundwater.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

615

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.937 Conclusion:

As water resources become more scarce, flexible administrative water management 

systems under the CWA are necessary to protect the future of our economy, drinking 

water supplies, and aquatic ecosystems. Ultimately, groundwater under the CWA should 

not be exempted because of its difficulty or due to the negative comments of past 

rulemaking procedures. Accurate science, case law, and legislative and agency history 

reveal that not allowing for a case by case review of “tributary” groundwater will weaken 

the proposed rule and the CWA by creating a groundwater loophole.

If the EPA/Corps exempts groundwater during this rulemaking procedure they will put 

themselves in the contradictory position of being responsible for protecting surface 

waters without the authority to protect those waters that provide the streamflow for their 

existence, groundwaters––you cannot protect one without the other. The agencies should 

not undermine the intent and broad goals of the CWA by exempting all groundwater, 

setting a dangerous precedent for future management of our nation’s waters. (p. 8)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

Sunny Washburn (Doc. #7368)

7.938 In the proposed rule I see that you clarified ditches that dry out, systems that are irrigated 

and return to upland, and wastewater treatment system as not being waters of the state 

unless they meet a certain criteria. I propose you add green infrastructure to the list. 

Green infrastructure is a stormwater treatment and conveyance system that is vegetated 

and consists of facilities such as swales, ponds, rain gardens, and vegetated filters or 

basins. They are used in both public and private infrastructure to treat rain water 

(stormwater) that is created by impervious surfaces such as parking lots and roadways. 

Green infrastructure typically infiltrates into the ground water and will have an overflow 

that discharges to either a piped storm system or directly to a waterway or ditch. These 

systems should not be considered waters of the state as defined by your definition and it 

should be made clear (er) since they are seasonal in nature and only hold water temporary 

and tend to dry out. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control 

features, including green infrastructure, as waters of the U.S., please see summary 

response at 7.4.4.

City of Pittsfield (Doc. #7629)

7.939 At a minimum, the rule should include the following provisions that are priority concerns 

for local governments:
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

616

 Separate municipal storm sewers will continue to be regulated and permitted 

under Section 402 of the Clean Water Act, and shall not be considered, either in 

their entirely or any individual feature thereof, Waters of the U .S .

 Water delivery, reuse, and reclamation systems and facilities shall not be 

considered waters of the U.S.

 Wastewater treatment systems and all associated infrastructure shall not be 

considered waters of the U.S. (...) (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. With respect to 

water delivery, reuse, and reclamation systems, please see summary response at 

7.4.2. Finally, please see summary response 7.1 concerning the waste treatment 

system exclusion.

Merrill Hewson Smith (Doc. #8323)

7.940 The proposed rule will codify for the first time what types of waters and features are 

outside the purview of CWA, including artificial reflecting pools, small ornamental 

waters, water-filled depressions at construction sites and the like. But the agencies have 

also added groundwater, an elemental part of the hydrological cycle and an essential link 

between wetlands, tributaries and other waters. Why in a list that borders on 

insignificance was something this significant added? The proposed excise language is 

final in its import, “Specifically, the agencies propose that the following are not “waters 

of the United States” notwithstanding whether they would otherwise be jurisdictional 

under section (a).

523 Even if groundwater is part of a group of waters “similarly situated 

where they perform similar functions and are located sufficiently close together or when 

they are sufficiently close to a jurisdictional water”524 groundwater will, by hydrologic 

alchemy, be separated and outside the protection of CWA. The agencies appear to have 

lost sight of the objectives of CWA. A categorical elimination of groundwater from CWA 

protection puts the nation’s water quality and supply, public health and environment at 

risk. (p. 1)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.941 This comment letter will show how jurisdictional scope, scientific research, policy 

ramifications, and ecological need support removing groundwater from the proposed 

rule’s list of “waters and other features” in the section entitled “Waters that are not 

‘waters of the United States’525.

 

523 Id. I. Waters that are not “Waters of the United States”, fourth paragraph. Reference to “(a)” is within the section 

“Other Waters” that are defined as, those that are not jurisdictional as a single category.

524 Id. Language under “H. “Other Waters”.

525 Definition, supra note 3.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

617

 Courts have extended CWA protections to groundwater, especially in cases where 

the discharge of pollutants affect the waters of the United States that are directly 

subject to CWA regulation.526

 EPA’s scientific compilation of data from 1,000 peer-reviewed reports emphasize 

groundwater’s integrated role throughout the hydrology and biogeochemical 

functions of wetlands and other waters. 527

 EPA’s SAB has specifically counseled the agencies to eliminate groundwater 

from the list of “Waters that are not ‘waters of the United States.” 528

 Groundwater is a national resource that supplies over 50% of our drinking water, 

more than 90% in rural areas. It supplies over 50% of agricultural irrigation and it 

supplies between 30-40% of the flow of the nation’s streams.529

 Groundwater is not sufficiently protected or managed.530 It is a resource critical to 

the nation’s future, both as the primary source of drinking water, agricultural 

irrigation and as a significant source of stream flow. Because of these crucial 

human welfare and ecological functions, and because of the acknowledged 

difficulty of groundwater remediation, protecting and maintaining the quantity 

and quality of the nation’s groundwater supplies must receive a high priority.531

 Lines of demarcation regarding CWA have been blurred by recent Supreme Court 

rulings. While states can enact or amend laws to protect water resources that have 

lost federal protection over two-thirds of states, 36 in all, have laws that restrict 

authority of state agencies to regulate waters left unprotected by CWA.532 These 

restrictions take the form of absolute or qualified prohibitions that require state 

law to be ‘no more stringent than’ federal law. If groundwater is deemed not ‘a 

water of the United States’ and outside the scope of CWA it could fall outside the 

scope of any additional state protection. The proposed rule will leave groundwater 

less protected at a time when we need to protect it more.

The agencies’ proposed rule is an ambitious attempt to cohere the language and intent of 

legal rulings and scientific principles that govern gradations of the interconnectedness of 

our water system. This is not a seamless composition, in part because the Supreme 

 

526 Anna Makowski, Beneath the Surface of the Clean Water Act: Exploring the Depth of the Act’s Jurisdictional 

Scope of Groundwater Pollution, Oregon Law Review, volume 91, issue 2, 2012. p. 507

527 Claudia Copeland, EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States”, 

Congressional Research Service, September 10, 2014, p. 6.

528 SAB draft comments addressed to EPA Administer Gina McCarthy, dated September 17, 2014. EPA-SAB14_00X. The report considers “the adequacy of the scientific and technical basis of the EPA’s proposed rule titled 

Definition of Waters of the United States Under the Clean Water Act.”

529 Committee on Valuing Ground Water, National Research Council, Valuing Ground Water: Economic Concepts 

and Approaches, 1997. p. 122.

530 NASA and University of California, Irvine, study, “Satellite Study Reveals Parched U.S. West Using up 

Underground Water”, press release, July 24, 2014http://www.nasa.gov/press/2014/july/satellite-study-revealsparched-us-west-using-up-underground-water/#.VDmcg0vHiQQ. Last visited, October 13, 2014.

531 Committee on Valuing Ground Water, supra note 12, p. 122.

532 Environmental Law Institute, State Constraints: State-Imposed Limitations on the Authority of Agencies to 

Regulate Waters Beyond the Scope of the Federal Clean Water Act, May 2013. p. 12.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

618

Court533 rulings do not provide consistent guidance, and in part because scientific 

principles of hydrology governing water do not support imposed or finite borders. Water 

flows. By its very nature water needs to be evaluated on both an ecologically macro and 

micro level. The language of science is not the language of law as is readily apparent in 

the agencies’ attempt (of necessity) to frame “significant nexus” as a scientific term. That 

the agencies must act is understood; they have lost jurisdiction over integral parts of our 

water system, and litigation is stymying their ability to manage our waters.

In the proposed rule the agencies have attempted to clarify the interconnectedness of 

tributaries, wetlands, and other waters and effects these connections have on the health of 

downstream waters.534 The agencies must avoid expediencies and insure that their actions 

reflect the CWA’s primary purpose, “to restore and maintain the chemical, physical, and 

biological integrity of the nation’s waters.”535 Congress articulated that the intent of the 

Act was “to establish a comprehensive long-range policy for the elimination of water 

pollution.” It directed the EPA Administer to, “prepare and develop comprehensive 

programs for preventing, reducing, or eliminating the pollution of the navigable waters 

and ground waters and improving the sanitary condition of surface and underground 

waters.”536

In the quest to provide the public with clarity, certainty and predictability as to what 

waters are and are not subject to the jurisdiction of CWA, the agencies have erred in 

eliminating the potential protection of groundwater, an essential component of 

Congress’s original directions to the EPA. This is in direct conflict with the scientific 

principles they espouse.

Groundwater and surface water flow into one another; pollute one and the discharge can 

contaminate the other.537 They are a single resource; one cannot be developed without 

affecting the other. (p. 2 – 4)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.942 The agencies’ contention that groundwater has never been considered “waters of the 

United States” does not hold up to jurisdictional and legal history.

“The agencies have never interpreted “waters of the United States” to include 

groundwater and the proposed rule explicitly excludes groundwater, including 

groundwater drained through subsurface drainage systems.”538

 

533 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), 

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

534 Copeland, supra note 9, summary, first page.

535 33 U.S.C. §1251(a)

536 33 U.S.C. §1252(a)

537 Makowski, supra note 8, p. 2.

538 Definition, supra note 1, in section I. Waters that are not “waters of the United States.”
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

619

Without a doubt, CWA does not regulate groundwater comprehensively539, but the goal 

and purpose of CWA includes groundwater as needing of protection. And court cases 

have supported that. These rulings do not reflect a majority of cases but they remove 

‘never’ from the agencies’ justification to exile groundwater.

Plaintiffs have successfully sought redress for contaminated groundwater since CWA was 

enacted.540 A number of courts have interpreted the scope of CWA using Congressional 

intent and have found that NPDES permits are required when discharges to groundwater 

result in the migration of pollutants to hydrologically connected surface waters.541 In 

Idaho Rural Council v. Bosma542, the court stated, “whether pollution is introduced by a 

visible, above-ground conduit or enters the surface water through the aquifer 

(groundwater) matters little to the fish, waterfowl, and recreational users which are 

affected by the degradation of our nation’s rivers and streams.”543 Courts have weighed in 

with the understanding that the relationship between groundwater and surface water is 

porous and CWA protection inclusive.544 In particular the agencies would excise 

groundwater even in cases where comingling and function is obvious.545 In light of the 

agencies’ professed interest in synthesizing current scientific understanding of hydrologic 

connectedness into the proposed rule, a permanent excising of groundwater does not hold 

up to scrutiny.

Congress’s intent for CWA was broad; it recognized that protecting navigable streams 

and rivers from pollution and other degradation requires protecting the whole watershed, 

not piecemeal parts. (p. 4 – 5)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.943 The proposed rule would be different if the agencies relied on a deliberative sciencedriven rulemaking process.

 

539 Id. Footnote #3, p. 496. Other federal statutes that cover groundwater include: Safe Drinking Water Act, 42 

U.S.C. §§300f-300j, Resource Conservation and Recovery Act, 42 U.S.C. §§6901-6992k, Comprehensive 

Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§9601-9675.

540 Id. p. 496.

541 North California River Watch v. City of Healdsburg, No. 04-15442, (2006); Idaho Rural Council v. Bosma, 143 

F.Supp. 1169, 1180 (D. Idaho 2001); United States v. Banks, 115 F.3d 916 (11th Cir. 1997); Friends of Santa Fe 

County v. LAC Minerals, 892 F. Supp. 1333, 1357 (D.N.M. 1995); Washington Wilderness Coalition v. Hecla 

Mining Co., 870 F. Supp. 983,989 (E.D. Wash. 1994); Sierra Club v. Colorado Refining Co., 838 F. Supp. 1428, 

1434 (D.Colo. 1993). United States Steel Corp. v. Train, 556 F.2d 822(7th Cir. 1977). Southern Environmental Law 

Center just gave notice to Duke Energy that it plans to enforce CWA to clean up coal ash pits on the Cape Fear 

River.

542 Idaho Rural Council v. Bosma.

543 Idaho Rural Council, 143 F. Supp. 2d at 1179-80, as reported in Makowski, supra note 8, p. 512.

544 SWANCC and Rapanos may be interpreted to affect these determinations but I am addressing the incorrect use of 

‘never’.

545 Id. Language under “H. “Other Waters”.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

620

This statement is supported by the scientific studies used to inform the agencies in the 

drafting of this rule. As stated before, the necessity to coalesce legal rulings and scientific 

standards does not flow together easily.

In developing the proposed rule, the agencies committed to a science-driven process. To 

begin, they “relied on a draft synthesis of more than 1,000 peer-reviewed scientific 

reports detailing the current scientific understanding of the connections or isolation of 

streams and wetlands.”546 The report integrates groundwater and surface water 

throughout its 331 pages. It states that “specific types of connections considered in this 

review include transport of physical materials such as water, wood, and sediment; 

chemicals such as nutrients, pesticides, and mercury; movement of organisms or their 

seeds or eggs; and hydrologic and biogeochemical interactions occurring in surface and 

groundwater flows, including hyporheic zones and alluvial aquifers.” To be clear about 

its scope, it states, “Information about connections among water bodies of the same type 

that do not influence the condition of downstream waters, are considered out of scope, as 

are non-peer-reviewed sources.”547 Groundwater is included because it is integral to the 

report’s purpose, a study of connectivity.

Groundwater is scientifically proven to be an inseparable component in our watersheds, 

including wetlands that may have no visible connection with downstream waters. 

Nowhere in the compilation of the 1,000 reports is there discussion or cause to reflect 

dividing surface water and groundwater, in fact it is just the opposite. The specific 

references to the overlap of groundwater and surface water are too extensive to list but I 

would call attention to the clear visual representation that appears in figure 3-5, figure 3-6 

of the report.548 

The agencies sent the connectivity assessment report to the EPA’s own Science Advisory 

Board (SAB) for review and a final report.549 They have stated that they would not 

publish a final report until the SAB report was completed.550 In its second draft of 

comments, dated September 17, 2014, the SAB speaks directly to groundwater 

connectivity and biological connectivity. Specifically, the SAB recommendations and 

findings include:

 “The available science supports defining adjacency or determination of 

adjacency on the basis of functional relationships, not on how close an adjacent 

 

546 U.S. EPA, Office of Research and Development, connectivity of streams and wetlands to downstream waters. 

(Italics added) While the report is very in depth, I would direct your attention to pages 48-51 as an example of the 

integration of surface and groundwater.

547 Id. p. 35. Italics added.

548 EPA report, supra 28, pp. 48-51. Figure 3-5, Cross-section showing major hydrologic flow paths in a streamwatershed system, Figure 3-6, Hyporheic zone.

549 SAB. See supra note 8. SAB’s draft, addressed to EPA Administer Gina McCarthy, is dated September 17, 2014. 

EPA-SAB-14_00X. In an earlier draft, dated June 5, 2014, SAB recommended that the report more explicitly 

address the cumulative and aggregative effects of streams, groundwater systems, and wetlands on downstream 

waters. “In particular, the Report should contain a discussion of the spatial and temporal scales at which streams, 

groundwater systems, and wetlands are functionally aggregated.” And later, it states, “There should be more 

emphasis in the conceptual framework on the importance of groundwater connectivity and biological connectivity.” 

EPA-SAB-14-xxx. 

550 32Copeland, supra note 9, at p. 6.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

621

water is to a navigable water. The Board also notes that local shallow subsurface 

water sources and regional groundwater sources can strongly affect 

connectivity.”551

 “Some of the exclusions listed in the proposed rule do not have strong scientific 

justification and the SAB recommends that several should be reconsidered. For 

example, the proposed rule excludes groundwater. The available science, 

however, shows that groundwater connections, particularly via shallow flow 

paths in unconfined aquifers, are critical in supporting the hydrology and 

biogeochemical functions of wetlands and other waters. Groundwater also 

connects waters and wetlands that have no visible surface connections.”552

That is a clear statement for inclusion. But, the proposed rule is not only a deliberative 

science-driven assessment. (p. 5 – 6)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.944 “If politics were to trump science in the rulemaking process, the likelihood of a protective 

rule would not be promising.”553

Our groundwater is being overused and under-protected. I will highlight just one of the 

leading factors in the health of our groundwater: non-point agricultural pollution. In a 

2008-9 national rivers and streams assessment, EPA reported that the most 

comprehensive indicator of water body health is the biological condition. When the 

stream is healthy, the chemical and physical components of the stream are also in good 

condition. The current data on the biological condition of our nation’s rivers and streams 

are:

 21% of the nation’s rivers and stream length are in good biological condition,

 23% are in fair condition,

 55% are in poor condition.554

Levels of phosphorus and nitrogen are widespread: 40% of rivers and streams have high 

levels of phosphorus, and 28% have high levels of nitrogen. The report states that “our 

rivers and streams are under significant stress and more than half exhibit poor biological 

condition. Phosphorus, nitrogen, and streambed sediments have widespread and severe 

 

551 From SAB’s September draft comments, p. 3.

552 Id. p. 3.

553 Copeland, supra note 9, at p. 14, quoting James Murphy, “Rapanos v. United States: Wading through Murky 

Waters,” National Wetlands Newsletter, vol. 28, no. 5, 2006, p. 19.

554 EPA, Office of Wetlands, Oceans and Watersheds, National Rivers and Streams Assessment 2008-9. 

EPA/841/D-13/001.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

622

impacts; reducing levels of these constituents will significantly improve the biological 

health of rivers and streams.”555

A recent U.S. Geological Survey found that industrial agriculture is the source of more 

than 70% of the pollution in the Mississippi River basin, which extends from the 

Appalachians to the Rockies.556

In a new study conducted by NASA and the University of California, Irvine, scientists 

found that between December 2004 and November 2013, the Colorado River Basin lost 

nearly 53 million acre feet of freshwater, of which three-quarters of the total was from 

groundwater. One specialist was quoted as saying, “We thought that the picture could be 

pretty bad, but this is shocking.”557 The Colorado River Basin is the water lifeline of the 

western United States. “The rapid depletion rate will compound the problem of short 

supply by leading to further declines in stream flow in the Colorado River. Combined 

with declining snowpack and population growth, this will likely threaten the long-term 

ability of the basin to meet its water allocation commitments to the seven basin states and 

to Mexico.”558

Our two major river basins are under critical stress, one from nonpoint agricultural 

pollution and one from overuse. Without looking more deeply or broadly, we see that this 

is not the time for the agencies to step back from their responsibility, to attempt to make a 

problem go away through hydrologic alchemy. As a nation, we have failed to be good 

stewards of the CWA. This is not the time to step away from its goals but to step toward 

them. (p. 6 – 7)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.945 How can the agencies better reflect the goals and purposes of CWA? The statute was 

ambitious in scope and specific about deadline for implementation, but we, agencies, 

people, industries, have not coalesced around the importance of this task.

In 1984, the Office of Technology Assessment issued a report entitled “Protecting the 

Nation’s Groundwater” stated, ”groundwater legislation is critical because this is the last 

part of the hydrological cycle to be regulated, and the hydrological imperatives require it 

to be integrated into the pattern of management immediately.”

Until we can effectively establish comprehensive protection of groundwater we must 

support the goals of CWA in ways that are available to us and not further diminish 

control over this critical resource. I urge the agencies to strike “groundwater” from the 

proposed rule’s language regarding “waters that are not ‘waters of the United States’.” 

 

555 Id.

556 U.S. Geological Survey. http://www.ewg.org/agmag/2013/04/epa-study-points-ag-pervasive-river-pollution.

557 NASA, supra note 13.

558 Id.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

623

That part is an easy excise. We need to clearly show that the main constituent is the 

American people. We, the people, cannot live without water. (p. 8)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

Franconia Township (Doc. #8661)

7.946 The proposed rule, in section (b), excludes "waste treatment systems, including treatment 

ponds or lagoons, designed to meet the requirements of the Clean Water Act" among 

other features listed in the section. While such systems have traditionally been excluded 

from CWA jurisdiction, we believe that, due to the expansive nature of the proposal, the 

agencies should also exclude other constructed water management and treatment 

infrastructure with similar attributes to these waste treatment systems. These facilities 

could include water reuse and recycling ponds, treatment lagoons, and other 

appurtenances; artificially constructed wetlands designed to treat agricultural or 

stormwater runoff (e.g. green infrastructure) used and managed to improve water quality; 

and artificially constructed groundwater recharge basins designed to percolate surface 

water into groundwater basins. All of these features would revert to dry land if 

application of water were to cease and should be included in the list of features identified 

in the proposed rule as excluded from the definition of "waters of the U.S." (p. 5)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. With respect to 

water delivery, reuse, and reclamation systems, please see summary response at 

7.4.2. Also please see summary response at 7.1 concerning the waste treatment 

system exclusion.

Paul Wetzel (Doc. #9219)

7.947 Man-made waters are not waters of the US even if wetland vegetation develops in them 

(pond, upland ditch, detention pond, farm pond, waters resulting in uplands due to 

ongoing construction, etc.). I have yet to see a man-made pond or upland ditch that does 

not contain at least some wetland vegetation. This includes aesthetic ponds, farm ponds, 

water detention ponds and ditches excavated in upland areas. These areas containing 

wetland vegetation should not be considered WOUS, even if they meet the definition of a 

wetland. Although a hydric soil may not be present, soils could be assumed under the 

1987 manual if dominated OBL veg. or OBL and FACW veg. with an abrupt wetland 

boundary. If a hydric should does develop, which it will eventually, these wetlands that 

develop in non-jurisdictional waters should NOT be considered WOUS, even if they

meet the definition of a wetland. This should hold true for any man-made wetlands 

created in upland areas, whether it is for habitat or water detention, it should not be 

considered a water of the US.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

624

If these waters (ponds, ditches) are constructed in a WOUS, then, yes, they should be 

considered a WOUS as well and jurisdictional (e.g. pond excavated in a jurisdictional 

wetland, impounded tributary, etc.).

Non-jurisdictional man-made waters should become WOUS ONLY if they are 

abandoned and become naturalized. However, we need a comprehensive definition of 

abandonment, e.g. XX number of years have passed since put to intended use. This 

should not apply to an abandoned development that sat idle for several years before 

someone purchased it though. For example, an old industrial plant site containing water 

detention ponds and other man-made non-jurisdictional waters. If this site were left idle 

for several years before someone purchased it, these nonjurisdictional waters should 

remain non-WOUS. I am not sure at what point a non-WOUS could be considered 

abandoned, this should be addressed in some manner. If a farm pond was abandoned 50 

years ago and a woods developed around it and wetlands reverted adjacent to it and the 

area is effectively naturalized, this would be considered truly abandoned. This is exactly 

the situation I have seen firsthand in NW Ohio. Somewhere between sitting idle and truly 

abandoned is a big gray area that needs to be described/defined in terms of abandonment 

and man-made non-WOUS. (p. 1)

Agency Response: The agencies do not feel that it would be appropriate to create 

an exclusion specific to “man-made waterbodies”, as the term “man-made” would 

potentially apply to a large number of aquatic features and exclude many waters the 

agenices have historically considered jurisdictional. Given the extensive human 

modification of watercourses and hydrologic systems throughout the country, it is 

often difficult to distinguish between natural watercourses and watercourses that 

are wholly or partly modified or constructed. Many features that potentially convey 

waters and/or pollutants to (a)(1)-(a)(3) waters have been historically created or 

altered, such as channelized streams and impounded areas, and to add a broad 

exclusion for these waters to the list of excluded features would not improve 

regulatory clarity, nor be consistent with the goals of the statute. The agencies 

believe the expanded exclusions for cooling ponds, stormwater control features, and 

wastewater recycling structures created in dry land, as well as certain types of 

ditches, provide clarity regarding many of the features that prompted these 

comments, as well as the necessary environmental safeguards.

Floyd County Farm Bureau, Inc. (Doc. #9673)

7.948 Another area of great concern is the creation of "exemptions" for agriculture. When 

Congress passed the Clean Water Act, it put many exemptions in place, including several 

for agriculture. It is our view that the proposed exemptions in the rule are much narrower 

than those provided by Congress. By creating these new exemptions for permitting, the 

agencies have created the appearance that they are defining and limiting the protections 

provided by the Clean Water Act. Further, the exemptions provided in the interpretive 

rule are extremely onerous and run the risk of pushing farmers away from voluntary 

conservation programs. (p. 2)

Agency Response: The proposed rule does not change or add new permitting 

exemptions for agriculture. The CWA statutory and regulatory exemptions still 

apply. See summary response at 12.3 regarding how the final rule does not change 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

625

permitting requirements for agriculturally-related NPDES discharges. Additionally, 

the Interpretive Rule was withdrawn and such comments are outside the scope of 

the final rule. See compendium section 14.2 for responses to comments on the 

Interpretive Rule. 

Minnesota Association of County Agricultural Inspectors (Doc. #10970)

7.949 Our group's primary concern is the control of noxious weeds and invasive species. If the 

change in the definition results in landowners needing to get permits to use pesticides to 

control weeds, insects and diseases it would result in less effective control being done. 

This would create greater negative impacts on water quality, than what is currently being 

allowed. There has been some clarification on this issue, but as we read the wording, we 

feel that this exemption is far from guaranteed in the area of noxious weeds and other 

agricultural pest controls. In general it would also generally potentially make farming 

much more costly and difficult. (p. 1 – 2)

Agency Response: See summary response at 12.3. The final rule does not change 

or impose new requirements for complying with the NPDES regulations for 

pesticides and the pesticide general permit (PGP). 

Weld County (Doc. #12343)

7.950 Under [the new] exclusion, water that only stands or pools in a ditch is not considered 

perennial flow, and therefore, any such upland ditch would not be subject to regulation. 

Fed. Reg. Vol. 79 No. 76 at 22203.

However, this does not clarify how long the water may stand or pool before it becomes 

regulated. This exclusion also does not clarify whether water which stands and pools in 

places and flows in others would be regulated. As a part of the irrigation necessary to 

farm in Colorado, water often pools when fields are being irrigated. The roads that are 

maintained by the county and laid out in a grid pattern provide barriers where this water 

collects. Pursuant to the definition above regarding standing or pooling water, the 

County's borrow pits should be exempt. (p. 9)

Agency Response: See summary response for section 6.2 in this RTC. 

7.951 In a further exclusion the agencies state:

Ephemeral features located on agricultural lands that do not possess a bed and 

bonk are not tributaries. The defined bed and bank no longer exists due to past 

normal farming practices such as plowing or discing and these practices often 

pre-dote the CWA. Such farm field features are not tributaries even though they 

may contribute flow during some rain events or snowmelt. Fed. Reg. Vol. 79 No. 

76 at 22204.

However, this also does not take into account that the flow of water and the extent to 

which that flow contributes to the general hydrological cycle is not controlled simply by 

weather events. In the Western United States, large amounts of water are relocated 

through complex irrigation systems. This transforms land that would otherwise be unused 

into productive farmland. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

626

The rule further states that areas which would revert to uplands if irrigation ceased are to 

be excluded. In Colorado, the majority of land is arable only because of the irrigation that 

brings water to it. With the exception of natural waterways which existed prior to the 

settlement of Colorado, all of the land is upland. If this is the case, then essentially all 

agricultural land and all water conveyances that serve agriculture would be exempt. 

Further, roadside ditches and borrow pits that are built through this farmland and are full 

of irrigation tail water would be exempt. The difficulty with this is again, the lack of a 

clear definition of the term "upland." (p. 9)

Agency Response: The agencies have deleted the term “uplands” in response to 

the confusion the term created and have instead utilized the term “dry land.” This 

phrase appears in the 1986 and 1988 preambles, and the agencies believe the term is 

well understood based on the more than 30 years of practice and implementation. 

But in keeping with the goal of providing greater clarity, the agencies clarify that 

“dry land” refers to areas of the geographic landscape that are not water features 

such as streams, rivers, wetlands, lakes, ponds and the like. However, it is important 

to note that a “water of the United States” is not considered “dry land” if it lacks 

water at a given time. Similarly, an area remains “dry land” even if it is wet after a 

rainfall event. The agencies also here clarify their longstanding view that only the 

specific land being directly irrigated that would revert dry land should irrigation 

cease is exempt; it is not the case that all waters within watersheds where irrigation 

occurs are exempt. See 7.3.1.

North Carolina Water Quality Association (Doc. #12361)

7.952 I. Add an Express Exclusion for Stormwater Treatment and Conveyance Systems

Many common features of MS4s and other stormwater treatment and conveyance 

systems including many stormwater conveyance ditches and settling basins-are expressly 

excluded from regulation under the proposed definition of waters of the United States. 

However, the jurisdictional status of some stormwater management features is potentially 

unclear. One example is constructed wetlands. These BMPs often are virtually 

indistinguishable from natural wetlands, notwithstanding that they are constructed in 

uplands and carefully engineered to perform important stormwater management 

functions. The rule must clarify that constructed wetlands, and all other stormwater 

BMPs, are not subject to regulation as jurisdictional waters of the United States.

Stormwater management systems are vitally important to public safety and water quality. 

They warrant an express and unambiguous exclusion in the rule. The exclusion should 

clarify that no purposefully constructed stormwater management feature will be regulated 

as a water of the United States. The exclusion -should apply whether the feature is part of 

a larger stormwater system or is a standalone BMP, and irrespective of whether it is part 

of an MS4. The definition must also be and the many different and innovative types of 

stormwater BMPs. To meet these objectives, NCWQA proposes that the following 

exclusion (italicized text) be added to the rule:

(2) The following are not "waters of the United States" notwithstanding whether 

they meet the terms of paragraphs (l)(i) through (vii) of this definition-
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

627

(vi) Stormwater management systems or features, including all portions of a 

municipal separate storm sewer, constructed in uplands and designed or used for 

the purpose of collecting, treating, infiltrating, evaporating, or conveying 

stormwater.

This definition would add essential clarity to any final rule. (p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4.

Florida Water Environment Association (Doc. #12856)

7.953 Intuitively, this exemption would seem to apply to any feature of a functioning reuse 

system. See 33 USC§ 1251(a). But the rule's preamble does not explain how this 

exemption applies to reuse systems, including systems that may not even require NPDES 

permits. Accordingly, for the first time ever, FWEA Utility Council members are 

concerned that reclaimed water storage ponds, aquifer recharge systems, and other 

necessary features of functioning reuse systems could now be considered jurisdictional 

waters and/or require NPDES permits.

Utilities' concerns appear to be well-founded. In addition to the broadly worded rule 

proposal, a federal appellate court recently applied the waste treatment system exemption 

in a manner that calls into question the availability of the exemption for treatment 

systems that have a state permit but lack an NPDES permit. In City of Healdsburg v. 

Northern California River Watch, 496 F.3d 993 (9th Cir. 2007), the Ninth Circuit Court 

of Appeals determined that the City of Healdsburg needed an NPDES permit to discharge 

treated wastewater into an abandoned rock quarry pit.

Applying the "significant nexus" test, the court found that the quarry pit was a water of 

the United States on two independent grounds: quarry waters would seep into the nearby 

Russian River via overland wetland flow and the surficial aquifer, and the quarry waters 

significantly affected the river's "physical, biological, and chemical integrity." Id. at 995, 

1001. Having made an initial determination that the quarry pit was jurisdictional, the 

Court then analyzed whether the quarry pit nevertheless qualified as a "waste treatment 

system designed to meet the requirements of the Clean Water Act." After a brief analysis, 

the Court determined that the pond "may be part of a waste treatment system, but it does 

not fall under the exemption because it is neither a self-contained pond nor is it 

incorporated in an NPDES permit as part of a treatment system." I d. at 1002 (emphasis 

added). Based on the unique facts of that case, the Court seemed to interpret the waste 

treatment exemption as only applying to treatment systems that hold an NPDES permit. 

This is a nonsensical outcome for utilities that operate reuse systems, which by definition 

are designed to limit discharges to surface waters as a means of disposal. (p. 3 – 4)

Agency Response: See summary response at 7.1 which addresses the waste 

treatment system exclusion. With respect to water delivery, reuse, and reclamation 

systems, please see summary response at 7.4.2.

7.954 EPA should categorically exempt all components of a functioning reuse system from 

the rule.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

628

A primary goal of the Clean Water Act is to abate pollutant discharges. 33 U.S.C. § 

1251(a)(l). In addition to treatment, the continued expansion of the reuse of reclaimed 

water is a primary means of realizing this goal. Accordingly, it seems that EPA would not 

want to adopt a rule that would impede reuse infrastructure. Florida reuse utilities hold 

state-issued permits that govern their reuse systems, and applicable State rules prohibit 

reclaimed water irrigation practices or discharges to groundwater that cause or contribute 

to surface water impairments. See Rules 62-610.850(1)(a); 610.800(1), F.A.C. Thus, 

there appears to be no legitimate environmental objective served by including reclaimed 

water storage ponds, percolation ponds, or other features of reclaimed water system 

within the jurisdictional reach of the Clean Water Act jurisdiction based on the absence 

of an NPDES permit or for any other reason. Unfortunately, the rule proposal does not 

address these issues; instead, the proposal provides that the "agencies do not propose to 

address the substance of the waste treatment system exclusion and thus will leave each 

regulation as is .. . . " 79 Fed. Reg. at 22217. This issue needs to be addressed. The 

FWEA Utility Council requests that EPA categorically exempt all components of a 

functioning reuse system from the scope of the waters of the U.S. rule. (p. 4)

Agency Response: See summary response at 7.1 which addresses the waste 

treatment system exclusion. With respect to water delivery, reuse, and reclamation 

systems, please see summary response at 7.4.2.

Family Farm Alliance (Doc. #12983)

7.955 Arroyos

In some parts of the Southwest, water spilled from canal delivery systems ends up in the 

natural arroyo system, which can link to downstream tributaries of clearly navigable 

rivers. For example, in Southwest Colorado, water in the Dolores Water Conservancy 

District can drain back to the natural arroyo system, which physically links to a tributary 

to the San Juan River (an interstate river which meets the definition of “navigable”). Past 

experience of some District managers is that the Corps would claim regulatory oversight 

over all dry arroyos, placing additional regulatory requirements on the local 

municipalities and flood control agencies tasked with keeping residents safe from 

flooding.

The EPA and the Corps proposal would exempt some seasonal flow paths that might 

provide coverage for main irrigation canal systems. However, some irrigation districts 

have interceptor ditches (full of cattails sustained by adjacent farming) in existing rightsof-way that sometimes lead to natural arroyos. These interceptor ditches are similar to 

any roadside ditch, but lie within district rights of way and may be perceived as point 

sources. Likewise, some canal waste-ways can overflow occasionally (during rain events 

or from canal operational problems) into the natural drainage system. In other areas, dam 

structures release water into century-old ditch systems that can very quickly become 

indistinguishable from natural drainage areas as they flow into larger arroyos.

Many of our member organizations who have been managing irrigation for 100 years 

have effectively made arroyos that once traditionally only flowed seasonally into 

perennial flowing streams. We are also concerned that many acres of artificially created 

wetlands that were established after years of irrigation now might be considered “natural” 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

629

by regulators. Western water managers are fearful of how on-the-ground regulators will 

apply the proposed rule to areas like these in the future, long after the policy has been 

crafted in distant Washington, D.C. Some of our ranchers are especially concerned about 

the probability of requirements for Section 404 permits and the prohibitive cost of 

acquiring a permit. Many arroyos that run through Western ranches have fences that must 

be repaired or replaced after every high rainfall event. Others are equally concerned about 

the probability of a requirement for an EPA-approved grazing plan because of cattle 

grazing within a drainage area. These are but a few of the very real concerns that have 

arisen as a result of the lack of clarity and certainty in the proposed rule. (p. 11)

Agency Response: See summary response 6.0 and 6.2 for discussion of 

jurisdictional and excluded ditches. See summary response 7.3.1 for discussion of 

artificially irrigated areas. 

Ground Water Protection Council (Doc. #13055)

7.956 The recognition that groundwater is not a jurisdictional water under the CWA should not 

prevent the continued commitment by EPA to integrate groundwater as part of the 

planning approaches to municipal wastewater and stormwater management. GWPC 

points out that guidance and implementation of this proposed rule needs to be protective 

of groundwater quality. There should be a common purpose for protecting drinking water 

sources under both the CWA and the Safe Drinking Water Act. The infiltration of 

stormwater runoff to groundwater should also be protective of groundwater quality. If 

polluted stormwater is redirected to groundwater for either disposal or shallow recharge, 

GWPC recommends that the two Acts not be implemented at cross purposes and that 

proposed rule changes should not be interpreted to allow groundwater to be 

contaminated. (p. 2)

Agency Response: Nothing in the final rule changes application of the Safe 

Drinking Water Act. See also response at 7.3.6.

Tamara Choat (Doc. #13701)

7.957 If the proposed rule cannot be dropped, the following concerns and recommendations 

should be addressed.

(...) 4. The exclusions and exemptions provided under the proposed rule are unclear and 

too narrow to provide protections for landowners. Clarification is needed prior to moving 

forward with a rule. (p. 1)

Agency Response: In the final rule, the agencies have provided clarified 

information regarding features that are not considered “waters of the United 

States”, even where those features would otherwise meet the criteria for jurisdiction 

under paragraphs (a)(4) though (a)(8).

Board of County Commissioners, Lewis and Clark County (Doc. #14065)

7.958 (...) Additionally, the proposed or potential increase in the scope of those waters 

considered under EPA jurisdiction is alarming. Intermittent streams, low lying areas, 

roadside ditches, or occasional conveyances of water should not be considered “waters of 

the US”. (p. 1)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

630

Agency Response: The agencies disagree that intermittent streams are currently 

not considered jurisdictional. See the tributary section of the preamble for a 

discussion of stream flow regime. The agencies are unclear what the commenter is 

referring to in the statement “...run-on from low-lying agricultural areas, and water 

discharges from similar lands being reclassified as jurisdictional.” See Response to 

Comments Compendium 7 Summary Response and list of exclusions.

A. Romberg (Doc. #14096)

7.959 I urge the EPA to modify the proposed updated definition of Waters of the U. S. to 

EXCLUDE stormwater ponds and drainage ditches, and municipal stormwater systems. 

These systems are currently entirely adequately regulated by the National Pollution 

Discharge Elimination System, administered by the Texas Commission on Environmental 

Quality. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4.

El Dorado Holdings, Inc. (Doc. #14285)

7.960 The proposed exemption for “gullies and rills” is potentially significant for the arid West, 

but the scope of the exemption is unclear. There is no obvious way to distinguish between 

(exempt) gullies and rills and (non-exempt) small ephemeral tributaries. (p. 7)

Agency Response: See summary response 7.3.7. 

Westlands Water District (Doc. #14414)

7.961 The Supreme Court's decisions in Miccosukee and Los Angeles County Flood Control 

District recognized the fundamental difference between waters of the United States and a 

point source that discharges into waters of the United States. A feature or system cannot 

fall into both categories. If a man-made conveyance meets the definition of point source 

under the Act, the EPA and the Army Corps of Engineers cannot properly classify it as a 

water of the United States based on an expansive definition of the term not found in the 

text of the Act itself. (p. 15)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. Also see the 

Technical Support Document, Section I. for an explanation of the legal basis for the 

final rule. That section explains the rationale behind the longstanding position that 

point source and waters of the U.S. are not mutually exclusive. 

7.962 Treatment Works with ponds in close proximity to a Tributary or Traditional Navigable 

waste treatment systems frequently rely on percolation ponds and basins as a critical part 

of the sewage treatment process. Many waste treatment systems are developing wetland 

type treatment systems to reduce nutrient and other pollutant levels in the final effluent 

discharged from the system. These ponds and wetlands are almost always connected to 

traditional navigable waters or their tributaries because the effluent needs somewhere to 

go.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

631

In many cases the effluent must be returned to a surface stream so that it can contribute to 

overall stream flow and be used by downstream water rights holders. Because of their 

location and function, these ponds could be classified as "waters of the United States" 

under the Proposed Rule. The Proposed Rule should expressly exempt all aspects of the 

waste treatment system, I including "hack end" ponds and treatment wetlands, to ensure 

that the existing exemption is carried forward and to avoid infringing on operation of this 

critical infrastructure. (p. 25)

Agency Response: See summary response at 7.1 concerning the waste treatment 

system exclusion. With respect to groundwater recharge ponds, please see summary 

response at 7.4.2.

7.963 IV. REQUEST FOR MODIFICATION

As indicated in these Comments, the Proposed Rule would have significant impacts on 

water supply projects and flood control systems in the western states. To address these 

concerns, the following changes should be made to 40 C.F.R § 122.2:

Waste treatment, flood control and water supply systems, including but not 

limited to aqueducts, water supply canals not used for navigation, treatment 

ponds, or lagoons, storage ponds, pipelines, open channels, agricultural drains, 

manmade treatment wetlands, swales, or other low impact design infrastructure

are not waters of the United States. This exclusion applies only to manmade 

bodies of water which were not created in waters of the United States Waters of 

the United States do not include prior converted cropland. Notwithstanding the 

determination of an area's status as prior converted cropland by any other federal 

agency, for the purposes of the Clean Water Act, the final authority regarding 

Clean Water Act jurisdiction remains with EPA.

Additionally, the following changes should be made to 40 C.F.R § 122.2(b) and other 

relevant sections of the federal regulations that will be modified by the Proposed Rule:

(b) The following are not ‘‘waters of the United States’’ notwithstanding whether they 

meet the terms of paragraphs (a)(1) through (7) of this section –

(1) Waste treatment systems, including treatment ponds, treatment wetlands, 

storage ponds or lagoons, and percolation ponds designed to meet the 

requirements of the Clean Water Act, or designed to reuse treated effluent.

(2) Prior converted cropland. Notwithstanding the determination of an area’s 

status as prior converted cropland by any other Federal agency, for the purposes 

of the Clean Water Act the final authority regarding Clean Water Act jurisdiction 

remains with EPA.

(3) Ditches that are excavated wholly in uplands, drain only uplands, and have 

less than perennial flow.

(4) Ditches that do not contribute flow, either directly or through another water, to 

a water identified in paragraphs (a)(1) through (4) of this section.

(5) The following features:
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

632

(i) Artificially irrigated areas that would revert to upland should 

application of irrigation water to that area cease;

(ii) Artificial lakes or ponds created by excavating and/or diking dry land 

and used exclusively for such purposes as stock watering, irrigation, 

settling basins, water supply storage, groundwater recharge, or rice 

growing;

(iii) Artificial reflecting pools or swimming pools created by excavating 

and/or diking dry land; (iv) Small ornamental waters created by 

excavating and/or diking dry land for primarily aesthetic reasons;

(v) Water-filled depressions created incidental to construction activity;

(vi) Groundwater, including groundwater conveyed to waters of the 

United States through open channels and subsurface drainage systems; and

(vii) Gullies and rills and non-wetland swales.

(6) Manmade flood control and water supply systems, including but not limited to 

aqueducts, water supply canals not used for navigation, treatment ponds, storage 

ponds, lagoons, pipelines, open channels, agricultural drains, manmade treatment 

wetlands, swales, or other low impact development infrastructure which were not 

originally created in waters of the United States. (p. 32 – 33)

Agency Response: Please see summary response 7.1 concerning the waste 

treatment system exclusion. With respect to water delivery, reuse, and reclamation 

systems, please see summary response at 7.4.2. With respect to the jurisdictional 

status of stormwater control features, including green infrastructure, as waters of 

the U.S., please see summary response at 7.4.4.

Union for Reform Judaism (Doc. #14560)

7.964 This proposed new definition is necessary because of the legal ambiguity created by the 

Supreme Courts’ 2001 ruling in Solid Waste Agency of Northern Cook County 

(SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and again in 2006 

under Rapanos vs. United States, 547 U.S. 715 (2006). These decisions raised questions 

about the scope of waters protected by the Clean Water Act. Legal uncertainty and the 

resources required to argue jurisdiction have made Clean Water Act enforcement 

narrower than rightfully allowed under law. Now, for example, when crude oil is 

discharged into a creek and pollutes the water, the prohibitive resource requirements of 

establishing jurisdiction can prevent EPA from exerting its authority to pursue a cleanup 

action and protect the area that provides water to the region and a habitat for local 

wildlife. (p. 1)

Agency Response: Comment noted. See the Technical Support Document Section 

I.C for a discussion of the Supreme Court decisions.

State of Oklahoma (Doc. #14625)

7.965 As noted particularly in the preamble to the draft WOTUS rule, groundwater is outside 

the reach and scope of the CWA. In fact, it's a great example of an equally important 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

633

source of freshwater for our citizens and industries that is well protected and managed 

solely within the purview of States. We appreciate the proposed rule's exclusion of 

groundwater, both in the preamble and now in the regulatory text, including the 

exemption of "groundwater drained through subsurface drainage systems." Still, given 

the proposed rule's use of "shallow subsurface hydrologic connections" as a possible 

means to establish jurisdiction, we believe the regulatory exemption should be extended 

to cover such shallow subsurface water. In Oklahoma and a number of other states, any 

water under the surface, no matter how shallow, is groundwater and is a property right of 

the overlying landowner. While the discussion in the preamble states that subsurface 

hydrologic connections will not become jurisdictional themselves, we remain concerned 

about the fact that preamble language often becomes unplugged from the regulatory 

language upon final codification in the CFR. Accordingly, we propose that the 

groundwater exclusion in paragraph (t)(5)(vi) of the proposed rule be amended as 

follows: 

"Groundwater, including but not limited to groundwater drained through subsurface 

drainage systems and shallow subsurface hydrologic connections used to establish

jurisdiction between surface waters under this section." (proposed changes underlined) 

(p. 5)

Agency Response: The agencies believe that the final rule language and 

accompanying preamble sufficiently and accurately describe the intent of the 

agencies in regard to the groundwater exclusion. See section (IV)(G) of the 

preamble to the final rule and section 7.3.6.

State of Oklahoma (Doc. #14773)

7.966 Another area of serious concern from the proposed WOTUS rule is the introduction of 

"shallow sub-surface connections" and the potential for groundwater to be regulated for 

the first time under the CW A. Oklahoma defines groundwater as " ... fresh water under 

the surface of the earth regardless of the geologic structure in which it is standing or 

moving outside the cut bank of any definite stream." (82 OKLA. STAT. §1020.1(1)). The 

CWA specifically excludes any regulation of groundwater, but the Agencies appear to be 

ignoring this intentional exclusion. In order to correct this issue, the Agencies should 

remove any doubt and clarify groundwater or connections below ground will not be 

regulated under the proposal. (p. 2)

Agency Response: Groundwater is specifically excluded in the final rule. The 

agencies believe that the final rule language and accompanying preamble 

sufficiently and accurately describe the intent of the agencies in regard to the 

groundwater exclusion. See section (IV)(G) of the preamble to the final rule and 

section 7.3.6.

Santa Clara Valley Water District (Doc. #14776)

7.967 The Proposed Rule should not be internally inconsistent, and should not be inconsistent 

with the and actions applied to wastewater discharges. For example, the Proposed Rule 

excludes groundwater in many sections (as it should), but groundwater is not excluded 

when jurisdiction is defined by shallow subsurface hydrologic connections. Neighboring 

and riparian areas use subsurface hydrologic connections to determine adjacent waters. 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

634

Erosion features (e.g., gullies, rills, swales, ditches) are excluded, but yet considered 

connections in different sections of the Proposed Rule. There should not be 

contradictions in a final rule. (p. 2)

Agency Response: Groundwater is specifically excluded in the final rule, and the 

rule does not include a provision defining “neighboring” based on shallow 

subsurface flow. The agencies believe that the final rule language and 

accompanying preamble sufficiently and accurately describe the intent of the 

agencies in regard to the groundwater exclusion. See section (IV)(G) of the 

preamble to the final rule and section 7.3.6.

Region 10 Tribal Caucus (Doc. #14927)

7.968 First, the Tribal Caucus believe that many waters will still be threatened because of 

loopholes in 'the CWA that allow mining waste to be dumped directly into streams, rivers 

and lakes. The rule should be expanded to close the "fill" loophole to clarify that mining 

waste cannot be used to fill in waters of the United States, and the "waste treatment 

system" loophole that simply allows mining companies to rename water a "waste 

treatment system" to escape CWA responsibilities. (p. 3)

Agency Response: See summary response at 7.1. Comments on the definition of 

“fill material” are outside the scope of the proposed and final rules. 

City of Minneapolis Water Resources (Doc. #14975.1)

7.969 The following is new revised rule language that we recommend be added to this rule. It is 

expressed in a format appropriate for the proposed revisions to Part 328, Section 328.3. 

We request that similar language, revised as appropriate, be added to each section 

included in this rule.

Added to PART 328-DEFINITION OF WATERS OFTHE UNITED STATES § 328.3 

(c) "Definitions" (and other similar sections)

Fully-constructed Stormwater Control Measures. The term fully-constructed stormwater 

control measures (SCMs) means man-made structures, devices, measures, or Best 

Management Practices (BMPs) that are constructed for the purpose of water quality 

treatment, stormwater volume reduction, stormwater rate control, flood control, 

stormwater conveyance, or any combination of these purposes. Fully-constructed SCMs 

include the following manmade features: constructed stormwater ponds, constructed 

stormwater wetlands, rain gardens, infiltration devices and structures, groundwater 

recharge facilities, stormwater reuse facilities, swales, bioswales, Low Impact 

Development structures and BMPs, pipes, streets, curbs, gutters, roadside ditches, manmade channels, storm drains, and other constructed stormwater control and conveyance 

structures, devices, and features. SCMs that have been built at the approximate location 

of similar types of natural waters (such as stormwater ponds constructed at the location of 

natural lakes or natural wetlands, ditches constructed at the location of natural streams or 

creeks, or stormwater channels constructed at the location of natural rivers) shall be 

considered fully constructed SCMs. Natural lakes, natural ponds, and natural wetlands 

with stormwater conveyance pipes discharging them and constructed outlets shall not be 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

635

considered fully-constructed SCMs. SCMs that are subject to the ebb and flow of the tide 

shall not be considered fully-constructed SCMs.

Roadside ditches. The term roadside ditches means common roadway features, typically 

with a bottom and side slopes, found along or near the side of a roadway, intentionally 

designed and constructed as an integral part of a roadway system to convey water away 

from or along the roadway, preserve the structural stability of the roadway, /and/or to 

enhance public safety. Roadside ditches are an artificial and integral constructed part of a 

topography altered for the purpose of facilitating a roadway as a part of a larger 

transportation system. Roadside ditches serve defined purposes as a part of a 

transportation system. Many promote structural stability of the roadway by moving water 

along or away from the roadway. Some are constructed for the purposes of providing a 

physical barrier and landing areas of vehicles accidentally leaving a roadway. Others 

provide a buffer and catchment zone for falling rock or other hazards to the traveling 

public. Roadside ditches may be constructed for multiple purposes. Roadside ditches may 

or may not carry water. When present, flows within roadside ditches may be ephemeral, 

intermittent, or perennial. Flows of any type may be found in one part of a roadside ditch 

and not in another. (p. 1 – 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. Ditches are 

also addressed in compendium 6.

7.970 The following is new revised rule language that we recommend be added to this rule. It is 

expressed in a format appropriate for the proposed revisions to Part 328, Section 328.3. 

We request that similar language, revised as appropriate, be added to each section 

included in this rule.

Added to PART 328-DEFINITION OF WATERS OF THE UNITED STATES §

328.3 (b) The following are not "waters of the United States” notwithstanding 

whether they meet the terms of paragraphs (a)(1) through (7) of this section – (5) the 

following features:" (and other similar sections)

(viii) Fully-constructed stormwater control measures.

(ix) Roadside ditches

Comments directly related to the New Recommended Revised Rule Language 

Provided Above

1. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. 

Some are cities. Others are various types of public entities (DOTs, counties, nontraditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES 

permitting program. Many more of these MS4s are not regulated and are not covered 

under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their 

systems that are regulated under MS4 permits (inside an Urbanized Area) and portions 

that are not regulated (outside of Urbanized Areas). Taken together, all these MS4s 

own, operate, and maintain millions of Stormwater Control Measures (SCMs) and 

Best Management Practices (BMPs). These SCMs and BMPs include both structural 

and non-structural practices, programs, and features. In order for these MMs to operate 

and maintain their systems in an efficient and cost-effective manner, the WOTUS 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

636

jurisdictional status of the vast majority of these constructed SCMs and BMPs must be 

clear. Determining the WOTUS jurisdictional status of most of these constructed 

SCMs and BMPs on a case-by-case basis is not manageable or practicable. It is 

essential that clarity be provided by having specific and explicit exclusion language in 

the new rule for most of these constructed SCMs and BMPs, including roadside 

ditches. Broad inclusion language and reliance on agency best professional judgment 

and discretion regarding the WOTUS status of most urban SCMs and BMPs are not 

acceptable or practicable. It is essential that clarity be provided by having specific and 

explicit exclusion language in the new rule for most of these constructed SCMs and 

BMPs, including roadside ditches. Broad inclusion language and reliance on agency 

best professional judgement and discretion regarding the WOTUS status of most urban 

SCMs and BMPs are not acceptable or practicable. 

2. There is a price paid for lack of clarity. if MS4ownefs and operators are unclear or 

unsure about the WOTUS " jurisdictional status of their constructed SCMs and BMPs, 

their work will be more difficult and less efficient. Staff resources and time will be 

diverted to this status issue. MS4s will be less confident about their operations and 

maintenance programs. MS4s' work and performance to protect, restore, and improve 

water quality will b be diminished.

3. If a significant number of urban SCMs are determined to be WOTUS, the operation 

and maintenance of those SCMs will become much more complicated, difficult, and 

expensive for the public entities responsible for these MS4s, without any 

corresponding positive environmental outcomes. In fact, the MS4s' work and 

performance to protect, restore, and improve water quality will be diminished. Such 

determinations may be the result of agency judgment or the outcome of third party 

lawsuits, based on interpretations of rule language. This is part of the reason why an 

explicit exclusion for most urban SCMs is needed.

4. Specific exclusion language is needed for urban SCMs. If, as has been stated publicly 

on many occasions, it is EPA's intent that most of these waters and structures are not to 

be considered WOTUS, this should be clearly stated in the rule. Such a clear statement 

would formalize and clarify EPA's intent. Such a clear statement would significantly 

reduce the probability of unfortunate interpretations in the future.

5. The current draft of the rule is almost silent about urban stormwater, in the preamble 

and the proposed rule language. This recommended revision language would rectify a 

portion of that deficiency. Adding exclusion language for urban SCMs to this rule 

would be appropriate, historic, and significant.

6. Because EPA is driving construction of MS4 SCMs and BMPs as part of its regulatory 

function, EPA has a responsibility to define clearly the jurisdictional status of most 

urban SCMs in the new WOTUS rule. This is part of the reason why an explicit 

exclusion for most urban SCMs is needed.

7. The definition for the term "tributary" provided in the proposed draft rule language is 

breathtakingly broad, especially the language related to man-made and natural breaks. 

Under this language, it appears that many urban SCMs could be considered tributary 

to other Waters of the United States and, thus, themselves be WOTUS. This 

contradicts EPA's public statements that most urban SCMs are not WOTUS. This is 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

637

part of the reason why an explicit exclusion for most urban SCMs is needed. Broad 

inclusion language and reliance on agency best professional judgment and discretion 

regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or 

practicable.

8. Section 1.a.vi. of the draft proposed rule ("All waters, including wetlands, adjacent to a 

water identified in paragraphs (a)(l) through (5) of this section") states that all waters 

adjacent to WOTUS are WOTUS. The definition of the term "adjacent" includes the 

term "neighboring". The definition of the term "neighboring" includes waters located 

within the riparian area or floodplain of a WOTUS. Under this rule language, it 

appears that constructed urban SCMs in the riparian areas or floodplains of WOTUS 

would be considered WOTUS. This contradicts EPA's public statements that most 

urban SCMs are not WOTUS. This is part of the reason why an explicit exclusion for 

most urban SCMs is needed. Broad inclusion language and reliance on agency best 

professional judgment and discretion regarding the WOTUS status of most urban 

SCMs and BMPs are not acceptable or practicable.

9. The approach with this new recommended revised rule language is to provide a broad 

exclusion for most types and the vast majority of urban stormwater SCMs, BMPs, and 

roadside ditches. The authors recognize that it may be appropriate that some types of 

urban SCMs are determined to be WOTUS, on a case-by-case basis. To this end, the 

new recommended revised language includes "exceptions to the exclusion" in the 

definition for "fully-constructed SCMs" (see the last three sentences). We urge EPA 

and the Corps to consider this approach for the final rule language. This approach 

allows for a categorical exclusion for most urban SCMs but also allows 1 for some 

types of urban SCMs to be determined to be WOTUS, on a case-by-case basis. If 

additional exceptions are needed and appropriate for "fully-constructed SCMs" or 

exceptions are needed and appropriate for some types of roadside ditches, we urge 

EPA and the Corps to use this approach and add exceptions as needed.

10. We urge EPA to add explanatory language to the preamble to clarify its approach for 

urban SCMs. The preamble should be as clear for urban SCMs and roadside ditches as 

it is for agricultural waters, flows, practices, and ditches.

11. The exclusion language in the current proposed rule ("Waste treatment systems,

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act.") is inadequate for urban SCMs. Many urban SCMs were constructed for 

and serve purposes other than "waste treatment". Many urban SCMs were designed for 

purposes other than meeting "the requirements of the Clean Water Act". For example, 

this language does not cover many SCMs constructed in non-permitted MS4s. This 

language would not cover urban SCMs and roadside ditches constructed the passage of 

the CWA. The new recommended revised rule language is intended to address these 

deficiencies.

12. The first exclusion provision in the proposed draft rule for ditches ("Ditches that are 

excavated wholly in uplands, drain only uplands, and have less than perennial flow.") 

is inadequate. In many types of landscapes, it is impossible to construct a system of 

roadside ditches that does not pass through, drains, is adjacent to, or has a significant 

nexus with one or more wetlands. Many roadside ditches have constant flows -
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

638

because of significant groundwater inputs. This means that a significant portion of the 

millions of miles of roadside ditches in the United States would not be covered under 

this exclusion. This is unmanageable and unacceptable. The new recommended 

revised rule language proposed here is intended to address this deficiency.

13. The second exclusion in the proposed draft rule for ditches ("Ditches that do not 

contribute flow, either directly or through another water, to a water identified in 

paragraphs (a)(l) through (4) of this section.") is inadequate. The definition for the 

term "tributary" in the proposed draft rule includes very broad language defining 

possible connections between waters and to WOTUS. Based on this language, only a 

very small portion of the millions of miles of roadside ditches in the United States 

would be covered under this exclusion. This is unmanageable and unacceptable. The 

new recommended revised rule language proposed here is intended to address this 

deficiency.

14. This new recommended revised rule language does not address ditches that are not 

"roadside ditches". We urge EPA to consider a similar approach and similar revised 

rule language for these other types of ditches, especially where these ditches are urban 

SCMs.

15. The terms "stormwater control measures" and "best management practices" are 

widely used and very broadly defined, in common usage among stormwater 

management professionals and regulators. They are used to describe both nonstructural and structural practices, programs, and constructed features. A portion of the 

range of non-structural and structural BMPs can be found at a Web site developed by 

USEPA for the MS4 permitting program: "National Menu of Stormwater Best 

Management Practices" at this Web URL: http://water.epa.~ov/polwaste/npdes/swbm/

16. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United 

States. Some are cities. Others are various types of public entities (DOTS, counties, 

non-traditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES 

permitting program. Many more of these MS4s are not regulated and are not covered 

under an MS4 permit. Some MS4s (e.g.: counties and DOTS) have portions of their 

systems that are regulated under MS4 permits (inside an Urbanized Area) and portions 

that are not regulated (outside of Urbanized Areas). The exclusion language proposed 

here applies to all urban SCMs, regardless of whether they are covered under an MS4 

permit or not. It may be appropriate to include language in this rule providing an 

exclusion for urban SCMs that are within the boundaries of permitted MS4s, but that is 

not the goal of this recommended rule revision. It is essential, for all the reasons listed 

above, that an exclusion be provided for the vast majority of urban SCMs, regardless 

of MS4 permit status.

17. The term "stormwater control measures" (SCMs) is used in this recommended revised 

rule language because of its use in the National Research Council's report from 2008 

"Urban Stormwater Management in the United States". (p. 2 – 45)

Agency Response: This comment parallels comments addressed elsewhere. With 

respect to the jurisdictional status of stormwater control features as waters of the 

U.S., please see summary response at 7.4.4. See compendium 6 for discussion of 

ditches.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

639

Clean Water Action (Doc. #15015)

7.971 We recommend that gullies, rills and non-wetland swales not be categorically 

excluded from CWA jurisdiction, and suggest the agencies instead classify them as 

“other waters” and evaluate their jurisdictional status on a case specific basis. In the 

preamble of the proposed rule, the agencies address the difficultly of distinguishing 

gullies from ephemeral streams and further note that these water features are often 

conduits for moving water between streams, wetlands and other adjacent waters that are 

clearly jurisdictional.559 We agree with the SAB panel’s assessment that water features 

like gullies, rills and non-wetland swales can have a significant impact on the physical, 

biological and chemical integrity of downstream waters, and to automatically exclude all 

of these features from CWA protections is not scientifically sound.560

Such a decision is particularly concerning given that the rule as proposed lacks a 

recapture provision, so if any of these types of water features were in the future found to 

have a significant impact on downstream water quality, the agencies would be unable to 

step in to protect them. We recommend that the agencies take a closer look at the wealth 

of literature on human-modified stream ecosystems, as described by the SAB in it 

comments on EPA’s Connectivity Report.561 This literature could help inform the 

agencies as to which human or naturally altered water features have a significant impact 

on downgradient water quality, and which do not. As the science of stream connectivity, 

especially as it relates to impacts caused by human alterations and natural events evolves, 

it is essential that the agencies continue to have the ability to evaluate the potential 

impact of these water features on a case specific basis. (p. 3 – 4)

Agency Response: See summary response 7.3.7 and TSD section VII.A. 

San Joaquin County Board of Supervisors (Doc. #15017.1)

7.972 "Waste Treatment Systems and Other Exclusions"

The proposed rule, in section (b), excludes "waste treatment systems, including treatment 

ponds or lagoons, designed to meet the requirements of the Clean Water Act" among 

other features listed in the section. While such systems have traditionally been excluded 

from CWA jurisdiction, we believe that, due to the expansive nature of the proposal, the 

agencies should also exclude other constructed water management and treatment 

infrastructure with similar attributes to these waste treatment systems. These facilities 

could include water reuse and recycling ponds, water treatment lagoons, and other 

 

559 79 Fed. Reg. at 22219 (April 21, 2014).

560 Memorandum from Dr. Amanda Rodewald to Dr. David Allen, Comments to the chartered SAB on the 

Adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the United 

States” Under the Clean Water Act.” (September 2, 2014). Available at: 

http://yosemite.epa.gov/sab/sabproducts.nsf/F6E197AC88A38CCD85257D49EDC/$File/Rodewald_Memorandum_

WOUS+Rule_9_2_14.pdf (Hereinafter SAB Review Memo) and SAB Rule Review Letter.

561 U.S. EPA Science Advisory Board, SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands 

to Downstream Waters: A Review and Synthesis of the Scientific Evidence, EPA-SAB-15-001, at 46 (Oct 17, 2014) 

(hereinafter “SAB Connectivity Review”), available at 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF1A28537854F8AB85257D74005003D2/$File/EPA

-SAB-15-001+unsigned.pdf
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

640

appurtenances; artificially constructed wetlands designed to treat agricultural or 

stormwater runoff (e.g. "green infrastructure") used and managed to remove nutrients and 

improve water quality; and artificially constructed groundwater recharge basins designed 

to percolate surface water into groundwater basins.

All of these features would revert to dry land if application of water were to cease and, 

even though they usually contain plants and shrubs known to grow in wetlands, they 

should be included in the list of features identified in the proposed rule as excluded from 

the definition of "waters of the U.S." (p. 8)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. With respect to 

water delivery, reuse, and reclamation systems, please see summary response at 

7.4.2. Finally, see summary response at 7.1 which addresses the waste treatment 

system exclusion.

Idaho Conservation League (Doc. #15053)

7.973 ICL is also, however, very concerned about EPA’s efforts to categorically exclude a large 

number of waters, often with little grounding in the science and law. ICL believes 

categorical exclusions are not dictated by the statute or the case law and are likely to lead 

to waters being subject to pollution that should be protected. In particular, EPA’s 

approach to groundwater is plainly not warranted by the science as demonstrated by the 

many comments on this point by individual members of the SAB. (p. 1)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC.

7.974 II. ICL OBJECTS TO EPA’S PROPOSAL TO CATEGORICALLY EXCLUDE 

CERTAIN WATERS FROM THE PROTECTIONS OF THE CLEAN WATER ACT.

ICL objects to EPA’s proposal to exclude whole categories of water from receiving Clean 

Water Act protections. Such a result is not dictated by Supreme Court case law nor the 

language of the Clean Water Act. While some members of the Supreme Court expressed 

concern over ensuring that certain waters, specifically wetlands, had a connection to 

waters of the U.S., at no time has the Court addressed wholesale exclusion of certain 

types of waters. While EPA may desire to categorically exclude some waters for the sake 

of convenience, such a result is not driven by case law. Because it is also contrary to the 

intent and purpose of the Clean Water Act, categorically excluding certain types of 

waters on the basis of administrative convenience would fail both tests under Chevron: it 

would violate clearly expressed congressional intent under Step One, and it is an 

unreasonable and impermissible interpretation of the Act under Step Two.

Moreover, such an exclusion would not constitute reasoned decision-making supported 

by the record.

A. Groundwater Should Not Be Categorically Excluded.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

641

ICL strongly objects to EPA’s categorical exclusion of groundwater from Clean Water 

Act protection. EPA’s proposal will leave important waters exposed to pollution. The 

groundwater exclusions are unsupported from a scientific perspective and may lead to 

regulatory confusion. The better-supported approach would be to identify groundwater as 

a subcategory of “other waters” for which jurisdictional status will be determined on a 

case-by-case basis. In that fashion, EPA will ensure that the full purpose and intent of the 

Clean Water Act is realized and that it will not leave waters unprotected.

As noted by various individual members of the SAB, groundwater connections to surface 

water do not separate along ill-defined and fairly unscientific lines such as “shallow” or 

“deep.” Rather, connections occur as a result of topography, geology, geography, and 

time. In late summer and fall, many western rivers are almost entirely dependent upon 

groundwater. Sometimes connections through geographic features such as lava tubes or 

karst formations are very deep, but nonetheless very direct between groundwater and 

surface waters. See Member Comments Aldous connections between wetland types and 

open waters; pointing out that inclusion of groundwater in connectivity should not simply 

be a function of distance; and questioning exclusion of shallow subsurface flows); Brooks 

at 17 (exclusion of groundwater “seems ill-advised because of the likely connectivity” 

through different features with a potential to contaminate drinking water and connections 

with surface water a reasonable distance away); Gooseff at 21 (strongly questioning 

exclusion of groundwater and giving examples of significant connectivity between 

surface and subsurface waters and problems with EPA’s definitions); Kolm at 31-32 

(“regional ground water flows commonly interact with the surface environment at sinks 

and springs”; giving examples in the Floridian aquifer), at 33 (“In general, the role of 

regional groundwater systems in neighboring systems is not addressed by this Rule and 

leaves the waters of the US vulnerable”), at 34 (“Care should be taken not to imply that 

bedrock is impermeable because ground water flows through bedrock are important 

flowpaths that connect hydrologic landscapes over long distances and often across 

watershed boundaries”), at 39 (“as indicated with the Karst references, deep groundwater 

should be included as well for connectivity and include not only Karst, but certainly 

sedimentary systems, fractured rock systems, and volcanic systems as well...[t]he real 

issue is both temporal and spatial as the SAB has clearly and thoroughly discussed”), at 

43 (pointing out that the role of regional groundwater is inappropriately ignored in the 

proposed rule), and at 46; and Sullivan at 87 (ensuring the mechanism of connectivity is 

protected—even if that is groundwater—is critical). Plainly, EPA’s categorical exclusion 

of groundwater from the protections of the Clean Water Act (or its general exclusion with 

the ill-defined “shallow subsurface connection” exception) is not supported by the 

science and the science advisors.

EPA should therefore revise the proposed rule to provide that groundwater shall be 

protected as a water of the U.S. where it is hydrologically connected to surface water in a 

way that is not de minimis. This approach makes sense given the decision in Hawai‘i 

Wildlife Fund v. County of Maui, __ F.Supp.2d __ (D. Ha. 2014) 2014 WL 2451565, 

where the court found “[t]here is nothing inherent about groundwater conveyances and 

surface water conveyances that requires distinguishing between these conduits under the 

Clean Water Act. Id. at *13. The court found that where treated effluent was injected into 

groundwater and months later emerged from seeps into the ocean, the groundwater 

aquifer served as a conduit for discharges of pollution into the ocean and the discharge 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

642

required a National Pollutant Discharge Elimination System (“NPDES”) permit. Id. at 

*18. At the same time, the court understood that the groundwater aquifer would also meet 

the significant nexus test being used by EPA here, because it has a hydrologic connection 

with the ocean, and the groundwater “significantly affects the physical, chemical, and 

biological integrity of the ocean water.” Id. at *21-23.

While a discharge of pollutants into groundwater may be regulated under the “conduit” 

approach, it makes more sense, consistent with the approach advocated by members of 

the SAB, that the groundwater itself be protected as a water of the U.S. because of its 

hydrologic connection with the ocean. See, e.g. Member Comments, Aldous at 4, Brooks 

at 17, Kolm at 49. The water is plainly hydrologically connected to and affects another 

water of the U.S. and should be protected in its own right both for human consumption 

and for the obvious ultimate impact to aquatic ecosystems. It is nonsensical to protect 

water in a stream, then not protect it if the water molecules change to a subsurface flow, 

and then protect it again when those molecules surface in the ocean or a spring-fed 

stream. And, as the court noted in Hawai‘i Wildlife Fund, “[n]either logic nor case law 

supports distinguishing between ‘shallow’ and ‘deep’ groundwater.” 2014 WL 2451565 

at *17.While groundwater might not in every instance be a water of the U.S., excluding 

groundwater from ever being considered a water of the U.S. would not be a reasonable 

interpretation of the Act, nor would it be reasoned decision-making supported by the 

record. EPA should revise the rule accordingly.

ICL urges EPA to conform the groundwater sections of the proposed rule to the existing 

law and science to ensure that waters of the U.S. are fully protected as intended under the 

Clean Water Act. EPA should revise the rule to remove groundwater as a categorical 

exclusion and either fully include it in the “other waters” analysis of subsection (s) or 

create a new subpart in subsection (s) to ensure that groundwater that is connected to 

surface water, regardless of its “depth,” is protected as a water of the U.S. (p. 10 – 12)

Agency Response: The agencies have consistently interpreted the CWA to exclude 

shallow or deep groundwater from the geographic scope of the waters of the United 

States. The exclusion for groundwater in the final rule does not affect this 

longstanding interpretation as the agencies have never considered the groundwater 

itself to be a “water of the United States.” See summary response for section 7.3.6 of 

this RTC and the Technical Support Document.

7.975 EPA also categorically excludes gullies, rills, and non-wetland swales. This is far too 

broad as noted by some members of the SAB. Gullies, rills, and swales are in many 

instances features on the landscape that carry significant flows and amounts of pollutants 

to downstream waters. Instead of categorically excluding these features and waters, it is 

more scientifically supportable to examine their role relative to connections to waters of 

the U.S. under the “other waters” category of subsection (s) and determine whether they

should be protected on a case-by case basis. See Members Comments, Kolm at 50; 

Sullivan at 89 (“to exclude these and other variable source areas (e.g., swales) from 

jurisdiction is not fully supported by the available science as they can be important 

components of integrated aquatic systems with measurable impacts to downstream 

systems. . .the agencies should maintain the right to classify specific gullies, rills, and 

swales (either separately or in the aggregate) as jurisdictional when warranted.”)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

643

Again, categorical exclusions are not warranted under the law or science and ICL urges 

EPA to revise the proposed rule to ensure that waters that should be protected, at least on 

a case by-case basis, are not automatically excluded from Clean Water Act protection. 

(p. 13)

Agency Response: See summary response 7.3.7 and TSD section 7.A. 

7.976 C. Subsection (t)(5)(i), (ii)—“Artificially” Irrigated or Created Areas.

This part of the rule is simply unclear. What is meant by “artificially” irrigated areas that 

would return to upland? This implies that there are areas that are so heavily irrigated they 

turn into wetland or other bodies of water that might be considered a water of the U.S. It 

is unclear what fact pattern this language is trying to address. The next subsection 

specifically refers to rice growing, so it appears (t)(5)(i) does not refer to the kind of 

flood irrigation that might occur in a rice operation.

This exclusion (and the exclusion for ditches) also raises a question with respect to point 

sources and protected waters. EPA knows that many of the categorical exclusions are also 

significant sources of pollutants to water of the U.S. Artificial irrigation, rice growing 

operations (that fill and then later drain fields) and other “artificially” created areas such 

as settling basins, flush huge amounts of sediments, nutrients and chemicals such as 

pesticides into our waters. If they are not themselves protected waters subject to meeting 

water quality standards or protected by permit requirements if someone is to discharge to 

them, then EPA must ensure that the pollutants that the artificial areas contribute to 

waters of the U.S. do not escape regulation and continue to jeopardize downstream 

waters, currently severely polluted with agricultural runoff wastes. If they are not waters

of the U.S. and they are not regulated as discrete point source conveyances of pollutants, 

then a very large problem for our waters will be unaddressed and wholly unregulated. (p. 

13 – 14)

Agency Response: As stated in the preamble, the features discussed under 

exclusions may function as “point sources” under CWA section 502(14)), such that 

discharges of pollutants to waters through these features could be subject to other 

CWA regulations (e.g., CWA section 402).

7.977 III. WASTE TREATMENT EXCLUSION

ICL strongly objects to the proposal to retain the “waste treatment system” exclusion, 

particularly given that EPA has never allowed for public notice and comment on the 

current version of this section of the rule. EPA lacks authority to exempt waters of the 

U.S. from the protections of the Clean Water Act. This exclusion is a major affront to the 

Clean Water Act and should be deleted. If not, at a minimum EPA must add a proviso in 

the text of the rule explicitly barring its application to waters of the U.S. If this exclusion 

is retained, it can only be applied to manmade waste treatment systems constructed in 

uplands that are not waters of the U.S. As it stands, the waste treatment system exclusion 

contravenes the clearly expressed congressional intent to protect all waters of the U.S., 

including impounded waters, and it therefore fails Step One of Chevron. Moreover, it is 

an unreasonable and therefore impermissible interpretation under Step Two, and also 

does not represent reasoned decision-making supported by the record.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

644

In various parts of the country—mountainous regions of Appalachia, Iron Range states in 

the Great Lakes, mining and agricultural areas of the west and in Alaska—the “waste 

treatment system” exclusion is routinely invoked by federal and state agencies to allow 

the impoundment of natural streams or wetlands, or the filling or excavation of lakes and 

wetlands, to drain runoff from surface mines and/or to hold tailings or overburden from 

mining operations.562 Playa lakes have been used as animal waste retention ponds for 

confined animal feeding operations.563 Generally (almost always) the natural stream, 

lake, or wetland would be considered a water of the U.S. under the existing or proposed 

rules.

Under current practice and the so-called “waste treatment system” exception, the now 

impounded/excavated/filled waterbody loses its status as a protected water under the 

Clean Water Act, meaning that it does not have to meet basic water quality standards and 

the mining or coal or utility is free to dump pollutants into the stream or lake or wetland 

without the basic protections and requirements of a Clean Water Act NPDES permit. 

These waste treatment ponds are often filled with things like toxic coal ash, acid-leaching 

mine tailings or overburden from sulfide ore deposits that will also leach acid, selenium, 

and other toxic metals. The ponds are often filled with sediment that can decimate 

spawning areas and that can affect light and temperature necessary for aquatic life. The 

impounded wastes typically are not isolated from waters of the U.S., and in most cases 

are designed to discharge directly into protected waters. The “treatment” that occurs in 

these impoundments is frequently a farce, and often consists of nothing more than 

allowing the heaviest sediments in the discharges to settle to the bottom of the pond while 

the remaining untreated effluent is discharged into downstream waters. This practice 

causes serious water quality degradation downstream, even when discharges from the 

waste ponds are covered by permits. Usually water quality constituents such as hardness, 

conductivity, chlorides, sulfates, temperature and pH are adversely affected. This practice 

and result is utterly absurd and plainly contrary to law.

First, EPA and the Corps lack authority to adopt a regulation that empowers the agencies 

to exclude waters that qualify as “waters of the U.S.” from statutory coverage under § 

502(7), as well as from all of the safeguards that would otherwise protect that water under 

the Clean Water Act. National Ass'n of Manufacturers v. Dept. of Labor, 159 F.3d 597, 

600 (D.C. Cir. 1998) (“There is, of course, no such ‘except’ clause in the statute, and we 

are without authority to insert one.”). This exclusion goes well beyond EPA’s authority to 

interpret and apply the Act. Cf. Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 

1372 (D.C. Cir. 1977) (striking down an EPA rule that attempted to exempt certain 

categories of point sources from the permit requirements of Clean Water Act section 

402). Since EPA cannot exempt categories of point sources from NPDES permit 

requirements, EPA lacks the authority to do so here by creating an artificial exclusion 

from the definition of waters of the U.S. Furthermore, the exclusion is breathtakingly 

 

562 See Bernhardt and Palmer, The Environmental Costs of Mountaintop Mining Valley Fill Operations for Aquatic 

Ecosystems of the Central Appalachians, Ann. N.Y. Acad. Sci. 1223, 39–57, at 43 (2011).

563 See EPA Region 6, National Pollutant Discharge Elimination System General Permit and Reporting 

Requirements for Discharges From Concentrated Animal Feeding Operations, 58 Fed. Reg. 7610, 7620-21 

(February 8, 1993).
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

645

broad, with no apparent limit on the use of our nation’s waters as waste dumps. This is 

unlawful. See Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 861 (D.C. Cir. 

2006) (rejecting reading of a statute where “there is no stopping point”); Valdes v. United 

States, 475 F.3d 1319, 1328 (D.C. Cir. 2007) (rejecting a legislative interpretation that 

“appears to lack a limiting principle”).

This exclusion is particularly arbitrary in light of the fact that, in almost all other 

circumstances, impoundments are assiduously guarded within the definition of waters of 

the U.S. under subsection (s)(4). ICL agrees that the inclusion of impoundments under 

(s)(4) is justified because “as a legal matter an impoundment of a ‘water of the United 

States’ remains a ‘water of the United States’....” 79 Fed. Reg. at 22201 (discussing S.D.

Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 379 n.5 (2006) and U.S. v. Moses, 

496 F.3d 984 (9th Cir. 2007)). The only difference between the impoundments that are 

covered under subsection (s)(4) and those that are excluded through the artifice of the 

“waste treatment system” exclusion is the fact that the latter are intended to be filled with 

waste.564 This is not a reasonable or permissible interpretation of the Act, and it therefore 

also fails Step Two of Chevron. Nor does it constitute reasoned decision-making 

supported by the record.

Second, the proposal to retain the so-called waste treatment system exclusion in its 

current form violates the notice-and-comment requirements of the Administrative 

Procedure Act. 5 U.S.C. § 553. The history of the current rule shows that this exclusion 

was not originally intended to allow the current practice of using the nation’s waters as 

waste dumps. The 1980 regulatory definition of waters of the U.S. clearly provides that 

the waste treatment exclusion “applies only to manmade bodies of water which neither 

were originally created in waters of the United States (such as a disposal area in 

wetlands) nor resulted from the impoundment of waters of the United States.” Several 

months later, EPA published notice purporting to “suspend” the operation of this 

language, but not replacing it with anything else or further explanation. The omission of 

the language was never the subject of a notice and comment public rulemaking process 

despite the fact that it plainly significantly alters the law with respect to application of the 

protections of the Clean Water Act. Now the proposed rule specifically discourages 

members of the public from commenting on the proposal to retain the exclusion without 

the limiting language, stating that because the agencies “do not address” this and other 

exclusions they “do not seek comment” on them. 79 Fed. Reg. at 22190. Even assuming 

for the sake of argument that this exclusion is lawful under the Clean Water Act (and it is 

not), a decision to exclude natural bodies of water from the definition of waters of the 

U.S. must be subject to public process. EPA and the Corps’ retention and application of 

this disastrous and unauthorized exclusion must be suspended pending proper process.

Third, it is simply ludicrous that this brazen give-away to some of the most polluting 

industries is allowed. Providing this exclusion violates the very fundamentals of the Act 

to eliminate toxic discharges and to preserve and protect the physical, chemical and

 

564 The impoundments themselves are also sources of pollution. Regardless of whether impoundments and the 

pollutants therein (including heavier sediment) are intended to ‘stay put,’ runoff and overflow from these areas can 

pollute traditional navigable waters. See attached memo (“The Rapanos Plurality: ‘Mobile’ § 402 Pollutants and 

‘Stationary’ § 404 Pollutants”), at 15-20.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

646

biological integrity of the nation’s waters. As noted repeatedly by the SAB members, 

even small tributaries, including wetlands and lakes that are in headwaters of watersheds, 

provide critical function and value in protecting downstream waters. Indeed, the proposed 

rule acknowledges that “scientific literature demonstrates that impoundments continue to 

significantly affect the chemical, physical, or biological integrity of downstream waters[,] 

traditional navigable waters, interstate waters, or the territorial seas.” 79 Fed. Reg. at 

22201. To allow them to be obliterated by polluting industrial activity and then polluted 

further with wastes based on the fiction that they are no longer waters of the U.S. is 

completely contrary to every single comment regarding tributaries, wetlands, and waters 

of the U.S. submitted by the members of the SAB and the general conclusions of the 

Connectivity Report. (Moreover, it does not appear that the SAB was given sufficient, or 

any, information about this exclusion and the way it is applied in practice to enable the 

SAB to advise EPA on the scientific merit or lack of merit underlying the waste treatment 

exclusion.) This further illustrates why the waste treatment system exclusion is 

unreasonable and therefore fails Step Two of Chevron, and does not constitute reasoned 

decision-making supported by the record.

ICL presses EPA to eliminate this exclusion entirely. At a minimum, EPA must provide 

full opportunity for notice and comment rulemaking for this polluting and damaging 

practice. (p. 14 – 16)

Agency Response: See summary response at 7.1.

Lea Soil and Conservation District Board of Supervisors (Doc. #15144.1)

7.978 To accomplish the ambitious, but noble, goals the agencies propose the following 

amendments to their existing regulations565:

New SubSection (b)—i.e. Non-Jurisdictional by Rule

 Maintains traditional exemptions for “prior converted cropland” and “waste 

treatment systems”;

 Proposes to include additional categories of waters that are not “waters of the 

United States,” including (b)(3) “Ditches that are excavated wholly in uplands, 

drain only uplands and have less than perennial flow” and (b)(4) “Ditches that do 

not contribute flow, either directly or through another water, to a water identified 

in paragraphs (a)(1) through (4) of this section.”;

 Subsection (b)(5) proposes to include the following specific waters:

o Artificially irrigated areas that would revert to upland should application 

of irrigation water to that area cease;

o Artificial reflecting pools or swimming pools created by excavating and/or 

diking dry land;

o Small ornamental waters created by excavating and/or diking dry land for 

primarily aesthetic reasons;

o Water-filled depressions created incidental to construction activity;

 

565 The referenced amendments are reflected as changes to the Corps’ definition in 33 C.F.R. § 328.3; however, 

USACE and EPA are proposing to adopt the same regulatory definition for both agencies.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

647

o Groundwater, including groundwater drained through subsurface drainage 

systems; and

o Gullies and rills and not-wetland swales. (p. 2)

Agency Response: This comment describes the proposed rule but does not appear 

to raise any issues that need a response.

Destin Water Users, Inc. (Doc. #15357)

7.979 The proposed rule provides an exclusion for wastewater treatment facilities; however, 

that exclusion requires more explanation to determine if it applies to an entity like DWU. 

The issue of connectivity and significant nexus seems to eliminate the DWU wastewater 

treatment facility form the exclusion. Because our wastewater discharges to the land 

surface and then percolates to the groundwater which then discharges to navigable waters 

all around us, it is certain that EPA will determine than an NPDES permit is needed or 

that EPA will determine that it is needed under pressure from the environmental 

organizations. (p. 1)

Agency Response: See summary response at 7.1 concerning the waste treatment 

system exclusion. Also see summary response at 12.3. The Agencies are unable to 

address site specific situations in this response to comments and in light of the 

limited information available.

7.980 DWU requests that EPA elaborate on the exclusions for wastewater treatment plants for 

groundwater. Alternatively, EPA should, at least, state unequivocally that under any and

all circumstances, present and future, the exclusions apply to wastewater treatment plants 

and groundwater conditions forming DWU process. (p. 1)

Agency Response: Please see the response to the previous comment.

Steel Manufacturers Association and Specialty Steel Industry of North America (Doc. #15416)

7.981 In addition to the ambiguity of the adjacency requirements, the definition of tributaries is 

ambiguous and, therefore, creates a great deal of confusion and jurisdictional uncertainty. 

The proposed rule defines tributaries as waterbodies that have beds, banks, and an 

ordinary high water mark. But stormwater structures and retention ponds often have a 

bed, banks, and an ordinary high water mark, thus potentially classifying them as 

"tributaries." Fully constructed stormwater measures, however, should clearly be part of 

the class of waters excluded from jurisdiction by rule, and any waterbodies EPA and the 

Army Corps wish to regulate could be specifically named as not being exempted by rule. 

This would decrease the number of waters that necessitate a case-by-case analysis, and 

promote green infrastructure projects like storm water retention and detention structures.

Our associations are concerned about these ambiguities because our member companies' 

facilities often have these types of waterbodies on their properties. Under this ambiguous 

proposed rule, their jurisdictional status would be profoundly uncertain. For example, 

retention ponds at steel mills are not intended to serve ecological interests. Most are 

process-related and serve to ensure a continuous and reusable source of process water. 

These ponds are, in fact, isolated and have minimal to no effect on navigable or interstate 

waters; however, they may now be jurisdictional waters of the United States. Through the 

expansive definitions for terms like "tributary," "adjacent," and "neighboring," EPA and 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

648

the Army Corps have enabled themselves to create far-reaching authority much in the 

same way they did prior to the Rapanos case, when the regulators continued to look 

farther and farther upstream to establish shared ecological features. (p. 8-9)

Agency Response: See summary response at 7.1 concerning the waste treatment 

system exclusion. With respect to jurisdiction of artificial ponds, please see 

summary response at 7.4.2. See also compendium 8 on tributaries.

Massachusetts Water Resources Authority (Doc. #15546)

7.982 MWRA supports the current regulatory practice with respect to inter-basin water 

transfers. The transfer of water for purposes of water supply is essential to effective and 

efficient water resource management. The current proposal does not directly deal with 

this issue; MWRA urges that the final rule be perfectly clear that waters transferred from 

one water body to another without intervening municipal, industrial, or agricultural use 

are not be subject to CW A restrictions. This rule making should provide direct 

regulatory language to maintain clarity that inter-basin transfers for the purpose of water 

supply without intervening municipal, industrial, or agricultural use are not be subject to 

CW A restrictions. Preambles and guidance do not have the force of law that direct 

regulatory language would provide. (p. 2) 

Agency Response: See summary response at 12.3 regarding water transfers. As 

noted, the rulemaking does not address the question whether water transfers need 

an NPDES permit.

7.983 Storing and moving water are key parts of our mission to provide drinking water and 

manage wastewater. Water infrastructure facilities can encompass a broad range of 

structures and activities, ranging from green infrastructure (e.g., infiltration trenches, 

swales, artificial wetlands, etc.) to ground water well discharges, and artificial aquifer 

recharge. MWRA urges that the final rule provide a specific exemption for water 

infrastructure that clearly and explicitly encompasses the full breadth of water utility 

operations. MWRA believes that water supply or wastewater conveyances, storage and 

treatment facilities, and the associated operations and maintenance activities conducted 

by a water utility should be specifically exempted in all sections of the Clean Water Act, 

33 U.S.C. 1251 et seq., and its implementing regulations by inclusion of a specific 

paragraph within the list of exclusions in every section of the definitions proposed for 

amendment. (p. 2)

Agency Response: See summary response at 12.3 regarding water transfers. With 

respect to water delivery, reuse, and reclamation systems, please see summary 

response at 7.4.2. With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4.

7.984 EPA and the Corps should add municipal separate storm sewer systems 

components/infrastructure upstream of a permitted MS4 discharge point to the list of 

waters that are not considered "waters of the United States", and exempt these stormwater 

components from Section 404 requirements for maintenance and repair activities. (p. 4)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

649

City of Portland, Maine (Doc. #15582)

7.985 The final rule must clarify that municipal separate storm sewer systems (MS4's) are 

covered by the waste treatment system exemption and will not be jurisdictional under the 

CWA above any existing point of perrnkted discharge, including any ditches that are part 

of MS4.(p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See also 7.1 

regarding the waste treatment system exclusion. 

7.986 EPA has verbally stated that the proposed rule is not intended to make green 

infrastructure (GI) installations jurisdictional, indicating that any GI installation or GI 

practice designed to meet CWA obligations or achieve water quality goals is not meant to 

be included. However, EPA and the Army Corp of Engineers need to specifically clarify 

this in the final rule. The City of Portland is expanding plans for green infrastructure 

projects as a means to enhance water quality as part of our approved Tier III LTCP for 

CSO abatement projects, and does not want added regulations under the new proposed 

Rule as a means to mandate CWA results. (P. 2-3)

Agency Response: With respect to the jurisdictional status of stormwater control 

features, including green infrastructure, as waters of the U.S., please see summary 

response at 7.4.4.

7.987 The rule fails to provide intended level of clarity, certainty and predictability. Appears to 

increase the EPA's reach in an unpredictable way. Are drainage ditches, catch basins, 

swales, and other man made Ponds (such as the Deering Oaks Pond) exempt from the 

Rule? (p. 3)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. With respect to 

artificial lakes and ponds, please see summary response at 7.3.2.The agencies are 

unable to make case-specific determination about the status of any particular 

feature, such as Deering Oaks Ponds mentioned in this comment, in this response to 

comments.

7.988 Waste treatment systems are excluded so clarity is needed if MS4's are covered under 

"systems" and thus exempt? (p. 3)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. Summary 

response 7.1 further discusses the waste treatment system exclusion.

Countrymark Cooperative Holding Corporation, LLC; Countrymark Refining and Logistics, 

LLC (Doc. #15656)

7.989 Waste treatment systems, including treatment ponds or lagoons, designed to meet the 

requirements of the Clean Water Act.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

650

(2) Water located on the site of a residential, municipal, industrial, commercial, or 

agricultural facility that is being managed for water supply. for use. or to control runoff 

and that –

(i) Remains at the facility, or

(ij) Leaves the facility and contributes flow to a water identified in paragraphs 

(s)(1) through (5) through a discharge point that is regulated under section 402 or 

would be regulated under section 402 but for an exemption from that section, and 

(iii) Includes but is not limited to stormwater management ponds, farm ponds, 

stock watering ponds, cooling ponds, manmade water conveyances, manmade 

water storage features, manmade ditches. manmade irrigation canals. rice fields. 

swimming pools. sett ling basins. ornamental waters. reflecting pools. and other 

manmade water management features. 566

(3) Water that is not located in a wetland or that is not confined in a surface channel or 

natural lake. including rainwater and snow melt that moves across the land as sheet flow .

(4) Prior converted cropland. Notwithstanding the determination of an area's status as 

prior converted cropland by any other Federal agency, for the purposes of the Clean 

Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA .

(3) Ditches that arc excavated wholly in uplands , drain only uplands, and have less than 

perennial flow.

(4) Ditches that do not contribute flow , either directly or through another water, to a 

water identified in paragraphs (s)( I) through (4) of this section.

(5) The following features:

(i) Artificially irrigates areas that would revert to upland should application of 

irrigation water to that area cease;

(ii) 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;

(iii) Artificial reflecting pools or swimming pools created by excavating ad/or 

diking dry land;

(iv) Small ornamental waters created by excavating and/or diking dry land for 

primarily aesthetic reasons;

(v) Water-filled depressions created incidental to construction activity;

 

566 See 40 Fed. Reg. 3 1,320.3 1,321 (July 25, 1975) ("[d]rainage ditches have been excluded" from CWA 

jurisdiction); 42 Fed. Reg. 37,122, 37,144 (July 19,1 977) (drainage ditches that feed a water of the U.S. is a point 

sources); 48 Fed. Reg. 2 1,466,2 1,474 (May 12, 1983) ("waters of the United States do not include the following 

man-made waters; (I ) Non-navigable drainage and irrigation ditches excavated on dry land" ); 5 1 Fed. Reg. 4 

1,206, 4 1,217 (Nov. 13, 1986) ("We generally do not consider [drainage and irrigation ditches excavated on dry 

land] to be waters of the United States.").
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

651

(vi) Groundwater, including groundwater drained through subsurface drainage 

systems; and

(vii) Gullies and rills and non-wetland swales. (p. 14-15)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See response at 

7.1 regarding waste treatment systems.

Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

7.990 Exclusions - The exclusions to the definition of "waters of the United States" are very 

specific and seemingly arbitrary. PGCC asks that the exclusions for (1) "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" and (2) "artificial 

reflecting pools or swimming pools created by excavating and/or diking dry land" be 

expanded to include other types of ponds excavated in dry land, including impoundments 

and stormwater ponds. (p. 11)

Agency Response: With respect to the jurisdictional status of stormwater control 

feature, including stormwater ponds, as waters of the U.S., please see summary 

response at 7.4.4.

Indiana Department of Environmental Management (Doc. #16440)

7.991 The Final rule must clarify the full scope of the exemption for a waste treatment system 

and other waste management systems. Indiana agrees that "waste treatment systems, 

including treatment ponds and lagoons, designed to meet the requirements of the Clean 

Water Act" are not waters of the U.S. Yet, the proposed rule creates confusion over this 

provision by adding a comma after "lagoons" thereby implying that all waste treatment 

systems must be designed to meet Clean Water Act requirements. This is not true today 

as waste treatment systems that do not discharge to waters of the U.S. are not subject to 

Clean Water Act requirements. The comma after "lagoons" must be removed.

Also, further definition of what is and is not included as a waste treatment system must 

be added. We suggest language such as: "all components located behind the outfall of an 

NPDES permit" be inserted after "lagoons" in the Proposed Rule language. Additionally, 

it must be clearly stated that permitted storm water collection systems (particularly 

MS4s) fall within the exclusion of "waste treatment systems." (p. 4)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. The waste 

treatment system exclusion is discussed in the preamble and in summary response 

7.1.

Pershing County Water Conservation District (Doc. #16519)

7.992 The comments to follow pertain specifically to the sections of the proposed rule which 

may affect water used exclusively for agriculture. Although there are certain agricultural 

exemptions built into the proposed rule, these comments are meant to point out 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

652

inconsistencies, lack of legal standing, and lack of finite definitions regarding such 

exemptions. (p. 2)

Agency Response: The commenter’s substantive issues are addressed below.

7.993 The proposed rule does attempt to put farmers and rancher's minds at ease by stating 

"Nile rule does not affect longstanding permitting exemptions in the CWA for farming, 

silviculture, ranching and other specified activities." While this is a good thing, the rule 

itself leaves a lot of rule, it is unclear just how much protection those in agriculture will 

have. In a publication the EPA released discussing the continued agricultural exemptions, 

they state that exemptions apply to "Normal Farming." It is unclear what is meant by 

"normal." Additionally, this wording does not exist in the rule. Normal Farming practices 

in one part of the state or country are different than those in other parts of the same state 

and country. 

The exemptions intended to benefit farmers and ranchers in the rule state the following as 

exempt: 1) Prior converted cropland; 2) Ditches that are excavated wholly in uplands, 

drain only uplands, and have less than perennial flow; 3) Ditches that do not contribute 

flow, either directly or through another water, to a traditional navigable water, interstate 

water, the territorial seas or an impoundment of a jurisdictional water; 4) Artificially 

irrigated areas that would revert to upland should application of irrigation water to that 

area cease. (p. 3 – 4)

Agency Response: “Normal” farming, silviculture, and ranching is clarified in the 

agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and 

ongoing activities to distinguish from activities needed to convert an area to 

farming, silviculture, or ranching and activities that convert a water to a non-water. 

Nothing in this rule changes the exemptions covered in 404(f) or current agency 

implementation of the exemptions. The commenter appears to refer to the agencies’ 

interpretive rule regarding 404(f), but that has been withdrawn.

7.994 The primary concern of the District is the vague nature of the proposed rule. While there 

does exist hundreds of pages of explanation for a half page rule, little of this will have 

much bearing should the rule be implemented. There needs to be more concise definitions 

of the water not considered "Waters of the United States" within the rule itself, and an 

express exemption in the rule for agriculture. Additionally, the rule should expressly 

exempt waterways that do not have a continuous flow of water. (p. 4)

Agency Response: In the final rule, the agencies have provided clarified 

information regarding features that are not considered “waters of the United 

States”, even where those features would otherwise meet the criteria for jurisdiction 

under paragraphs (a)(4) though (a)(8). Regarding the rationale why a continuous 

flow of water is not a requirement to have a significant nexus, see the Technical 

Support Document. 

Kaweah and Tule Water Managers (Doc. #16544)

7.995 Further, the exclusion should be expanded to include agricultural ponding basins that are 

not connected to any other water body. Agricultural operations often have need for 

temporary ponding of irrigation or tail water, and basins for these purposes have no 

logical or functional connection to any navigable waterway, and should simply be 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

653

excluded by rule. Currently, such basins can trigger the need for a full jurisdictional 

determination, requiring costly and lengthy review by USACE. Again, such processes 

have little to no value in meeting the core intent of the CWA (the preservation of the 

nation’s navigable waterways), and therefore a simple exclusion for these basins would 

serve the public interest. (p. 6)

Agency Response: Artificial lakes or ponds created in dry land such as stock 

watering pond, irrigation pond, settling basins, etc. are specifically excluded under 

paragraph (b) of the final rule. See section 7.3.2.

7.996 The proposed rule should exclude groundwater recharge basins and stormwater 

management facilities, together with their infrastructure, because it places them at 

risk. 

The Tule and Kaweah Commenters use surface infiltration as a management tool to 

prevent flooding, store excess water for future use, replenish groundwater supplies, or 

abate land subsidence. The most economical manner of groundwater recharge is to 

construct a basin in alluvial material immediately adjacent to a stream, almost all of 

which are intermittent or ephemeral within the boundaries of the Tule and Kaweah 

Commenters. This allows water to rapidly infiltrate through the basin to the unsaturated 

zone where it is added to the aquifer below. In addition to the basins, flood control levies, 

swales and ditches are used to capture and convey stormwater to protect public safety. In 

addition to sometimes being adjacent to “waters of the United States”, all of these 

features may contain hydric soil, wetland vegetation, and have an ordinary high water 

mark. Currently, these facilities have not been deemed to have a significant nexus with 

traditional navigable waters. Under the proposed rule these facilities would meet the 

definition of “waters of United States”. Accordingly, the Tule and Kaweah Commenters 

request that groundwater recharge facilities and stormwater retention basins, together 

with all related infrastructure (including construction, operations, and maintenance), be 

explicitly excluded from the proposed definition of “waters of the United States”. (p. 6 –

7)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. For a discussion 

of groundwater recharge facilities, please see summary response at 7.4.2.

Judy Petersen (Doc. #16580)

7.997 In Kentucky, coal mines often request a “permit” for in-stream ponds as a part of their 

“waste treatment”. This happens in both the eastern and western Kentucky coalfields. It is 

completely counter intuitive that an industry could “take” a part of the headwaters of our 

streams to use as waste treatment and then for EPA and/or the Corp to rule that the 

stream is no longer a water of the US. While I acknowledge that it is legal to use instream waste treatment under certain circumstances, new waste treatment systems instream must be considered as Waters of the US. (p. 1)

Agency Response: See summary response 7.1.
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Kentucky Waterways Alliance (Doc. #16581)

7.998 We have considerable concern with the agencies’ current practice with regard to this 

exemption for waste treatment systems. Since the exemption was written into the 

regulations, EPA and the Corps have attempted to expand it to cover waters for which it 

plainly was not intended. In 1980, EPA amended its regulations to provide that:

Waste treatment systems, including treatment ponds or lagoons designed to meet 

the requirements of the Act ... are not waters of the United States. This exclusion 

applies only to manmade bodies of water which neither were originally created in 

waters of the United States (such as a disposal area in wetlands) nor resulted from 

the impoundment of waters of the United States.567

Clearly, the exclusion was limited. In view of the fact that the Act “was not intended to 

license dischargers to freely use waters of the United States as waste treatment systems, 

the definition makes clear that treatment systems created in those waters or from their 

impoundment remain waters of the United States.”568

Although the second sentence of the regulatory exclusion was suspended in order to 

dispel concerns that preexisting treatment systems would be improperly brought into the 

regulatory system,569 the exemption was not meant to be a wholesale authorization of 

anything described as a “waste treatment system.” To the contrary, EPA‘s initial 

implementation of the rules rejected a sweeping interpretation; the agency argued in 

litigation that in-stream disposal of coal mining waste did not qualify for the 

exemption.570

Unfortunately, over time, EPA and the Corps have reversed this interpretation, and now 

allow sources to use the regulatory exemption to treat new waste treatment facilities in 

protected waters excluded from the Clean Water Act. Under the agencies’ revised 

interpretation, a new impoundment of waters of the United States is able to qualify for the 

 

567 W.Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1289 (S.D. W.Va. 1989) (quoting 40 C.F.R. § 122.3

(1980)).

568 Id. (quoting 45 Fed. Reg. 33,298 (May 19, 1980)).

569 Id. (citing 45 Fed. Reg. 48,620 (July 21, 1980)).

570 Id. at 1289-90 (deferring to EPA‘s interpretation that treatment ponds were regulated “impoundments,” not 

excluded “waste treatment systems”). See also Memorandum from Marcia Williams, EPA Office of Solid Waste 

Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B (Apr. 2, 

1986) (“EPA applies a standard which treats newly created impoundments of waters of the U.S. as ‘waters of the 

U.S.,’ not as ‘waste treatment systems designed to meet the requirements of the CWA,’ whereas impoundments of 

‘waters of the U.S.’ that have existed for many years and had been issued NPDES permits for discharges from such 

impoundments are ‘wastewater treatment systems designed to meet the requirements of the CWA’ and therefore are 

not ‘waters of the U.S.’”), available at http://yosemite.epa.gov/osw/rcra.nsf/documents/4BD7 

508AD59EA15F852565DA006F0A63.
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655

waste treatment system exclusion if it is established via a section 404 permit.571 This 

position has been upheld in litigation.572

We strongly oppose this approach – nothing is more inconsistent with the basic 

premise of the Clean Water Act than allowing polluters to convert the nation’s 

waters into waste dumps. The agencies should use the opportunity of this 

rulemaking to explicitly limit the application of the waste treatment systems 

exemption to pre-existing facilities. (p 12 – 13)

Agency Response: See summary response 7.1.

Lake County Stormwater Management Commission (Doc. #16893)

7.999 We acknowledge and support the proposed exemptions for agricultural lands and the 

specific exclusion of prior-converted cropland from regulation as WOUS in §328.3(b)(2). 

(p. 2)

Agency Response: See paragraph (b) of the final rule and section IV(I) of the 

preamble for a discussion of all of the exclusions in the rule.

7.1000 We recommend clarifying the exclusion related to water-filled depressions in 

§328.3(b)(5)(v) to include a timeframe for this exclusion (e.g., abandoned for the past 5 

years). (p. 2)

Agency Response: See summary response in 7.3.5.

D. Gillham (Doc. #16906)

7.1001 (...) B. What if a structure is used for two or more purposes, one of which is not exempt? 

Example: a stock pond also used for erosion control; a stock pond in an ephemeral or 

intermittent tributary of a WOUS? (p. 2)

Agency Response: As stated in the rule, even where an excluded feature meets the 

terms of (a)(4)-(a)(8), it is not considered to be “waters of the United States.” See 

also section 7.3.2.

Arizona Rock Products Association (Doc. #17055)

7.1002 Several Exemptions are Necessary to Allow the Construction Materials Sector to 

Operate Feasibly and Economically.

The EPA has routinely asked, in stakeholder meetings, for regulated stakeholders to 

identify which exemptions they need in order to successfully operate. Under the 

expansive definition set forth in the proposed rule, the following is a list of exemptions 

 

571 Memorandum from LaJuana S. Wilcher, EPA Assistant Administrator, to Charles E. Findley, Director, Water 

Div., Region X, U.S. Army Corps of Eng‘rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 

1992); see also State Program Requirements; Approval of Application to Administer the NPDES Program; Texas, 

63 Fed. Reg. 51,164, 51,183-84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed Treatment Wetlands 

at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constructed/upload/guiding-principles.pdf.

572 See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 211-16 (4th Cir. 2009) (upholding

the agencies’ interpretation).
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656

the construction materials industry would need in order to operate feasibly and 

economically

 A "grandfathering" provision to allow existing and proposed operations that are 

currently permitted or have existing jurisdictional determinations the ability to 

operate under these existing plans. An exemption for flood control or erosion 

control features associated with mining operations. These flood control features 

serve an important role in preventing pollution. However, as written, the proposed 

rule could allow the Corps or EPA to assert jurisdiction over a flood control 

feature if it is within a floodplain. By having a specific exemption, the proposed 

rule would recognize that these flood control features help prevent and control 

pollution.

 There should be a general exemption for aggregate mining operations provided 

that they have erosional and flood control features designed to prevent water from 

flowing away from the mine site and into traditionally navigable water or 

interstate water. This exemption should be applicable even if water leaves the 

mine site during ephemeral events.

 An exemption for constructing, modifying, or decommissioning man-made or 

manaltered water features which might otherwise be considered jurisdictional 

under the proposed rule if the construction, modification, or decommissioning 

will eliminate or prevent flows into an interstate or traditionally navigable water. 

This exemption is necessary given the expansive definition of tributary. (p. 3 – 4)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. The final rule 

includes a new exclusion in paragraph (b)(6) for stormwater control features 

constructed to convey, treat, or store stormwater that are created in dry land. See 

section 7.4.4. This exclusion responds to numerous commenters who raised concerns 

that the proposed rule would adversely affect municipalities’ ability to operate and 

maintain their stormwater systems, and also to address confusion about the state of

practice regarding jurisdiction of these features at the time the rule was proposed. 

The preamble to the final rule addresses “grandfathering.”

D. Solem (Doc. #17627)

7.1003 The rule should exempt irrigation district facilities period. The Agencies should make 

clear that manmade irrigation canals, ditches and drains are not navigable waters, are not 

"waters of the U.S.", are not "tributary" to the waters of the U.S. and are not subject to 

CWA jurisdiction. This is the only way the rule can be clarified without creating a huge 

impact to the agricultural economy of the United States. (p. 1)

Agency Response: There are several exclusions in paragraph (b) of th rule that 

may apply to irrigation features. For example, the rule excludes certain ditches in 

paragraphs (b)(3). See compendium 6. Recognizing the vital role of farmers in 

providing the nation with food and fiber, the Clean Water Act in Section 404(f)(1) 

(33 U.S.C. § 1344(f)(1)) exempts many normal farming activities such as seeding, 

harvesting, cultivating, planting, soil and water conservation practices, and other 

activities from the Section 404 permitting requirement. Nothing in this rule changes 
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657

the exemptions covered in 404(f) or current agency implementation of the 

exemptions.

Anonymous (Doc. #18770)

7.1004 #3 All Man-made stormwater conveyance systems, ditches, ponds, and treatment devices 

should be exempt from regulations. Jurisdictions operating regulated MS4s are working 

hard to protect the environment and natural resources. Their programs and procedures 

should provide sufficient protection to safeguard water quality during necessary and often 

required maintenance operations. Additional permits should not be required when one is 

required to conduct maintenance. Jurisdictions that are not regulated under NPDES 

should be able to comply with regular Best Management Practices and not a complex and 

costly permitting process (and yes I include general permits in this action). (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4.

7.1005 #6 blue lines. There are many places in our community where blue lines on maps from 

the 1980s (only maps available) are no longer relevant or meet any current definitions of 

protected waters. Over time, and with permits, drainage systems have rerouted and in 

some cases abandoned or eliminated rerouted areas. The flow patterns are often 

completely changed but not the maps. Upland of these lines are manmade ponds and 

lakes used for stormwater treatment from flood and water quality improvement. Many of 

these blue lines started out along man-made channels to drain farmland by the often 

exempted agriculture industry. In re-development, these canals are used to convey 

suburban run-off. So as a man-made channel, how are they considered blue lines or 

jurisdictional? If agriculture can operate and alter the environment with exemptions, why 

not provide the same exemptions to the MS4s who are working diligently to protect water 

quality. (p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See also 

compendium 6 regarding ditches.

Alliant Energy Corporate Services, Inc. (Doc. #18791)

7.1006 EPA and the Corps have acknowledged that WTS are not jurisdictional and should r e 

main excluded from any definitions of WOTUS and thus have "proposed no change to 

the exclusion for waste treatment systems designed consistent with the requirements of 

the CWA " (79 Fed. Re g. at 22,189). Alliant Energy supports the EPA and the Corps' 

desire to maintain the WTS exclusion. However, a subtle change to the WTS exclusion is 

noted in the proposed rule as follows: "Waste treatment systems, including treatment 

ponds or lagoons, designed to meet the requirements of the Clean Water Act" (79 Fed . 

Reg . at 22,193). Adding a comma after " lagoons" implies that all systems, not just 

treatment ponds and lagoon s, would have to be "designed to meet the requirements of 

the Clean Water Act" in order to fall within the exclusion. This creates confusion. For 

example, a facility may have a WTS with components constructed prior to and after the 

enactment of the CWA which are covered under the same NPDES permit. It's uncle a r 

how the proposed WTS exclusion language, with the additional comma, would apply to 

such a facility. (p. 3)
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658

Agency Response: The preamble discusses the waste treatment system exclusion 

as does summary response 7.1.

7.1007 Alliant Energy has the following suggestions for EPA and the Corp s to consider when 

editing the proposal:

 Clearly define all WTS structures and water features, including influent 

conveyance and effluent discharge, on -site storage, treatment, and site 

maintenance (e.g., stormwater management) or otherwise "in-use" waters, which 

are non-jurisdictional and, therefore, covered by the WTS exclusion. (p. 3-4)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See summary 

response 7.1 for a discussion of the waste treatment system exclusion.

7.1008 Alliant Energy has the following suggestions for EPA and the Corps to consider when 

editing the proposal:

 Clarify that cooling ponds are considered Waste Treatment Systems and 

therefore, excluded from WOTUS. See the Federal Water Quality Coalition's 

comments for further detail. (p. 3-4)

Agency Response: With respect to cooling ponds, please see summary response at 

7.3.2.

Anonymous (Doc. #18801)

7.1009 1) MS4's need to have the same exemption as waste treatment. The proposed rule is too 

vague and confusing for small MS4's. (...) (p. 1)

Agency Response: See summary responses at 7.4.4 and 7.1. 

Valley County (Doc. #18918)

7.1010 Valley County is in favor of clean water, but this could create some real hardships for the 

County and our livestock producers. Common sense would say this does not apply to 

road right-of-ways or dry drainages, but past experiences tells us that Federal agencies 

and the courts do not always use common sense. We ask that you remove this from the 

definition. (p. 1 - 2)

Agency Response: The rule identifies all erosional features, including gullies and 

rills, as non-jurisdictional features. While the proposed rule specifically identified 

gullies and rills, the agencies intended that all erosional features would be excluded. 

The final rule makes this clear. Erosional features are not jurisdictional under the 

terms of paragraph (a) and the definitions in paragraph (c), especially the definition 

of tributary, and would be non-jurisdictional in any case. These features are 

specifically excluded in the rule to avoid confusion, because preceding guidance 

identified them as non-jurisdictional and many commenters stated these exclusions 

were important to maintain in the rule. Tributaries can be distinguished from 

erosional features by the presence of bed and banks and an ordinary high water 

mark. Concentrated surface runoff can occur within erosional features without 
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659

creating the permanent physical characteristics associated with bed and banks and 

ordinary high water mark. See also compendium 6 regarding ditches.

Anonymous (Doc. #18943)

7.1011 1. The proposed definition of tributary will, for the first time, result in stormwater lines 

within manufacturing plants being included in the definition of waters of the U.S. 

because such lines may have a bed, a bank and a high water line. Therefore any chemical 

spill into those lines in excess of reportable quantities or any oil spill that causes a sheen 

within those lines will be reportable to the National Response Center, even if the spill 

never exits the lines before being cleaned up. This will greatly increase the number of 

reportable spills and increase the manpower burden on small manufacturing plants and on 

the NRC for spills that have no actual impact on the environment. Therefore, we suggest 

that underground artificial stormwater lines on private property be explicitly excluded 

from the definition of waters of the U.S. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. 

7.1012 2. Other waters are proposed for inclusion as waters of the U.S. if a case-specific analysis 

shows a significant nexus to waters of the U.S. This will for the first time include 

rainwater puddles within the definition of waters of the U.S. This is so because the casespecific analysis is not really case specific because it is allowed to include similarly 

situated waters in the same region. Although a single puddle may not have a significant 

nexus to waters of the U.S., the single puddle in combination with thousands of other 

similarly situated puddles in the same region could be demonstrated to have the required 

significant nexus. Thus, as an example, if a plant owner objects that the rain puddle in his 

plant yard needs a case-specific analysis before EPA can regulate it, EPA can simply 

include all similarly situated yards in the region in their analysis in order to demonstrate a 

significant nexus to a water of the U.S. Once the inclusion of rainwater puddles in the 

definition of waters has been justified by this so-called case-specific analysis, any 

greater-than-RQ release or oil sheen in any rainwater puddles will be immediately 

reportable to the National Response Center, whether or not the release is contained or 

cleaned up before leaving the property or entering the environment. This will greatly 

increase the manpower cost burden on both small manufacturers and the National 

Response Center. We therefore suggest that rainwater filled depressions that dissipate 

within 3 days of the last rainfall be excluded from the definition of waters. (p. 2)

Agency Response: As stated in the rule, even where an excluded feature meets the 

terms of (a)(4)-(a)(8), it is not considered to be “waters of the United States.” The 

rule does not affect the reporting requirement for spills and the procedures for 

reporting are outside the scope of this rule. 

Anonymous (Doc. #18955)

7.1013 2. Specific exclusion language is needed for urban SCMs. If, as has been stated publicly, 

it is EPAs intent that most of these BMPs are not to be considered WOTUS, this should 

be clearly stated in the rule. Such a clear statement would formalize and clarify EPAs 

intent and would significantly reduce the probability of unfortunate interpretations in the 

future. (p. 1)
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660

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. 

City of Olathe Kansas (Doc. #18982)

7.1014 The proposed rule exempts some water bodies including "waste treatment systems, 

including treatment ponds or lagoons, designed to meet the requirements of the Clean 

Water Act". This exemption needs to be expanded to include all green infrastructure 

(extended wet detention ponds, constructed wetlands, rain gardens, bio-retention cells, 

etc.) required by NPDES post construction stormwater control regulations. (p. 2)

Agency Response: See summary responses at 7.1 and 7.4.4.

Kevin and Nicole Keegan (Doc. #19128)

7.1015 From the two-page paper titled "proposed Definition of Waters of the United States under 

the Clean Water Act" the following definitions would affect us and we oppose:

 "Artificially irrigated areas that would revert to upland should application of 

irrigation water to that area cease;"

o This has a negative impact on farming, ranching and the general food 

supply in the United States. We already have issues in feeding American 

citizens, let alone the hundreds of thousands of legal and illegal 

immigrants.

 "Artificial reflecting pools or swimming pools created by excavating and/or 

diking dry land;" AND "Small ornamental waters created by excavating and/or 

diking dry land for primarily aesthetic reasons"

o Why should the EPA be able to regulate a citizens or property owner’s 

ability to own or maintain their pool or a reflection pond or the aesthetics 

of their property? Isn't this why there are so many homeowners 

associations across the country?

 "Water-filled depressions created incidental to construction activity" o 

Construction crews can barely set up and use portable toilets let alone regulate or 

investigate their own construction activity related to "depressions" of water. Does 

this include their self made "toileting" areas? (p. 2)

Agency Response: The features listed were determined to be excluded from 

coverage under the final rule. See Summary response in the Topic 7 compendium.

Western States Water Council (Doc. #19349)

7.1016 D. Exclusions

The Council understands that the draft rule may specifically exclude certain waters from 

its definition of WOUS. The Council supports the intent of such a provision and requests 

that your agencies also include other waters and features that are generally considered to 

be outside the scope of the CWA.

In addition to groundwater, the following should also be excluded:

1. Farm ponds, stock ponds, irrigation ditches, and the maintenance of drainage ditches, 

as currently excluded under the CWA’s agricultural exemption;
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2. Man-made dugouts and ponds used for stock watering or irrigation in upland areas that 

are not connected to surface waters;

3. Dip ponds that are excavated on a temporary, emergency basis to combat wildfires and 

address dust abatement;

4. Man-made pits and quarries that have been excavated in uplands and that fill with 

groundwater but are not connected to surface waters; and

5. Prairie potholes and playa lakes.

The preamble for the rule should also recognize that the states have authority pursuant to 

their “waters of the state” jurisdiction to protect excluded waters, and that excluding such 

waters from federal CWA jurisdiction does not mean that they will be exempt from 

regulation. The preamble should further recognize that the states are best suited to 

understand the unique aspects of their geography, hydrology, and legal frameworks, and 

are therefore in the best position to provide the most feasible and effective protections for 

excluded waters. (p. 3)

Agency Response: As the preamble states, under section 510 of the CWA, unless 

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

tribe to establish more protective standards or limits than the Federal CWA. See 

Summary response in the Topic 7 compendium and the preamble for discussion of 

prairie potholes and playa lakes.

Coachella Valley Water District, Riverside County, California (Doc. #19455)

7.1017 The Coachella Canal is a man-made, concrete conveyance that carries Colorado River 

water 123 miles to supply CVWD's agriculture irrigation system. Ditches, manmade 

canals and water conveyances should be specifically excluded from the definition of 

Waters of the U.S.

CVWD's 1,000 acres of groundwater replenishment and 330 acres of stormwater 

retention basins, 73 miles of flood control dikes, and over 100 miles of swales and 

ditches are currently not jurisdictional, but under the proposed rule it is our understanding 

that these facilities meet the definition of Waters of the U.S. These facilities are critical to 

life in the desert because they capture and infiltrate water into the drinking water aquifer. 

In addition to capturing and infiltrating storm flows, CVWD's flood control facilities 

protect property and public safety. Groundwater replenishment and flood control 

facilities should be excluded from the definition of Waters of the U.S. (p. 2)

Agency Response: See Summary response in the Topic 7 compendium.

Maui County (Doc. #19543)

7.1018 Municipal Separate Storm Water Systems

1. The rule's new definitions for "tributaries" and "other waters" are abstract and 

contingent on variable field conditions. Under the proposed rule many stormwater 

systems and features could be considered WOTUS.

2. Waters associated with storm water infrastructure should be specifically excluded from 

the WOTUS definition.
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662

3. Under the proposed rule, these stormwater channels could be considered jurisdictional 

even though they are part of the MS4 and regulated under an NPDES permit. Regulating 

such waters under both an NPDES permit and Section 404 of the CWA is overly 

burdensome and unworkable from a regulatory and compliance standpoint.

4. If stormwater conveyances are deemed WOTUS, they will be subject to water quality 

standards. The costs of complying with water quality standards could be extreme.

5. Stormwater or stream channels could be considered "tributaries" or "roadside ditches" 

under the proposed rule, and including tributaries by rule is not practical. The proposed 

rule should be revised to state unequivocally that the definitions of tributary and roadside 

ditch do not include MS4 facilities, and MS4 facilities are not "waters of the U.S."

6. Waste treatment systems, excluded under 40 CFR 122.3, should include stormwater 

management and treatment systems. The lack of such language leaves the rule open to 

interpretation as to whether stormwater controls are considered jurisdictional.

7. Infrastructure used to treat, manage, infiltrate or retain urban stormwater runoff should 

be specifically included in the "waste system treatment" exclusions.

8. The rule should define the systems to which the exemption applies, including 

manmade structures and devices as well as treatment measures to improve water quality, 

reduce stormwater volume, control flow rate and flooding, convey stormwater, or a 

combination of these purposes. (p. 3)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. See also 

summary response at 7.1 regarding the waste treatment system exclusion. 

7.1019 Other Waters

3. Reclaimed/recycled water bodies, infrastructure, and uses (land application and 

groundwater recharge or disposal) should categorically excluded.

4. While the proposed rule excludes "groundwater, including groundwater drained 

through subsurface draining systems" there is ambiguity as to the depth of "subsurface 

hydrology" and at what depth groundwater is included or excluded. "Shallow" 

groundwater hydrologically connected to WOTUS appears to be included in definition of 

"other water."

5. Discharges to groundwater of any depth, permitted by an Underground Injection 

Control permit issued pursuant to the Safe Drinking Water Act should be categorically 

exempt. 9p. 4 – 5)

Agency Response: See Summary response in the Topic 7 compendium. With 

respect to water delivery, reuse, and reclamation systems, please see summary 

response at 7.4.2.

7.1020 Existing non-jurisdictional determinations and existing permits

3. All development associated with mitigation banking should be exempt for the duration 

of the banking agreement. (p. 5)
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663

Agency Response: The agencies disagree that excluding development associated 

with mitigation banking would be appropriate, but note that such development may 

be eligible for authorization under streamlined permitting, such as Nationwide 

Permits.

Las Vegas Valley Watershed Advisory Committee (Doc. #19570)

7.1021 The EPA and Corps did not propose any changes to the existing exclusion from 

jurisdiction for waste treatment systems designed consistent with the requirements of the 

CWA. However, the LVVWAC is concerned that the broad definition of "tributaries" 

under the Proposed Rule would result in man-made ditches, canals, and off-river storage 

ponds that are located on water and wastewater facility sites, but may not formally be part 

of waste treatment systems, to be subject to regulation as WOUS. This additional 

regulation would be unnecessarily burdensome, and affect LVVWAC members' ability to 

conduct timely maintenance of those features.

The EPA and Corps specifically excluded certain waters from its definition of WOUS 

under the Proposed Rule. The LVVWAC supports the intent of these exclusions, and 

requests that a clear exemption also be provided for all water management features that 

are located within water and wastewater facility sites. The LVVWAC requests the 

following exclusion be added to the Proposed Rule:

 Ditches, canals, ponds, and other man-made features used in the operation of 

water or wastewater treatment and supply systems. (p. 2)

Agency Response: See summary response at 7.1 regarding the waste treatment 

system exclusion. As discussed in compendium 7 the rule excludes a number waters 

including many features created in dry land. See compendium 6 regarding ditches.

Chicken & Egg Association of Minnesota (Doc. #19584)

7.1022 We are concerned that the interpretive rule clarifying permit exemption for certain NRCS 

approved practices is inadequate. Further, practices that work well in one region may 

actually have negative consequences in another region, rendering a national list of 

approved practices unworkable. (p. 2)

Agency Response: While not relevant to the this rule, the Interpretive Rule 

Regarding the Applicability of Clean Water Act Section 404(f)(1)(A) was withdrawn 

on January 29, 2015. 

San Luis Water District (SLWD), Los Banos, California (Doc. #20488)

7.1023 To better balance the broad interest of the CWA in protecting the nation's surface waters, 

while not unduly interfering with our ability to provide water, SLWD recommends the 

following:

 Water conveyance systems, including ditches, should be excluded from the 

proposed definition of “waters of the United States."

 Water infrastructure, such as recycled water facilities, groundwater recharge 

basins, storm water retention basins, and constructed wetlands, adjacent to 
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

664

"waters of the United States", should be excluded from jurisdiction under the 

proposed rule. (p. 1)

Agency Response: See summary response at 7.1 regarding the waste treatment 

system exclusion. With respect to water delivery, reuse, and reclamation systems, 

please see summary response at 7.4.2. See summary response at 7.4.4 regarding the 

final rule’s policy on storm water control features. 

Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

7.1024 In addition, water supply systems could be defined as Waters of the U.S. under the new 

definition of a tributary as they convey flow to downstream water. These could include 

not only large federal and state water delivery systems, such as the California Aqueduct 

and the Colorado River Aqueduct, but also reservoirs and other water supply features 

constructed and managed by local and private interests.

Furthermore, even though your agencies have maintained that there is no intent to impact 

water reuse facilities, the rule does not clearly address reuse facilities associated with 

wastewater treatment systems. Reuse facilities were constructed to augment water supply 

for irrigation and sometimes drinking water, and were not designed with the objective to 

meet the parameters of the CWA. The rule needs to clearly state your agencies' intent for 

water reuse facilities. (p. 2)

Agency Response: With respect to water delivery, reuse, and reclamation systems, 

please see summary response at 7.4.2.

Highlands Ranch Metropolitan District, Highlands Ranch, Colorado (Doc. #20499)

7.1025 The Proposed Rule also impacts Highlands Ranch by creating uncertainty regarding the 

waste treatment exclusion. The District respectfully requests that this exclusion be 

clarified to include stormwater facilities constructed to comply with CWA requirements. 

The operation and maintenance of these stormwater facilities should not be encumbered 

with the additional requirements of the Proposed Rule. (p. 1)

Agency Response: See summary response at 7.1 regarding the waste treatment 

system exclusion. See summary response at 7.4.4 regarding the final rule’s policy on 

storm water control features.

Atascadero Mutual Water Company (Doc. #20508)

7.1026 AMWC feels that water infrastructure adjacent to "Waters of the U.S." should be 

excluded from the definition of "Waters of the United States". AMWC currently operates 

a groundwater recharge basin in the riparian area adjacent to the Salinas River and is 

concerned that the proposed rule would place a substantial regulatory burden on 

operating and/or expansion of this facility. (p. 1)

Agency Response: With respect to water delivery, reuse, and reclamation systems, 

please see summary response at 7.4.2.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

665

ATTACHMENTS AND REFERENCES

Comments included above in this document discuss the Proposed Rule, and some include 

citations to various attachments and references, which are listed below. The agencies do not 

respond to the attachments or references themselves, rather the agencies have responded to the 

substantive comments themselves above, as well as in other locations in the administrative 

record for this rule (e.g., the preamble to the final rule, the TSD, the Legal Compendium). In 

doing so, the agencies have responded to the commenters’ reference or citation to the report or 

document listed below as it was used to support the commenters’ comment. Relevant comment 

attachments include the following:

Anderson, William A., Hunton & Williams. June 8, 1980. Letter to Douglas M. Costle, Adm’r,

EPA (July 8, 1980), with attached UWAG Briefing Paper, The Waste Treatment System

Exclusion from EPA’s Definition of Waters of the United States. (Doc. #15016.1)

Associated General Contractors of America. Exhibit 1: Examples of Ponds as a Best 

Management Practice To Protect Surface Waters (Doc. #14602, p. 20-21)

County of Los Angeles and Los Angeles County Flood Control District (LACFSD), California 

“Attachment B – Typical Detention Basin” (Doc. #15620, p. 15)

Florida Administrative Code. 62-340.750 Exemption for Surface Waters or Wetlands Created by 

Mosquito Control Activities. (Doc. #4847.2)

Patagonia Area Resource Alliance and Earthworks. October 2014. The Hermosa Mine Proposal: 

Potential Impacts to Patagonia’s Water Supply. (Doc. #16394.6)

Southeast Stormwater Association. Exhibit A: 9 Mile Irrigation Reservoir. (Doc. #16534, p. 18)

Southeast Stormwater Association. Exhibit C: Stock Watering Pond. (Doc. #16534, p. 19)

S.S. Papadopulos & Associates, Inc. et al. March 2014. Environmental Impact Report Golden 

Sands Dairy Saratoga Township Wisconsin. (Doc. #16645.2)

USGS & US Department of the Interior. Trends in Streamflow of the San Pedro River, 

Southeastern Arizona, and Regional Trends in Precipitation and Streamflow in Southeastern 

Arizona and Southwestern New Mexico. Professional Paper 1712. (Doc. #16394.5)

Winter, Thomas C., Judson W. Harvey, O. Lehn Franke and William M. Alley. 1998. Ground 

Water and Surface Water A Single Resource: U.S. Geological Survey Circular 1139. (Doc. 

#16394.4)

In addition, commenters submitted the following relevant references. These are copied into this 

document as they were submitted by commenters. HW has not verified the references, or the 

validity of hyperlinks.
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

666

30 C.F.R. § 816.43 to 816.49. (Doc. #10750, p. 19)

30 C.F.R. § 816.41 (Doc. #10750, p. 19)

40 C.F.R. § 35.2005 (Doc. #16584, p. 2)

40 C.F.R. 122.2. (Doc. #14589, p. 26)

40 C.F.R. § 122.26 (Doc. #15822.1, p. 68; Doc. #14589, p. 25)

77 CFR at 10,269-10,273 (Doc. #15254, p. 23)

33 C.P.R. § 328.5 (Doc. #14420, p. 13)

45 Fed. Reg. 33290, 33298 (May 19, 1980) (Doc. #15377, p. 3)

51 Fed. Reg. at 41206, 41217. (Doc. #10750, p. 17; Doc. #15059, p. 14)

53 Fed. Reg. at 20765. (Doc. #10750, p. 17)

63 Fed. Reg. 51164, 51183-84. (Doc. #15123, p. 13; Doc. #16537, p. 6)

64 FR 39252, 39332 (Doc. #10750, p. 18)

73 Fed. Reg. 33697, 33704 (June 13, 2008) (Doc. #15822.1, p. 68)

79 Fed. Reg. at 48,300, 48,383-401 (Aug. 15, 2014). (Doc. #15016, p. 29)

30 U.S.C. § 1265(b)(10) (Doc. #10750, p. 19)

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of the Scientific and Technical Basis of the EPA’s proposed rule titled Definition of Waters 

of the United States Under the Clean Water Act. (Doc. #15233, p. 2)
Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

667

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Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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Clean Water Rule Response to Comments – Topic 7: Features and Waters Not Jurisdictional

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