Economic 

Analysis of the 

EPA-Army 

Clean Water 

Rule

May 20, 2015

U.S. Environmental Protection 

Agency

U.S. Department of the Army 
Abt Associates provided technical support to U.S. EPA under contract EP-C-07-023.

i 
Table of Contents

Executive Summary.............................................................................................................................iv

Section 1: Introduction and Overview of the Clean Water Rule .......................................................1

Section 2: Clean Water Act Regulatory Programs.............................................................................3

Section 3: Approach for the Economic Analysis................................................................................5

Section 4: Estimated Changes in Positive Jurisdictional Determinations.........................................7

Section 5: Clean Water Act Sections 303 and 305...........................................................................15

Section 6: Estimate of Potential Clean Water Act Section 311 Oil Spill Prevention Program 

Costs and Benefits..............................................................................................................................17

Section 7: Estimate of Potential Clean Water Act Section 401 Costs and Benefits.......................19

Section 8: Estimate of Potential Clean Water Act Section 402 Costs and Benefits.......................21

Section 402 Stormwater Permitting...............................................................................................23

Section 402 Concentrated Animal Feeding Operation Permitting ..............................................27

Section 402 Pesticide General Permitting.....................................................................................30

Section 9: Estimate of Potential Clean Water Act Section 404 Costs and Benefits.......................32

CWA Section 404 Compliance Costs ...........................................................................................32

Permit Application Costs...........................................................................................................36

Compensatory Mitigation Costs................................................................................................39

Wetland Mitigation Costs..........................................................................................................40

Stream Mitigation Costs ............................................................................................................42

CWA Section 404 Benefits............................................................................................................43

Wetland Mitigation Benefits......................................................................................................43

Valuation of Wetland Benefits..................................................................................................44

National Wetlands Inventory Approach to Benefits Transfer.................................................47

Aggregation of Benefits.............................................................................................................49

Section 10: Summary of Estimated Indirect Costs and Benefits.....................................................53

Section 11: Other Social Costs and Benefits ....................................................................................55

Corps Administrative Costs...........................................................................................................55

Section 12: Related Acts of Congress, Executive Orders, and Agency Initiatives........................58

Paperwork Reduction Act ..............................................................................................................58

Regulatory Flexibility Act .............................................................................................................58

ii
Unfunded Mandates Reform Act...................................................................................................59

Executive Order 13132: Federalism..............................................................................................60

Executive Order 13175: Consultation and Coordination with Indian Tribal Governments......61

Executive Order 13045: Protection of Children from Environmental Health and Safety Risks

.........................................................................................................................................................62

Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy 

Supply, Distribution, or Use ..........................................................................................................62

Appendix A: Supplemental Cost Analysis Information...................................................................63

Appendix B: Supplemental Benefit Estimate Information ..............................................................66

Summary of Wetland Benefits Studies Used to Generate WTP Estimates................................66

Summary of Wetland Benefits Studies.........................................................................................71

Procedure for Standardizing and Weighting WTP Values from Benefits Studies.....................74

Appendix C: Alternative Scenario Similar to Proposed Rule..........................................................75

iii
Executive Summary

Key Background

The Environmental Protection Agency (EPA) and the U.S. Department of the Army

(Army) (hereinafter collectively referred to as “the agencies”) have prepared a final rule revising

the definition of the regulatory term “waters of the United States.” This term identifies waters 

which are, and are not, subject to the Clean Water Act (CWA). The agencies have worked to 

develop this rule in light of the Act, science, Supreme Court decisions, public comments, and the 

agencies’ experience and technical expertise. 

The final rule includes eight categories of jurisdictional waters, maintains existing 

exemptions for certain categories of activities and waters, and adds additional exclusions for 

categories of waters that are never covered under the Act. The final rule does not establish 

regulatory requirements and, therefore, does not impose direct costs on any entity. Instead, it is a 

definitional rule that clarifies the scope of “waters of the United States.” 

The agencies prepared this illustrative economic analysis to show how the scope of this 

new regulation compares to the historic practices under the existing regulation and to the 

agencies’ recent field practices in making jurisdictional determinations after the Supreme Court 

decisions of 2001 and 2006. The latter serves as our baseline for calculating how this rule may 

affect the costs and benefits of specific CWA programs. This required a number of 

extrapolations from past regulatory analyses to reflect the potential change in scope of the each 

CWA regulatory program. This summary describes the overall approach and presents the key 

results from the economic analysis.

Key Elements of the Analysis

Baseline for Comparison 

This final rule updates and clarifies regulations that were promulgated in 1986. Since 

that time, the agencies have had several decades of experience implementing the regulations and 

making jurisdictional determinations. That experience can be thought of as comprising two 

distinct time periods. The first, from 1986 to around the year 2000, represents the historic 

practice of implementing the regulations. The second, from approximately 2008 to the present, 

represents the recent practice of implementing the regulations and is based on the 2008 EPA and 

Army jurisdiction guidance. These two time periods differ because of key Supreme Court cases 

in 2001 and 2006 that unsettled prior clarity regarding the allowable extent of jurisdiction in the 

CWA. Due to this uncertainty, recent practice in implementing the act has at times been overly 

cautious, even though the regulations have not changed.

iv
This change in practice creates two distinct baselines from which one could analyze the 

impacts of the final Clean Water Rule. Compared to a baseline of existing regulations and 

historic practice, this rule results in a decrease in CWA jurisdiction because the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing regulations. However, 

compared to recent practice, this rule is projected to result in a slight increase in CWA 

jurisdiction by providing clarity about which waters are covered by the Clean Water Act and 

resolving the uncertainty caused by the key Supreme Court cases that had led to caution in 

asserting jurisdiction. 

Both baselines are reasonable starting points to analyze the impacts of the rule. The 

analysis compared to historic practice is conceptually straightforward because the narrowed 

jurisdictional scope results in negative or zero impact. Unfortunately, detailed data regarding 

individual jurisdictional determinations from before the year 2000 are not available, and 

therefore the agencies were unable to develop quantitative estimates of the impact of the rule 

relative to historic practice. However, because jurisdiction under the CWR will be less inclusive 

than under historic practice, it is helpful to underscore that costs and benefits will be no greater 

than they would have been under historic practice. To estimate impacts compared to recent 

practice, the agencies used data from the U.S. Army Corps of Engineers (Corps) regarding recent 

jurisdictional determinations both for the proposal and the final rule. The remainder of this 

document outlines the methods and assumptions that went into developing the resulting 

quantitative estimates of the costs and benefits of CWA programs relative to the recent practice 

baseline. 

It should be noted that the quantified estimates of indirect costs and benefits relative to 

recent practice have a number of important limitations and caveats, and are presented here as 

illustrative examples of the potential impacts on various CWA programs. 

With the limited amount of data and modeling capability, there remains uncertainty 

surrounding our estimates. Following OMB circular A-4, the agencies decided to undertake 

scenario analysis that describes how determinations might be affected.1

 In one scenario, the 

agencies combined a series of “high end” assumptions, including that twice as many 

jurisdictional determinations will be made for “other waters” as indicated in recent Corps data. 

In a second scenario, we assume the number of “other waters” determinations will be the same as 

indicated in the recent Corps data – “low end” scenario. Finally, in a third scenario, we followed 

an approach similar to that used in the economic analysis accompanying the proposal. Compared 

to the recent practice baseline, the analysis suggests the new rule will result in an increase in the 

number of positive jurisdictional determinations and an associated increase in both costs and 

1 Circular A-4 provides that: “In some cases the level of scientific uncertainty may be so large that the [agency] can 

only present discrete alternative scenarios without assessing the relative likelihood of each scenario quantitatively.” 

Office of Mgmt. & Budget, Exec. Office of the President, Circular A-4, Regulatory Analysis (2003), available at 

http://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf. 

v 

 
benefits that derive from the subsequent implementation of CWA programs. However, a more 

definitive assessment would only be possible if additional data across a wide range of programs 

becomes available. The assumptions that were made are discussed in this report. 

Evaluation of Jurisdictional Determinations

To estimate how the costs and benefits of CWA programs may change as a result of a 

change in the number of positive jurisdictional determinations2 under this rule, the EPA

reviewed a sample of negative jurisdictional determinations (JDs) 3 (i.e., determinations of no 

jurisdiction) completed by the Corps in fiscal years 2013 and 2014 to assess how the JD would 

change if the final rule had been in place.

4

 The EPA looked at a random sample of 188 

jurisdictional determination files, which represents 782 individual waters in 32 states. It is 

important to emphasize that the economic analysis focuses exclusively on the costs and benefits 

from CWA programs that would result from the associated change in negative JDs, rather than 

an analysis of how the scope of jurisdiction changes - nationwide data do not exist on the extent 

of all waters covered by the CWA. The agencies generally only make jurisdictional 

determinations on a case-specific basis at the request of landowners. 

The agencies updated the economic analysis of the proposed rule, which relied upon data 

from FY09 and FY10, by reviewing more recent data from FY13 and FY14. This not only 

ensures that the most current data are used, but also responds to concerns raised in public 

comments that the FY09 and FY10 dataset used in the economic analysis for the proposed rule 

represented a period of decreased economic activity. JDs covering three categories of waters 

were reviewed – streams, wetlands, and other waters. 

The agencies relied on certain conservative assumptions in their economic analysis that 

have the effect of consistently increasing the number of positive JDs that results from the new 

rule as analyzed against a baseline of recent practice. Key assumptions and JD estimates include 

the following:

2 A “positive jurisdictional determination” is a decision to assert CWA jurisdiction over a particular water. The 

alternative is a “negative jurisdictional determination” which is a decision not to assert CWA jurisdiction over a 

particular water. It is important to note that the purpose of the economic analysis is not to estimate the change in the 

numbers of waters subject to jurisdiction. 

3 A “positive jurisdictional determination” is a decision to assert CWA jurisdiction over a particular water. The 

alternative is a “negative jurisdictional determination” which is a decision not to assert CWA jurisdiction over a 

particular water. It is important to note that the purpose of the economic analysis is not to estimate the change in the 

numbers of waters subject to jurisdiction. 

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

waters currently found to be jurisdictional that will not be under the final rule. 

vi

 
• For purposes of this analysis, the agencies assume that all waters in the stream and 

wetlands categories of the Corps JD data would be determined to be jurisdictional under 

the new rule, notwithstanding the limits on jurisdiction in the new rule. 

• The agencies estimate that 17.1 percent of negative jurisdictional determinations for 

“other waters” will become positive under the new rule because they meet the definition 

of “adjacent.” Prior to the new rule, non-wetland adjacent waters were subject to a casespecific analysis because the definition of “adjacent” applied only to wetlands, not all 

waters.

• The agencies estimate that a total of 15.7 percent of the “other waters” JD category will 

change from negative to positive under the (a)(7) provision of the new rule. 

• The agencies estimate that 1.7 percent of the “other waters” JD category will change 

from negative to positive under the (a)(8) provision of the new rule.

• Combining the information reported in the three bullets above, the agencies estimate that 

34.5 percent of “other waters” overall will change from a negative to a positive JD under 

the provisions of the new rule.

• For the “high end” estimate, before estimating the overall change from negative to 

positive JDs, the agencies doubled the number of JDs in the “other waters” category, 

raising their representation in the total JD data from 6 percent to 11 percent to account for 

instances where landowners might not currently seek a jurisdictional determination and 

therefore are not represented in the data system. 

• For the “low end” estimate, the agencies assume, as indicated by the Corps data, that the 

number of JDs in the “other waters” category is 6 percent of the total number of JDs 

Combining these assumptions and the estimates derived for all of the categories of JDs in the 

FY13 and FY14 data produces an estimated increase of between 2.84 and 4.65 percent in 

positive jurisdictional determinations annually compared to recent field practice. Note that both 

of these scenarios contain conservative assumptions made necessary by the lack of data and 

modeling capability. 

The Potential Benefits and Costs to Clean Water Act Programs

This rule does not result in any direct costs or benefits under the historic practice or 

recent practice baselines. A finding of jurisdiction regarding a particular water does not incur 

any direct costs. The consequence of a positive jurisdictional determination is simply that Clean 

Water Act provisions apply to that water – in particular, a permit would be required for a 

pollutant discharge that would pollute, degrade, or destroy the water. No costs would apply if no 

discharge or dredge/fill activity occurs. Costs would be incurred only indirectly: for example, by 

triggering CWA provisions by discharging pollutants into the waterway. A positive 

jurisdictional determination that a water is subject to the CWA is not equivalent to a new permit. 

However, absent data to correlate positive jurisdiction to a new permit under Sections 

402 or 404 for example, for purposes of estimating how the costs and benefits of CWA programs

vii
may change with an increase in the number of positive JDs, our analysis employs the 

conservative assumption that the final rule could affect entities regulated under the CWA 

programs in direct proportion to this percentage change in positive jurisdictional determinations. 

To estimate how costs and benefits of CWA programs change under these scenarios, the 

agencies uniformly applied the percent increment in jurisdiction to the total costs and benefits for 

the Sections 311, 401, 402 (stormwater, pesticide general permit, Confined Animal Feeding 

Operation permits) and 404 programs to account for an estimated increase in permitting and 

activities that would result. Note that this is a very conservative assumption. There is no reason 

to believe, for example, that Confined Animal Feeding Operations would expand by this 

percentage – at least without similar contractions (and costs and benefit reductions) elsewhere in 

the economy. Also, the agencies relied on existing annual administrative and compliance cost 

information, and updated cost figures to 2014 dollars. 

This analysis generally uses conservative assumptions about the impact a change in the 

scope of jurisdiction would have on various CWA programs. For example, when a water is 

found jurisdictional under the CWA, a permit is required for a pollutant discharge that would 

pollute, degrade, or destroy the water. However, after it is known that a particular water is 

jurisdictional, the actor that requested the determination may decide not to pollute, degrade, or 

destroy the water. In that case, no permit is required and no permitting costs are incurred. This 

analysis assumes, however, that all positive jurisdictional determinations are followed by the 

permit application process and permit requirements and accordingly incur related costs. 

The agencies expect that some waters previously found to be jurisdictional under recent 

practice would occasionally be found non-jurisdictional under this rule. However, using the 

available data it is not possible to determine how frequently this would occur. To the extent that 

any previously jurisdictional waters are found non-jurisdictional under this rule, both costs and 

benefits would be overestimated in this analysis.

A significant focus of the benefits analysis is on an anticipated increase in CWA 404 

permits that would result in ecological benefits from those permitted losses being offset through 

compensatory mitigation. The agencies estimate the potential benefits from CWA 404 

compensatory mitigation based upon a benefits transfer analysis using studies measuring 

willingness to pay for preservation of wetlands similar to the type likely to be protected by this 

rule. For this final rule economic analysis, the agencies made improvements by refining the

approach to calculating benefits from Section 404 compensatory mitigation and differentiating 

between emergent and forested wetlands. 

An important aspect of the Clean Water Rule is the increased clarity and certainty it 

brings to the process of making jurisdictional determinations under the CWA. Since 2008, 

approximately 100,000 case-specific jurisdictional determinations have been made – a time- and 

resource-intensive process. The final rule is designed to reduce the need for case-specific 

determinations, both by clarifying categories of waters that are jurisdictional or not jurisdictional 

viii
by rule and by simplifying the process for the remaining determinations. This aspect of the final 

rule reduces burden and brings additional certainty to the process, but the associated benefits 

could not be quantified in this analysis. 

Key Findings

Figure ES-1 presents a summary of how the estimated CWA program costs and benefits change 

under the “low end” scenario, and Figures ES-2 presents the summary of costs and benefits 

under the “high end” scenario. The benefit estimates presented in Figure ES-1 are calculated 

based on a 3 percent discount rate, as the agencies feel this is the appropriate rate in this context. 

Benefit estimates calculated at both 3 and 7 percent discount rates are reported in the remainder 

of the document. There are several costs and benefits that the agencies were unable to monetize, 

including permitting time and project redesign costs under Section 404, as well as the benefits of 

Section 404 stream mitigation, benefits of the Section 402 pesticide general permit, and benefits 

of the Section 401 certification program. 

Key Conclusions

• Compared to the current regulations and historic practice of making jurisdictional 

determinations, the scope of jurisdictional waters will decrease, as would the costs and 

benefits of CWA programs 

• Compared to a baseline of recent practice, the agencies assessed two scenarios. Those 

scenarios result in an estimated annual increase of between 2.84 and 4.65 percent in 

positive jurisdictional determinations.

• The agencies’ analysis indicates that for both scenarios, the change in benefits of CWA 

programs exceed the costs by a ratio of greater than 1:1.

• The “other waters” category represents the greatest potential for changes in jurisdictional 

determinations. 

• Estimated impacts on CWA programs may be over-estimated because each newly 

jurisdictional water will not be affected by all CWA programs simultaneously, and a 

particular activity affecting a water may be exempt from permitting under the Clean 

Water Act. It is also unlikely that new CAFOs and stormwater-relevant construction 

would be built on newly jurisdictional waters without decreases in construction or CAFO 

activities elsewhere. 

ix
Figure ES-1. Estimated Annual Indirect Costs and Benefits, Using Original Number of 

ORM2 Other Waters Records. 

Annual Costs (FY14$ 

millions)

Annual Benefits (FY14$ 

millions)

Low High Low High

CWA 402 CAFO Administration $0.2 $0.2 $3.8 $6.6 CWA 402 CAFO Implementation $6.1 $6.1

CWA 402 Stormwater 

Administration $0.3 $0.3 $29.0 $36.8 CWA 402 Stormwater 

Implementation $29.2 $36.4

CWA 404 Permit Application $28.7 $49.1 $306.1 $306.1 CWA 404 Mitigation – Wetlands $54.4 $152.3

SUBTOTAL $118.8 $244.3 $338.9 $349.5

CWA 311 Compliance $12.7 $12.7 not quantified

CWA 401 Administration $0.8 $0.8 not quantified

CWA 402 Pesticide General Permit 

Implementation $3.3 $3.6 not quantified

CWA 404 Mitigation – Streams $22.8 $45.2 not quantified

TOTAL $158.4 $306.6 $338.9 $349.5

* Calculations reflect rounding. 

x 
Figure ES- 2. Estimated Annual Indirect Costs and Benefits, Using Double the Number of 

ORM2 Other Waters Records.

Annual Costs

(FY14$ millions)

Annual Benefits

(FY14$ millions)

Low High Low High

CWA 402 CAFO Administration $0.3 $0.3 $6.2 $10.8 CWA 402 CAFO Implementation $9.9 $9.9

CWA 402 Stormwater 

Administration $0.5 $0.5 $47.5 $60.2 CWA 402 Stormwater 

Implementation $47.8 $59.6

CWA 404 Permit Application $47.0 $80.3 $501.2 $501.2 CWA 404 Mitigation – Wetlands $89.0 $249.4

SUBTOTAL $194.6 $399.9 $554.9 $572.3

CWA 311 Compliance $12.7 $12.7 not quantified

CWA 401 Administration $1.3 $1.3 not quantified

CWA 402 Pesticide General Permit 

Implementation $5.4 $5.9 not quantified

CWA 404 Mitigation – Streams $22.8 $45.2 not quantified

TOTAL $236.7 $465.0 $554.9 $572.3

* Calculations reflect rounding. 

xi
Section 1: Introduction and Overview of the Clean Water

Rule

The agencies conducted this illustrative economic analysis to show how the scope of the 

Final Clean Water Rule: Definition of “Waters of the United States” (hereafter referred to as the 

rule) compares to the historic practices under the existing regulation and to the agencies’ recent 

field practices in making jurisdictional determinations. The latter serves as our baseline for 

calculating how this rule may affect the costs and benefits of specific CWA programs. This rule, 

revising the definition of “waters of the U.S.,” by itself imposes no direct costs. The potential 

changes to costs and benefits from CWA programs as a result of the changes made by this rule

are considered indirect, because the rule is a definitional change to a term that is used in the 

implementation of CWA programs (i.e., sections 303, 305, 311, 401, 402, and 404). Entities 

currently are, and will continue to be, subject to the provisions of these programs. Each of these 

programs may subsequently impose direct or indirect costs as a result of implementation of their 

specific provisions. While all of the costs and benefits associated with this rule are indirect, for 

readability throughout the rest of this document these indirect costs and indirect benefits are 

identified simply as costs and benefits.

Members of Congress, developers, farmers, state and local governments, energy 

companies, and many others requested new regulations to make the process of identifying waters 

protected under the CWA clearer, simpler, and faster. In this final rule, the agencies are 

responding to those requests from across the country to make the process of identifying waters 

protected under the CWA easier to understand, more predictable, and more consistent with the 

law and peer-reviewed science. 

On April 21, 2014, the agencies published a proposed rule to reduce uncertainty about the 

scope of “waters of the United States” covered by Clean Water Act programs, that arose from 

interpretation of Supreme Court decisions in 2001 and 2006, and the subsequent guidance issued 

by the agencies in 2008. During the public comment period, which ran until November 14, 

2014, over one million comments were received. Stakeholder input received during public 

outreach events in combination with the written comments received during the public comment 

period have reshaped each of the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to assist them in 

identifying waters as “waters of the United States.” 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 agencies made the following key changes from the proposed rule:
• Tributaries – The final rule removes wetlands and other waters lacking bed/bank and 

ordinary high water mark from definition – moves to adjacency;

• Adjacent waters – The final rule revises the definition for “neighboring” by establishing 

distance limits;

• The final rule eliminates the “other waters” category by clarifying jurisdiction over 

isolated waters, but not asserting jurisdiction by rule. It also identifies 5 specific 

subregions which are assumed to be similarly situated for purposes of conducting a casespecific significant nexus analysis;

• The final rule allows for case-specific analysis for all waters within 4,000 feet of an 

ordinary high water mark or high tide line of a covered tributary, impoundment, 

traditional navigable water, interstate water, or territorial sea and all waters within the 

100-year floodplain of a traditional navigable water, interstate water, or territorial sea, 

whichever is broader; 

• The final rule refines proposed exclusions and adds features that were not previously 

excluded (e.g., water distributary systems);

• The final rule redefines excluded ditches.

In preparing this document (the Economic Analysis or EA), the agencies updated and 

revised the analyses completed for the proposal. The following sections describe Clean Water 

Act regulatory programs that will be affected by this rule, the approach used by the agencies to 

estimate a potential change in jurisdictional determinations based on the final rule, potential 

changes to costs and benefits of several CWA programs affected by the final rule, and updates 

and enhancements to the analyses for the final EA. 

2 
Section 2: Clean Water Act Regulatory Programs

The goal of the Clean Water Act (CWA) is to restore and maintain the chemical, physical, and 

biological integrity of the nation’s waters. To achieve that goal, the CWA establishes a number 

of regulatory and non-regulatory programs that are designed to control pollution at its source and 

improve water quality. As a pollution prevention statute, the CWA extends beyond waters that 

are navigable in fact to include the headwater streams, lakes, and wetlands and other waters that 

contribute significantly to protect the integrity of navigable waters. The scope of waters that are 

specifically covered by CWA programs is all waters meeting the definition of “waters of the 

United States.” Any water that does not meet the definition of “waters of the U.S.” is not subject 

to the CWA. This rule does not change the agencies’ longstanding practices or regulations 

governing the implementation of this rule.

Figure 1 depicts the various CWA programs that are affected by the definition of “waters 

of the U.S.,” along with the government entities that may be responsible for administering the 

programs. Among its many provisions, the CWA calls for states and tribes to set standards for 

meeting water quality goals and developing plans to restore polluted waters (section 303); 

establishes oil spill prevention and clean-up programs (section 311); establishes state and tribal 

roles in certifying that federal permits will not violate water quality standards and other CWA 

requirements, as well as relevant state or tribal laws (section 401); requires permits for pollutant 

discharges (section 402); requires permits for the placement of dredged or fill material, (section 

404); and allows the federal government, states, tribes, and communities to enforce the law. 

The potential effects of this rule on each of these programs is discussed in greater detail 

in the sections that follow.

3 
Figure 1 - Affected Clean Water Act Programs

As shown in Figure 1, states and tribes have a significant role in administering many 

CWA programs. This economic analysis does not account for the possibility that some states, as 

a matter of state law, may be considering a broader set of waters to be subject to a state’s 

implementation of certain CWA programs. Although the extent of a state’s CWA jurisdiction 

may not be smaller than the definition of waters of the U.S., states and tribes may elect to 

implement their water quality protection programs more broadly, according to a definition of 

“waters of the state” or “waters of the tribe.” Where individual states have elected to regulate 

waters more broadly, the estimated costs and benefits of this rule would be smaller than 

presented here (because states may already be asserting jurisdiction over waters for which this 

analysis presumed jurisdiction was not generally asserted in practice). 

The particulars of individual state laws and regulations vary greatly. A 2013 

Environmental Law Institute report estimated that approximately two-thirds of all states place 

some legal constraint on the authority of state and local government officials to adopt aquatic 

resource protections beyond the CWA definition of “waters of the U.S.” These may be 

straightforward stringency limitations, property-based limitations, or combinations of the two. 

The provisions may be partial limitations, affecting only some applications. The ELI report 

estimates that approximately half the states have some provisions that extend protections beyond 

“waters of the U.S.” Some of these provisions pre-date new stringency limitations and may not 

be retroactive.5

5 Environmental Law Institute. 2013. State Constraints: State-Imposed Limitation on the Authority of Agencies to 

Regulate Waters Beyond the Scope of the Federal Clean Water Act. Environmental Law Institute, Washington, DC. 

Navigable Waters: Waters of the United States,

Including Territorial Seas

303

•Water Quality 

Standards and 

TMDLS

•Involved in 

implementation:

•States 

•Tribes 

•USEPA

311

•Oil Spill 

Programs

•Involved in 

implementation:

•USEPA

•DHS

•DOI

•DOT

401

•State Certification

•Involved in 

implementation:

•States

•Tribes

•USEPA 

402

•Pollutant 

Discharge 

Permits

•Involved in 

implementation:

•States 

•Tribes

•USEPA

404

•Dredge and Fill 

Permits

•Involved in 

implementation:

•States 

•Tribes

•USACE

•USEPA

4 

 
Section 3: Approach for the Economic Analysis 

For this economic analysis, there are two potential baselines. The first potential baseline 

is the existing EPA and Corps regulations the final rule replaces and the historic practice of 

implementing those regulations. The final rule reduces the scope of waters historically protected 

under the CWA. Following the Supreme Court decisions in SWANCC (2001) and Rapanos 

(2006), the agencies no longer asserted CWA jurisdiction over isolated waters. Because the final 

rule is narrower in jurisdictional scope than the existing regulations, there would be negative 

costs and benefits in comparison to this baseline. Unfortunately, detailed data regarding 

individual historic jurisdictional determinations are not available, and therefore the agencies 

were unable to develop quantitative estimates of the impact of the rule relative to historic 

practice. However, there is a second possible baseline based on recent field practice following 

the 2008 Guidance (see EPA and Army guidance Clean Water Act Jurisdiction Following the 

U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, issued 

December 2, 2008). To estimate impacts compared to recent practice, the agencies used data 

from the Corps regarding recent jurisdictional determinations. The remainder of this document 

outlines the methods and assumptions that went into developing the resulting quantitative 

estimates of the costs and benefits of CWA programs relative to the recent practice baseline. 

The agencies analyzed against this second baseline for purposes of providing illustrative 

estimates of the impact a change in jurisdictional determinations may have on the costs and 

benefits of CWA programs. 

To estimate potential costs and benefits to CWA programs, the economic analysis utilizes 

available program data and documentation to estimate the extent to which assertion of 

jurisdiction might change under the final rule. The proposed rule analysis, which also estimated 

potential costs and benefits relative to recent field practice, utilized CWA Section 404 

jurisdictional determination and permit data from fiscal years 2009-2010, which reflects Corps 

implementation following issuance of program guidance in 2008 by the EPA and the Corps (post 

SWANCC and Rapanos). The analysis for the final rule has been updated using data from 188 

jurisdictional determination files from fiscal years 2013-2014. This change provided the 

agencies with more recent data and responded to public comments expressing concern that the 

fiscal year 2009-2010 data represented a period of economic downturn when fewer landowners 

would likely seek a jurisdictional determination for a permitted project. The available data only 

can inform the agencies how many currently negative determinations may become positive based 

on the final rule. The agencies note that there will be some waters that will no longer meet the 

definition of “waters of the U.S.” and therefore, this analysis may over-estimate the increase in 

positive determinations.

Using the jurisdictional determination data from fiscal years 2013 and 2014, an estimate 

of how assertion of jurisdiction may increase as a result of this rule is applied to cost and benefit 

5 
information for affected CWA programs. Additional updates to the economic analysis include 

updated assumptions about the amount of compensatory mitigation occurring under CWA 404 

general permits; a refined approach to calculating benefits from Section 404 compensatory 

mitigation, differentiating between emergent and forested wetlands; and updated Section 404 

wetland mitigation costs. The agencies’ analysis indicates that estimated incremental benefits to 

these programs exceed incremental costs.

Uncertainties and Limitations

The economic analysis is necessarily based on available information and the resulting 

cost and benefit estimates correspondingly reflect available information. In estimating costs and 

benefits from CWA programs under Section 311 and 401, regulator experience necessarily plays 

an important role, given a lack of complete information. The approach to estimating costs and 

benefits for each of these programs is presented in Sections 6 and 7, respectively. Additionally, 

costs and benefits estimated from potential increases in permitting in the CWA Section 402 

program, presented in Section 8, utilize data from economic analyses from the Section 402 final 

rule or the final permit that established the program. As a result, cost and benefit figures 

presented here are subject to the same limitations as those underlying analyses. Estimates of 

costs and benefits from Section 404 of the CWA are presented in Section 9. Since completion of 

the economic analysis at proposal the Corps of Engineers undertook significant efforts to 

complete quality assurance on 404 program data. This resulted in improvements in data 

availability and data quality, which in some instances revised previously-reported values. The 

estimate of benefits for newly-mitigated wetland impacts utilizes benefits transfer from stated 

preference willingness-to-pay (WTP) studies. Literature on WTP for wetlands similar to those 

likely to be protected by this rule is very limited, and was predominately published in the 1990s. 

Since that time, significant changes have been made in standard practices for this type of study, 

and thus the results presented here must be viewed accordingly. 

Recognizing these considerations, this analysis utilizes the best available information to 

assess the effects of the final rule on a variety of CWA programs and provide quantitative 

estimates for many potential impacts. The agencies took care throughout this document to 

describe the strengths and limitations of this analysis and encourage readers to treat the results 

with an appreciation of their limitations. 

6 
Section 4: Estimated Changes in Positive Jurisdictional 

Determinations

To evaluate the extent to which assertion of CWA jurisdiction by the agencies may 

change as a result of this rule, EPA examined data records in the Corps’ ORM2 (Operation and 

Maintenance Business Information Link, Regulatory Module) database that documents Corps 

jurisdictional status decisions (jurisdictional determinations) associated with various aquatic 

resource types. The aquatic resource data records include the following categories: traditional 

navigable waters, relatively permanent waters, non-relatively permanent waters, wetlands 

associated with these categories; as well as uplands, impoundments, and isolated waters. The 

isolated waters category is used in the Corps’ ORM2 database to represent intrastate, nonnavigable waters; including wetlands, lakes, ponds, streams, and ditches, that lack a direct 

surface connection to other waterways. These waters are hereafter referred to as “ORM2 other 

waters.” 

It is important to emphasize that the ORM2 other waters group represents a more 

inclusive set of waters than would be determined to be subject to a case-specific analysis in the

final rule. For example, the ORM2 other waters group includes many wetlands and some nonwetlands waters that could meet the new definition of “adjacent” under the final rule as well as 

waters that are actually traditional navigable waters but that inconsistent practices following 

Rapanos may have incorrectly classified as other waters under current practice. 

To examine how assertion of jurisdiction may change, the agencies reviewed negative 

jurisdictional determinations (JDs) for ORM2 other waters completed by the Corps in fiscal 

years 2013 and 2014 (i.e., determinations of no jurisdiction). As the agency that manages dayto-day implementation of the CWA section 404 program, the Corps conducts tens of thousands 

of JDs each year. 6 For other federal CWA programs, EPA or the state (in the case of stateassumed programs) typically do not conduct JDs, with the exception of enforcement. Thus, most 

of the nation’s JDs for CWA purposes originate from the Corps. 

Under current practice, JDs for waters determined to be “other waters” are required to be 

coordinated with EPA and Corps Headquarters, creating an organized set of JD files for review. 

JD files for positive JDs (i.e., determinations that waters are jurisdictional) are maintained by 

Corps District offices, and are not organized according to the regulatory provision under which a 

water is jurisdictional. As a result, reviewing how current positive JDs may become negative as 

a result of the final rule was determined to be outside the scope of this analysis. Analyzing only 

negative JDs allows for an estimation of only the potential increase in assertion of CWA 

6

 Only New Jersey and Michigan have assumed the CWA 404 program, although the Corps retains permitting 

authority over certain waters.

7 

 
jurisdiction, as viewed through the lens of CWA 404 activity during the baseline period of these 

fiscal years. The agencies recognize that the rule may result in some currently-jurisdictional 

waters being found to be non-jurisdictional. 

ORM2 aquatic resource records from FY13 and FY14 were placed into three groups: 

streams (ORM2 categories of traditionally navigable waters, relatively permanent waters, and 

non-relatively permanent waters), wetlands (associated with the various categories above of 

streams), and ORM2 other waters. These categories represent categories used in the agencies’ 

2008 guidance. Of the 160,000 records streams represented 65 percent of the total number of 

FY13 to FY14 records, wetlands represent 29 percent of the records, and other waters represent 6

percent of the records.7

 In the FY13 to FY14 baseline period, 93.2 percent of aquatic resource

records were found jurisdictional where applicants sought a determination. 

From this baseline level of jurisdictional determinations, the agencies estimate an overall 

percent change in positive jurisdictional determinations. The agencies begin by assuming that 

100 percent of the records classified as streams will meet the definition of tributary in the final 

rule, and 100 percent of the records classified as adjacent wetlands will meet the definition of 

adjacent in the final rule. In assuming 100 percent jurisdiction of streams and adjacent wetlands

the agencies are likely overestimating the number of positive jurisdictional determinations over 

these waters, because some of these streams and wetlands considered jurisdictional under current 

practice would not be under the final rule. Wetlands currently considered “adjacent” may be 

outside the applicable distance thresholds and non-jurisdictional. Similarly, all waters presently 

classified as streams may not meet the required physical characteristics under the final rule to be 

considered “tributary.” Note that waters that are currently found to be jurisdictional may also be 

subject to the expanded set of exclusions included in the final rule. For these and similar 

reasons, the agencies believe that positive jurisdictional determinations under the final rule will 

be less than assumed for the purposes of this economic analysis. 

The greatest change in current practice of CWA jurisdictional determinations is expected 

for waters currently known as “other waters,” and captured in the ORM2 other waters category. 

The final rule changes the existing regulation to now capture eight categories of waters that are 

“waters of the U.S.” The basis of asserting jurisdiction for such waters is based on a significant 

nexus to a traditional navigable water, interstate water, or the territorial seas instead of based on 

a water’s ability to affect interstate or foreign commerce. As a result, this analysis assesses the 

ways that these waters currently found non-jurisdictional as “other waters” could be determined 

to be jurisdictional: 

(1) a revised definition of adjacent waters, that includes physically proximate wetland 

and non-wetland waters, that under the existing regulations were evaluated as “isolated;” 

7

 This other waters figure is consistent with the general estimate of the total proportion of “other waters” compared 

to the overall extent of wetlands and lakes (see e.g. Tiner (2003) and EPA (2014)). 

8 

 
(2) specific classes of waters determined to be similarly situated by (a)(7) in the final rule

that require a significant nexus analysis to determine jurisdiction and which today are subject to

a case-specific significant nexus evaluation; and

 (3) waters that are subject to a case-specific significant nexus analysis under (a)(8) lie

within 4,000 feet from the high tide line or ordinary high water mark of a covered tributary, 

impoundment, traditional navigable water, interstate water, or territorial sea, and waters that lie 

within the 100-year floodplain of a traditional navigable water, interstate water, or territorial sea, 

whichever is broader. 

To determine how negative jurisdictional determinations may change for ORM2 other 

waters under the final rule, a team of EPA experts from across the country independently 

examined a random sample of 188 jurisdictional determination files previously generated with 

Corps headquarters during FY13 and FY14. A file may include more than one water. In total, 

these files represented over 782 individual waters in 32 states and all were previously determined 

non-jurisdictional based on current practice. Of the existing negative determinations for ORM2 

other waters the EPA team made the following assessments, recognizing that without conducting 

further field work certain assumptions would have to be made. 

Waters meeting the definition of “adjacent”

• 17.1 percent of negative jurisdictional determinations for ORM2 other waters are 

assumed to become positive jurisdictional determinations under the final rule because 

they meet the new definition of adjacent waters and are not excluded under paragraph (b) 

of the rule. These waters fall within the 100-year floodplain and are within 1,500 feet of 

a stream mapped on the USGS’s National Hydrology Dataset (NHD). All waters within 

300 feet of a stream mapped on the NHD are assumed to become adjacent waters. In the 

final rule, only waters that are within 100 feet of the ordinary high watermark of a nontidally influenced traditional navigable water, interstate water, or a jurisdictional tributary 

are adjacent, so this result overestimates waters that could become jurisdictional within 

this category.

o All of these waters are assumed to result in a positive jurisdictional determination for 

the purposes of the economic analysis. 

Waters meeting the definition of (a)(7)

• A total of 21.8 percent of the ORM2 other waters were assumed to fall within section

(a)(7) of the final rule and not be excluded under paragraph (b) of the rule. These waters, 

where they do not meet the provisions of other paragraphs of the rule, are not 

jurisdictional by rule, but are determined to be similarly situated by rule Their

jurisdiction would still need to be determined on a case-specific basis using a significant 

nexus evaluation. 

9 
o To estimate the likelihood that these waters could be found jurisdictional, EPA 

evaluated several factors in the areas where the five categories of waters are 

commonly found based on Dahl (2014), Moulton (2000), and Tiner (2003).

8

 Density 

of waters (i.e., their co-location with each other) and their proximity to the tributary 

system were key factors, with greater density and closer proximity generally 

capturing certain watersheds. In addition, chemical, physical, and biological features 

of each of the categories were factors, as were practical considerations such as the 

overall size and continuity of the area in which the category waters were located. 

EPA used data from the U.S. Fish and Wildlife Service’s National Wetland Inventory 

to evaluate the density of wetlands in the areas of interest. Given the high density of 

wetlands in certain watersheds where the category waters are commonly located, for 

the purposes of this analysis it is assumed that all of the waters of the selected 

categories that fall into these high density watersheds will result in a positive 

determination. This is because a significant nexus analysis that considers the 

aggregation of many similarly situated waters generally is anticipated to be more 

likely to have a significant nexus than that which considers fewer waters. Of these 

special type waters in the ORM2 other waters, 9.5 percent are located in these high 

density watersheds, and are assumed to have a significant nexus and therefore be 

determined to be jurisdictional for the purposes of this analysis.

o The remaining 12.4 percent of ORM2 other waters that were identified as a special 

type are located in watersheds with less dense estimated wetland coverage. Given 

this lower density and lower likelihood of having a significant nexus, for the purposes 

of the economic analysis, it is assumed that half of these waters will be found to be 

jurisdictional under the rule, a total of 6.2 percent [=12.4%*0.5]. 

In the context of all ORM2 other waters, it is assumed that a total of 15.7 percent of the 

ORM2 other waters will become jurisdictional under (a)(7) of the final rule [=9.5%+6.2%]. 

Waters meeting the definition of (a)(8)

• A total of 33.1 percent of ORM2 other waters could be determined to be jurisdictional under 

paragraph (a)(8) of the final rule as they do not meet the new definition of adjacency, do not 

fall under paragraph (a)(7), and are not excluded under paragraph (b) of the final rule. 

Paragraph (a)(8) of the final rule allows for a case-specific significant nexus analysis for 

waters within 4,000 feet from the high tide line or ordinary high water mark of a covered 

tributary, impoundment, traditional navigable water, interstate water, or territorial sea, as 

8 Dahl, T.E. 2014. Status and trends of prairie wetlands in the United States 1997 to 2009. U.S. Department of the 

Interior; Fish and Wildlife Service, Ecological Services, Washington, D.C. (67 pages). 

Moulton, D. W. and J. S. Jacob. 2000. Texas Coastal Wetlands Guidebook. Texas Sea Grant (66 pp). 

Tiner, R.W. 2003. “Geographically Isolated Wetlands of the United States.” Wetlands 23(3): 494-516. 

10

 
well as waters that fall within the 100-year floodplain of a traditional navigable water, 

interstate water, or territorial sea, whichever is broader. Paragraph (a)(8) also allows waters 

to be aggregated with waters of the same type that are similarly situated for the purposes of a 

significant nexus analysis. Some of the waters that will be determined to be jurisdictional 

under this category are presently found to be jurisdictional as adjacent waters under current 

practice, based on their connections to currently jurisdictional waters. Additionally, some 

waters that are presently determined to be jurisdictional but fall outside either the 100-year 

floodplain or the 4,000 foot limit under (a)(8) or that are determined to be jurisdictional as 

adjacent waters based on connections via confined surface flow or shallow subsurface flows 

will no longer be found jurisdictional under the final rule. These potential reductions in 

positive jurisdictional determinations are not quantified as part of this analysis due to a lack 

of available data.

• The agencies have assessed the potential effect of adding the 100-year floodplain within the 

analysis required under paragraph (a)(8) of the final rule and have concluded that it will 

result in only an insignificant change in the scope of CWA jurisdiction and correspondingly, 

a minimal effect on the costs and benefits identified in the agencies' economic analysis. The 

agencies are, however, unable to quantify the effect. The agencies have determined that the 

vast majority of the nation's water features are located within 4,000 feet of a covered 

tributary, traditional navigable water, interstate water, or territorial sea. We believe, 

therefore, that very few waters will be located outside 4,000 feet and within a 100-year 

floodplain. And even where these waters do exist, they would have to be found to have a 

significant nexus on a case-specific basis to be covered under the CWA. The agencies 

conclude, therefore, that this provision will not affect the indirect costs and benefits 

associated with the final rule in a material way. 

• For the purposes of this economic analysis, the agencies assumed that 100 percent of 

wetlands currently considered adjacent will be determined to be jurisdictional; some of these 

currently adjacent waters may be outside the distance limits of adjacency in the final rule and 

as a result under the final rule will be determined to be jurisdictional under (a)(8), if found in 

a case-specific analysis to have a significant nexus. To calculate the percentage of ORM2 

other waters that could found to be jurisdictional under paragraph (a)(8), the agencies used 

the procedure described in Section 11 of the economic analysis that accompanied the 

proposal, examining information on the extent of isolated wetlands in a watershed and the 

likelihood of aggregation and a positive significant nexus analysis. 

o This approach estimated that 5 percent of waters may be located in watersheds where 

a positive significant nexus evaluation with aggregation is likely (and the agencies 

believe that estimates beyond 10 percent of waters being found to have a significant 

nexus after aggregation do not represent realistic assumptions.) For the purposes of 

this analysis, the agencies assume that 5 percent of the remaining ORM2 other waters 

not meeting an exclusion under paragraph (b) of the final rule will be found to be 

jurisdictional under (a)(8). 

o This represents 1.7 percent of the total number of the remaining ORM2 other waters

[33.1%*.05]. 

11
In total, the agencies estimate that 34.5 percent of the ORM2 other waters will be found to now 

be jurisdictional under this final rule. This estimate is the sum of the 17.1 percent (adjacent 

waters), 15.7 percent ((a)(7)), and 1.7 percent ((a)(8)) subsets of the ORM2 other waters 

category. The remaining 28 percent of the negative determinations for ORM2 other waters 

would remain negative under the final rule.

To estimate an overall potential change in positive jurisdictional determinations from 

recent practice, an increase in assertion of jurisdiction in any category of waters (streams, 

wetlands, and ORM2 other waters) is then applied proportionally based on the size of that 

category relative to the total number of waters in ORM2. Figure 2 presents the results of 

applying the assumptions above to the baseline set of ORM2 other waters. 

There is some uncertainty regarding how to treat instances in which landowners may 

have assumed their waters to be non-jurisdictional in the FY13-14 baseline period, and thus did 

not request jurisdictional determinations. Therefore, this would not be included in the ORM2 

data, but these waters would be most likely be similar to ORM2 other waters. The agencies 

consider three possibilities. The first is simply assume that landowners did, in fact, request 

jurisdictional determinations, and so the figure of 9,715 records for other waters in the ORM2 

database is accurate. As recorded in Figure 2, this would imply that an additional 2.84 percent of 

jurisdictional determinations would have been positive in FY 13–14 had the final rule been in 

place.

There is little evidence from which to infer how many landowners did not request 

jurisdictional determinations under recent practices, but whose holdings would be found to be 

jurisdictional under the rule. To illustrate the possibilities, the agencies considered what would 

happen if the number of requested jurisdictional determinations were doubled for ORM2 other 

waters. Figure 3 presents the results under this assumption: an additional 4.65 percent of 

jurisdictional determinations would have been positive in FY 13–14 had the final rule been in 

place.

12
Figure 2. Projected Change in Positive Jurisdictional Determinations, Using Original 

Number of ORM2 Other Waters Records. 9

Number 

of ORM2 

Records 

(FY13-14)

Percent of 

Total 

ORM2 

Records

Positive 

Jurisdictional 

Records 

(FY13-14)

Percent 

Positive 

Jurisdiction 

(FY13-14)

Projected 

Percent 

Positive 

Jurisdiction

Relative 

Contribution 

to Overall 

Change in 

Jurisdictional 

Waters

Streams 103,591 65% 102,894 99.3% 100.0% 0.44%

Wetlands 46,781 29% 46,273 98.9% 100.0% 0.32%

ORM2 

Other 

Waters

9,715 6% 0 0.0% 34.5% 2.09%

Total 160,087 100% 149,166 93.2% 96.0% 2.84%

Label A B C D E F

Formula A/Total(A) C/A (E-D)*B

Figure 3 - Projected Change in Jurisdictional Determinations, Using Double the Number of 

ORM2 Other Waters Records10

Number 

of ORM2 

Records 

(FY13-14)

Percent of 

Total 

ORM2 

Records

Positive 

Jurisdictional 

Records 

(FY13-14)

Percent 

Positive 

Jurisdiction 

(FY13-14)

Projected 

Percent 

Positive 

Jurisdiction

Relative 

Contribution 

to Overall 

Change in 

Jurisdictional 

Waters

Streams 103,591 61% 102,894 99.3% 100.0% 0.41%

Wetlands 46,781 28% 46,273 98.9% 100.0% 0.30%

ORM2 

Other 

Waters

19,430 11% 0 0.0% 34.5% 3.94%

Total 169,802 100% 149,166 87.8% 91.4% 4.65%

Label A B C D E F

Formula A/Total(A) C/A (E-D)*B

9

 Calculations reflect rounding. 

10 Calculations reflect rounding. 

13

 
Based on these assumptions, the agencies illustrate three scenarios, with increases in 

jurisdictional determinations ranging from a 2.84 percent to a 4.65 percent relative to recent 

practice, utilizing the FY13 and FY14 jurisdictional determination dataset. The agencies use 

these higher and lower percent changes in jurisdictional determinations to calculate potential 

incremental costs and benefits when applied to Clean Water Act programs. The table in 

Appendix C presents costs and benefits to CWA programs when using an increase in positive 

jurisdictional determinations of 3.67 percent.

It is important to note that by using these estimated increases in positive jurisdictional 

determinations as a proxies for increases in permitting across the various Clean Water Act 

programs the agencies are assuming that permits (or water quality certifications) will be 

requested for every water that is determined to be jurisdictional. This assumption is conservative 

because CWA permits are not likely to be issued for every water projected to be determined 

jurisdictional. In addition, landowners may seek determinations, only to not move forward with 

a project. However, because the agencies do not know which entities will require CWA permits 

each year and for which newly-jurisdictional waters, the agencies apply both 2.84 percent and 

4.65 percent to the CWA programs assessed.

Changes in JD Analysis from Proposed Rule EA to Final Rule EA

In addition to using more recent data from the ORM2 database, the agencies made 

several updates and enhancements to the EA supporting the final rule:

• When reviewing the ORM2 other waters files, the agencies applied the exemptions to 

exclude those that would not be subject to permitting under CWA sections 402 and 404.

• The EA supporting the proposal assumed the doubled records are only non-adjacent waters, 

whereas in the EA for the final rule, the agencies doubled it for all of the other waters. 

• Another update is how non-adjacent waters are categorized and treated. For the final rule, 

the agencies analyzed them for (a)(7), (a)(8) and non-(a)(8) categories. The EA for the 

proposal assumed that all non-adjacent waters are equivalent to the way the agencies applied 

assumptions regarding (a)(8) waters which reflects a lower assertion of jurisdiction. 

• As part of the analysis, the agencies also applied the exemptions in the final rule to the 

ORM2 other waters. 

14
Section 5: Clean Water Act Sections 303 and 305 

CWA Section 303 includes development of state water quality standards, monitoring and 

assessment of water quality, and development of total maximum daily loads (TMDLs) for waters 

that are determined by the state to not meet applicable water quality standards.

States typically develop water quality standards for general categories of waters, 

including wetlands; in addition to creating site-specific standards and more generic standards that 

can apply broadly. State water quality standards have been in effect prior to and continuing after 

the SWANCC and Rapanos decisions. Therefore, requirements for state water quality standards 

to be consistent with the CWA (designated uses, criteria to protect those uses, antidegradation 

policies) will likely not require any changes as a result of this rule. What could change is 

whether or not those standards apply to a specific water. To the extent a state believes there are 

needs for water quality standards development for specific types of waters, those needs would 

exist with or without this rule. For example, several states have distinct designated use 

categories for different types of streams, such as New Mexico which has categories for 

ephemeral waters, intermittent waters, and perennial waters. Other states have expressed interest 

in, or are in the process of, further refining the designated use categories in their water quality 

standards, or making other modifications. These are ongoing practices for water quality 

standards development and revision that have occurred and will continue to regardless of 

changes to the Federal definition of waters of the U.S. The agencies do not project any 

additional costs relating to development or revision of water quality standards as a consequence 

of this rule.

CWA 305(b) requires a report from states that includes (among other items) a description 

of the water quality of all navigable waters in the state and an analysis of the extent to which 

they meet the 101(a)(2) goals of the Act. In practice, states typically have a set budget for these 

activities and make plans accordingly. Many states strive to be as comprehensive as possible and 

balance the needs to identify all impaired waters with probabilistic surveys designed to track 

general status and trends. To the extent that this rule may increase the coverage where a state 

would wish to apply its monitoring resources, states are likely to adjust sampling locations or 

sampling frequency without a net cost increase. If a state chooses to monitor a water whose 

jurisdictional status has been affected as a result of this rule in lieu of a monitoring site currently 

in use, there may be opportunity costs associated with this change as there would no longer be 

monitoring data from the old site. 

States conduct assessments based on all existing and readily-available monitoring data. 

States are required to list waters that are impaired, but have discretion to prioritize this list for 

TMDL development, which may proceed over a period of several years under EPA policy. 

Monitoring, assessment, and TMDL development tend to occur in water segments where the 

15
agencies assertion of jurisdiction is unlikely to change. Therefore, additional cost burdens for 

TMDL development are not anticipated from this action.11

11 It is also worth noting that the development and application of a TMDL in a watershed setting is likely to reduce 

the need for additional controls in downstream waters. In watersheds where this rule clarifies jurisdiction it may 

reduce the cost of returning an impaired water to a condition of meeting water quality standards by allowing more 

efficient control of upstream and other watershed sources of pollution. 

16

 
Section 6: Estimate of Potential Clean Water Act Section 

311 Oil Spill Prevention Program Costs and Benefits

CWA Section 311 addresses oil spill prevention and preparedness, reporting obligations, 

and response planning. These requirements apply to facilities that produce or store oil products 

based on total volume. In particular, inland non-transportation oil facilities of a certain size that 

have potential to discharge to navigable waters must prepare and implement Spill Prevention, 

Control, and Countermeasure (SPCC) plans. Potential costs of this rule associated with CWA 

Section 311 include SPCC plan development and implementation for oil storage and production 

facilities. In its 2009 Regulatory Impact Analysis for the Final Amendments to the Oil Pollution 

Prevention Regulations, EPA developed compliance unit costs for SPCC-regulated facilities, 

including plan preparation and maintenance, secondary containment, integrity testing, drainage, 

monthly inspections, security, and training. There are four categories of production and storage 

facilities, with the great majority (more than 80 percent) comprising the lowest two categories in 

terms of capacity, and the lowest unit costs for compliance. The weighted average annual 

facility cost is $9,910 for production facilities (about 35 percent of total facilities) and $14,155 

for storage facilities (values adjusted to 2014$ using CPI-U).

 Information from EPA Regional Office program managers and enforcement specialists 

reveal that some potentially-regulated facilities believe that they are not covered by the 

applicable SPCC regulations because they do not have the potential to discharge to a water of the 

U.S. Although there is not corresponding jurisdictional determination information as available 

for the CWA 404 permit program, it is reasonable to assume that a broader assertion of CWA 

jurisdiction may affect some of these facilities. 

Each EPA Region has historically inspected approximately 100 facilities per year for 

compliance, totaling about 1,000 inspections nationwide per year, although in the past 5 years, 

the number of inspections has averaged about 700 per year. Upon closer inspection, some of 

these facilities that asserted non-jurisdiction conclude they do need to comply. Generally, less 

arid EPA Regions report that their facilities do not question CWA jurisdiction, whereas EPA 

Regions that include more arid (western) areas more frequently encounter this claim. Some EPA 

Regions report that one to five facilities claim non-jurisdiction and that some of these facilities 

report there are a dozen others like them. One EPA Region reports that at least 20 entities have 

asserted non-jurisdiction. Assuming that 100 inspected facilities per year could correctly claim 

non-jurisdiction, it is estimated that there could be ten times more facilities nationwide that could 

successfully make this claim, resulting in a total of 1,000 facilities each year. Assuming that 

none of these 1,000 facilities have incurred compliance costs (either for the SPCC rule or to meet 

self-imposed industry standards) and would now have to come into compliance given their 

proximity to a water determined to be jurisdictional under the final rule, these facilities are 

assumed to incur weighted average compliance costs described above. The estimated 1,000 

17
affected facilities are divided into 350 production facilities and 650 storage facilities, consisted 

with the breakdown of the regulated facilities from the 2009 SPCC rule. Applying weighted 

average unit costs of $9,910 for production facilities and $14,155 for storage facilities results in 

approximately $12.7 million per year in incremental compliance costs. 

Benefits associated with a reduction in spills associated with compliance with the SPCC 

rule include avoided costs to regulated entities to respond to the event, fines and penalties and 

market loss. The public will benefit from avoided environmental impacts that can be measured 

through willingness to pay to prevent environmental damages from oil spills. Other benefits can 

include avoided impacts to commercial fishing, avoided closures of recreational sites, and 

shutting down of drinking water intakes. EPA assumes that the risk of a spill declines through 

compliance with the SPCC by these facilities that will now be subject to CWA jurisdiction, but is 

unable to quantify the reduced risk in order to monetize this benefit for this analysis.

18
Section 7: Estimate of Potential Clean Water Act Section 

401 Costs and Benefits

Under Section 401 of the CWA, states, tribes, and interstate agencies have the authority 

to review federal permits or licenses that may result in a discharge to waters of the United States, 

and certify if they will meet applicable water quality standards, certain other provisions of CWA 

requirements, and appropriate state or tribal laws. States, tribes, and interstate agencies may also 

condition federal permits or licenses to ensure they will not violate those laws and requirements. 

Section 401 certification is commonly used to review CWA section 404 permits issued by the 

U.S. Army Corps of Engineers, CWA section 402 permits in the four states where EPA issues 

National Pollution Discharge Elimination System permits, Rivers and Harbors Act section 10 

permits, and Federal Energy Regulatory Commission licenses for non-federal hydroelectric 

dams. Because there is not a consistent level of effort across states to implement the 401 

certification program, based on program experience EPA estimates that a representative 

distribution of effort would be 25 states dedicating 0.5 FTE (full time employees) equivalent, 20 

states dedicating 10 FTE, and 5 states dedicating 20 FTE for CWA 401 implementation. This 

tallies to 312.5 FTE nationally. 

Section 401 certification program implementation involves prioritizing and reviewing 

permits and generally requires expertise in science, engineering, and economics along with the 

associated support staff, legal support, and management. To estimate potential costs to states, 

Bureau of Labor Statistics occupational employment and wage estimates from May 2013 were 

used, adjusted to reflect fully-loaded labor costs, and updated to 2014 values using the 

Employment Cost for Employee Compensation Index (See Figure 18 , Appendix A). Using this 

data, and assuming an even mix of scientists, engineers, economists, and managers employed by 

state government, the average fully-loaded hourly wage is $43.21 per hour. Assuming an eighthour work day, 5 days a week, and 52 weeks a year, this corresponds to an annual cost of 

$89,868 per employee. Multiplying this by a total of 312.5 FTE, this yields an annual estimate 

of current expenditures of approximately $28.1 million to implement this program for all federal 

permits. 

In order to estimate the incremental costs for Section 401 programs, a 2.84 percent

increase in Clean Water Act Section 404 permits is estimated to result in projected incremental 

costs to states of approximately $798,000 annually. In order to estimate the incremental costs 

including a doubling of the ORM2 other waters, a 4.65 percent increase in Clean Water Act 

Section 404 permits is estimated to result in projected incremental costs to states of 

approximately $1.3 million annually. 

Figure 4 summarizes Section 401 additional administrative cost information. As the vast 

majority of states have assumed implementation of Section 402 of the Clean Water Act, 

19
additional costs associated with potential growth in those programs is discussed in the following 

sections. States that have not assumed the Section 402 program have the opportunity to 

complete Section 401 certifications on these permits. However, the Section 402 programs most 

likely to be affected by this rule and thus examined in this analysis are typically implemented via 

existing statewide general permits, where a Section 401 certification already exists and 

permittees simply submit a Notice of Intent. Therefore, while these permits may see increased 

usage, there will not be any additional Section 401 review burden for states that have not 

assumed the NPDES program, as these general permits already exist, with state Section 401 

certification.

Figure 4 - Estimated Additional CWA Section 401 Administrative Costs to States

FTE Amount for 

401 Number of States Total FTE Total Costs (2014$)

0.5 25 12.5 $1,123,351

10 20 200 $17,973,613

20 5 100 $8,986,807

Total: 312.5 $28,083,771

Using Original Number of ORM2 Other Waters 

Records (2.84%) 8.9 $797,579

Using Double the Number of ORM2 Other Waters 

Records (4.65%) 14.5 $1,305,895

States may place additional restrictions on permits through their Section 401 authority, 

adding costs to permittees and environmental benefits. States can require permit conditions to 

protect water quality regardless of the scope of Clean Water Act jurisdiction. The costs and 

benefits associated with the conditions a state may place on a permit via Section 401 certification 

do not need to be added to the costs and benefits of this rule. States impose conditions on 

permits in watersheds where there are water quality concerns, which exist independently of this 

rule. Even in the absence of this rule, in watersheds where a state has water quality concerns it 

may impose additional permit conditions on permits issued within that watershed.

20
Section 8: Estimate of Potential Clean Water Act Section 

402 Costs and Benefits

Section 402 of the CWA establishes the National Pollutant Discharge Elimination 

System (NPDES) program to provide for permits to point sources, with applicable 

requirements and conditions, to discharge pollutants to waters of the U.S. NPDES permits 

address the discharge of a pollutant, yet may reflect different statutory and regulatory

requirements depending on the type of point source and volume of discharge, and state water 

quality standards. 

When evaluating potential impacts to NPDES permit costs, EPA assumes that the 

decrease in waters that are jurisdictional associated with implementation of the 2008 Guidance

has not greatly affected the number of entities requiring individual CWA Section 402 permits, 

such as those issued for municipal wastewater treatment plants or industrial facilities. The 

EPA has not witnessed a large number of permit holders asserting they no longer required 

such a permit because of the non-jurisdictional status of a receiving water. While EPA is 

aware of occasional inquiries on this matter, no such inquiries have resulted in a permitting 

authority determining that a discharger no longer needed a permit. There are several potential 

explanations for this. First, the nature of a traditional discharge permit where a facility is 

seeking to have wastewater dispersed and carried away is different than a Section 404 permit 

where an entity is, for example, seeking to fill a portion of a natural waterway for 

development. As such, it is possible that a CWA 402-permitted discharger may have the 

effect of creating a permanent water where there once was an intermittent or ephemeral water 

because of continuous discharge (i.e., an “effluent-dependent” or “effluent-dominated” water). 

In these cases, jurisdiction may not come under question. Second, EPA has authorized most 

(46) states to operate the CWA Section 402 permitting program, and states assert jurisdiction 

over “waters of the state” which must be as inclusive as “waters of the U.S” but may be more 

expansive. In contrast, only two states (Michigan and New Jersey) have assumed the Section 

404 program (to the extent it can be assumed for “non-navigable” waters). Additionally, 

facilities may have invested the capital in treatment and simply be willing to continue 

operating under their permit and see no need to challenge jurisdictional status. 

Permitting for construction and development stormwater, concentrated animal feeding 

operations (CAFOs), and pesticide application are three areas of CWA Section 402 

implementation where it is assumed there may be potential new costs associated with a change in 

the definition of “waters of the U.S.” This is because these activities relate to collection of 

stormwater runoff rather than disposal of domestic or industrial wastewater, and EPA and states 

typically regulate them through CWA Section 402 general permits rather than individual permits. 

21
Entities engaged in actions requiring general permit coverage can submit a Notice of Intent 

(NOI) to the permitting authority to obtain coverage. Under the existing implementation of the 

scope of “waters of the U.S.”, many of these entities may not believe their discharge affects a 

protected water and may not have applied for permit coverage. Under the rule, a portion of these 

entities may be subject to an assertion of jurisdiction to a similar extent as those seeking Section 

404 permits. Construction-related stormwater discharges, CAFO discharges, and application of 

pesticides are more likely occur in similar locations as CWA Section 404 dredge and fill 

discharge with respect to proximity to “isolated waters,” small streams, and their adjacent 

wetlands. Thus there may be costs from this rule under these programs include implementing 

best management practices (BMPs) for regulated entities and administering permitting programs 

for government. The analysis here is derived from the estimates of direct costs for those rules.

The stormwater, CAFO, and pesticide general permit were finalized over a time period 

from 2003 to 2011. As such, these rules incorporated differing baselines of Clean Water Act 

jurisdiction in their analysis depending on if they were completed before or after the 2008 

Rapanos decision and corresponding 2008 Guidance. These differences are discussed in the 

sections that follow. All analyses going forward will include the new definition of “waters of the 

U. S.” established in this final rule as part of the baseline.

22
Section 402 Stormwater Permitting 

Stormwater runoff is generated when precipitation from rain and snowmelt events flows 

over land or impervious surfaces and does not percolate into the ground. As the runoff flows 

over impervious surfaces (paved streets, parking lots, and building rooftops), it accumulates 

debris, chemicals, sediment or other pollutants that could adversely affect water quality if the 

runoff is discharged untreated. The primary method to control stormwater discharges is the use 

of best management practices (BMPs). In addition, most stormwater discharges have been 

designated as point sources by statute, regulations, or on a case-by-case basis and require 

coverage under a NPDES permit. The Stormwater program was implemented in two phases, 

with Phase I rule issued in 1990 and Phase II issued in 1999. The Stormwater program regulates 

construction sites, specific industrial sectors specified in the Phase I rule, and discharges from 

Municipal Separate Storm Sewer Systems (MS4s).

Stormwater runoff in cities and towns is commonly transported through MS4s, from 

which it is often discharged, untreated, into local waters. To prevent harmful pollutants from 

being washed or dumped into an MS4, operators must obtain a NPDES permit and develop a 

stormwater management program. The Stormwater Phase I rule, issued in 1990, requires 

medium and large cities or certain counties with populations of 100,000 or more to obtain 

NPDES permit coverage for their stormwater discharges. The Stormwater Phase II rule, issued 

in 1999, requires regulated small MS4s in urbanized areas, as well as small MS4s outside the 

urbanized areas that are designated by the permitting authority, to obtain NPDES permit 

coverage for their stormwater discharges. Generally, Phase I MS4s are covered by individual 

permits and Phase II MS4s are covered by a general permit. Each regulated MS4 is required to 

develop and implement a stormwater management program (SWMP) to reduce pollutant 

discharge from stormwater to the “maximum extent practicable” (MEP) and eliminate nonstormwater discharges. 

A MS4 may have several different outflows within its service area, and some may be to 

waters where CWA jurisdiction may not apply. However, in implementing a SWMP, operators 

likely implement BMPs uniformly across their area without regard to the specific location of a 

specific outfall, and thus the jurisdictional status of a portion of the receiving water would not 

matter in terms of costs. In addition, MS4 outfalls tend not to be in wetlands, which represent a 

large portion of the CWA Section 404 program aquatic resource records, and the waters where 

the greatest changes in assertion of CWA jurisdiction is expected under this rule. Thus, the true 

cost of the project impact is likely to be low. Any potential costs to MS4s resulting from 404 

permit requirements are captured in Section 9. With regard to 404 permits for MS4s, the 

agencies’ longstanding practice is to view stormwater 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. The proposed rule brought to light confusion about which 

23
stormwater control features are jurisdictional waters and which are not, and this confusion is 

addressed in the final rule via a specific exclusion for stormwater control features that are created 

in dry land.

Economic impacts to industrial facilities regulated under the EPA Phase I stormwater rule 

are also expected to be minimal. Most industrial sectors regulated under the Phase I stormwater 

rule are located in urbanized areas where newly-designated jurisdictional waters are not expected 

to exist. If any entities are currently discharging to a non-jurisdictional water, they are currently 

required to have a NPDES permit if their discharge later reaches a jurisdictional 

water. Regulated industrial sectors that could occur in areas where newly-designated

jurisdictional waters may occur (i.e., timber product facilities in SIC code 24; mining and oil and 

gas extraction and refining facilities in SIC codes 10-14; landfills; and air transportation facilities 

in SIC code 45) represent a minority of the regulated industrial stormwater universe (less than 30 

percent of facilities authorized to discharge under the EPA-issued Multi-Sector General Permit 

(MSGP) are in one of these sectors). Additionally, these types of facilities are generally large 

(the average acreage of facilities authorized to discharge under the EPA MSGP in these sectors is 

262 acres), and due to their scale it is expected that industrial facilities affected by the Phase I 

rule likely already discharge to, or their discharge reaches, a water of the U.S. Consequently, the 

majority of facilities in these sectors are presently covered under an existing NPDES permit and 

would not be newly-regulated under this rulemaking. Furthermore, nearly all oil and gas 

facilities qualify for an exemption from NPDES permitting and would not be affected by the 

rule. Section 402(l)(2) of the Clean Water Act (CWA) exempts from NPDES permitting 

“discharges of stormwater runoff from, oil and gas exploration, production, processing, or 

treatment operations or transmission facilities, composed entirely of flows which are from 

conveyances or systems of conveyances... which are not contaminated by contact with, or do not 

come into contact with, any... raw material, intermediate products, finished product, byproduct, 

or waste products located on the site of such operations.” 

Stormwater runoff from construction activities can have a significant impact on water 

quality. As stormwater flows over a construction site, it can pick up pollutants like sediment, 

debris, and chemicals and transport these to a nearby storm sewer system or directly to a river, 

lake, or coastal water. Polluted stormwater runoff can harm or kill fish and other wildlife. 

Sedimentation can destroy aquatic habitat, and high volumes of runoff can cause stream bank 

erosion. Debris can clog waterways and potentially reach the ocean where it can kill marine 

wildlife and impact habitat.

The NPDES stormwater program requires certain construction site operators to obtain 

coverage under a NPDES permit for their stormwater discharges. The construction site operators 

subject to NPDES requirements are those engaged in clearing, grading, and excavating activities 

that disturb one acre or more; including smaller sites in a larger common plan of development or 

sale. 

24
To estimate potential incremental costs and benefits from the construction stormwater 

permitting program EPA used information from the Economic Analysis of Final Phase II Storm 

Water Rule.

12 The Stormwater Phase II rule was promulgated prior to the two Supreme Court 

cases addressing CWA jurisdiction and nearly all waters that may have a change in their 

jurisdictional status as a result of implementation of the final Clean Water Rule were 

jurisdictional at that time. All costs associated with the Phase II Stormwater Rule were fully 

accounted for in the economic analysis that accompanied the Phase II rule and it would not be 

wrong to not explicitly include them here. However, this analysis identifies the component of 

the original stormwater costs and benefits that may be attributed to changing jurisdictional 

assertions. This is done by taking both a 2.84 and 4.65 percent of the total costs and benefits 

calculated in the 1999 Stormwater economic analysis. 

Since the issuance of the stormwater Phase II rule there has also been growth in the 

industry either through changes in the construction industry or changes in permitting levels 

resulting from the SWANCC and Rapanos decisions affecting CWA jurisdictional assertion. The 

1999 Economic analysis cites to 130,000 construction starts in 1994. EPA tracks NPDES permit 

numbers for reporting program performance under EPA’s Strategic Plan pursuant to the 

Government Performance and Results Act (GPRA). 13 EPA’s 2011 reporting cites 169,000

construction sites with permit coverage; in 2014 164,000 covered construction sites were 

reported. For the purposes of this analysis growth is calculated from the higher level of 

permitting in 2011, which corresponds to 30 percent growth in the program. 

Figure 5 summarizes costs and benefits for construction and development stormwater 

permitting, with costs and benefits figures updated from 1998 to 2014 dollars using the CPI-U. 

Increases in administrative costs are estimated to total $360,000 annually. EPA has authorized 

most states to implement the NPDES stormwater permitting program, so these administrative 

costs accrue to states implementing the program. 

Costs to new permit-holders are estimated to range from $29.2 to $36.4 million annually. 

Using double the number of ORM2 other waters, costs to new permit-holders are estimated to 

range from $47.8 to $59.6 million annually. These cost estimates includes the costs of 

implementation of erosion and sediment controls and post-construction controls. Benefits are 

estimated to range from $29.0 to $36.8 million, which reflect public willingness-to-pay for water 

quality improvements achieved by the stormwater rule. Similarly, using double the number of 

ORM2 other waters, benefits are estimated to range from $47.5 to $60.2 million. 

12 U.S. Environmental Protection Agency. 1999. Economic Analysis of Final Phase II Stormwater Rule. U.S. 

Environmental Protection Agency, Washington, D.C. 

13 http://water.epa.gov/resource_performance/planning/index.cfm. 

25

 
Figure 5 - Estimated Annual CWA 402 Stormwater Permitting Impacts ($ millions)

Administrative 

Costs

Compliance 

Costs

(low estimate)

Compliance 

Costs

(high estimate)

Monetized 

Benefits 

(low estimate)

Monetized 

Benefits 

(high 

estimate)

Using Original Number of ORM2 Other Waters Records

Original 

Rule 

Analysis 

(1998$) $5.3 $545.0 $678.7 $540.5 $686.0

2.84% 

Component 

of 

Stormwater 

Program 

affected by 

CWR $0.2 $15.5 $19.3 $15.4 $19.5

30% 

Program 

Growth $0.2 $20.1 $25.1 $20.0 $25.3

Total 

Incremental 

Change 

(2014$) $0.3 $29.2 $36.4 $29.0 $36.8

Using Double the Number of ORM2 Other Waters Records

Original 

Rule 

Analysis 

(1998$) $5.3 $545.0 $678.7 $540.5 $686.0

4.65% 

Component 

of 

Stormwater 

Program 

affected by 

CWR $0.2 $25.3 $31.6 $25.1 $31.9

30% 

Program 

Growth $0.3 $32.9 $41.0 $32.7 $41.5

Total 

Incremental 

Change 

(2014$) $0.5 $47.8 $59.6 $47.5 $60.2

26
Section 402 Concentrated Animal Feeding Operation Permitting

Facilities that meet the definition of Concentrated Animal Feeding Operations (CAFOs) 

under CWA regulations are point sources under the CWA and are regulated under the NPDES 

permitting program. Most current permit holders are covered under state-issued general permits, 

and thus administrative costs for implementing the program fall to states and CAFO operators. 

EPA promulgated regulations for Concentrated Animal Feeding Operations (CAFOs) in 2003 

that expanded the number of operations covered by CAFO regulations and included requirements

for nutrient management plans for land application of manure from CAFOs. EPA revised this 

regulation in 2008 to reflect changes based on a Second Circuit Court decision. However, the 

basic cost and benefit information from the original economic analysis is useful for estimating 

potential impacts in a similar manner as above for stormwater.14

In the Economic Analysis to support the 2003 CAFO rule EPA estimated a potential 

universe of 15,000 affected entities. The CAFO rule was finalized in February 2003, after 

issuance of the SWANCC Supreme Court decision in 2001. Therefore, estimates of the affected 

universe of CAFOs would reflect changes in jurisdictional assertion as a result of SWANCC. 

More recent permit data indicate that in 2011 7,318 entities held CAFO permits, and in 2014 

6,946 entities were permitted. These changes in permitting numbers may be the result of 

changes in size of the CAFO industry, or changes in jurisdictional assertion following the 

implementation of the agencies’ 2008 Guidance interpreting the Rapanos decision. These recent 

permit numbers remain significantly below the 15,000 entities projected to be affected in the 

2003 analysis, and so for this analysis the CAFO program size is decreased by 49 percent, to 

more accurately reflect the current universe. From this current program size, either a 2.84 or a 

4.65 percent increment of the total costs and benefits is taken to account for an estimated 

increase in permitting resulting from changes in positive jurisdictional assertion from this rule. It 

should be noted that these assumptions concerning increased jurisdiction over CAFOs likely 

overestimate costs. It is not clear that increases in jurisdiction would result in more CAFOs 

being permitted and, as a result, incurring costs. Lastly, costs presented in the 2003 analysis are 

updated from 2001 dollars to 2014 using the CPI-U, which accounts for inflation over this time 

period. 

Figure 6 summarizes the estimated costs and benefits associated with increased permit 

activity in the CAFO program due to an increase in Clean Water Act jurisdiction. Incremental 

costs to CAFO operators are estimated to total $6.1 million annually, or $9.9 million under a 

doubling of ORM2 other waters. Administrative costs, which accrue to states that have assumed 

the NPDES program, are estimated to total $167,000 annually, or $270,000 annually under a 

14 National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and 

Standards for Concentrated Animal Feeding Operations (CAFOs), Final Rule. Federal Register 68 (12 February 

2003): 7176-7274.

27

 
doubling of ORM2 other waters. Using the benefits figures monetized in the original analysis 

provides estimated benefits ranging from $3.8 to $6.6 million annually, or $6.2 to $10.8 million

under a doubling of ORM2 other waters. Benefits for smaller CAFO operations were not 

calculated in the 2003 analysis. Monetized benefits are primarily from improved surface water 

quality (measured in terms of enhanced recreational value), reduced nitrates in private wells, 

reduced shellfish bed closures from pathogen contamination, and reduced fish kills from episodic 

events. EPA was not able to monetize a number of benefits categories, including human health 

and ecological benefits of reduced exposure to pollutants associated with CAFO manure; 

reduced eutrophication of coastal and estuarine waters due to both nutrients and runoff and 

deposition of ammonia volatized from CAFOs; reduced human illness due to pathogen exposure 

during recreational activities in estuaries and coastal waters; improvements in soil properties due 

to reduced over-application of manure, together with an increased acreage receiving manure 

applications at agronomic rates; reduced pathogen contamination in private drinking water wells, 

and reduced cost of commercial fertilizers for non-CAFO operations. 

The agencies note that there is uncertainty that there will be additional CAFO permits 

that will be required by operators as a result of the final rule. Therefore, these estimated costs 

and benefits are merely illustrative.

Figure 6 - Estimated Annual CWA 402 CAFO Permitting Impacts ($ millions)

Administrative 

Costs

Compliance 

Costs

Monetized 

Benefits 

(low estimate)

Monetized 

Benefits 

(high estimate)

Using Original Number of ORM2 Other Waters Records

2003 Rule 

Analysis (2001$) $9.0 $326.0 $204.0 $355.0

49% Program 

Size Decrease $4.4 $159.7 $100.0 $174.0

2.84% Increment $0.1 $4.5 $2.8 $4.9

Total 

Incremental 

Change (2014$) $0.2 $6.1 $3.8 $6.6

Using Double the Number of ORM2 Other Waters Records

2003 Rule 

Analysis (2001$) $9.0 $326.0 $204.0 $355.0

49% Program 

Size Decrease $4.4 $159.7 $100.0 $174.0

4.65% Increment $0.2 $7.4 $4.6 $8.1

Total 

Incremental 

Change (2014$) $0.3 $9.9 $6.2 $10.8

28
29
Section 402 Pesticide General Permitting

On October 31, 2011, EPA issued the final NPDES general permit for point source 

discharges to waters of the United States from the application of (1) biological pesticides, or (2) 

chemical pesticides that leave a residue. This permit, also known as the Pesticide General Permit 

(PGP), was developed in response to a decision by the Sixth Circuit Court of Appeals (National 

Cotton Council, et al. v. EPA). The Agency’s final PGP covers operators that apply pesticides 

that result in discharges from the following use patterns: (1) mosquito and other flying insect 

pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest 

control. The permit requires the minimization of pesticide discharges through the use of pest 

management measures and monitoring for and reporting of any adverse incidents. The general 

permit provides coverage for discharges in the areas where EPA is the NPDES permitting 

authority. In the remaining areas (44 states and the U.S. Virgin Islands), which are not included 

in the PGP analysis, states are authorized to develop and issue the NPDES pesticide permits.

To estimate potential increment costs from pesticide general permits, EPA utilized the 

economic analysis completed to support the pesticide general permit.15 This analysis was 

completed in 2011, and so the baseline for the analysis incorporated any effects on jurisdiction 

resulting from SWANCC and Rapanos. The economic analysis focused on the 35,376 entities 

where EPA is the permitting authority. In other documentation EPA estimated approximately 

365,000 entities could be affected nationwide once states developed and issued their own general 

permits for these discharges. The cost figures estimated in the original PGP analysis are scaled 

up to reflect this larger, nationwide universe, which inherently assumes that the costs of 

compliance will be similar in areas where EPA is not the permitting authority. States use the 

EPA PGP as a model, but they may deviate from the EPA permit and in those circumstances the 

cost estimates presented here may not be representative. There also may be additional costs to 

applicators that are not captured in these estimates. The estimated 2.84 or 4.65 percent increase 

in jurisdiction is applied to the cost figures from the original PGP analysis and then the number 

is scaled up to the entire potential universe size to estimate potential new costs and benefits 

resulting from this rule. After adjusting for inflation, costs range from $3.3 to $3.6 million 

annually; under a doubling of ORM2 other waters, costs range from $5.4 to $5.9 million. Figure 

7 summarizes the process and estimated costs. The original PGP economic analysis did not 

estimate administrative costs to government entities nor did it quantify benefits, and these values 

are not estimated here.

15 U.S. Environmental Protection Agency. 2011. Economic Analysis of the Pesticide General Permit (PGP) for 

Point Source Discharges from the Application of Pesticides. U.S. Environmental Protection Agency, Washington, 

D.C.

30

 
Figure 7 - Estimated Annual CWA 402 PGP Impacts ($ millions)

Compliance Costs

(low estimate)

Compliance Costs

(high estimate)

Using Original Number of ORM2 Other Waters Records

Original PGP 

Estimates (2009$) $10.2 $11.2

2.84% Increment $0.3 $0.3

Scale Up to Total 

Potential Universe $3.0 $3.3

Total Incremental 

Change (2014$) $3.3 $3.6

Using Double the Number of ORM2 Other Waters Records

Original PGP 

Estimates (2009$) $10.2 $11.2

4.65% Increment $0.5 $0.5

Scale Up to Total 

Potential Universe $4.9 $5.4

Total Incremental 

Change (2014$) $5.4 $5.9

31
Section 9: Estimate of Potential Clean Water Act Section 

404 Costs and Benefits

Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill 

material into waters of the United States, including wetlands. Activities in waters of the United 

States regulated under this program include fill for development, water resource projects (such as 

dams and levees), infrastructure development (such as highways and airports), and mining 

projects. Section 404 requires a permit before dredged or fill material may be discharged into 

waters of the United States, unless the activity is exempt from Section 404 regulation. Proposed 

activities are regulated through a permit review process. An individual permit is required where 

impacts are more than minimal. 

Individual permit applications are reviewed by the U.S. Army Corps of Engineers, which 

evaluates applications under a public interest review, as well as the environmental criteria set 

forth in the CWA Section 404(b)(1) Guidelines. However, for most discharges that will have 

only minimal adverse effects, a general permit may be suitable. General permits are issued on a 

nationwide, regional, or State basis for particular categories of activities. The general permit 

process eliminates individual review and allows certain activities to proceed with little or no 

delay, provided that the general or specific conditions for the general permit are met. The great 

majority of discharges are authorized under a general permit.

An increase in assertion of CWA jurisdiction could produce subsequent costs of 

implementation of the Section 404 program as well as increased benefits. Regulated entities may 

face costs resulting through permit application costs, and associated compliance costs such as 

wetlands mitigation, stream mitigation, and project re-design and relocation expenses. There 

may also be program management costs and efficiencies associated with administering the 

Section 404 program. These costs are described in Section 11. 

Through clarifying jurisdiction, this rule may result in an increase in Section 404 permits

with associated costs. Ecological benefits will accrue from those permitted losses being offset 

through compensatory mitigation. These benefits are also presented in this section, based upon a 

benefits transfer analysis using studies measuring willingness to pay for preservation of wetlands 

similar to the type likely to be protected by this rule.

CWA Section 404 Compliance Costs

An increase in assertion of CWA jurisdiction could result in subsequent costs of 

implementation of the CWA 404 program: a greater number of development projects would 

32
impact jurisdictional waters, thus requiring the sponsors of those additional projects to obtain and 

comply with CWA Section 404 permits. Figure 8 provides a descriptive overview of four types 

of CWA Section 404 permitting costs the regulated community could face – permit application 

costs, permitting time costs, impact avoidance and minimization costs, and compensatory 

mitigation costs. 

Figure 8 - Conceptual Overview of CWA Section 404 Permit Compliance Costs

Cost Category Description (costs vary considerably by permit type and by 

geographic region)

Permit 

Application Costs

Financial costs to finalize a permit application to a point that the Corps 

deems the application complete. Includes costs for delineation and survey 

of jurisdictional waters; preparing project area and impact drawings and 

maps; alternatives analysis that investigates opportunities to avoid and 

minimize project impacts (on-site alternatives in the case of general 

permits, both on- and off-site alternatives in the case of individual 

permits); developing a Corps-approved compensatory mitigation plan; 

submitting a completed application that includes all notification and other 

requirements. In general, permit application costs increase with the size of 

the project area, size of impacts to jurisdictional waters, the number of 

separate impact locations, and any actions needed to comply with other 

Federal laws before a permit can be issued (e.g., Endangered Species Act, 

National Historic Preservation Act). The cost of the alternatives analysis 

often dominates application costs for individual permits in the case of 

projects involving relatively large impacts to jurisdictional waters.

Permitting Time 

Costs

Potential financial and opportunity costs associated with any delay in 

project implementation resulting from the time it takes to secure a permit. 

In the case of private sector, for-profit development projects, time costs 

could include financial or opportunity costs of carrying development 

capital for longer periods of time. In the case of public sector projects, 

time costs could include opportunity costs of forgone public services and 

benefits from not proceeding with the project sooner rather than later.

Impact Avoidance 

and Minimization 

Costs

Potential financial and opportunity costs associated with project redesign 

that may be required in order to avoid and minimize impacts on 

jurisdictional waters. Opportunity costs could include foregone net returns 

to development in the case of private sector, for-profit development 

projects, or lower levels of public service provision and benefits in the 

case of public sector projects (e.g., road construction and maintenance, 

repair of flood control infrastructure, etc.).

Compensatory 

Mitigation Costs

Financial and opportunity costs to implement the Corps-approved 

compensatory mitigation plan that is written into the permit as a special 

condition. In the case of a mitigation plan that involves third-party 

mitigation providers (commercial mitigation banks or in-lieu fee 

programs), cost is driven by credit prices and the number of credits 

33
required. In the case of a permittee-responsible mitigation plan, this may 

include opportunity costs of reserving a portion of development project 

lands for mitigation, and the financial costs of mitigation project 

implementation as well as mitigation monitoring, maintenance, and 

reporting until success criteria have been achieved. This could also 

include financial and opportunity costs of posting any required financial 

assurances for mitigation project success and/or providing any required 

endowment for long-term site management after mitigation success has 

been achieved.

The sponsors of projects subject to CWA Section 404 regulation incur costs to finalize a 

permit application (or a pre-construction notification in the case of general permits) that the 

Corps deems to be complete. Similarly, the sponsors of permitted projects also incur costs to 

implement compensatory mitigation actions required by permits to offset permitted impacts to 

jurisdictional waters. The analysis of incremental costs to the regulated community focused on 

the estimation of these two categories of compliance costs. Depending on circumstances, the 

sponsors of many private sector as well as public sector projects that are subject to Section 404 

permitting can also incur permitting time costs and/or impact avoidance and minimization costs. 

Permitting time costs include potential financial and opportunity costs associated with delays in 

project implementation resulting from the time it takes to secure a permit. Impact avoidance and 

minimization costs include potential financial and opportunity costs associated with permit 

requirements to redesign projects so as to avoid and minimize project impacts on jurisdictional 

waters to the extent practicable. The permit costs presented here include estimation of the costs 

of preparing a complete CWA Section 404 permit package, which includes an analysis of 

alternative to avoid and minimize impacts. However, the agencies recognize that there may be 

circumstances where specific individual permit applicants may be asked to do additional 

analyses or project redesign. The agencies recognize that these costs can be significant for 

affected permit applicants; however, these are very case-specific costs and lacking data to 

support a credible approach to estimating these costs, they are excluded from this analysis. 

The agencies utilize estimates of the number of additional permits and the average 

impact per permit to produce an estimate of additional acres of permitted impacts and associated 

costs. In order to estimate the number of additional permits, a baseline level of activity must be 

established. The agencies examined data from ORM2 on the number of individual permits and 

general permit authorizations issued each fiscal year, from FY2009 to FY2014. For the purposes 

of this analysis individual permits include standard permits and letters of permission while 

general permits include nationwide permits, programmatic general permits, and regional general 

permits. Permitting data records considered include permits issued under Clean Water Act 

Section 404. Data associated with permits issued under Sections 9 and 10 of the Rivers and 

Harbors Act of 1899; and Marine Protection, Research, and Sanctuaries Act Section 103 

authority were excluded. Figure 9 shows a graph of the number of individual and general 

permits issued each year. Individual permit levels fluctuate between a low of 3,292 permits 

34
issued in fiscal year 2014 and a high of 4,672 permits issued in fiscal year 2009. General permit 

levels peak in fiscal year 2014 with 60,020 permits issued, while the minimum number of 52,287 

general permits were issued in fiscal year 2009. 

Figure 9 – Individual 404 Permits (IP) and General 404 Permits (GP) Issued per Fiscal Year

In the proposed rule analysis, the agencies used a level of permitting based on permit 

numbers from FY2010. Commenters expressed concern that this level of permitting activity was 

from a time of depressed economic activity. To be responsive to these comments, in this 

analysis the agencies formed the baseline level of permitting activity by independently selecting 

the maximum number of individual permits issued in a year (4,672 from fiscal year 2009) and 

the maximum number of general permits issued in a year (60,020 from fiscal year 2013). Figure 

10 provides a summary of this baseline level of activity. Separately selecting maximum numbers 

of issued general and individual permits creates a baseline level of permitting that actually has 

larger total permit numbers than ever actually occurred in an individual fiscal year from FY2009

to FY2014. This results in a potential over-estimate of impacts associated with an increase in 

positive jurisdictional determinations. 

 In order to estimate the potential additional impacted acreage of jurisdictional waters it is 

necessary to develop an estimate of the average impact per permit type. To develop this 

0

10,000

20,000

30,000

40,000

50,000

60,000

70,000

FY09 FY10 FY11 FY12 FY13 FY14

Number of Permits

Fiscal Year

404 Permits Issued per Fiscal Year

IP

GP

35
estimate, permanent impacts from FY2013 were considered, while excluding temporary 

impacts16 as well as restoration and conversion activities. Records with non-zero values in the 

authorized area field were included (entries that contained just a linear feet impact value or null 

values were excluded). By dividing the total number of non-restoration permanent impacts by 

the total number of FY2013 permits of this type, we are able to calculate an average impact per 

permit, presented in Figure 10. This average impact per permit is then multiplied by the 

estimated increase in permits to produce an estimate of the total additional impacted acreage. 

Since issuance of the proposed rule, a data quality assurance effort was undertaken by the 

Corps. As a result, the average impact per permit reported here has been more thoroughly vetted 

than the value previously reported in the proposal analysis.

Figure 30 – Estimated Additional CWA Section 404 Permits and Impacts to Jurisdictional 

Waters

Permit 

Type

Maximum 

Number 

Permits Issues 

(FY09-14)

Estimated Additional 

Permits w/ Rule (with 

increase in jurisdiction)

FY13 Average 

Impact Per 

Permit 

(Acres)

Total 

Additional 

Impacts 

(Acres)

Using Original Number of ORM2 Other Waters Records

Individual 4,672 133 5.94 788

General 60,020 1,705 0.43 733

Total 64,692 1,837 1,521

Using Double the Number of ORM2 Other Waters Records

Individual 4,672 217 5.94 1,290

General 60,020 2,791 0.43 1,200

Total 64,692 3,008 2,491

Permit Application Costs 

The agencies use two sets of estimates for permit application costs to calculate a range of 

incremental permit application costs associated with the estimated increase in permitting 

resulting from the final rule. These estimates of permitting costs were developed to calculate 

incremental permit application costs associated with the replacement of Nationwide Permit 26 

(NWP 26) with a suite of new and modified nationwide permits in the year 2000 (hereafter 

referred to as the “NWP replacement package”). 

16 For example, the Corps’ 2012 Nationwide Permit 33 provides that temporary structures, work, and discharges, 

including cofferdams; necessary for construction activities or access fills or dewatering of construction sites can be 

authorized if the fill is removed in its entirety and will have no more than minimal adverse effects on aquatic 

resources.

36

 
The Corps developed an estimate of permit costs as part of its analysis of the incremental 

costs of the NWP replacement package. This estimate relied on data and information obtained 

through informal phone interviews with Corps District staff and consulting firms from around 

the country that assist the regulated community in navigating the permitting process. The Corps 

asked interviewees to identify major components and component and total costs for finalizing a 

NWP 26 pre-construction notification and an individual permit application associated with a 

“typical” project involving up to three acres of impacts to jurisdictional waters. 

The Corps analysis of unit permit application for the NWP replacement package 

explicitly notes that the cost estimates were developed for a “typical” project, and that individual 

permit (IP) application costs for some projects could be much higher than the estimates produced 

for the NWP replacement package (e.g., it noted that in the case of large projects, the costs for 

the alternatives analysis alone could be several times the Corps estimates of IP application costs 

for a typical project). Further, permit application costs can vary considerably by region, so the 

cost for a typical project in one region can be considerably different than the cost for a typical 

project in another region. Also, the Corps analysis of individual permit application costs for the 

NWP replacement package was limited to projects affecting up to three acres of jurisdictional 

waters, whereas this final rule could involve new permit application costs for projects involving 

significantly greater impacts to waters now determined to be jurisdictional (which is relevant 

since permit application costs generally increase as the impact size increases). For these reasons, 

in this analysis the agencies use the highest Corps estimates of unit permit application costs as a 

lower bound of estimated permit application costs.

The NWP replacement analysis from the Corps estimated permit application costs for a 

pre-construction notification under NWP 26 could range from $3,000 - $10,000 and permit 

application costs for a standard or individual permit could range from $10,000 to $24,000. As 

discussed above, the high range of each of these costs was selected as a lower-bound permit 

application cost. The dollar figures were also adjusted for inflation from 1999$ to 2014$ using 

the CPI-U.

An estimate of NWP replacement costs was also commissioned by the National 

Association of Counties and the Foundation for Environmental and Economic Progress, whose 

members include large real estate development companies. This study, completed by David 

Sunding and David Zilberman, is hereafter referred to as the SZ study. The SZ study relied on a 

survey of 103 NWP and IP applications for which the project sponsors were asked to report the 

costs they incurred in preparing and finalizing the applications. Two-thirds of the applications in 

the survey sample involved projects in western states and the remainder involved applications in 

eastern or midwestern states. The sample involved a roughly equal mix of public sector and 

private sector development projects, including school construction, quarry expansion, sediment 

37
containment, home building, road improvements, and flood control. 17 The analysis of the survey 

data found a statistically-significant positive relationship between the amount of permitted 

impacts on jurisdictional waters and the cost of preparing a NWP or an IP. The authors used the 

survey data to develop a relationship between impacts to jurisdictional waters (measured in 

acres) and the cost of preparing a NWP and an IP. For each permit type, the SZ study produced 

an estimate of a fixed cost component plus another cost component that varied based on the 

amount of impact acres.18 

Figure 11 shows the unit application costs obtained from the two sources discussed 

above, and the estimated range of additional permit applications costs for individual and general 

permits based on the estimated increase in permits data from Figure 10. All cost figures are 

adjusted from 1999$ to 2014$ using the CPI-U.

17 These details on the projects included in the survey sample are reported in: D. Sunding and D. Zilberman. 2002. 

“The economics of environmental regulation by licensing: An assessment of recent changes in the wetland 

permitting process.” Natural Resources Journal. V. 42, Winter. 18 The range of NWP application costs in the survey was between $2,000 and $140,076; the median cost was 

$11,800, and the mean cost was $28,915. The range of IP application costs in the survey was between $7,000 and 

$1,530,000; the median cost was $155,000 and the mean cost was $271,596. (All estimates are presumed to reflect 

1999$) 

38

 
Figure 11 - Estimated Annual Additional CWA Section 404 Permit Application Costs

Permit 

Type

Add’l 

Permits 

with 

Rule

FY13 

Avg. 

Impact 

per 

Permit 

(acres)

Unit Costs 

from 

Corps 

NWP 

Analysis 

(2014$)

Unit Costs from SZ 

Study (2014$)

Estimated 

Add’l Annual 

Permitting Cost 

(2014$ millions)

Low

Estimated 

Add’l Annual 

Permitting 

Cost

(2014$ 

millions)

High

Using Original Number of ORM2 Other Waters Records

Individual 133 5.94 $34,100

$62,000 plus 

$16,800 per acre of 

impact $4.5 $8.3

General 1,705 0.43 $14,200

$23,900 plus 

$13,200 per acre of 

impact $24.2 $40.7

Total 1,837 $28.7 $49.1

Using Double the Number of ORM2 Other Waters Records

Individual 217 5.94 $34,100

$62,000 plus 

$16,800 per acre of 

impact $7.4 $13.6

General 2,791 0.43 $14,200

$23,900 plus 

$13,200 per acre of 

impact $39.6 $66.7

Total 3,008 $47.0 $80.3

Compensatory Mitigation Costs

A portion of costs to applicants may result from compensatory mitigation of wetlands and 

streams. The assumption that costs will arise in the form of compensatory mitigation is 

conservative; it leads to an overestimate of costs. A landowner whose holdings are deemed to be 

jurisdictional might consider several options, including modifying or relocating the project, or 

conducting mitigation on-site, as well as purchasing compensatory mitigation credits. As a 

different option might be less expensive in a particular circumstance, assuming that all applicants 

purchase compensatory mitigation overstates costs. To estimate state-specific per-acre costs of 

wetland mitigation and per linear foot estimates of stream mitigation, the Corps examined 

published studies and survey results, made phone inquiries to Corps Districts and mitigation 

banks, and researched web sites. A team of Corps experts developed a range of values for each 

state. These costs have been updated by the Corps since the proposal, where new data have 

become available. Costs for mitigation in estuarine environments, whose jurisdictional status 

likely will not be affected by this rule, are not included where explicitly identified by mitigation 

bank and in-lieu fee program fee schedules. Mitigation banks and in-lieu-fee programs almost 

always offer wetland mitigation credits for sale; however, stream mitigation markets are less 

39
robust. In reviewing in-lieu-fee program fee schedules, stream mitigation costs could be 

identified for ten in-lieu fee programs across the country. Stream mitigation continues to be a 

growing area of practice in the mitigation community, and an area where Corps Districts are also 

continuing to develop familiarity. Where new data were available, these were utilized. Where

no new data were available, steam mitigation cost estimates from the proposed rule analysis were 

updated to 2014 dollars. 

Mitigation costs vary widely, with nationwide average unit costs ranging from $41,572 to 

$111,985 per acre of wetlands mitigated and from $95 to $1,000 per linear foot of stream 

mitigation. There is more variation in unit costs per state, see Figure 20, Appendix A. Costs 

vary based on land acquisition costs, the nature of the work being done, demand for mitigation in 

the state, as well as other factors. The unit costs identified here, based on mitigation bank and 

in-lieu-fee program fee schedules represent fully-loaded unit costs and include the costs of land 

acquisition, construction work completed on site, monitoring for mitigation success, and longterm stewardship. In some cases, permittees may not purchase credits from a mitigation bank 

but rather complete a permittee-responsible mitigation project. The costs of this permitteeresponsible mitigation project may be lower than the purchase of credits, particularly in 

circumstances where a mitigation project is constructed on the same tract of land as the permitted 

impacts. In this circumstance new land would not have to be acquired, lowering the costs of the 

project. Therefore, the mitigation costs estimated here may be an overestimate. 

Wetland Mitigation Costs

To estimate wetlands mitigation costs the agencies assumed that all of the estimated 

additional acreage of impacts authorized under individual permits would require mitigation at a 

2:1 ratio, with two acres of mitigation required for every acre of impact. This ratio represents the 

reported average amount of mitigation required per acre of authorized impact from FY09 to 

FY13. In the analysis prepared for the proposed rule, the percentage of ORM2 other waters 

determined to be jurisdictional was embedded in the calculation for the amount of mitigation 

required, resulting in a ratio of 1.5 acres of mitigation per acre of impact. Directly applying the 

2:1 ratio uses a clearer approach utilizing existing permitting data. 

For the additional acreage of impacts authorized under general permits, the agencies first 

assume that only half of these permits would require mitigation. As part of the analysis to 

support the most recent set of nationwide permits issued in 2012, the Corps estimated that only 

30,000 nationwide permit authorizations would require a pre-construction notification (PCN) 19, 

19 Reissuance of Nationwide Permits, 77 Federal Register 34 (February 21, 2012), pp 10184-10290. 

40

 
as compared to 60,000 authorizations actually issued in 2012. A PCN is not required for 

activities that, in general, do not result in more than minimal adverse effects on the aquatic 

environment and mitigation is not required for these authorizations. As it was estimated in the 

last nationwide permit package that only half of all permits would require a PCN, the agencies 

assume this half of the general permits would also require mitigation, assuming 2 acres of 

mitigation is required per acre of additional impact. 

Using the estimated increase in jurisdiction assuming a doubling of the ORM2 other 

waters, as an example, results in an estimated increase in permitted losses of 1,290 acres 

authorized under individual permits, and 1,200 acres authorized under general permits from 

Figure 13. These assumptions can be used to calculate the total acreage of mitigation required, 

corresponding to 3,781 new acres of mitigation. Similar calculations were based on the ORM2 

data without doubling, but separate equations are not shown.

New MitigationTotal

= (2 ∗ 1,290 acres authorized under IPs)

+(0.5 ∗ 2 ∗ 1,200 acres authorized under GPs) 

This new level of required mitigation will compensate for newly-permitted wetland 

losses, resulting from an increase in assertion of CWA jurisdiction. This increased acreage of 

mitigation is assigned by state based on the percentage of negative FY13-14 jurisdictional 

determinations for wetlands and “other waters” in that state: 

New MitigationState

= 3,781 acres ∗ State # Negative Wetland and Other Water JDs

Nationwide # Negative Wetland and Other Water JDs

This approach results in more mitigation acres being assigned to states with many 

negative wetland or ORM2 other waters JDs, and thus likely to experience positive changes in 

jurisdictional assertion. Over the baseline period of FY13-14 Connecticut, Delaware, Maine, 

Michigan, New Hampshire, and Rhode Island had no negative JDs for wetlands or ORM2 other 

waters. However, the agencies did not want to presume that the actual number of negative 

jurisdictional determinations in these states, and therefore requirements for mitigation acres, 

would be zero. As a result, these states were assumed to have one negative JD.

The estimated new mitigation on a state-by-state basis was then applied to state-specific 

low and high wetland mitigation costs to calculate an estimated increase in mitigation costs by 

state. Wetland mitigation costs have been updated from the proposal where additional data were 

available and all costs reflect 2014 dollars. Mitigation unit cost estimates are reported in 

Appendix B. Estimated increases in mitigation costs by state are added to form a nationwide 

estimated increase in wetland mitigation costs of $54.4 to $152.3 million; using a doubling of 

41
ORM2 other waters results in wetland mitigation costs of $89.0 to $249.4 million. State-specific 

values appear in Appendix B.

Total Wetland Mitigation Costs = ∑ Mitigation AcresState ∗ Cost per AcreState 

Stream Mitigation Costs

To calculate the costs of stream mitigation, the Corps provided data on jurisdictional 

determinations for streams by state over FY13-14. The Corps also provided an estimate of 590 

miles of stream mitigation from fiscal year 2013 to represent mitigation activity in the baseline 

period. The agencies believe it is a close approximation of required mitigation for FY13, and 

that it is consistent with the level of mitigation the Corps has estimated for the past 10 to 15 

years. 

From this data on baseline levels of mitigation and positive and negative jurisdictional 

determinations over FY13-14 the agencies are first able to calculate, in the baseline period, linear 

feet of mitigation per positive stream jurisdictional determination. Then, using the data from 

Corps on the negative stream jurisdictional determinations, the agencies can calculate the statespecific increase in mitigation if all negative stream jurisdictional determinations became 

positive:

Increase in Stream MitigationState = Mitigation per JDState ∗ Negative Stream JDState

This gives an increase in linear feet of stream mitigation by state, which is multiplied by 

state-specific data on mitigation costs per linear foot. The nationwide increase in stream 

mitigation is estimated to total 111,916 linear feet. Where data are available, state-specific unit 

cost estimates have been updated from the proposal. Unit cost estimates appear in Appendix A; 

all costs reflect 2014 dollars. Summing state-specific increases in stream mitigation costs across 

all states gives an overall estimated increase in stream mitigation costs of $22.8 to $45.2 million. 

This stream mitigation estimate is not sensitive to the scenario assumptions about ORM2 other 

waters.

Total Stream Mitigation Costs 

= ∑ Linear Feet of MitigationState ∗ Cost per Linear FootState 

42
CWA Section 404 Benefits

In the absence of this rule and under recent practices, these waters were found nonjurisdictional and impacts to these waters were not required to undergo the Section 404 

permitting process. A potential increase in Section 404 permits represents impacts that will now 

be required to undergo the Section 404 mitigation sequence of avoiding and minimizing impacts 

to jurisdictional waters, and finally offsetting unavoidable impacts through compensatory 

mitigation. The permitting process may result in a lower acreage of wetlands being impacted 

through avoidance of the wetlands in the project design. Remaining unavoidable losses will be 

offset via compensatory mitigation, and ecological benefits will accrue from the replacement of 

lost functions and services through compensatory mitigation. 

Benefits are calculated from the estimated new impacted acreage from all individual 

permits and half of general permits, shown in the rightmost column of Figure 13, as mitigation is 

only assumed for half of general permits. In total, benefits are calculated from both 1,154 and 

1,890 acres of newly-permitted losses, depending on the scenarios using original or doubled 

number of ORM2 other waters, now offset via mitigation. 

Mitigation is typically required to be “in-kind” (i.e., of the same wetland type) as the 

impact site. Benefits from stream mitigation are not quantified due to a lack of available data to 

allow for quantification or monetization of the ecosystem services performed by the small 

streams that may be affected by this rule. As only wetland benefits are monetized, the benefits 

figures reported here are likely to be an underestimate.

Wetland Mitigation Benefits

The agencies estimate the potential benefits from CWA Section 404 compensatory 

mitigation using a benefits transfer approach. Benefits transfer involves selecting study cases 

relevant to the policy case under consideration, and transferring values using a unit value or 

function-based approach. While collection of original revealed or stated preference data to 

evaluate a policy change is ideal, it was not feasible for this rule. The major challenge with 

benefits transfer is that economic values for ecosystem services are context-specific

(resource/region/user) and influenced as well by sample size, response rates and other quality 

metrics. Thus, it is best suited for transferring estimates between comparable contexts. For 

example, there is uncertainty involved in completing a benefits transfer where waters vary 

greatly in their functionality and relative value based on the relative scarcity, location within a 

watershed, and the degree of human impacts in their vicinity, as do the waters under 

consideration in this analysis. Inherent in this benefits transfer analysis is also the assumption 

that the wetlands whose functions are to be replaced by compensatory mitigation are of the same 

43
quality of functionality as the wetlands valued in the willingness-to-pay (WTP) studies. Also, 

the users of the services in the original valuation studies may not be comparable to users in other 

areas; that is, the WTP among service users in different areas could differ significantly. 

However, without knowing specifically where impacts will occur in the future, benefits transfer 

remains the only feasible option for quantifying potential benefits. Given these challenges, and 

the uncertainty as to specific sites that may be affected by this proposed regulatory action, the 

benefits values presented in this analysis are most relevant for a national-level analysis. To 

produce a site-specific analysis there is ample opportunity for the methodology to be tailored to 

account for site-specific information. The type of analysis here would not be directly applicable 

to a site-specific evaluation.

The specific benefits transfer approach used in this analysis also relies on stated 

preference and aggregation of household level estimates of WTP. Stated preference studies elicit

“stated preferences” rather than revealed (or actual) preferences from observed behavior. Stated 

preference methods rely on surveys that assess respondents stated WTP for goods or services, 

such as ecosystem services provided by a natural landscape feature. In using the household-level 

WTP information, there are not always clear rules for aggregation (i.e., determining which 

households pay). For this analysis, the agencies attempt to make reasonable and credible 

choices, but it is important to recognize that there is uncertainty and limitations associated with 

the results.

Valuation of Wetland Benefits

For this economic analysis and the analysis supporting the proposed rule, the agencies 

sought out studies from the literature that provide value estimates for a suite of ecosystem 

services provided by a particular wetland or wetland complex as a whole (i.e., total resource 

values, including both use and nonuse values). Wetlands under consideration for their value may 

provide varying degrees of particular services, or may not provide a particular service at all. A 

strength of this approach is the values elicited implicitly account for the varying degree and 

interrelationships among of services provided,

20 assuming respondents are sufficiently informed. 

In conducting the literature search, the agencies focused on studies that assess wetlands 

similar to those expected to be incrementally protected under the final rule. The economic 

valuation literature includes a large volume of studies that estimate the value of preserving, 

protecting, restoring, replacing (mitigation), and increasing the size of wetlands, including 

20 The value of a bundle of services is generally not the same as the sum of values for individual services that 

comprise the bundle estimated separately. The independent valuation and then aggregation of multiple service 

values can introduce systemic bias in total value estimates because independent valuation does not account for the 

potential interdependence (e.g., complementarily) among services. Use of stated preference studies to estimate total 

values for all services collectively avoids this problem by estimating values for resource changes while considering 

the potential interdependence among individual resource services. 

44

 
several meta-analysis studies (e.g., Moeltner and Woodward 2009).21 Many of these studies 

provide values for overseas, tidal, or coastal wetlands that do not well represent waters likely be 

incrementally protected by this rule. For example, tidal wetlands are valued highly for fishery 

habitat, which is typically not provided to the same degree by wetlands adjacent to small 

tributaries or more isolated wetlands. Jurisdiction of tidal wetlands is not likely to change due to 

this rule.

Seeking only studies that value resources likely to be incrementally protected by this rule, 

the agencies identified 10 studies that provide 22 estimates of WTP to preserve wetlands that 

provide a suite of services expected to be similar to those provided by waters incrementally 

protected under the final rule. Given the limited scope of studies of interest, and the limited 

universe of wetlands valuation work generally, the relevant studies identified by the agencies are

predominately from the late 1980s and early 1990s. Since this time there have been 

methodological advances for studies of this kind, but as there are not more recent studies 

available, the effect of those advances are not reflected in these numbers. Some of these 

methodological improvements, such as techniques to remove hypothetical biases, have lowered 

WTP values. However, since the early 1990s there may also have also been other changes such 

as awareness of wetland services and changes in income that could increase WTP. More recent 

studies have adopted better statistical methods and other improvements in survey methodology 

as well. Therefore, there is uncertainty as to whether the overall effect of these methodological 

improvements and other changes would result in an underestimate or overestimate of WTP. 

Clearly, it would be preferable to include more recent studies reflecting the current state of the 

art in stated preference analysis, but this was not possible as there are not relevant, more recent 

studies in the published literature. 

These studies represent riverine or floodplain, forested, emergent, and depression or 

isolated wetlands in 12 states across the country. These studies are summarized in Appendix B 

of this report. In preparing the benefits analysis for the final rule, the agencies reviewed the 

benefits studies and the WTP estimates utilized from those studies and have made a number of 

changes in application of the study results. These changes are described below.

Loomis et al. (1991) calculated willingness to pay for preservation of vernal pools in the 

San Joaquin Valley of California, presenting WTP figures for residents of CA within the San 

Joaquin Valley and outside the San Joaquin Valley, as well as an estimated statewide WTP. The 

study also presents WTP values for several different management scenarios (maintenance of 

current wetland levels, expansion of current levels, different management for contamination, and 

management to improve salmon populations). In the proposal, separate WTPs for the San 

21 Moeltner, K. and R. Woodward. 2009. Meta-Functional Benefit Transfer for Wetland Valuation: Making Most of 

Small Samples. Environmental and Resource Economics, Volume 42, Issue 1, pp 89-108.

45

 
Joaquin valley and outside the San Joaquin valley were used; in addition the WTP represented a 

program broader than just wetlands. For this analysis the agencies have chosen WTP values 

from this study that more closely match the policy context, utilizing only the statewide WTP 

value for maintenance of current wetland levels and the statewide WTP for expansion of wetland 

acreage. This ensures that benefits only for wetlands programs are captured, and also utilizes the 

lower, statewide WTP, capturing changes in WTP based on distance from the resource.

Azevedo et al. (2000) calculated household (HH) WTP for two projects in Iowa, one of 

which is a prairie pothole preservation program that would seek so acquire and preserve a total of 

40,000 acres of prairie potholes, acquired at a rate of 2,500 acres per year for 15 years. The 

proposal benefits analysis attributed the WTP value for this program to a wetland size of 2,500 

acres, resulting in an erroneously high WTP per acre. For the final, we have taken the total size 

of the program (40,000 acres) and discounted those acres to the present at a 3% discount rate, 

assuming they are acquired over 15 years at a rate of 2,500 acres per year, thus describing the 

40,000 acres preserved over a 15 year period in terms of the amount of acres preserved at once 

that would result in a socially discounted equivalent level of services. This results in a present 

value project size of 32,345 acres.

Poor (1999) conducted a study of WTP for preservation of Nebraska’s flyway wetlands. 

The survey generating the WTP figures was completed in 1996. This was erroneously attributed 

to 1995$ in the proposal and has been corrected.

Whitehead and Blomquist (1991) presented six different figures of WTP for preservation 

of wetlands in Kentucky. Respondents were asked about three different wetland features, and 

asked their WTP given two different sets of information. The proposal used only three of these 

values, the final will incorporate all six values into the benefits analysis, capturing how different 

information affects WTP. 

Mullarky and Bishop (1999) asked respondents their WTP to preserve 110 acres of 

wetlands in Wisconsin via re-routing of a highway. Respondents were offered a polychotomouschoice format and indicated if they would “definitely yes”, “probably yes”, “not sure”, “probably 

no”, or “definitely no” be willing to pay the amount offered. In the proposal, only the mean of 

the “definitely yes” responses was utilized as a WTP figure. In the final, the mean of the 

“definitely yes” and “probably yes” responses will be used. When utilizing only the “definitely 

yes” responses, the inherent assumption is that all other respondents had zero WTP. By 

including the probably yes respondents, we are ascribing greater than zero WTP to respondents 

where we are relatively certain their WTP is not zero, because respondents had the option to 

indicate they were not willing to pay the proffered amount, and did not select this option. We are 

unable to adjust WTP based on the degree of certainty, so it is possible the WTP value associated 

with the “probably yes” responses is an over-estimate, but it is certainly not zero.

Lant and Tobin (1989) asked respondents their WTP for water quality improvements for 

rivers in Illinois and Iowa, and estimated the increase in wetland acreage in the floodplain 

46
necessary to achieve a higher level of water quality. In the final analysis, the WTP per acre will 

utilize the estimated necessary increased acreage of wetlands and the proportion of WTP for the 

water quality improvement being contemplated (i.e. an increase of 2,100 acres of wetlands would 

improve river quality by 0.55 points to “fair” (based on how respondents rated river quality). 

This represents 55 percent of the respondents’ WTP for water quality improvements from “poor” 

to “fair”. This study also reported WTP on a per person basis, but also provided statewide 

average household size at the time the study was completed. The individual WTP was adjusted 

to reflect household WTP based on these average household sizes.

For this analysis, it is necessary to express WTP values on a “per acre” basis rather than a 

“per acre per year” basis to be comparable to the mitigation cost figures presented in this section. 

The cost figures for compensatory mitigation reflect the total one-time cost per acre to protect 

and maintain the services provided by a mitigation site into perpetuity. Thus benefits should be 

calculated as the total per acre value, not just the one-year per acre value. 

The agencies standardized WTP estimates across all studies in three ways: 1) household 

basis, 2) per acre basis, and 3) annual basis. For estimates reported as annual WTP for wetland 

preservation, the agencies derived the total present value over a period of 50 years using 3 

percent and 7 percent discount rates. The agencies calculated WTP on a per household per acre 

basis by dividing the per household WTP value by the size of valued wetlands reported in a 

particular study. Additional detail on the standardization process is available in Appendix B.

National Wetlands Inventory Approach to Benefits Transfer

Different types of wetlands perform different functions and may not be valued the same. 

In an effort to account for these differing values, a benefits transfer exercise was completing 

utilizing data from the National Wetlands Inventory (NWI).

22 NWI is the leading source for 

geospatial information on the potential and approximate extent of wetlands across the United 

States. Using data from the NWI, a GIS analysis was completed examining the acreage of 

digitally mapped wetland habitats on a county and state basis (NWI current as of February 4, 

2011). This analysis resulted in an estimate of the acreage of different categories of wetlands 

mapped in the NWI on a state level throughout the United States, where digital data are 

available. Note that this is likely an underestimate of actual wetland acreage, as at the time of 

the analysis digital NWI data were not available for portions of the United States and the NWI 

was not complete for other portions of the country. Additionally, at the time of the analysis, 

limited data were available in Alaska, Arkansas, Colorado, Kansas, Texas, and Utah, as 

approximately 75 percent or more of the wetlands in these states were not digitally mapped in the 

NWI. Digitization of the NWI is now complete for the conterminous United States, but parts of 

22 U. S. Fish and Wildlife Service. Data current as of February 4, 2011. National Wetlands Inventory. U.S. 

Department of the Interior, Fish and Wildlife Service, Washington, D.C. http://www.fws.gov/wetlands/. 

47

 
Alaska continue to have no NWI data. Further, the NWI does not capture all wetlands, as the 

data are derived from aerial photo-interpretation with varying limitations due to scale (NWI is at 

the 1:24,000 scale), photo quality, inventory techniques, vintage of the aerial photographs, and 

other factors. Consequently, the maps tend to show wetlands that are readily photo-interpreted 

given consideration of photo and map scale, while missing certain forested wetlands that are not 

as easy to detect. Wetland features may also have changed since the date of the imagery and/or

field work. There may be occasional differences in wetland boundaries or classifications 

between the information depicted on the map and the actual conditions on site. Note that the 

definition of wetland the NWI uses is broader than the Clean Water Act regulatory definition.

The NWI classifies wetland and deepwater habitats by types, utilizing the U.S. Fish and 

Wildlife Cowardin Classification System as defined by Cowardin et al., 23 as well as categorizing

wetlands in groups of similar classifications: Freshwater Forested and Shrub wetland, Freshwater 

Emergent wetland, Freshwater pond, Estuarine and Marine wetland, Riverine, Lakes, Estuarine 

and Marine Deepwater, and Other Freshwater wetland. In reviewing the projected jurisdictional 

changes associated with the policies in the final rule, EPA determined that the vast majority of 

wetlands that would become jurisdictional would fall into the NWI categories of Freshwater 

Forested/Shrub and Freshwater Emergent. Remaining incremental wetlands would be negligible. 

As described by the NWI section of the U.S. Fish and Wildlife Service website, a Freshwater 

Forested/Shrub wetland is a forested swamp wetland or shrub bog wetland. A Freshwater 

Emergent wetland is an herbaceous marsh, fen, swale, or wet meadow.

24

The state-level wetland acreage by NWI category from the GIS analysis was used to 

estimate the proportion of acres in each state that fall under Forested or Emergent wetlands. This 

proportion was then multiplied by the projected increase in impacted acreage of Forested and 

Emergent wetlands, now to be off-set via mitigation (see equation below). State-specific 

estimates of newly-impacted acres in each state was calculated using the same approach 

described above to estimate the state-specific increase in mitigation acreage. 

New Acres ForestedState

= Total New AcresState ∗ (

Acres ForestedState

Acres ForestedState + EmergentState

)

New Acres EmergentState

= Total New AcresState ∗ (

Acres EmergentState

Acres ForestedState + EmergentState

)

23 Cowardin, L.M., V. Carter V., F.C. Golet, E.T. LaRoe. 1979. Classification of Wetlands and Deepwater Habitats 

of the United States. U.S. Fish and Wildlife Service Report No. FWS/OBS/-79/31.Washington, D.C. 

24 U. S. Fish and Wildlife Service. May 22, 2013. Wetlands Mapper Legend Categories. National Wetlands 

Inventory. U.S. Department of the Interior, Fish and Wildlife Service. Retrieved August 5, 2013, from 

http://www.fws.gov/wetlands/Data/Mapper-Wetlands-Legend.html. 

48

 
The benefits studies can also be divided into the NWI categories of Freshwater Forested 

or Freshwater Emergent. After examining the wetlands described or specified in each case study 

from the original literature search, it was determined that four studies, generating thirteen WTP 

values assess Freshwater Forested wetlands and six studies, generating nine WTP values assess

Freshwater Emergent Wetlands. WTP was calculated separately for each category by taking a 

geometric mean of the per-acre WTP values, weighted by the number of respondents in each 

study. As shown in Figure 12, WTP for Freshwater Forested/Shrub wetlands is approximately 

$0.04 per household per acre at a 7 percent discount rate and $0.06 per household per acre at 3

percent. WTP for Freshwater Emergent wetlands is $0.004 per household per acre at 7 percent

and $0.005 per household per acre at 3 percent. 

Figure 42. WTP per Household per acre ($/HH/acre) (2014$)

Freshwater 

Forested/Shrub

Freshwater 

Emergent

7% Discount Rate $0.04 $0.004

3% Discount Rate $0.06 $0.005

Aggregation of Benefits

The next step in a benefits analysis is to determine to whom benefits accrue. In the 

proposed rule analysis, benefits were determined to accrue across eight wetland regions in the 

contiguous United States identified by the USDA Economic Research service: Central Plains, 

Delta and Gulf, Mountain, Midwest, Northeast, Pacific, Prairie Potholes, and Southeast.25 

Alaska is not part of a wetland region and is treated separately. Accruing benefits on a regional 

scale assumes that all residents within that wetland region benefit from wetland losses within that 

region now being offset via compensatory mitigation. Three of the WTP studies used here 

surveyed respondents in multiple states. Thus, it may be appropriate to consider benefits at a 

regional level as wetlands provide services that affect downstream water quality and uses, 

including beyond state borders. However, aggregating benefits using the wetland regions 

requires ascribing benefits over a large geographic area and there are not data available to allow 

for examination of the effect distance from the resource being valued has on HH WTP for 

wetlands. 

Benefits from wetland losses now being compensated for via compensatory mitigation 

may also be assumed to accrue at the state level. This approach assumes that only residents 

within a state’s boundaries receive benefits from wetland losses offset within that state. This 

25 Heimlich, R.E., R. Claassen, K.D. Wiebe, D. Gadsby, and R.M. House. 1998. Wetlands and Agriculture: Private 

Interests and Public Benefits. AER-765, U.S. Department of Agriculture Economic Research Service, Washington, 

D.C.

49

 
calculation for benefits may be overly conservative as wetlands can provide services and benefits 

to downstream waters beyond a state’s boundaries, but it serves as a useful point of comparison. 

Additionally, six of the WTP studies utilized in this analysis completed WTP surveys with a 

statewide geographic scope. For these studies, ascribing benefits only within state boundaries 

may represent the most appropriate benefits transfer exercise

There are no clear boundaries determining to whom benefits should accrue. Though both 

approaches are described above as appropriate, estimating mitigation benefits using both and 

presenting the results as a range would introduce more variation to the analysis than is warranted. 

That is, the WTP values are from studies that represent largely a mix of the state and regional

approaches. Applying the values at only the state level or only the regional level would ascribe 

some values at the scale that would be less appropriate, and thus introduce additional variation

into the analysis. An additional reason that it is preferable to use a blended approach for the 

WTP estimates is that the WTP values from the studies represent both use and nonuse values. 

While we would expect the use values for a given household to be largely contained within the 

state where it is located, there is no reasonable justification for presuming that non-use values 

would only apply to wetlands contained within state boundaries. Instead, on a region by region 

basis, EPA has taken a blended approach, using the simple average of the WTP applied at the 

regional level and the weighted average WTP applied at the state level for the states in that 

region, and applied this blended WTP to the acreage estimated for that region. 

Regional benefits for each wetland type were calculated using the following formula: 

Regional Forested/Emergent benefits

= (Number of Households)

∗ (Blended WTP per HH at a given discount rate)

where Blended WTP per HH is the average of the WTPs per HH as applied at the state and 

regional levels, which also accounts for acreage of each wetland type in the region. The 

breakdown by region appears in Figure 13a and 13b. In the figures, multiplying the number of 

households by the household willingness to pay for each wetland type ($/HH), yields the total 

WTP. Given that the WTP per HH per acre is an order of magnitude lower for emergent 

wetlands than forested wetlands, while there are roughly double the acres of emergent wetlands 

relative to forested wetlands, the household WTP for emergent wetlands in each region is smaller 

than the household WTP for forested wetlands. The agencies observe the largest differences in 

HH WTP by wetland type in regions such as the Midwest and Northeast, where there are 

significantly more forested acres than emergent acres expected to be found jurisdictional. 

Assuming a 3 percent discount rate, this blended approach produces primary benefits estimates, 

depending on scenario assumptions regarding original or doubling of ORM2 other waters, of 

$306.1 and $501.2 million, respectively.

50
Figure 53a. Estimated Annual Compensatory Mitigation Benefits - Blended Approach 

Using Original Number of ORM2 Other Waters Records (2014$).

Blended Approach - 3% Discount Rate

Region # Households 

Acres 

Emergent

Acres 

Forested

HH WTP 

Emergent

($/HH)

HH WTP 

Forested

($/HH) Total WTP

AK 258,058 0.6 0.4 0.003 0.025 $7,143

Central Plains 3,293,676 14.9 6.1 0.046 0.224 $890,940

Delta and Gulf 15,407,697 40.3 47.7 0.154 1.910 $31,811,786

Midwest 24,277,640 36.4 140.9 0.104 4.610 $114,437,429

Mountain 7,835,482 62.1 25.8 0.173 0.859 $8,087,050

Northeast 24,477,954 22.5 77.9 0.063 2.599 $65,154,643

Pacific 16,716,512 31.8 12.4 0.128 0.575 $11,748,799

Prairie Potholes 2,234,657 507.4 13.2 1.403 0.435 $4,106,634

Southeast 21,492,571 14.8 99.3 0.045 3.206 $69,873,352

Total $306,117,776

Blended Approach - 7%

Region # HH 

Acres 

Emergent

Acres 

Forested

HH WTP 

Emergent

($/HH)

HH WTP 

Forested

($/HH) Total WTP

AK 258,058 0.6 0.4 0.002 0.018 $5,126

Central Plains 3,293,676 14.9 6.1 0.036 0.159 $643,828

Delta and Gulf 15,407,697 40.3 47.7 0.121 1.356 $22,757,646

Midwest 24,277,640 36.4 140.9 0.082 3.272 $81,414,670

Mountain 7,835,482 62.1 25.8 0.136 0.610 $5,841,816

Northeast 24,477,954 22.5 77.9 0.049 1.845 $46,360,576

Pacific 16,716,512 31.8 12.4 0.100 0.408 $8,499,674

Prairie Potholes 2,234,657 507.4 13.2 1.101 0.309 $3,150,026

Southeast 21,492,571 14.8 99.3 0.036 2.275 $49,667,535

Total $218,340,897

51
Figure 63b. Estimated Annual Compensatory Mitigation Benefits - Blended Approach 

Using Double the Number of ORM2 Other Waters Records (2014$).

Blended Approach - 3% Discount Rate

Region # Households 

Acres 

Emergent

Acres 

Forested

HH WTP 

Emergent

($/HH)

HH WTP 

Forested

($/HH) Total WTP

AK 258,058 1.0 0.7 0.005 0.041 $11,696

Central Plains 3,293,676 24.4 10.0 0.076 0.367 $1,458,757

Delta and Gulf 15,407,697 66.0 78.1 0.253 3.128 $52,086,199

Midwest 24,277,640 59.5 230.7 0.170 7.548 $187,371,142

Mountain 7,835,482 101.7 42.2 0.283 1.406 $13,241,121

Northeast 24,477,954 36.9 127.6 0.103 4.255 $106,679,257

Pacific 16,716,512 52.1 20.3 0.210 0.941 $19,236,590

Prairie Potholes 2,234,657 830.8 21.7 2.297 0.712 $6,723,890

Southeast 21,492,571 24.2 162.6 0.074 5.249 $114,405,313

Total $501,213,964

Blended Approach - 7%

Region # HH 

Acres 

Emergent

Acres 

Forested

HH WTP 

Emergent

($/HH)

HH WTP 

Forested

($/HH) Total WTP

AK 258,058 1.0 0.7 0.004 0.029 $8,393

Central Plains 3,293,676 24.4 10.0 0.060 0.260 $1,054,155

Delta and Gulf 15,407,697 66.0 78.1 0.198 2.220 $37,261,639

Midwest 24,277,640 59.5 230.7 0.134 5.357 $133,302,188

Mountain 7,835,482 101.7 42.2 0.222 0.998 $9,564,945

Northeast 24,477,954 36.9 127.6 0.081 3.020 $75,907,281

Pacific 16,716,512 52.1 20.3 0.165 0.668 $13,916,720

Prairie 

Potholes 2,234,657 830.8 21.7 1.802 0.506 $5,157,613

Southeast 21,492,571 24.2 162.6 0.058 3.726 $81,321,845

Total $357,494,779

52
Section 10: Summary of Estimated Indirect Costs and 

Benefits

Compared to a baseline of existing regulations and historic practice, this rule results in a 

decrease in CWA jurisdiction because the scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulations. Compared to a baseline of recent practice, this rule is 

estimated to result in a 2.84 to 4.65 percent increase in waters found jurisdictional under the 

Clean Water Act. Jurisdictional waters must not always be preserved in their natural state and 

never receive discharges of pollutants, but rather jurisdiction requires those seeking to discharge 

pollutants to receive a CWA permit and take required steps to ensure protection of water quality. 

This analysis estimates potential increases in costs and benefits from CWA programs that 

may subsequently see increased permitting activity as a result of this rule, including CWA 

Sections 311; 401; 402 CAFO, stormwater, and pesticide permits; and 404. 

Figures 14a and 14b display a summary of these monetized costs and benefits to CWA 

programs. There are several costs and benefits that are unable to be monetized, including 

permitting time and project redesign costs under Section 404, as well as the benefits of Section 

404 stream mitigation, benefits of the 402 pesticide general permit, and benefits of the 401 

certification program. A comparison of the monetized costs and benefits indicates that the 

benefits outweigh the costs.

Figure 74a. Estimated Annual Indirect Costs and Benefits to CWA Programs, Using 

Original Number of ORM2 Other Waters Records. 

Annual Costs (FY14$ 

millions)

Annual Benefits (FY14$ 

millions)

Low High Low High

CWA 402 CAFO Administration $0.2 $0.2 $3.8 $6.6 CWA 402 CAFO Implementation $6.1 $6.1

CWA 402 Stormwater 

Administration $0.3 $0.3 $29.0 $36.8 CWA 402 Stormwater 

Implementation $29.2 $36.4

CWA 404 Permit Application $28.7 $49.1 $306.1 $306.1 CWA 404 Mitigation – Wetlands $54.4 $152.3

SUBTOTAL $118.8 $244.3 $338.9 $349.5

CWA 311 Compliance $12.7 $12.7 not quantified

CWA 401 Administration $0.8 $0.8 not quantified

CWA 402 Pesticide General Permit 

Implementation $3.3 $3.6 not quantified

53
CWA 404 Mitigation – Streams $22.8 $45.2 not quantified

TOTAL $158.4 $306.6 $338.9 $349.5

Figure 84b. Estimated Annual Indirect Costs and Benefits to CWA Programs, Using 

Double the Number of ORM2 Other Waters Records. 

Annual Costs

(FY14$ millions)

Annual Benefits

(FY14$ millions)

Low High Low High

CWA 402 CAFO Administration $0.3 $0.3 $6.2 $10.8 CWA 402 CAFO Implementation $9.9 $9.9

CWA 402 Stormwater 

Administration $0.5 $0.5 $47.5 $60.2 CWA 402 Stormwater 

Implementation $47.8 $59.6

CWA 404 Permit Application $47.0 $80.3 $501.2 $501.2 CWA 404 Mitigation – Wetlands $89.0 $249.4

SUBTOTAL $194.6 $383.3 $554.9 $572.3

CWA 311 Compliance $12.7 $12.7 not quantified

CWA 401 Administration $1.3 $1.3 not quantified

CWA 402 Pesticide General Permit 

Implementation $5.4 $5.9 not quantified

CWA 404 Mitigation – Streams $22.8 $45.2 not quantified

TOTAL $236.0 $465.0 $554.9 $572.3

54
Section 11: Other Social Costs and Benefits

The changes in the definition of “waters of the U.S.” under the Clean Water Act as a 

result of this rule will also affect federal government operations. In general, the agencies believe 

that the final rule will expedite the permit review process in the long-term by clarifying 

jurisdictional matters that have been time-consuming and cumbersome for field staff and the 

regulated community. However, with a projected increase in waters that will be jurisdictional 

when compared to the recent practice baseline, the agencies anticipate that there will be an 

increase in permit applications to be managed. The estimated incremental administrative costs to 

the Corps are described below.

Corps Administrative Costs

The Corps anticipates that it will incur additional administrative costs under the rule 

associated with the increased permitting workload. The Corps is typically, but not always, the 

permitting authority for CWA 404 permits. The states of Michigan and New Jersey have 

assumed the CWA 404 permitting program and may experience additional costs, but these are 

not captured in this analysis. Sources of administrative costs include: responding to additional 

requests for jurisdictional determinations; an overall increase in workload-related tasks such as 

permit actions, consultations, and compliance and enforcement actions; and additional time to 

conduct significant nexus analyses. The Corps will also likely face additional costs to provide 

program management, training, and compliance oversight associated with administering the 

program, especially in the near term. Figure 16 briefly summarizes the principal cost categories 

for administering the CWA 404 program. 

Figure 95 - Overview of CWA 404 Administrative Costs

Cost Category Description (costs vary considerably by permit type and often by 

district)

Permitting Costs Costs associated with the time needed to review additional permits (which 

may be more complex due to a larger scope of review, reduction in the 

ability to avoid and minimize impacts, requiring more project 

modifications and additional mitigation) additional compliance and 

enforcement costs, additional mitigation plan reviews, effort to conduct 

additional agency consultations and coordination and possible increase in 

permit appeal requests and litigation costs. 

JD Review and 

Coordination 

Costs

Additional time needed to review additional JD requests, more 

coordination with Corps Headquarters for “other” (isolated) waters, 

additional time for District staff to prepare a significant nexus evaluation 

for “other” waters. More appeals of approved JDs may occur.

Automation Costs Additional costs for automating new JD forms, updating the permit 

tracking system (ORM2) to reflect needed data elements, updating user 

55
documentation.

Training Costs Additional costs for Corps districts to implement the new guidance/rule,

includes webinars, field training, and outreach activities for the regulated 

public.26

The increase in waters that the agencies consider jurisdictional from the 2008 Guidance 

may result in an increase in requests for JDs. Some changes contained in the final rule, such as 

providing a definition of tributaries that are categorically jurisdictional, should reduce the 

administrative costs of establishing jurisdiction. If such changes balance the expected increase in 

JD requests, there would be no incremental change administrative costs related to jurisdictional 

determinations.

Because the agencies expect that most non-isolated waters will be jurisdictional under the 

policies under the proposed rule, applicants may find “preliminary JDs” (PJDs) more appealing. 

In a PJD a permit applicant elects to set aside the question of jurisdiction and voluntarily “opts 

in” to the permitting process and avoids a longer “approved JD” (AJD) process. In FY2010, 58 

percent of JDs were PJDs (42 percent were AJDs). PJDs are less time-consuming to document 

than AJDs, but permit application processing may require more information describing 

jurisdictional waters (e.g., to assess impacts and formulate compensatory mitigation 

requirements). Alternatively, some applicants may request an AJD as a means to potentially 

reduce mitigation requirements and associated costs. If more landowners elect to request AJDs, 

the workload and administrative costs will increase.

The agencies expect that permit applications will increase as the Corps determines that 

more waters are jurisdictional. This increase in permit activity may increase required 

consultations under the Endangered Species Act (ESA) and Section 106 of the National Historic 

Preservation Act. This could increase costs for other agencies, such as the Fish and Wildlife 

Service, NOAA Fisheries, Advisory Council on Historic Preservation, and Tribal and State 

Historic Preservation Officers. 

Figure 16 depicts the broad categories and specific tasks related to Corps administration 

of the CWA 404 program. To derive an estimate of the incremental administrative costs, the 

Corps identified how many hours per year are devoted to each task at the headquarters and 

district office level and translated this into dollars using average fully loaded salary rates for the 

needed personnel. Applying an adjustment for the final rule incremental percentage for the 

increase in CWA 404 permits relative to the proposal, and converting from 2010 to 2014 dollars 

using the CPI, the Corps estimates that their additional administrative costs will range from $5.5

to $9.9 million for the 2.84 percent scenario, and $9.0 to $16.3 for the 4.65 percent scenario.

26 As the day-to-day permitting authority, the Corps will have primary responsibility for conducting outreach and 

training for industry and entities seeking permits. 

56

 
Figure 16 - Categories of Corps CWA 404 Administrative Tasks

Category Tasks

Wetland Delineation and 

Jurisdictional Determination (JD)

Preliminary JD

Office/Desk JD

Field JD

Permit Related Tasks 

Pre-Application Meetings

Standard Permit (SP) Processing Base

Letter of Permissions (LOP) 

Nationwide (NWP) Processing without a PreConstruction Notification (PCN)

NWP Processing with PCN

Regional/Programmatic (RGP/PGP) Processing 

without PCN (issued by Regulatory)

RGP/PGP Processing with PCN (issued by 

Regulatory)

Consultation

Endangered Species Act (ESA) Formal Consultation 

Process

ESA Informal Consultation Process

Historic Properties

Tribal

Environmental Impact Statement 

(EIS) 

EIS as Lead

EIS as Cooperating Agency

Compliance Compliance

Resolution of Non-Compliance

Enforcement Unauthorized Activity

57
Section 12: Related Acts of Congress, Executive Orders, 

and Agency Initiatives

Paperwork Reduction Act

This action does not impose any information collection burden under the provisions of 

the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). An 

agency may not conduct or sponsor, and a person is not required to respond to, a collection of 

information unless it displays a currently valid OMB control number. The OMB control numbers 

for the CWA section 402 program may be found at 40 CFR 9.1. (OMB Control No. 2040-0004, 

EPA ICR No. 0229.19). For the CWA section 404 regulatory program, the current OMB 

approval number for information requirements is maintained by the Corps of Engineers (OMB 

approval number 0710–0003). However, there are no new approval or application processes 

required as a result of this rulemaking that necessitate a new Information Collection Request 

(ICR). 

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the agency 

certifies that the rule will not have a significant economic impact on a substantial number of 

small entities. Small entities include small businesses, small organizations, and small 

governmental jurisdictions.

For purposes of assessing the impacts of this final action on small entities, “small entity” 

is defined as: (1) a small business that is a small industrial entity as defined in the U.S. Small 

Business Administration’s size standards (see 13 CFR 121.201); (2) a small governmental 

jurisdiction that is a government of a city, county, town, school district, or special district with a 

population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise 

that is independently owned and operated and is not dominant in its field. 

After considering the economic impacts of this rule on small entities, I certify that this 

final rule will not have a significant economic impact on a substantial number of small entities. 

See, e.g., Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001); Michigan v.

EPA, 213 F.3d 663 (D.C. Cir. 2000); Am. Trucking Ass’n v. EPA, 175 F.3d 1027 (D.C. Cir. 

1999); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985). 

58
Under the RFA, the impact of concern is any significant adverse economic impact on 

small entities, because the primary purpose of the initial regulatory flexibility analysis is to 

identify and address regulatory alternatives “which minimize any significant economic impact of 

the rule on small entities.” 5 U.S.C. 603. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulations. See 40 CFR 122.2 (defining “waters of the 

United States”). Because fewer waters will be subject to the CWA under the rule than are subject 

to regulation under the existing regulations, this action will not affect small entities to a greater 

degree than the existing regulations. As a consequence, this action will not have a significant 

adverse economic impact on a substantial number of small entities, and therefore no regulatory 

flexibility analysis is required.

The final rule is not designed to “subject” any entities of any size to any specific 

regulatory burden. Rather, it is designed to clarify the statutory scope of “the waters of the 

United States, including the territorial seas” (33 U.S.C. 1362(7)), consistent with Supreme Court 

precedent. This question of CWA jurisdiction is informed by the tools of statutory construction 

and the geographical and hydrological factors identified in Rapanos v. United States, 547 U.S. 

715 (2006), which are not factors readily informed by the RFA. 

Nevertheless, the scope of the term “waters of the United States” is a question that has 

continued to generate substantial interest, particularly within the small business community, 

because permits must be obtained for many discharges of pollutants into those waters. In light of 

this interest, the agencies sought wide input from representatives of small entities while 

formulating the proposed and final definition of this term that reflects the intent of Congress 

consistent with the mandate of the Supreme Court’s decisions. Such outreach, although 

voluntary, is also consistent with the President’s January 18, 2011 Memorandum on Regulatory 

Flexibility, Small Business, and Job Creation, which emphasizes the important role small 

businesses play in the American economy. This process has enabled the agencies to hear directly 

from these representatives, throughout the rule development, about how they should approach 

this complex question of statutory interpretation, together with related issues that such 

representatives of small entities may identify for possible consideration in separate proceedings. 

The agencies have prepared a report summarizing their small entity outreach, the results of this 

outreach, and how these results have informed the development of this rule. This report, Final 

Summary of the Discretionary Small Entity Outreach for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880-1927), is available in the docket. 

Unfunded Mandates Reform Act 

This action does not contain any unfunded mandate under the regulatory provisions of 

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538), and does 

not significantly or uniquely affect small governments. The action imposes no enforceable duty 

59
on any state, local, or tribal governments, or the private sector, and does not contain regulatory 

requirements that might significantly or uniquely affect small governments. The definition of 

“waters of the United States” applies broadly to CWA programs. 

Executive Order 13132: Federalism

This rule does not have federalism implications. It will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government. 

Keeping with the spirit of Executive Order 13132 and consistent with the agencies’

policy to promote communications with state and local governments, the agencies consulted with 

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

action and on the development of the rule. 

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

in 2011, and following the publication of the proposed rule in 2014. In addition to engaging key 

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

of stakeholders through extensive outreach to numerous State and local government 

organizations.

Early in the rulemaking process, EPA held two in-person meetings and two phone calls in 

the fall and winter of 2011. Organizations involved include the National Governors Association, 

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

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

County Executives of America, the National Associations of Towns and Townships, the 

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

Additionally, the National Association of Clean Water Agencies and the Association of Clean 

Water Administrators were invited to participate. The agencies held many additional calls and 

meetings with state and local governments and their associations, in preparation for the 

development of a proposed rule.

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

committed themselves to providing a transparent, comprehensive, and effective process for 

taking public comment on the proposed rule. As part of this consultation, EPA held a meeting 

on May 13, 2014 to seek technical input on the proposed rule from the largest national 

representative organizations for State and local governments. During this process the agencies 

also extended its focused outreach to include a series of meetings with the Local Government 

Advisory Committee, and the Environmental Council of the States in conjunction with the 

Association of Clean Water Administrators and the Association of State Wetland Managers. In 

60
addition to engaging these key organizations under, the agencies sought additional feedback on 

the proposed rule through broader public outreach to state and local government organizations 

during the public comment period.

During the consultation process, some participants expressed concern that the proposed 

changes may impose a resource burden on state and local governments. Some participants urged 

EPA to ensure that states are not unduly burdened by the regulatory revisions.

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to State, local, and county governments, the results of this outreach, and how 

these results have informed the development of today’s rule. This report, Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments for the

Revised Definition of Waters of the United States is available in the docket for this rule.

Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

Subject to the Executive Order (E.O.) 13175 (65 FR 67249, November 9, 2000), agencies 

may not issue a regulation that has tribal implications, that imposes substantial direct compliance 

costs, and that is not required by statute, unless the Federal government provides the funds 

necessary to pay the direct compliance costs incurred by tribal governments, or the agencies 

consult with tribal officials early in the process of developing the proposed regulation and 

develops a tribal summary impact statement. 

This action does not have tribal implications as specified in E.O. 13175. In compliance 

with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the 

agencies consulted with tribal officials throughout the rulemaking process to gain an 

understanding of tribal issues and solicited their comments on the proposed action and on the 

development of today’s rule. In the course of this consultation, the agencies participated in 

aspects of the process.

The agencies began consultation with federally-recognized Indian tribes on the Clean 

Water Rule defining waters of the U.S. in October 2011. The consultation and coordination 

process, including providing information on the development of an accompanying science report 

on the connectivity of streams and wetlands, continued, in stages, over a four year period, until 

the close of the public comment period on November 14, 2014. EPA invited tribes to provide 

written input on the rulemaking throughout both the tribal consultation process and public 

comment period.

EPA specifically consulted with tribal officials to gain an understanding of, and to 

address, the tribal implications of the proposed rule. In 2011, close to 200 tribal representatives 

61
and more than 40 tribes participated in the consultation process, which included multiple 

webinars and national teleconferences and face-to-face meetings. In addition, EPA received 

written comments from three tribes during the initial consultation period.

EPA continued to provide status updates to the National Tribal Water Council and the 

National Tribal Caucus during 2012 through 2014. The final consultation event was completed 

on October 23, 2014 as a national teleconference with the Office of Water’s Deputy Assistant 

Administrator. Ultimately, EPA received an additional 23 letters from tribes/tribal affiliations by 

the completion of the consultation period. The comments indicate that Tribes, overall, support 

increased clarity of waters protected by the Clean Water Act, but some express concern with the 

consultation process and the burden of any expanded jurisdiction. The feedback received through 

consultation and written comments have been incorporated in today’s rule. 

The agencies have prepared a report summarizing their consultation with tribal nations, 

and how these results have informed the development of this rule. This report, Final Summary of 

Tribal Consultation for the Clean Water Rule: Definition of “Waters of the United States” Under 

the Clean Water Act; Final Rule is available in the docket for this rule. 

As required by section 7(a), EPA’s Tribal Consultation Official has certified that the 

requirements of the executive order have been met in a meaningful and timely manner. A copy 

of the certification is included in the docket for this action.

Executive Order 13045: Protection of Children from 

Environmental Health and Safety Risks

This action is not subject to E.O. 13045 because the environmental health or safety risks 

addressed by this action do not present a disproportionate risk to children.

Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined in Executive Order 13211 (66 

FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the 

supply, distribution, or use of energy.

62
Appendix A: Supplemental Cost Analysis Information

Figure 107. Occupational Employment and Wage Estimates.

Position Occupational 

Code1 

Mean 

Hourly 

Wage1 

Benefits 

Adjustment 

Factor3 

Year 

Adjustment4 

Total Hourly 

Adjusted 

Wage

Private Industry

Environmental Scientist 19-2041 $35.89

1.30 1.03

$47.96

Environmental Engineer 17-2081 $41.74 $55.77

Administrative Assistant 43-6011 $27.32 $36.51

Lawyer 23-1011 $66.41 $88.74

Economist 19-3011 $50.54 $67.53

Local Government

Environmental Scientist 19-2041 $30.27

1.35 1.02

$41.88

Environmental Engineer 17-2081 $37.58 $51.99

Administrative Assistant 43-6011 $25.09 $34.71

Lawyer 23-1011 $46.13 $63.82

Economist 19-3011 $36.35 $50.29

State Government

Environmental Scientist 19-2041 $28.50

1.35 1.02

$39.43

Environmental Engineer 17-2081 $35.26 $48.78

Administrative Assistant 43-6011 $21.42 $29.63

Lawyer 23-1011 $40.19 $55.60

Economist 19-3011 $30.78 $42.58

Federal Government

Environmental Scientist 19-2041 $46.93

1.31 1.03

$63.18

Environmental Engineer 17-2081 $46.91 $63.16

Administrative Assistant 43-6011 $27.322 $36.79

Lawyer 23-1011 $62.87 $84.65

Economist 19-3011 $53.54 $72.08

1. Occupational codes and mean hourly wage from BLS (2014). Bureau of Labor Statistics (BLS), United States 

Department of Labor. 2014. Occupational Employment and Wages, May 

2013. http://www.bls.gov/oes/current/oes_nat.htm 

2. Hourly mean wage for administrative assistants working in the federal government not calculated in the May 2013 

dataset. Hourly mean wage for private industry used for federal government rate.

3. Adjusted for benefits according to the Employment Cost for Employee Compensation Index for professional and 

related for private industry, local and state employees, and civilian workers. Average value across all three quarters 

of 2013. http://www.bls.gov/ncs/ect/ 

4. Escalated to 2014 dollars using the seasonally-adjusted Employment Cost Index for private industry (May 2013 

(Q2) =118.4, 2014 Q3=121.7), state and local employees (May 2013 (Q2) =121.0, 2014 Q3=124.0), and civilian 

workers (May 2013 (Q2) =118.9, 2014 Q3=122.2) 

63
Figure 18. State-Level Unit Cost Data and Incremental Increases in Wetland and Stream 

Mitigation.

State

Increase 

in 

Wetland 

Mitigation 

(Acres)

Per Acre Unit 

Cost of Wetlands 

Mitigation

Increase in 

Stream 

Mitigation 

(Linear Feet)

Per Linear Foot 

Unit Cost of 

Stream 

Mitigation

Low High Low High

AK 3.4 $5,500 $55,000 23 $1,000 $1,000

AL 23.7 $10,524 $21,049 2,259 $380 $964

AR 23.7 $2,105 $5,262 54,862 $185 $343

AZ 36.3 $9,000 $23,000 1,000 $185 $343

CA 122.1 $18,500 $350,000 723 $185 $343

CO 25.2 $33,678 $105,245 14 $185 $343

CT 0.5 $124,000 $470,448 - $185 $343

DE 0.5 $41,244 $41,244 - $185 $343

FL 93.5 $35,000 $217,800 47 $185 $343

GA 13.6 $12,000 $136,000 - $878 $975

IA 6.8 $15,787 $15,787 162 $185 $343

ID 1.9 $41,244 $41,244 348 $185 $343

IL 170.1 $41,244 $206,221 3,920 $185 $343

IN 55.7 $45,671 $91,341 11,316 $185 $343

KS 33.9 $52,622 $52,622 714 $185 $343

KY 14.5 $30,000 $64,600 7,916 $170 $396

LA 6.3 $15,787 $64,600 44 $185 $343

MA 1.9 $124,000 $621,166 - $100 $343

MD 7.3 $12,917 $68,109 - $294 $688

ME 0.5 $254,390 $377,230 - $185 $343

MI 0.5 $40,000 $80,000 - $185 $343

MN 34.9 $9,294 $76,443 33 $185 $343

MO 4.4 $15,787 $26,311 62 $95 $387

MS 2.9 $3,157 $26,311 86 $185 $343

MT 89.6 $41,244 $41,244 793 $185 $343

NC 22.8 $25,874 $69,736 25 $289 $381

ND 1441.9 $15,787 $15,787 201 $185 $343

NE 32.5 $15,787 $15,787 148 $185 $343

NH 0.5 $92,042 $128,330 - $185 $343

NJ 4.8 $82,489 $412,443 - $185 $343

NM 0.5 $42,098 $63,147 - $185 $343

NV 179.7 $56,711 $67,022 98 $185 $343

NY 145.3 $50,000 $94,000 249 $310 $420

OH 289.7 $12,000 $72,000 8,247 $240 $450

64
State

Increase 

in 

Wetland 

Mitigation 

(Acres)

Per Acre Unit 

Cost of Wetlands 

Mitigation

Increase in 

Stream 

Mitigation 

(Linear Feet)

Per Linear Foot 

Unit Cost of 

Stream 

Mitigation

Low High Low High

OK 2.4 $15,787 $15,787 1,038 $185 $343

OR 18.9 $54,500 $125,170 - $185 $343

PA 57.7 $12,000 $15,000 1,039 $185 $343

RI 0.5 $124,000 $160,000 - $185 $343

SC 144.9 $26,311 $105,245 972 $79 $217

SD 166.7 $15,787 $15,787 331 $185 $343

TN 18.9 $25,000 $25,000 69 $54 $217

TX 236.4 $15,000 $45,000 5,837 $80 $220

UT 37.3 $56,711 $67,022 - $185 $343

VA 75.1 $16,000 $140,000 - $300 $977

VT 1.5 $110,000 $132,000 - $185 $343

WA 3.9 $34,677 $318,546 48 $185 $343

WI 10.7 $58,000 $61,000 10 $185 $343

WV 108.0 $30,000 $64,000 9,279 $400 $869

WY 6.8 $15,787 $15,787 - $185 $343

Total 3,781 111,916 

65
Appendix B: Supplemental Benefit Estimate Information

Summary of Wetland Benefits Studies Used to Generate WTP Estimates

Study Location NWI 

Category

Study 

Area 

(acres)

Survey 

Population

Response 

Rate

WTP 

Value 

from 

Study 

(2014$)1 

WTP 

Description

Standardized 

One-Time 

WTP per 

Acre2 

Azevedo 

et al 

(2000)

IA Emergent 7,000 and 

32,3453 

Random sample 

of Iowa residents 

statewide, 

additional 

random sample 

of a targeted 

group of 

hunters/anglers

58.1%4 $13.75-

$34.37

Iowa residents' 

one-time WTP to 

preserve and 

restore wetlands 

through the 

Prairie Pothole 

Joint Venture 

and Iowa River 

Corridor Project

$0.0011-

$0.0020

Blomquist 

and 

Whitehead 

(1998)

KY, IN, 

TN, IL, 

MO

Forested/Shrub 500 Random dialing 

of households in 

Western 

Kentucky and 

nearby areas of 

Indiana, 

Tennessee, 

Illinois and 

Missouri from 

phone directories

66.7% $3.06-

$20.30

Household

annual WTP for 

four wetlands 

with differing 

characteristics in 

western 

Kentucky

$0.1575-

$1.0447

66 
Study Location NWI 

Category

Study 

Area 

(acres)

Survey 

Population

Response 

Rate

WTP 

Value 

from 

Study 

(2014$)1

WTP 

Description

Standardized 

One-Time 

WTP per 

Acre2

Dillman et 

al (1993)

SC Forested/Shrub 2,500 Random sample 

of South 

Carolina 

households 

statewide

21% $28.25 South Carolina 

households’ onetime WTP for 

preservation of 

one of three 

2,500 acre 

wetlands in the 

Francis Biedler 

forest of South 

Carolina

$0.0113

Johnson 

and 

Linder 

(1986)

SD Emergent 1,307,187 One percent 

random sample 

of a targeted 

group, South 

Dakota anglers 

and hunters 

statewide

61% $626.18 South Dakota 

hunters’ onetime WTP for 

wetlands 

statewide for 

hunting. 

Majority of 

hunting wetlands 

are located in the 

eastern part of 

the state.

$0.0005

Lant and 

Tobin 

(1989)

IA, IL Forested/Shrub 2,109 and 

1,1085

In-person 

interviews with 

residents of 

towns near the 

three rivers 

examined.

Not 

reported.

$46.30-

$104.22

Annual WTP to 

improve water 

quality in two 

different river 

basins.

$0.3029-

$2.4203

67
Study Location NWI 

Category

Study 

Area 

(acres)

Survey 

Population

Response 

Rate

WTP 

Value 

from 

Study 

(2014$)1

WTP 

Description

Standardized 

One-Time 

WTP per 

Acre2

Loomis et 

al. (1991)

CA Emergent 85,000 

and 

125,0006

Random sample 

of households in 

San Joaquin 

Valley and 

throughout 

California

51% $267.68-

$441.49

Annual 

California 

statewide 

household WTP 

to protect and 

restore San 

Joaquin Valley 

wetlands.

$0.0435-

$0.0909

Mullarky 

and 

Bishop 

(1999)

WI Emergent 110 Random sample 

of Wisconsin 

residents 

statewide

43.5% $19.44-

$34.20

Annual WTP for 

a hypothetical 

rerouting of a 

highway 

expansion that 

would preserve 

110 acres of 

wetlands in 

Wisconsin

$2.4389-

$8.0003

Poor 

(1999)

NE Emergent 41,000 Random 

statewide sample 

of Nebraska 

households

46% $31.76 Annual WTP to 

increase the area 

of wetlands in 

Nebraska’s 

rainwater basin

wetland region

by an average of 

41.000 acres

$0.0107-

$0.0199

68
Study Location NWI 

Category

Study 

Area 

(acres)

Survey 

Population

Response 

Rate

WTP 

Value 

from 

Study 

(2014$)1

WTP 

Description

Standardized 

One-Time 

WTP per 

Acre2

Roberts 

and Leitch 

(1997)

MN, SD Emergent 5,000 Minnesota and 

South Dakota 

households 

within a 30-mile 

radius of Mud 

Lake

62% $9.34 Annual value to 

households to 

households of 

Mud Lake, a 

managed 

lacustrine 

wetland on the 

border of 

Minnesota and 

South Dakota

$0.0258-

$0.0480

Whitehead 

and 

Blomquist 

(1991)

KY Forested 5,000 Random cluster 

sample of 

Western 

Kentucky 

households from 

phone directories

31% $9.72-

$31.71

Kentucky 

households’ 

annual WTP for 

preservation of 

Clear Creek 

wetland, a large 

natural wetland 

with hardwood 

trees, standing 

water, and nonwoody 

vegetation.

$0.0268-

$0.1632

69
Study Location NWI 

Category

Study 

Area 

(acres)

Survey 

Population

Response 

Rate

WTP 

Value 

from 

Study 

(2014$)1 

WTP 

Description

Standardized 

One-Time 

WTP per 

Acre2 

1. If frequency of payment not specified, EPA assumed WTP is in terms of a one-time payment. Figures updated to 2014$ 

using CPI-U.

2. For estimates reported as annual WTP, the agencies derived the total present value over a period of 50 years using 3 percent 

and 7 percent discount rates.

3. Azevedo et all present WTP for two different study areas, sized 7,000 acres and a project to preserve a total of 40,000 acres 

of prairie potholes over 15 years, at a rate of 2,500 acres per year. This figure was discounted at a 3% rate, to develop a 

project size of 32,345

4. 58.1% represents average overall response rate for Azevedo et al. The response rate for Iowa River Corridor survey (study 

area 7,000 acres) was 56.5%. The response rate for the Prairie Pothole version of the survey (study area 32,345 acres) was 

58.9%. 

5. Lant and Tobin (1989) estimate the increase in wetland acreage in the riparian corridor to achieve water quality 

improvements in two different river basins. It is estimated an increase of 2,109 acres of wetlands would achieve the valued 

water quality improvements in the Edwards River basin and 1,108 new acres of wetlands would achieve the valued water 

quality improvements in the South Skunk River.

6. Loomis et al. present statewide WTP values to preserve existing wetlands of 85,000 acres and also for a program with a total 

size of 125,000 acres that would preserve the original 85,000 acres plus restore an additional 40,000 acres. 

70
Summary of Wetland Benefits Studies

Azevedo, C., J.A. Herriges, and C.L. Kling. 2000. Iowa Wetlands: Perceptions and Values. 

Center for Agricultural and Rural Development. Staff Report 00-SR 91.

Azevedo et al. (2000) conducted a survey to understand how residents of Iowa value wetlands, 

specifically with regard to the following functions: wildlife viewing, fishing, biking, hiking, 

waterfowl and upland hunting. The 5-part survey collected information regarding wetland 

visitation patterns, perceived benefits and costs associated with wetlands, socioeconomic 

characteristics of respondents, and their WTP for preservation of existing wetlands and 

restoration of additional wetlands via two specific programs: the Prairie Pothole Joint Venture 

(PP) and the Iowa River Corridor Project (IRCP). The authors used contingent valuation to 

evaluate WTP for restoring additional wetlands through PP and ICRP. Results indicated that 

approximately 50% of Iowans would pay $25 in support of PP and less than $10 for ICRP (2000 

dollars).

Blomquist, G.C. and J.C. Whitehead. 1998. Resource Quality Information and Validity of 

Willingness to Pay in Contingent Valuation. Resource and Energy Economics 20: 179-196.

Blomquist and Whitehead (1998) conducted a contingent valuation study to estimate the value of 

four wetlands in Western Kentucky with differing characteristics. One was a freshwater marsh, 

one was a temporarily flooded bottomland hardwood forest, one was a seasonally flooded 

bottomland hardwood forest, and one was a bald cypress swamp. Wetland functions included 

flood control, water quality improvements, and wildlife production/habitat. WTP ranged from 

$1.69 (1990 dollars) for Flat Creek, a freshwater marsh, to $11.21 (1990 dollars) for Cypress 

Creek, a cypress swamp.

Dillman, B., L.J. Beran, and D.D. Hook. 1993. Nonmarket Valuation of Freshwater Wetlands: 

The Francis Beidler Forest. South Carolina Water Resources Research Institute, Clemson 

University.

Dillman et al. (1993) estimated the WTP for preservation of 2,500 acres of wetlands in the 

Francis Biedler forest of South Carolina using dichotomous choice contingent valuation method. 

The study examined three types of wetland: frequently flooded bottomland (cypress-tupelo 

swamp), infrequently flooded bottomland hardwood forest, and non-bottomland pine plantation 

with hardwood runners. These wetlands served the following functions: flood control, wildlife 

habitat, recreational activities, water supply, and aesthetic value. The mean WTP estimated was 

$16.74 (1993 dollars) per household (ranging from $6.82 for infrequently flooded bottomland 

hardwood forests to $19.57 for pine plantations with scattered hardwood runners).

Johnson, C.W. and R.L. Linder. 1986. An Economic Valuation of South Dakota Wetlands as a 

Recreation Resource for Resident Hunters. Landscape Journal 5(1): 33-38.

71
Johnson and Linder (1986) conducted a contingent valuation study to estimate the value of 

wetlands in South Dakota as a recreational resource for resident hunters. The study examined 

wetlands statewide, the majority of which are located in the eastern part of the state. Their results 

indicated that the total value for waterfowl, upland, big game, and predator hunting in South 

Dakota wetlands in 1986 dollars was $34 million, and that the average total per user value of 

wetlands was $289.90 for a single hunting season.

Lant, C.L. and G.A. Tobin. 1989. "The Economic Value of Riparian Corridors in Cornbelt 

Floodplains: A Research Framework". Professional Geographer 41(3): 337-49.

Lant and Tobin (1989) studied willingness to pay higher state sales tax to improve water quality 

of riparian corridors in Iowa and Illinois. The study examined three river corridors utilizing faceto-face interviews: the Edwards River in Illinois, the South Skunk River in Iowa, and the 

Wapsipinicon River in Iowa. A necessary increase in wetland acreage in the Riparian corridor to 

achieve water quality improvements was estimated. WTP per person for improvement of quality 

in the Edwards River to that in the South Skunk was $8.85 per year (1989$), and value per 

person for improvement of quality in the South Skunk River to that in the Wapsipinicon was 

$20.37 per year (1989$). The study also reported a state mean average household size of 2.74 

and 2.68 individuals per household in Illinois and Iowa respectively. This study had a very small 

sample size.

Loomis, J., M. Hanemann, B. Kanninen and T. Wegge. 1991. "Willingness to Pay to Protect 

Wetlands and Reduce Wildlife Contamination from Agricultural Drainage." In A. Dinar and D. 

Zilberman (eds.), The Economics and management of Water and Drainage in Agriculture. 

Boston, Massachusetts: Kluwer Academic Publishers, pp. 411-445.

Loomis et al. (1991) studied California residents’ willingness to pay additional taxes to preserve 

and restore wetlands in California’s San Joaquin Valley. The study’s focus was wetlands as a 

habitat for migratory birds. The study found that average statewide annual household willingness 

to pay for a program to prevent further destruction of an existing 85,000 acres of wetlands was 

$154, and the mean statewide willingness to pay for a program including both maintenance of 

existing acreage plus the restoration of an additional 40,000 acres was $254 (1990 dollars). The 

study also examined a program to reduce and prevent further pollution of wildlife habitat in the 

region, and to increase Chinook salmon populations. 

Mullarkey, D.J. and R.C. Bishop. 1999. Sensitivity to Scope: Evidence from a CVM Study of 

Wetlands. Presented at the Annual Meeting of the American Agricultural Economics 

Association, Nashville, TN, August 8-11, 1999.

Mullarkey and Bishop (1999) conducted a study of WTP for a hypothetical rerouting of a 

highway expansion that would preserve 110 acres of wetlands in Wisconsin. The wetlands in 

question provide a range of services including flood control, water purification, bird/wildlife 

habitat, and for a portion of the affected wetlands, fish habitat. The study reported six estimates 

72
of WTP ranging from $13.68 to $57.83 (1999 dollars) depending upon whether respondents were 

informed that mitigation would be taking place if the wetland were destroyed and the degree of 

certainty respondents expressed in their answers.

Poor, P.J. 1999. The Value of Additional Central Flyway Wetlands: The Case of Nebraska’s 

Rainwater Basin Wetlands. Journal of Agricultural and Resource Economics 24: 253-265.

Poor (1999) examined WTP to increase the area of wetlands in Nebraska’s rainwater basin by an 

average of 41,000 acres across multiple survey versions. The basin is a large complex of 34,000 

wetland acres, and a plan is already in place to create an additional 25,000 wetland acres. 

Wetland services in this study included flood control, water quality improvement, wildlife 

production and habitat, and bird watching/hiking. Median and mean household WTP were $4.17 

and $21.05 (1996 dollars), respectively.

Roberts, L.A. and J.A. Leitch. 1997. Economic Valuation of Some Wetland Outputs of Mud 

Lake, Minnesota-South Dakota. North Dakota Agricultural Experiment Station. Agricultural 

Economics Report No. 381.

Roberts and Leitch (1997) conducted a contingent valuation study of the value of Mud Lake, a 

managed lacustrine wetland on the border of Minnesota and South Dakota. This study used a 

discrete choice survey to determine use, option/bequest, and existence values for Mud Lake. Use 

values, defined as WTP for management for water related recreation and fish/wildlife habitat 

ranged from $22,699 to more than $44,736 (1997 dollars) for all respondents in the sample. 

Option/bequest values ranged from $25,795 to more than $52,750 (1997 dollars) for all 

respondents in the sample. Existence values ranged from $18,508 to more than $40,451 (1997 

dollars) for all respondents in the sample. Total overall median willingness to pay for the sample 

was estimated to be $102,000 (1997 dollars).

Whitehead, J.C. and G.C. Blomquist. 1991. Measuring Contingent Values for Wetlands: Effects 

of Information about Related Environmental Goods. Water Resources Research 27: 2523-2531.

Whitehead and Blomquist (1991) utilized contingent valuation to examine Kentucky residents’ 

WTP for preservation of the Clear Creek wetland, a large natural wetland with hardwood trees, 

standing water, and non-woody vegetation. The wetland provides a range of services including 

water quality maintenance, fish and wildlife habitat, flood and sediment control, groundwater 

recharge, biological productivity and outdoor recreation. The study used three different survey 

versions consisting of two WTP questions each, with the difference in each case reflecting a 

difference in information presented about the wetland quality that would result if Clear Creek is 

not preserved. WTP values ranged from $5.09 to $16.61 (1991 dollars) under the scenario 

discussing preservation and reclamation of Clear Creek itself, and from $3.75 to $8.13 (1991 

dollars) under scenarios discussing preservation of other wetlands concurrent with reclamation of 

Clear Creek. 

73
Procedure for Standardizing and Weighting WTP Values from 

Benefits Studies

WTP estimates were standardized across studies as follows:

1. For WTP values reported as an annual value, the agencies derived the total present value 

over a period of 50 years using 3 percent and 7 percent discount rates.

2. In a few studies WTP values were reported for individuals as opposed to per household. 

In such cases, the agencies applied the individual value as if it were representative of the 

household value, with the exception of Lant and Tobin (1989), which explicitly stated the 

average household size at the time the study was completed. Where an individual was 

assumed to represent the household value, for studies where the average household size 

was actually greater than one, this leads to an underestimate of benefits. 

3. WTP per household per acre was calculated using the reported size of the wetlands 

valued in the studies. 

Standardized WTP values were sorted by NWI Category, and an overall WTP value was 

calculated using a geometric mean, weighted by the number of respondents per survey (a study 

may have more than one survey). In circumstances where multiple WTP values were extracted 

from a one survey, the total weight assigned to that survey was divided amongst the observations 

utilized.

74
Appendix C: Alternative Scenario Similar to Proposed Rule

This appendix examines the scenario of how overall costs and benefits to CWA programs 

as a result of the rule using one of the key assumptions in the jurisdictional analysis that was 

applied in the EA supporting the proposed rule. The scenario assumes a doubling of the number 

of ORM2 other waters records only for those waters that would be determined to be 

jurisdictional under (a)(7) and (a)(8) provisions. This approach to doubling is similar to the 

approach used in the economic analysis accompanying the proposed rule, where doubling was 

only utilized for the calculations for ORM2 other waters not becoming jurisdictional as adjacent. 

This alternative scenario uses the same costs and benefits methodologies and data as the rest of 

this economic analysis. This scenario corresponds to an overall increase in positive jurisdictional 

determinations of 3.67 percent. Corresponding costs range from $194.3 to $379.2 million with 

benefits of $437.9 to $451.7 million.

Figure 19. Estimated Annual Indirect Costs and Benefits, Using Double the Number of 

ORM2 Other Waters Records That Fall Under (a)(7) or (a)(8)

Annual Costs (FY14$ 

millions)

Annual Benefits (FY14$ 

millions)

Low High Low High

CWA 402 CAFO Administration $0.2 $0.2 $4.9 $8.5 CWA 402 CAFO Implementation $7.8 $7.8

CWA 402 Stormwater Administration $0.4 $0.4 $37.5 $47.5 CWA 402 Stormwater Implementation $37.8 $47.0

CWA 404 Permit Application $37.1 $63.4 $395.6 $395.6 CWA 404 Mitigation – Wetlands $70.3 $196.8

SUBTOTAL $153.6 $315.7 $437.9 $451.7

CWA 311 Compliance $12.7 $12.7 not quantified

CWA 401 Administration $1.0 $1.0 not quantified

CWA 402 Pesticide General Permit 

Implementation $4.3 $4.7 not quantified

CWA 404 Mitigation – Streams $22.8 $45.2 not quantified

TOTAL $194.3 $379.2 $437.9 $451.7

75